26 April 2011

Pay to Prosecute?

Sometimes, when you are reading through the statutes you run across some interesting things. Today, I was reading through the pre-trial sections of the Virginia Code to check on some indictment procedures and found this:
§ 19.2-229. When complaining witness required to give security for costs.

For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.
It's an interesting statute in that it does not require the Commonwealth to pay costs; thus, it's not a redundant section requiring payment for attorneys or experts in an indigent case. This is aimed directly at "a complaining witness."

Who, then, is this aimed at? One possibility is that it was meant to apply to citizens who come in time after time after time after time to the magistrate swearing out warrants for every time their neighbor looks at them cross-eyed. Also, it might be intended to keep merchants from using bad check charges to collect their money without paying the fees that it would cost to do civil collection. Of course, the problem with these possibilities is that vast majority of those charges are handled in General District Court and Virginia Code Section 19.2 only applies to Circuit Courts.

A second question which comes to mind is whether, should a defense attorney move that the judge impose this section on a complaining witness in a case, would the prosecution have standing to oppose the motion? After all, the prosecutor represents the government; she's not the personal attorney of the complaining witness.


Anonymous said...

Interesting. This section is also silent on when the "security" should forfeited. Everytime there's an acquittal, or just those rare cases where the court finds that the complaint was maliciously filed?

Bracton said...

The section likely reflects (or codifies) the practice at common law. At the assizes, trials of criminal cases began with the clerk "call[ing] those bound over to prosecute at the assizes, who instructed the associate or his clerk to draw on parchment their bills of indictment." Cockburn, A History of English Assizes: 1558-1714 at 111.