14 October 2015

Private Prosecutors

 Rules for a private prosecutor as laid out in Riner v. Commonwealth, 268 Va. 296 (2004):
1. He may not initiate a prosecution.
2. He may not appear before the grand jury.
3. He may appear only by leave of the trial court.
4. He may participate only with the express consent of the public prosecutor.
5. He may make a closing jury argument only in the court's discretion.
6. He may take no part in a decision to engage in plea bargaining.
7. He may take no part in deciding the terms of a plea bargain.
8. He may not make the decision to accept a plea of guilty to a lesser crime.
9. He may not make the decision to enter a nolle prosequi.
10. Automatic disqualification: A private prosecutor who has a civil interest in the case so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. Allowing that private prosecutor violates the defendant's due process rights under Article I, §11 of the Constitution of Virginia.
11. Work Allowed to Do: (a) There is no arbitrary limitation as to the proportion of work which may be done by a private prosecutor.  (b) Limiting private prosecutors to innocuous witnesses and evidentiary matters would effectively abrogate the common-law principle that still permits their appointment.
12. ULTIMATE RULE: The public prosecutor must remain in continuous control of the case.


Piedmont said...

Okay, so dumb question...does this mean that a complaining witness who obtains a warrant, and has a case that involves restitution, can't prosecute that case if the CA doesn't want to participate?

Ken Lammers said...

While I've never seen that question addressed directly, I think that you are definitely correct as far as any felonies go. Commonwealth Attorneys (and in some cases the Attorney General) are the only entities with authority to prosecute them. Statutorily, the Commonwealth Attorney is allowed, but not required, to prosecute the top three classes of misdemeanors. If the Commonwealth declines to prosecute, cities and towns may appoint an attorney to prosecute for them if the Commonwealth Attorney agrees to allow it. So technically I think the answer would be that a citizen cannot prosecute a misdemeanor herself. HOWEVER, these waters are muddied by the fact that it is common practice across Virginia for officers to stand alone and prosecute cases in which they are fact witnesses. There is an argument that a citizen who is a fact witness should be able to do the same thing standing alone without an attorney. There is also a counter argument that an officer is presumed to possess no interest or bias in a case (he is not pressing a charge as a way to do an end around on more difficult and expensive civil litigation). A citizen, particularly one who would be due restitution, is not entitled to that presumption. As far as I know this is an unanswered question. Personally, I think the second argument is more persuasive legally because it tracks more with the given rationale for the limitations on private prosecutors.