From time to time, I am asked about the right of private citizens to initiate criminal charges by approaching a magistrate. The arrest warrant statute, G.S. 15A-304, requires only that a magistrate be “supplied with sufficient information, supported by oath or affirmation” to find probable cause. The statute doesn’t limit the source of that information to law enforcement officers. As most readers know, it is common in North Carolina for private citizens to seek the issuance of an arrest warrant or a summons.
I have long thought that this was a distinctive feature of North Carolina law, but it seems to be somewhat more common than I believed.
The general rule in the United States is that private citizens can’t initiate criminal prosecutions. There turn out to be quite a few exceptions, but the general rule does seem to be that only government officials of various kinds can initiate criminal prosecutions. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973) (stating that “in American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Smith v. Kreiger, 389 Fed. Appx. 789 (10th Cir. 2010) (ruling that, in the federal system, prosecutors have exclusive authority to prosecute crimes and that a private citizen “has no right to initiate a criminal prosecution”); Kailey v. Chambers, 261 P.3d 792 (Colo. Ct. App. 2011) (collecting cases and concluding that private citizens cannot seek arrest warrants); Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 Harv. J. L & Pub. Pol’y 357 (1986) (stating that “[c]ourts generally grant the public prosecutor the exclusive power to initiate criminal proceedings,” and stating that “[w]here the right of a private citizen to file a criminal complaint has been recognized, it is generally statutorily based and limited to prosecution of specified crimes,” otherwise, “no private citizen can initiate a criminal proceeding, even for a misdemeanor”).
Many states have exceptions. I don’t know exactly how many states allow private citizens to initiate criminal charges. I’m not aware of anyone who has done a 50-state survey. But a few hours of looking on my part has turned up the following partial list:
- North Carolina: as noted above.
- South Carolina: a private citizen may initiate a criminal case by approaching a magistrate, though the magistrate may issue only a summons, not an arrest warrant, in response to a private citizen’s complaint. S.C. Code § 22-5-110.
- Maryland: a private citizen may apply to a “commissioner,” similar to a North Carolina magistrate, who may issue a summons or, under limited circumstances, an arrest warrant. Md. Stat. § 2-607(c)(6) .
- Virginia: private citizen complaints are permitted but must be made in writing. Va. Stat. § 19.2-72.
- Georgia: criminal process may be issued based on a request by a private citizen, though only after a “warrant application hearing” at which the potential accused has an opportunity to argue that charges should not be issued. Ga. Code. 17-4-40.
- Pennsylvania: a private citizen may file a complaint with a prosecutor. If the prosecutor approves it, the complaint is transmitted to a judicial official for issuance of process. If the prosecutor disapproves the complaint, the citizen has the right to seek judicial review of that decision. Penn. R. Crim. P. 506.
- Ohio: a private citizen “may file an affidavit charging the offense committed with a [judge, prosecutor, or magistrate] for the purpose of review to determine if a complaint should be filed by the prosecuting attorney.” Ohio Code § 2935.09. Apparently, this process was enacted in 2006, replacing a process by which a private citizen could charge a crime directly, without review by any official, by submitting an affidavit charging the offense. State v. Mbodji, 951 N.E.2d 1025 (Ohio 2011).
- Idaho: Idaho law appears to be similar to North Carolina’s: “[A] warrant for arrest may be issued upon a complaint filed upon information by a private citizen if the magistrate, after investigation, is satisfied that the offense has been committed.” State v. Murphy, 584 P.2d 1236 (Idaho 1978). See also Idaho Stat. 19-501 et seq. (describing the procedure for seeking an arrest warrant with no limitation to law enforcement officers).
- New Hampshire: at least certain minor offenses may be initiated – and prosecuted – by private citizens. State v. Martineau, 808 A.2d 51 (2002).
- Some states apparently allow crime victims or witnesses to approach the grand jury to seek an indictment. Douglas E. Beloof, Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure, 56 Cath. U. L. Rev. 1135 (2007) (explaining that such a right exists in Texas).
Limits on charges initiated by private citizens. The above list illustrates that many jurisdictions that allow private citizens to initiate criminal charges place limitations on such cases. Some allow only low-level cases to begin with a citizen’s complaint; others require citizen-initiated cases to begin with a summons rather than a warrant; others require a citizen’s complaint to be in writing; and still others require a prosecutor or other official to review a citizen’s complaint, or give the would-be accused an opportunity to be heard.
North Carolina does not have any of these limits by statute. However, as a matter of practice, magistrates impose some of these restrictions. Most magistrates will not issue felony charges based on a citizen’s complaint. Some magistrates generally issue summonses rather than warrants in citizen-initiated cases. Some magistrates also ask citizen complainants to prepare a written statement of facts.
Is it a good idea to allow citizens to initiate criminal charges? It’s often reporters that ask me about our system of allowing citizen-initiated criminal cases. They always ask whether it’s a good system or not. Since we try to be neutral here at the School of Government, I usually just say that there are plusses and minuses.
On the plus side, if law enforcement officers in a particular area are incompetent, corrupt, or biased against a citizen or a group of citizens, allowing those citizens to approach magistrates directly gives them access to the criminal justice system. Furthermore, allowing citizens to take their concerns to magistrates directly may reduce the burden on law enforcement of investigating minor offenses.
On the other hand, allowing citizens to approach magistrates directly means that magistrates must deal with citizens whose stories may be disorganized and who may be unfamiliar with what a magistrate needs to know to determine whether charges are appropriate. It also allows citizens who are so inclined to bring vexatious, baseless charges more easily that if an officer were involved in the matter.
Readers, what’s your perspective? Should citizen-initiated charges be abolished as some have proposed? Subjected to some of the statutory limitations in place in other states? Or, has North Carolina struck an appropriate balance as it stands?
