US law.
On TV shows it is common to see a victim say they are not pressing charges, and so nothing happens. I though only the DA had the right to determine whether charges are pressed. Does the victim have any rights in this area?
I can understand that if the victim is unwilling to help, securing a conviction may become impractical, but can the DA simply overrule the victim and proceed? And if so, does this happen often?
If the DA still wants to press charges they can. Cases without a complaining witness or victim aren’t very good cases to take so DA’s often follow the victims wishes on pressing charges or not. An exception to that being domestic abuse charges, where it has become standard policy to press charges regardless of the victims wishes. All to often victims of domestic abuse try to protect their abusers after the fact.
I thought the question went in the other direction: Suppose the police consider the case to be not worth pursuing, but the victim does want to press charges, what happens then?
I doubt that an individual can make the government prosecute someone. They can always go for a civil tral, as in the O. J. Simpson case (the one where he was found guilty).
When I was searching to see if this question had been raised before, I found a post from someone who said that in the UK you can personally try a criminal prosecution. I do not know if this is true.
You can bring a private prosecution in Canada, in theory, but the Attorney General always has the discretion to take it over. The Crown office then reviews it and determines if it’s meritorious - normally they conclude it’s not, and stay the charge.
This also brings up the question of plea bargaining. In most areas plea bargains amount to over 85% of the criminals being processed.
In most jurisdictions the victim has no rights in this. If the authorities think they can’t build a case or they need the criminal in another case, they will plea bargain with him without regard to the victim.
There have been noted cases where, Joe Criminal will be caught on a charge like assult, and then the cops find out he is party to another case. So in order to get him to testify in a bigger case they will cop a bargain with him, for instance in this case they may drop the assult case in order to get him to rat someone out on a totally different case.
The victim can try to press the issue, but it’s usually not successful.
A civil trial may be a better option. The victim can persuade the DA not to dismiss the charges but delay them till after the civil trial. That way if the victim wins, the DA can then see whether or not to go ahead.
I spent six years as an assistant county prosecutor, five of them in the felony trial division. Ideally, victims of crime (or “complaining witnesses,” to use the more neutral phrase) are consulted and kept posted on the progress of a case, but they aren’t the decision-makers as to how it’s handled or if it’s even brought at all. boytyperanma is correct that DV cases are often taken to trial even if the victim gets cold feet.
Although it’s not ideal to go forward to trial with an uncooperative complaining witness, I’ve done it where some or all of these factors applied:
In terms of the OP’s original question, this suggests the victim has no actual rights (in a legal sense) regarding the criminal prosecution of the perpetrator.
…as does naming the prosecutor’s entity “the people” or “California” (unless that’s a TV thing, IANAL).
That is correct. The right to prosecute a crime or not lies entirely with the State.
The idea is that a crime is not just a matter between the offender and the complainant, but the offender and the community at large. A crime is an evil against the whole of the body politic, because if it went unpunished, chaos would ensue.
Thus, individual complainants can sue civilly if they wish to get compensation. Only the state can actually punish (by fine, imprisonment, etc) so only the state gets to decide whether or not to prosecute. The complainant is in no position to decide the strenght of the evidence in his or her case - he or she is just a witness like any other. (This is subject to the possibility of bringing a private prosecution, referred to by Northern Piper. Each jurisdictions mileage will vary on this, but Northern Piper describes a common arrangement.)
While the complainant has no “right” to insist matters go ahead, generally prosecutors discuss the issues with them, and take the complainant’s views on board. But if there is insufficient evidence, no amount of tearful insistence by the complainant will get the prosecution to press on.
Victims do have specific rights in some states (for instance, since 1994, the Ohio Constitution has included the following provision), but the prosecutor has the last word as to whether or not to go forward with a case:
§1.10a. Rights of victims of crime.
Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process. This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this constitution, and does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee, or agent of the state or of any political subdivision, or any officer of the court.
I was involved in a case recently. I didn’t “make” the DA do anything, but I called the office frequently to check in to make sure I didn’t get forgotten about, as the case was weak. If I hadn’t been so persistent, I suspect they might have just dropped it or not even filed in the first place. It’s harder to put a case aside when the victim keeps putting his/her face out there.
I’m sure if I declined to participate later they wouldn’t have bothered to subpoena me and would have just dropped the whole thing.
Just to clear: in the U.S. there is no possibility of private prosecution.
True, although for the sake of completeness I will point this out: Private attorney general - Wikipedia
But the victim, like Ruby Sees mentioned, can influence this by being persistent in contacting the DA’s office about the case, asking on the current status, etc. That can be used to keep pressing the DA to pursue the case, and not ‘bargain’ away too much on the case. Having a concerned, involved victim is usually a great help on a case.
And there is a final possibility. Plea bargains have to be approved by a Judge in court. A victim can always ask to speak at this hearing, and try to persuade the Judge that this plea bargain is too lenient, and is not in the public interest in that it fails to protect the public from this criminal. And when he is out on the streets, and commits another crime, when he ought to have still been in prison, the publicity from that will be unpleasant for this court. Judges may respond to this, and either refuse the plea bargain, or modify it to give a more appropriate penalty.
I deal with that at work. Prisoners often say they want to press some criminal charges in a situation where we consider it frivolous. We advise him he has the right to write to the District Attorney’s office (we’ll provide the address, the writing material, and even the stamp if necessary) and make his case. If the DA then wants to file criminal charges, he will do so.
Note that every murder case is prosecuted without the victim’s consent…as pointed out above, the state has an interest in prosecuting crime because crimes are committed against the state’s principles, not the individual victim.
An interesting extension of the discussion here is whether or not both sides can simultaneously agree to waive existing law and (literally) play by their own rules, so to speak.
Think hockey and football before you answer. If I become annoyed and whack you with my stick or head-butt you, is it a private matter or a criminal matter?
Hockey and football players have been prosecuted, e.g. hockey, football, but there is certainly a lot more leeway allowed than if the incident occurred on the street. There appears to be a “normal” level of violence that is tolerated as being part of the game.
Generally, organized sports activities are considered an exception from the laws. Otherwise much of the action in football or hockey could be considered ‘assault’; though the legal requirement of “the intentional infliction of, or attempt to inflict bodily harm” might not be met. The intent is to score points, not inflict bodily harm upon the other team, and there are rules against “unnecessary roughness”, etc. But it seems to me that this hardly applies to sports like boxing! Though even there, there are limiting rules (‘no punches below the belt’).
Indeed, there have been some cases where local authorities have actually arrested a player in a game. But only occasionally. And generally when it is clearly a fight, outside the rules of the game, and there is a serious injury or even a death involved. (And usually a player from the ‘away’ team, not the ‘home’ team.)