Hypothetical example:
Suppose a friend of yours steals from you. You ask him to make restitution, and he refuses to do so.
So you file a criminal complaint-this means that the police in the town/city where the crime took place will be obligated to investigate.
They do so, and conclude that you were (indeed) the victim of a crime.
So, you go to the local courthouse, and file a criminal complaint.
You get a hearing (in front of a magistrate), and he/she concludes that you were the victim.
At this point, is the matter out of your hands? In the sense that the crime is now against the state?
Suppose they go ahead and arrest the guy? Are you now out of the picture?
In essence, is this now a crime against the state?
IANAL but I believe the answer is yes.
You are the direct and immediate victim, but theft is a crime, an act of breaking a law with an established definition and penalties and that is independent of you, as the victim, personally holding him accountable or not.
This is clearer if we change the offense to murder. It is a crime against you, but also a crime against society, thus your family cannot elect whether or not to prosecute the murderer, it is at the discretion of and the responsibility of “the people,” represented by the District Attorney, to press charges and try the case.
IANAL, but AFAIK there is no such thing as a “crime against you”. All activity in contravention of the law of the land is a crime agianst the state. This is the basis of the law in England and its legal offspring. (Not sure the concept in other lands, Napoleonic code*, etc.) The monarch is responsible for peace, order and good government. Breaking a law is effectively offending agains the monarch/state, and the state would prosecute you.
Of course, for minor crimes, you might not draw attention of the authorities to the crime. Depending on the wishes of the participants, even when the authorities know, they may not prosecute some crimes. They may have a policy of allowing the offended party to say they “want to drop the charges”. However, it is strictly a judgement call of the investigating officer and then the prosecuting attorney what charges are laid and whether the charges proceed to trial. (The zero tolernace on domestic violence in some jurisdictions is an example - they will not withdraw charges despite the later wishes of the battered spouse).
I.e. Joe and Fred get into a fight outside the bar, or in Joe’s backyard. Unless someone calls the cops, nobody will know. Usually, the two shake it off, go home and pass out. If one is sufficiently injured to need medical tratment, the doctor may alert authorities. Etc.
*In the movie Baiser Rouge, the guy is boinking a fifteen year old girl in Paris. The father gets upset and files a complaint with police. After the tearful recriminations scene, the father explains that the only charge a citizen cannot withdraw once filed is a charge of sex with a minor. (Note that one of the sex scenes included bare breasts, meaning that the CBC Late Night movie basically fit the definition of kiddie porn even though the actress was over 18.) I assume this was a somewhat accurate description of the Napoleonic code method of citizen complaints?
No.
Once the police conclude that there was a crime against you they turn the information they have collected over to the local prosecutor’s office, usually called the district attorney.
The district attorney decides whether to file a criminal complaint based on whether they have enough probable cause to believe the charges are true and enough resources to prosecute the case. If they are fully occupied with murder and rape they won’t take on a theft of property case.
You can file a civil case against the perpetrator for conversion, but not a criminal case.
Right. A crime is an offence against the state. The victim is not involved in the case at all. There’s no such thing as a “crime against you personally”, and you can’t file a “criminal complaint”. The way it works is this: if you believe someone has committed a crime, you go to the police station and tell the police. From that point on, it’s out of your hands. The police gather evidence and present the evidence to the state prosecutor, who decides whether the suspect has broken the state’s rules, and whether the state wants to prosecute them or not.
If you want to bring a case against someone personally you can sue them in civil court for damages. That involves something like the process you describes - you sue someone, you receive a hearing, the judge decides whether you’ve genuinely been wronged, etc. Only the state can put you in jail; you can’t go to jail for committing a civil offence.
Criminal law is public law - it’s an individual versus the state, and only ever the state. Civil law is private law - an individual versus another individual.
For those saying it’s impossible to file a criminal complaint, that depends on the jurisdiction. Around here (Virginia), anyone can take out a misdemeanor charge by going to see the magistrate and swearing out a statement. The magistrate then takes out the appropriate warrant if s/he determines that there exists probable cause to determine that the law of the Commonwealth or locality has been violated. From there, the prosecutor can choose to not proceed with the charge, but it’s not up to the complaining witness anymore. Police officers can also take out warrants, of course, but it’s not uncommon for police responding to minor crimes with no immediate danger to take a report and instruct the victim to go down to the magistrate themselves to secure the warrant.
In our office, we do have something called a “Non-Prosecution Affidavit”, which may be signed by the victim of a crime if they wish to do so. In essence, it says that the undersigned is the victim or complaining witness in the case, that she does not wish for the defendant to be prosecuted for the offense, and that she does not wish to participate in the prosecution of the offense. While we take a non-prosecution affidavit into consideration when deciding whether to prosecute a case, we make it clear to victims who sign them that once a case is brought to us, it is the state’s case, and we may decide to prosecute regardless of her wishes, whether she cooperates or not.
We give no weight to NPAs signed anywhere but our crime victim coordinator’s office, because for all we know the defendant was standing over her threatening to beat her up again if she doesn’t sign it.
Well said. All criminal acts are crimes against the state–thus we see cases styled as “The People of the State of New York v. Smith,” or in places that follow common law where Queen Elizabeth is the head of state, “R. [Regina] v. Smith.” Either way, it is a matter of public law, and the individual victim does not enter into the case, except perhaps as a witness or a supplier of a Victim Impact Statement (permitted in my jurisdiction, but not necessarily in all).
The above does not happen. What you should have put in here:
The police forward the information to the District Attorney or Prosecutor’s office and they will determine if there is enough evidence to prosecute. If there is, they go to the court and file charges and ask for an arrest warrant. The warrant is turned over to the police to apprehend the alledged criminal.
At this point, the matter is out of your hands.
See my post above. This varies based upon jurisdiction. What the OP described can and does happen in some places, at least for misdemeanors.
See here: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-72
There is in some places a residual capacity to bring private prosecutions. That is why prosecution authorities in Commonwealth countries are called DPPs - Directors of *Public *Prosecutions. Private prosecutions are frowned on because they can simply amount to blackmail - there was a time when local pawnbrokers and the like tried to bring them as a species of debt collection. They were also used as harrassment tools by fringe political groups.
Nevetheless, the possibility remains in some places, albeit hedged about with serious restrictions. It remains because in principle, a prosecuting authority may be hopelessly corrupt or the like. In my jurisdiction, in order to proceed you have to put up security for the defendant’s costs, and you have to get court approval to proceed. One thing a court looks at is the basis upon which the ordinary authorities declined to proceed.
Even then, once all those hurdles are passed, the Attorney-General can take over the prosecution, removing it from the hands of the private prosecutor. Once the AG has taken over the prosecution, he has the power to stop it (but of course if the prosecution were genuinely meritorious, he would pay a political cost.)
So, generally what is said upthread about prosecutions being a matter for state authotities is correct, but in some places there remains a faint possibility for a private prosecution that in reality is rarely exercised.
That link says that it’s still the police officer who takes out the warrant, and it’s still the state prosecuting the suspect throughout. The victim can make a formal “criminal complaint” but by that description it doesn’t sound like it’s much different from walking into a police station in any jurisdiction and complaining that someone has committed a crime.
The bottom line here is that all criminal cases are in the form “Crown vs. Perpetrator” (E2R’s realms) or “People vs. Perpetrator” (US and other republics) because a crime is by its nature an offense against the body politic, not merely the victim.
However, there is such a thing as police and prosecutorial discretion. De minimis non curat lex. For many petty offenses, it is up to the cop or the DA to decide whether it is worthwhile to press charges or not. It’s in this realm that the issue being argued in this thread comes into play. A cop may ask the victim if he or she “wants to press charges,” i.e., go through the hassle of swearing out a criminal complaint, understanding he now has a commitment to show up in court whenever action is taken on the defendant’s case in order to give testimony, etc. That inclusion of the victim in those with discretion in whether charges are pressed is what gives rise to the misunderstanding that there is such a thing as a private prosecution for an offense against the individual and not the state.
A police officer or a magistrate. Another difference is that when the complaint gets to court, the sworn written statement from the victim is included. It also seems a bit easier for the iffy cases to getthe through.
My point was just that the sequence of events can resemble what the OP described in some places. However, once the warrant is secured it’s out of the victim’s hands, and things are pretty much the same from there. If I sounded like I was contradicting the rest of the responses, that wasn’t my intention. However, the amount of control private citizens have in commencing prosecution can vary quite a bit.
Crimes in violation of Federal law in this country are prosecuted as United States of America v. Smith (usually abbreviated as United States v. Smith or, more informally, U.S. v. Smith). A remarkable example thereof: United States v. Nixon - Wikipedia
I don’t think private prosecutions for ordinary crimes are even theoritically possible anywhere in the US in the way that they are in Commonwealth countries. I’ve asked on the Dope, but IIRC the only recent examples involved a private attorney being appoined by a judge to act as procecutor on behalf of the state.
And in Pennsylvania, Massachusetts, Virginia, & Kentucky it’s “Commonwealth of ______ vs. Doe”. No (direct) reference to the people. In some states it’s simply “State of ______”, again with no direct reference to the people. I believe that in federal court the prosecution is always refered to as “the Government” and not “the United States”.
I recall some case many years ago in Ontario (Canada) where a private group proceeded with the prosecution. They were trying to make a point. Once it made it to court the crown attorney took over, and I think dropped the charges. It was a looooong time ago, but the article discussed private prosecutions. Basically, anyone could file the papers with the court, but the actual court proceedings (assuming the judge let it get beyond filing the papers or even to the preliminary hearing and tossing everything out) was up to the crown.
Of course, that was 40 years ago, I may be misremembering and I’m sure the process has changed since.
Verbally, yes, but not in the pleadings.
Nope. I’ve heard (in the medias, for instance) of people withdrawing their complaints, but I’m not sure what it means exactly, because there’s nothing preventing a prosecutor from pursuing a criminal case, regardless of the wishes of the victim. I guess it typically means “sorry, I misremembered, and wasn’t beaten by my husband but in fact fell in the stairs” which in practice means that the prosecution won’t have any way to prove that a crime occured even though in theory it could still push the charges.
As far as I know, there’s no difference between the Napoleonic and common law systems from this point of view. The possibility for society to punish a wrongdoer instead of simply making the victim whole again at his request is pretty much the essence of the difference between a criminal and a civil case.
Domestic violence victims change their minds all the time; it makes a successful prosecution more difficult but not impossible. The prosecutor can still call the police officers and ER personnel to testify, introduce photographs taken of the victim, or call the victim and either seek to have her (and it’s usually a woman) declared a hostile witness, or impeach her with her previous statements to police right after she was attacked (excited utterances).