Prosecution: History of the Public Prosecutor

In the United States it is commonly assumed that the district attorney has exclusive authority to initiate the formal charge of crime. The police may not proceed to trial on their own, and only in the most extraordinary cases may grand juries do so. Even then, the prosecutor may ordinarily dismiss the charge. Nevertheless, vestiges of private prosecution remain on the statute books and in practice, as is to be expected in a system rooted in the English system of private prosecution. During the colonial period, public prosecutors had no exclusive rights in the criminal courts, and judges did not hesitate to appoint counsel for the Crown when the attorney general refused or neglected to proceed. Even when public prosecutors began to displace private prosecution in the new nation, they were rarely given an explicit monopoly of the power to prosecute.

Gradually, however, the sense of a public stake in criminal prosecution grew larger. This was because private prosecutors were perceived as inherently partisan, criminal law was being used to serve regulatory purposes in which private parties might have only a limited interest, and public prosecutors were regarded as better qualified to make impartial evaluations of evidentiary sufficiency and public necessity. The issue took legal form in cases raising the question of whether a private party—for example, the victim—could conduct a prosecution if the public prosecutor refused or neglected to file a charge.

Several states have retained the private complainant's right to prosecute or to complain directly to a grand jury, but the trend has been toward placing control in the hands of the district attorney. However, some courts have adopted an intermediate approach. They permit a private attorney to assist the public prosecutor in preparation and trial if the court or the prosecutor consents and if the public prosecutor retains control. Appellate courts have invoked the fiction of "delegation" in order to sustain convictions in which public prosecutors have played little or no part. Especially in minor criminal cases, the concept of delegation has been stretched as public prosecutors facing crowded dockets have acquiesced in prosecution by private counsel.