Does a Magistrate Have the Discretion to Refuse to Issue Criminal Process When Probable Cause Exists?

If I had to answer the question in the title of this post in the briefest possible way, I would say: not usually. But there’s a lot of uncertainty and nuance packed into that short answer. This post gets into the details. Example. Let’s make the issue more concrete. Suppose that Fred Farmer comes to a magistrate one day and asks the magistrate to charge his neighbor, Mike Munchie, with stealing an apple. Fred explains that he has an apple tree on his lot, near the property line. Just minutes ago, Fred witnessed Mike standing on Mike’s property but reaching over the line to take an apple from Fred’s tree. Fred pulled out his cell phone and recorded the crime. The video shows Mike biting into the crisp, sweet fruit, and wiping a little trickle of apple juice from his chin. Mike smiles with what Fred characterizes as “the remorseless sneer of a hardened criminal.” Fred says he didn’t authorize Mike to take the apple and asks the magistrate to charge Mike with misdemeanor larceny. (He really thinks Mike is guilty of felonious larceny of ungathered crops under G.S. 14-78, but he’s willing to let that slide, just this once.) The magistrate isn’t keen to charge Mike with anything. She doesn’t think that would be a good use of judicial resources and doesn’t think a criminal charge will help the neighbors live together peaceably. She asks Fred whether he’s tried talking to Mike about the situation and Fred says no. The [...]