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, [...]
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