I have been reading a little bit about "private prosecutions." One question in my mind is, if they were legal, who would have standing to prosecute them? Would standing even be required?

For example, one of the laws I would like to privately prosecute are the laws of "official oppression", which the AG never seems to want to prosecute.

In another case, who would have standing (if private prosecution were legal/accepted) to privately prosecute Hillary Clinton for her emails? After all, Hillary Clinton hasn't personally harmed me in any particular way; would this preclude my standing to prosecute Hillary Clinton?

What about a murder case, where the victim was dead? Who could privately prosecute then? Is standing required for these cases?

4 Answers 4


In the US, private prosecutions are heavily disfavored, and are not allowed in most jurisdictions. Where they are allowed, they tend to be limited in nature and subject to the ultimate control of a government officer.

Federal court is one of the places where private prosecutions are not allowed. However, in two cases, Congress has decided that private citizens can file a civil case on behalf of the United States. These are called qui tam actions, and the private citizen is representing the interest of the United States; the United States has standing, so the private citizen does as well. Private criminal prosecution would presumably follow the same rule if it existed and was constitutional at the federal level.

  • Qui tam actions don't require personal standing, but they do have a fairly elaborate set of rules regarding who can bring them and when.
    – ohwilleke
    Feb 28, 2017 at 17:48

Expanding on cpast's answer, the right of private prosecution has been denied by SCOTUS. Linda R. S. v. Richard D., 410 U.S. 614 held that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another", and this is affirmed in Leeke v. Timmerman, 454 U.S. 83, which held that

The decision to prosecute is solely within the prosecutor's discretion. Thus, a private citizen has no judicially cognizable right to prevent state officials from presenting information, through intervention of the state solicitor, that will assist a magistrate in determining whether to issue an arrest warrant.

  • In your quote, I would note that it is different to say that a private person has no right to prosecute than it is to say that a public prosecutor has no right to prosecute. They could both have that right and have to share responsibility for the prosecution.
    – Mr. A
    Jul 21, 2016 at 7:00
  • In point of fact, though, private citizens cannot commence prosecutions of federal crimes (although military justice has its own scheme).
    – ohwilleke
    Feb 28, 2017 at 17:50

Anyone can take a private prosecution - they are legal and don't require standing. (At least I know that to be a fact - albeit not one normally made obvious to people - in New Zealand - I am pretty sure it would be a case in most countries based on UK law)

You may, however, have an uphill battle with getting evidence - and the costs associated with doing this.

  • There are private prosecutions in England and Wales. There are no federal private prosecutions in the U.S., and you could probably count on the fingers of one hand the number of states where they are allowed. I'll assume you are right on N.Z. I wouldn't hazard a guess on Australia or Canada or Scotland or N. Ireland. Also, even in English practice the government can always take over a private prosecution if it wishes.
    – ohwilleke
    Feb 28, 2017 at 17:47

It depends upon where you want to do this. The U.S. Supreme Court invented standing out of thin air as a political device early in the 20th century. Some state courts have adopted the concept of standing but most have not. Thus, if you do this in state court, standing is generally not an issue at all.

  • Any particular citation in mind for this invention?
    – user6726
    Jul 20, 2016 at 15:51

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