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In the case of felonies which a DA has, for one reason or another, refused to prosecute, what states allow the victim to petition a judge for a writ of mandamus to force the prosecution?

I know West Virginia allows such pleadings. Is there any other state that does?

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  • A writ of mandamus is ordinarily reserved for non-discretionary duties which do not include prosecutions for crimes. A more moderate position in some states is to allow a petition to ask a judge to consider allowing the appointment of an independent prosecutor to investigate and possibly prosecute, but possibly not. – ohwilleke Oct 17 '18 at 16:51
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Although West Virginia allows this, State ex rel. Hamstead v. Dostert, 173 W. Va. 133, 139, 313 S.E.2d 409, 415–16 (1984), my understanding is that it is an extreme outlier.

Prosecutorial discretion is generally treated as sacrosanct, and judges are loath to get involved in second-guessing those decisions. From what I can see, no state has ever endorsed Hamstead.

There are, however, many states that allow citizens to initiate proceedings directly by presenting a probable-cause affidavit to a judge or other magistrate. I've seen this in Ohio and Virginia, and I understand that it is possible in many other jurisdictions, as well.

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  • What is the course of action for a probable cause affidavit? Does the judge rule on whether it constitutes probable cause and then forward it to the DA, just sort of judicial stamp of approval with no command, is that the idea? – Cicero Oct 17 '18 at 14:52
  • It varies widely from state to state. As always, it's a good idea to tag your question with a specific jurisdiction to get a better answer. – bdb484 Oct 17 '18 at 14:55
  • I followed the link to State ex rel. Hamstead v. Dostert and while dicta say that such a writ might be permitted, the actual holding was that the specific writ was not justified. The dissent blisteringly said such writs should never be allowed, and claimed that no such writ had ever been granted. Oddly, it seems that the same lower court judge was involved in at least 3 separate cases related to this point – David Siegel Oct 17 '18 at 23:05

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