There's an answer on politics SE that has some upvotes (but more downvotes) claiming (even more adamantly in subsequent comments) that standing is issue of substantial importance in criminal trials; some quotes from the claims:

There is no distinction between 'civil' standing and 'criminal' standing. See Cornell Law and Wikipedia.

Standing (see the entries at Cornell's Legal Information Institute and Wikipedia) means in part that there must be actual or imminent harm to some person or persons. Child pornography (obviously) demonstrates actual harm to the child in question and imminent harm to other children, so the government can file criminal cases on their behalf, citing the producers and recipients of the material as complicit in that harmful act.

But those links don't' really explicitly say that.

So what relevance if any does standing have in criminal trials? E.g., are there any examples of criminal cases/charges dismissed for lack of standing, by which I mean that the court decided the government lacked standing? Let's restrict the discussion to federal proceedings, for the sake of not making this too broad.

  • I know of some civil cases in which the government tried to claim (standing as) parens patriae but lost on these grounds, but I don't recall this being the case in some criminal proceedings. My guess is that criminal statues in themselves [as long as they are constitutional] are "standing" for the gov't to sue (although of course it may turn out that the statues weren't violated by the defendant, but that's not a judgement in re "standing".) – Fizz May 11 at 8:28
  • 8
    Thinking that there can't be standing without actual harm is a popular Sovcit theory. Unfortunately for them, they can't get out of speeding tickets just because they haven't run anyone over (yet). Indeed, the main fallacy is to claim that standing requirements are identical in civil and criminal cases, and to only focus on common law while ignoring statutory law. That answer would have a far better argument if it claimed that restrictions on cartoon child pornography were unconstitutional since this infringement on freedom of speech is not necessary to preserve other people's liberties. – amon May 11 at 8:47
  • @amon: Good point. It did occur to me that the constitutionality of some statues has been challenged on grounds that seem conceptually similar to [lack of] standing (as parens patriae), in the sense that criminal statues (depending their scope) need be justified by a "legitimate" or even a "compelling state interest" in order to be constitutional. But I can't find any explicit comparison of these concepts with that of standing. As you say, it seems that the accepted basis of such legitimate state-interests is generally broader than what the concept of standing allows for (actual injury). – Fizz May 11 at 8:57
  • 2
    I am working on a detailed answer to this question. – David Siegel May 11 at 14:35
  • 3
    Any breach of law is a breach of the Queen's (or your preferred sovereign's) peace and authority. – xngtng May 11 at 15:16

So what relevance if any does standing have in criminal trials? E.g., are there any examples of criminal cases/charges dismissed for lack of standing, by which I mean that the court decided the government lacked standing? Let's restrict the discussion to federal proceedings, for the sake of not making this too broad.

Almost none. Conceptually, this is because a violation of a sovereign's criminal laws is an injury-in-fact to a legally protected interest of a sovereign in not having its own criminal laws violated. The violation of the law itself is the injury.

Where standing type considerations apply they are usually described as jurisdiction.

A sovereign, be it a state or the federal government can enforce its own criminal laws, but not another sovereign's criminal laws except by extradition.

For example, a state prosecutor can't enforce a federal immigration crime in state court, nor can a state prosecutor file federal or state charges in a federal court. Likewise, a federal prosecutor can't bring federal or state charges in a state court, and a federal prosecutor can't bring state criminal charges (unless adopted by reference as part of federal law) in federal court.

Criminal justice in Indian territory which is handled by the federal courts by federal prosecutors in felony cases, are a special case conceptualized either as a "contract service" relationship or as evidence that Indian tribes are not fully sovereign.

The extraterritorial application of criminal laws is likewise usually considered a question of jurisdiction rather than standing.

Sometimes the federal government passes a law incorporating some state criminal laws by reference as federal criminal laws in federally controlled territory, but that is an issue of substantive law, not standing.

A handful of states allow private criminal prosecutions for select minor offenses, rather than being exclusively brought by the government (mostly on the East Coast). In those cases, standing is an issue, just as it is in civil cases. Only victims can bring private criminal prosecutions, where they are allowed, and only in cases where they are the victim.

  • 4
    Interestingly, in Canada (and if I'm not wrong, it's similar in the UK), any one, being the Queen's subject and as a check against inaction or partiality of the government, has standing to bring a private prosecution, unless the statute requires the Attorney General's consent before prosecution (e.g. terrorism offences, and... public nudity). (Of course, there are many other rules and limits to avoid abuse and it rarely happens.) – xngtng May 11 at 17:58
  • 3
    @xngtng actually it’s been somewhat common: the RSPCA regularly brings private prosecutions, and have for a while. Although they’ve announced that’s changing: theguardian.com/world/2021/jan/28/… – Tim May 11 at 21:29
  • 2
    "nor can a state prosecutor file federal or state charges in a federal court." There actually is a situation where a state can prosecute on state charges in federal court. If a federal officer is charged with a violation of state law for actions they took under color of office, they can remove the case to federal court. I don't think the state prosecutor can directly file in federal court, but the defendant can remove it so that a federal court will judge the actions of a federal officer performing their federal duties. – cpast May 12 at 0:03
  • 2
    @xngtng Some US states have similar rules, but the normal rule in the US is that prosecution is an exclusive power of the public prosecutor. – cpast May 12 at 0:04
  • 2
    One quip: "Crime is an injury to the state. The victim just happens to be a bystander that was impacted." As far as practical implications go, this is why prosecutorial discretion exists, vs a right per se of the victim to seek criminal charges (absent specific authorizations). – obscurans May 12 at 5:26

The Answer in Question

The answer on politics.se supported its claims by citations and links to the Wikipedia article on Standing and the LII page. But the Wikipedia article while not specifically mentioning a civil vs a criminal context refers over and over to the standing of the plaintiff, not of the prosecutor. The LII article does the same. Neither discusses any limits on criminal prosecutions.

Standing of a Prosecutor

I can find no case where a prosecution has been dismissed for a lack of standing on the part of the prosecutor or the government. Nor can I find any law review article, or scholarly work, or indeed any other published work which asserts such a requirement. I find only that the prosecution must show the existence of a valid and constitutional law, and probable cause to believe that the defendant has violated it, in order to commence a prosecution. No legal source even seriously discusses the possibility of a prosecutor needing to prove any sort of individual injury. The closest is the Hartnett article, cited below, where this is dismissed as "absurd" and such an argument is predicted to be laughed out of court, if anyone were so foolish as to make it.

Standing: a Fairly Recent Concept


One should remember that the requirement of standing is a relatively recent development in US law. Thew three part test cited in the answer to this question by Ted Wrigley derives from Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992). That was a civil case, challenging a regulatory interpretation of the Endangered Species Act. The cases cited in Lujan to define standing all seem to be civil cases, and Lujan also speaks of the standing of the plaintiff and the opinion says:

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue.


The concept of standing as a separate requirement for bringing a legal action seems to have been first declared in Fairchild v. Hughes, 258 U.S. 126 (1922). That case was one where Charles S Fairchild sued the then Secretary of State Charles Evan Hughes (later Chief justice) to prevent him from certifying the ratification of the 19th amendment to the US constitution, guarantying the vote to women. in that opnion Justice Brandeis wrote:

Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding. It is frankly a proceeding to have the Nineteenth Amendment declared void. In form it is a bill in equity; but it is not a case, within the meaning of § 2 of Article III of the Constitution, which confers judicial power on the federal courts, for no claim of plaintiff is

brought before the court[s] for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs.

See In re Pacific Railway Commission, 32 F. 241, 255, quoted in Muskrat v. United States, 219 U. S. 346, 219 U. S. 357. The alleged wrongful act of the Secretary of State said to be threatening is the issuing of a proclamation which plaintiff asserts will be vain, but will mislead election officers. The alleged wrongful act of the Attorney General said to be threatening is the enforcement, as against election officers, of the penalties to be imposed by a contemplated act of Congress which plaintiff asserts would be unconstitutional. But plaintiff is not an election officer, and the State of New York, of which he is a citizen, had previously amended its own Constitution so as to grant the suffrage to women, and had ratified this amendment. Plaintiff has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit to secure by indirection a determination whether a statute, if passed, or a constitutional amendment about to be adopted will be valid.

This is clearly not in a criminal context.


Standing is sometimes an issue in a criminal case, but it seems invariably to be an issue of the standing of the defendant to challenge a particular law or regulation. in Bond v. United States, 564 U.S. 211 (2011) a criminal defendant challenged the constitutionality of a Federal criminal statute, claiming that it violated the 10th amendment by infringing upon state sovereignty. This claim was dismissed by the trial court and the Circuit Court of Appeals for lack of standing, but the US Supreme Court wrote:

One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992), and, in addition, an “ongoing interest in the dispute” on the part of the opposing party that is sufficient to establish “concrete adverseness.” Camreta v. Greene, 563 U. S. ___, ___ (2011)

In that part of its analysis, and throughout its opinion, the Tennessee Electric Court [in 1939] stated that the problem with the power companies’ suit was a lack of “standing” or a “cause of action.” It treated those concepts as interchangeable. E.g., id., at 139 (no “standing” because no “legal cause of complaint”); id., at 139–140 (no “standing” without “a cause of action or a right to sue”); id., at 142 (“no standing,” no “right to sue for an injunction”); id., at 144 (no Tenth Amendment “standing” and no Ninth Amendment “cause of action” for same reasons); see also Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 777, 826–830 (2004).

The Court held that Bond did have standing to invoke the Tenth Admendment, writing:

The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations.


Individuals have “no standing to complain simply that their Government is violating the law.” Allen v. Wright, 468 U. S. 737, 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, 262 U. S. 447, 488 (1923) (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. Lujan, 504 U. S., at 560–561. These requirements must be satisfied before an individual may assert a constitutional claim; and in some instances, the result may be that a State is the only entity capable of demonstrating the requisite injury.

In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government.

This discusses standing as something that an individual litigant has (or lacks), not something that a case has, nor that a prosecutor requires.

Hartnett article

In "The Standing of the United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking for Answers in All the Wrong Places" from the Michigan law Review (published by the University of Michigan) author Edward A. Hartnett* writes:

Numerous scholars have demonstrated that insistence on a 'personal injury in fact' as a requirement of Article III is a relatively recent invention. They point to a long history in English courts, in the courts of the several states, and in the federal courts themselves of judicial proceedings brought by those who have not suffered any such individualized injury in fact.

Hartnett cites particularly so-called qui tam suits brought by a "relator" or "informer" who alleges a violation of law by someone else who harms the government (not the relator), and who receives part of the fine or damage payment if the suit is successful. Such suits in the US are now largely grought under the federal False Claims Act (31 USC §§ 3729-3733 (1994)), but have a history going back long before the foundation of the US. Hartnett notes that US courts have struggled to find any individual standing for such suits, and have more or less waved the problem away. Hartnett writes:

In a qui tam action, an individual who has herself suffered no harm brings an action on her own behalf as well as on behalf of the government. Indeed, the term qui tam is short for "qui tam pro domino rege quam pro se ipso sequitur" - "who as well for the lord the king as for himself sues."


Most scholars reach the same conclusion from this history as Justice Harlan did in his dissent in Flast v. Cohen (392 U.S. 83, 120 (1968)): there is nothing in the "judicial power," or "cases" and "controversies" language that requires the person bringing the action to suffer an injury in fact.

Hartnett quote Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE LJ. 816 (1969);

In sum, the notion that the constitution demands injury to a personal interest as a prerequisite to attacks on allegedly unconstitutional action is historically unfounded . ... There may well be policy arguments in favor of a 'personal interest' limitation on standing, but they cannot rest on historically-derived constitutional compulsions.

and Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. RE.v. 1371 (1988).

A fuller account of our history shows that article III was not limited to the kinds of private disputes characterized by standing. (emphsis added)

Hartnett goes on to discuss the criminal contest:

Despite its apparent reasonableness under current Supreme Court doctrine, I submit that no federal judge, if pressed, would seriously contend that Article III requires that the United States must suffer an injury in fact that is "personal," "concrete and particularized," and "actual or imminent, not conjectural or hypothetical" before litigation on its behalf can be brought in federal court. And no federal judge would contend that injury to the United States be more than an "abstract ... injury to the interest in seeing that the law is obeyed ...." 3 6 My point of pressure is a federal criminal prosecution.


Suppose a new assistant federal defender, steeped in the Supreme Court's modern standing doctrine, moves to dismiss each of the prosecutions brought against her clients on the grounds that the United States lacks standing. She argues that the United States lacks a personal, concrete, and particularized injury in fact and therefore there is no case or controversy within the jurisdiction of the federal courts. ... But after the laughter subsided, what would the prosecutor and the judge say? What is the "concrete and particularized" injury in fact suffered by the United States that gives it standing to bring a criminal prosecution?


in the vast majority of criminal prosecutions, the United States is not seeking redress for this kind of an injury to itself.

Perhaps one might be tempted to say that the injury in fact required by Article III is the one suffered by the victim of the crime: for example, the person who was kidnapped and taken across state lines41 or the person who was defrauded by a pyramid scheme using the U.S. Mails. On this theory, the United States has a form of third-party standing allowing it to redress the injuries suffered by others. But this approach is deeply flawed.


At this point, even a patient judge (or reader) might be ready to throw up her hands and say, "The United States isn't any ordinary litigant. A federal criminal prosecution is not designed to remedy the injury to any particular victim, but rather to remedy an injury done to the community. It is wrong to try to shoehorn the United States in the mold of a common law private litigant. It is the sovereign, seeking to vindicate the general public interest in compliance with the law. ...

... Article III cannot sensibly be read to prohibit the United States from vindicating its sovereign interests in its own courts. ...

Courts do not exist solely to resolve private disputes or to resolve claims by injured individuals against the government or government officials. Instead, as criminal prosecutions attest, a significant role of courts is simply to enforce the sovereign's law in particular cases.

... Article III extends the judicial power of the United States to certain "cases" as well as certain "controversies." A number of scholars suggest that the term "cases" in Article III includes criminal prosecutions, while the term "controversies" does not. If they are right, then the foregoing critique, relying as it does on the example of criminal prosecutions, shows only that the word "case" in Article III cannot reasonably be understood to require a personal, concrete, and particularized injury in fact. It tells us nothing about whether the word "controversy" in Article III can be understood to require this kind of injury.

In criminal cases (and perhaps more generally in Article III "cases"), the judiciary is enforcing the sovereign's law rather than umpiring a preexisting dispute. Thus, criminal prosecutions demonstrate that, at least when exercising jurisdiction over the "cases" enumerated in Article III, nothing in Article III limits the use of the federal judicial power to enforcement of the rights of individuals or prohibits the use of the federal judicial power to enforce the majoritarian sovereign will. In short, if - as all concede - the United States can prosecute crimes in the federal courts, then a "case" within the meaning of Article III must include litigation that is based on nothing more than the "harm to the common concern for obedience to law," and the "abstract... injury to the interest in seeing that the law is obeyed."

Hartnett goes on to argue that current standing law is inconsistent and should be changed from a requirement of Article II jurisdiction to a principle of statutory construction derived from Article I, that standing exists where Congress has granted it or where the courts infer that it should have been granted and that the "injury in fact" rules should apply only where Congress has not provided an explicit right of private action, citing several of Justice Harlan's dissents saying that:

There is much to be said for Justice Harlan's approach74 - not the least of which is that it was too conservative for the Warren Court and too liberal for the Rehnquist Court.

Federal criminal prosecutions may have something to tell us about this debate. For one of the earliest, most significant, and most enduring decisions the federal judiciary has ever made was to leave the creation of criminal rights of action to Congress and to refuse to recognize a common law of federal crimes.

In any case Hartnett takes it as bedrock law that there is no standing requirement for a federal criminal prosecution beyond the assistance of a constitutional federal law, and a credible allegation of the violation nod such a law -- that is to say, probable cause.

Brewer Article

In "Criminal Procedure - The Automatic Standing Rule in Possession Cases is Overruled" by Timothy D. Brewer, from the Little Rock Law Review, discusses in detail a change in the standing rules for a defendant to challenge the constitutionality of a search, and criticizes those changes. But he also takes it for granted that there is no need for the prosecutor to demonstrate standing.

  • 4
    Thanks for this long answer. I had discovered Hartnett's article myself referenced by Lee and Ellis (2012), but I wasn't sure how mainstream the ideas there are... because Lee & Ellis e.g. dismiss FOIA lawsuits as having no real basis in Article III. – Fizz May 11 at 18:40
  • I disagree with the Plaintiff/Prosecutor part of this answer. The issues are precisely the same when the government brings a civil action as Plaintiff as they are when it brings a criminal case as Prosecutor. For example, there is no standing issue that prevents the government from pursuing a civil forfeiture in court for a victimless crime. No standing issue prevents the SEC from pursuing a civil case against Elon Musk for manipulating the price of Tesla stock. – David Schwartz May 12 at 20:47
  • @David Schwartz You may have a point. I was concerned with demonstrating that the standing issues which limit private (non-governmental) plaintiffs do not apply to prosecutors. I did not consider or research the government as a plaintiff in a civil case. I will do furhte research and if possivble add to the answer. – David Siegel May 12 at 20:57

Governments have automatic standing as the sovereign to enforce its laws, be it criminal or civil.

One of those background principles is the concept that a sovereign government must have standing to enforce and defend its laws in court. Indeed, this principle is so uncontroversial that the Supreme Court rarely considers the standing of the state or federal government to pursue those sovereign interests (at least when the government is represented by its executive branch).

Tara L. Grove Government Standing and the Fallacy of Institutional Injury, 167 U. Pa. L. Rev. 611 (2019).

(The part above was already explained by another answer, but I wanted to add the following:)

so the government can file criminal cases on their behalf, citing the producers and recipients of the material as complicit in that harmful act.

It does not have the standing because of any particular supposed or actual victims, nor does it bring suit on behalf of a complainant. The government brings criminal charges on its own behalf (or on the supposed sovereign's behalf, e.g. People of the State of New York v. ...; or in Commonwealth realms, Her Majesty the Queen v. ...).

Standing issues should not be confused with jurisdiction or constitutionality issues. It should also not be confused with de minimis defence available in some jurisdictions.

In some cases, the alleged criminal conduct can be so trivial that the court concludes either that the legislature certainly did not intend the conduct to be criminalized, or that it would be unjust to impose a criminal liability or punishment. This is a defence against a criminal charge and is sometimes provided by statutes, e.g. Title 18 Pa.C.S.A. Crimes and Offenses § 312. De minimis infractions

General rule.--The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:

(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction;  or

(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

But it is not a question of whether the government has standing, but rather the legislature did not intend to criminalize such conducts.

  • 1
    +1 for correct answer, though I'd quibble with the statement that "Standing issues should not be confused with jurisdiction or constitutionality issues." There's just no real question that standing is a jurisdictional question, and jurisdiction is a constitutional question. – bdb484 May 12 at 5:13
  • @bdb484 several of the law review articles I read on this say firmly that standing is, or should be, a matter of court procedure (which suits will be entertained) not of jurisdiction, and there there is no constitutional basis for standing restrictions. These views may be wrong, but they are common enough among scholars that it is incorrect to say that "there is no real question" on this point. – David Siegel May 12 at 21:09
  • 1
    I was surprised to see that, but I think you're correct. I think it would be accurate to say, though, that in court, there is no real question. – bdb484 May 13 at 1:54

Standing is critical in criminal cases, but the government always has it.

Article III gives federal courts jurisdiction only over "cases or controversies." The Supreme Court has interpreted this to mean that the courts may only hear cases where the plaintiff has standing, i.e., a particularized interest in enforcing the allegedly violated law. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) ("The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.")

Although standing theory has developed almost exclusively in the context of civil litigation, it remains applicable to criminal cases, as the case-or-controversy requirement has no exception for criminal cases. Standing remains just as important a threshold issue in criminal cases, but it is virtually never litigated because it is black-letter law that the government has standing to enforce its laws. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) ("[T]he exercise of sovereign power over individuals and entities within the relevant jurisdiction ... involves the power to create and enforce a legal code, both civil and criminal."); In re Debs, 158 U.S. 564, 584 (1895) ("The obligations which [government] is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.").

So the party filing criminal charges must have standing, but there just aren't many people who question whether the government has standing. But if you can think of a crazy argument, that means there's someone who's tested it. In this case, the courts tend to conclude that although standing is crucial in criminal cases, the government always has it:

There is no doubt whatsoever that the United States had standing to pursue a criminal action against Rice — and therefore, that the district court had jurisdiction in his case — that universally accepted conclusion is hardly inconsistent with the constitutional requirement of a concrete, individualized interest in private litigation. Standing is no more than the litigable interest necessary to create a case, and when it comes to the government, wrongs to the public at large—generalized grievances—will do.

Rice v. Farley, No. CIV. 14-31-ART, 2014 WL 2441260, at *3 (E.D. Ky. May 30, 2014). See also Thomas v. United States, No. 15 CR. 667-5 (KPF), 2020 WL 1243803, at *15 (S.D.N.Y. Mar. 16, 2020), appeal dismissed (Feb. 12, 2021) (collecting cases).

Likewise, there have been private litigants who have attempted to file criminal charges without the government's blessing. For instance, a private citizen who filed criminal charges against every single member of Congress met a predictable demise:

The district court correctly dismissed Keyter's complaints for lack of standing. The law is crystal clear: “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Keyter, a private citizen, has no standing to initiate federal criminal prosecutions.

Keyter v. 535 Members of 110th Cong., 277 F. App'x 825, 827 (10th Cir. 2008). See also Higgins v. Neal, 52 F.3d 337 (10th Cir. 1995) (collecting cases).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.