Private prosecutors are limited by Virginia law says Fairfax criminal lawyer

Private prosecutors may not prosecute in Virginia except under limited circumstances, says Fairfax criminal lawyer

Private prosecutors are the exception to the usual Virginia practice of having prosecuting attorneys be elected officials or their employees, or private practicing lawyers hired by incorporated cities or towns. As a Fairfax criminal lawyer, I am ready to seek the disqualification of a private prosecuting attorney not appointed nor proceeding within the limitations set by law for such attorneys.

What limits does Virginia law place on the appointment and participation of a privately-employed lawyer?

This month, the Virginia Court of Appeals revisited the issue of private prosecutors, in a case where the court reversed an assault conviction handled by a such an attorney, because said attorney “simultaneously represented the victim in a civil action against [the defendant] and sought to prosecute her, and because the procedural safeguards were not followed that would have ensured the publicly-elected prosecutor remained in control of the case.” Price v. Commonwealth of Virginia, ___ Va. App. ___ (Nov. 17, 2020).

Price further confirms the limits on such prosecution as follows: “The overarching principle governing the private prosecutor’s participation is that the public prosecutor must remain in continuous control of the case.’ Id. at 393. Limits on the private prosecutor’s authority ensure that the participation of a private prosecutor is only supplemental to the elected official’s handling of the case. The private prosecutor ‘may not initiate a prosecution or appear before the grand jury.’ Id. He may appear in the case ‘only by the leave of the trial court . . . [and] may participate only with the express consent of the public prosecutor.’ Id. The private prosecutor may make a closing argument to the jury only if the court, in its discretion, permits it; and the private prosecutor, likewise, may not participate in plea bargaining or in ‘a decision to accept a plea of guilty to a lesser crime or to enter a nolle prosequi.’ Id. These procedural safeguards protect the defendant’s due process right to the fair-minded exercise of the Commonwealth’s attorney’s discretion.” Price.

When the Fairfax or other prosecutor’s office declines to get involved in the prosecution, may the court appoint a prosecutor?

Price, as follows, addresses whether the court may appoint private prosecutors when the elected commonwealth’s attorney (for instance with the Fairfax chief prosecutor in a wide universe of misdemeanor prosecutions) declines to participate in a prosecution: “[A]n Opinion of the Attorney General concludes that when the Commonwealth’s attorney elects not to prosecute certain charges, courts do not have inherent authority to interfere with that discretion by appointing a private prosecutor. 1995 Op. Va. Att’y Gen. 139. The opinion overruled a prior opinion, 1990 Op. Va. Att’y Gen. 141, to the extent that the prior opinion concluded a private prosecutor may undertake the sole prosecution of a misdemeanor charge ‘without the express consent of the Commonwealth’s attorney.'” Price.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions. Call 703-383-1100 to schedule a free in-person confidential consultation with Jon Katz about your pending court case.