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To a Criminal Prosecution: a Proposed Model Statute for the Governance of Private Criminal Prosecutions

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To a Criminal Prosecution: a Proposed Model Statute for the Governance of Private Criminal Prosecutions DePaul Law Review Volume 38 Issue 2 Winter 1989 Article 3 The Crime Victim's "Right" to a Criminal Prosecution: A Proposed Model Statute for the Governance of Private Criminal Prosecutions Peter L. Davis Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Peter L. Davis, The Crime Victim's "Right" to a Criminal Prosecution: A Proposed Model Statute for the Governance of Private Criminal Prosecutions, 38 DePaul L. Rev. 329 (1989) Available at: https://via.library.depaul.edu/law-review/vol38/iss2/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. THE CRIME VICTIM'S "RIGHT" TO A CRIMINAL PROSECUTION: A PROPOSED MODEL STATUTE FOR THE GOVERNANCE OF PRIVATE CRIMINAL PROSECUTIONS Peter L. Davis* TABLE OF CONTENTS INTRODUCTION ................................................................ 330 I. THE RISE OF THE Vicm ................................................ 331 11. FUNDAMENTAL PRINCIPLES OF THE CtuNAL LAW AND THE ROLE OF THE VIcmn ...................................................... 334 III. THE TRADITION OF PRIVATE PROSECUTION IN NEW YORK .... 341 IV. INITIATIG A PRIVATE PROSECUTION IN NEW YORK: Two M ODELS ........................................................................ 345 A. Model I: Direct Filing-No Judicial Screening .............. 345 B. Model II: Judicial Screening ...................................... 358 1. The Summons Part of the Criminal Court of the City of New York ..................................................... 363 V. WHEN SHOULD A JUDGE ISSUE A CRIAL COMPLAINT; WHEN SHOULD A PRIVATE PROSECUTION BE APPROVED? .. 372 A. The Need For Openness and Visibility in the Process of Determining Whether to Initiate a Criminal Prosecution 372 B. Standards for Determining When Criminal Complaints Should Issue............................................................ 376 1. The Underlying Merit of the Complainant's A ccusation ......................................................... 377 a. The quantitative aspect .................................. 377 b. The qualitative aspect .......................... 379 2. The Significance of the Private Prosecutor'sUlterior Objective ........................................................... 380 3. The State's Interest in Being Adequately Represented ....................................................... 384 VI. THE ADVANTAGES OF JUDICIAL SCREENING OF CITIZEN CoMPLAINTS ................................................................... 394 VII. PROPOSED MODEL STATUTE FOR THE GOVERNANCE OF PRIVATE CRIMNAL PROSECUTIONS AND RELATED MATTERS ................. 398 J.D., 1972, New York University; Associate Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. The author wishes to thank Patricia Davis and Alan Kitey, his research assistants, and the staff of the library of Touro College, Jacob D. Fuchsberg Law Center. The author also gratefully acknowledges the helpful comments of Chris Hansen, Richard Klein, Donna Levin, Gary Shaw, Dan Subotnik, Elizabeth Vila, and Peter Zablotsky. DEPA UL LA W REVIEW [Vol. 38:329 INTRODUCTION The Howard Beach and Tawana Brawley cases in New York City have recently raised questions that will no doubt lead to consideration of far more fundamental issues. In each case, controversy raged over who should prosecute.' Broadly viewed, these cases have left a significant legacy by raising two almost heretical ideas: first, that the local district attorney is not in all cases the appropriate person to prosecute, and second, that the crime victim should have some say in the selection of the prosecutor. The Brawley and Howard Beach cases focused on the narrow issues-first, should the local district attorney be superseded, and second, if so, by whom- because from the inception of these cases law enforcement officials declared their desire to prosecute aggressively. What if, however, law enforcement officials had declined to prosecute these cases? Would the families of Tawana Brawley and the Howard Beach victims have had any remedy? The thesis of this Article is that the public prosecutor should not have a monopoly on criminal prosecutions; some supplementary system of private criminal prosecution should be available. Two such systems, or models, cur- rently exist in New York. The first model, available statewide, theoretically allows a complainant to initiate a non-felony criminal prosecution without any screening by a prosecutor or judge. This system is unwise, unworkable, and illusory because it obscures the exercise of judicial discretion and focuses the court's attention on the wrong issues, usually precluding the crime victim's complaint. The second model, limited by statute to New York City, allows an aggrieved person to apply to a judge for the issuance of a criminal complaint. This model, though far preferable to the first model, is in need of substantial refinement. The exercise of judicial discretion should be guided and circum- scribed by explicit statutory guidelines. This Article suggests such guidelines in the form of a model statute to govern the initiation and litigation of private criminal prosecutions.2 1. In the Howard Beach incident, three black men were attacked by a group of white youths in the Howard Beach section of Queens County in December of 1986. Raab, Lawyers for Queens Assault Victims Explain Refusal to Aid Investigation, N.Y. Tunes, Jan. 1, 1987, at 30. One of the men was killed and the two survivors refused to cooperate with prosecutors and detectives investigating the incident. Id. Lawyers for the two surviving victims alleged that police and the local District Attorney acted in bad faith and instituted a cover up. Id. The lawyers for the victims stated that their clients would cooperate only with authorities from the federal government or a special prosecutor appointed by New York Governor Mario Cuomo. Purdum, Lawyers Assert Queens Victims Would Aid U.S., N.Y. Times, Jan. 2, 1987, at Al & B2, col. 1. The Brawley case involved allegations by Tawana Brawley, a 15 year old black girl, and her mother that Tawana had been kidnapped, raped, and physically abused by six white men, one of whom wore a badge. Tawana Brawley: Case vs. Cause, Tam, June 20, 1988, at 22. The mother and daughter, following the advice of their lawyers and advisers, charged that local authorities were protecting the guilty parties. Id. They demanded an independent investigation and Governor Mario Cuomo appointed New York State Attorney General Robert Abrams as special prosecutor. Id. 2. In Young v. United States, 481 U.S. 787 (1987), the Supreme Court reversed the contempt 1989] PRIVATE CRIMINAL PROSECUTIONS 331 I. THE RISE OF THE VicmI The Justice Department has recently calculated for the first time one's chances of becoming a crime victim.' 4 *** One out of every 133 Americans will be murdered. * * * Eighty-three percent (83%) of Americans will be victims or intended victims of violent crimes at some point in their lives.' ** * Fifty-two percent (52%) of them will be victimized in this way more 6 than once. ** * One out of every 12 females will be the victim of a rape or attempted rape.7 ** * Almost three-quarters of the population currently 12 or younger (74%) will be the victim of an assault or attempted assault.8 convictions of defendants who had been prosecuted by an interested special prosecutor. Young is not dispositive of the issues raised in this Article, however, because the Court decided the case in the exercise of its federal supervisory powers, not on constitutional grounds. Id. at 802. Indeed, only Justice Blackmun was of the opinion that prosecution by an interested private prosecutor constituted a violation of due process. Id. at 814-15 (Blackmun, J., concurring). The Court's entire discussion of the issues was premised on two facts which were different from those that are assumed to exist by this Article. Both facts are concerned with the availability of alternatives to interested private prosecutors. First, the model statute proposed in this Article requires that the judge consider referring the case to the local district attorney. Indeed, under the terms of the statute, only in highly unusual circumstances would the judge not refer it to the district attorney before considering the appointment of a private prosecutor. Although the circumstances present in Young were certainly not of this unusual variety, the district court did not refer the case to the U. S. Attorney's office before appointing the special prosecutors. Id. at 802. Second, in New York, as in most jurisdictions, there is no mechanism available to reimburse court-appointed special prosecutors in minor misdemeanor prosecutions; the model statute gives that factor great weight in determining whether to appoint a special prosecutor. On the other hand, in Young, a system to reimburse court-appointed special prosecutors was available to, but not employed by, the district court. Id. at 806 n.17. This Article will deal with the more common situation, not that which obtained in Young. Consequently, the question of the constitutionality of private criminal prosecution, as yet undecided by the Supreme Court, is beyond the scope of this Article. 3. KOPPEL., LiFoum LucELmOOD OF VicmTzA-rioN, TEcmNcAL REPORT, BuREAu OF JUsTIcE SrATIsTcs, U.S. DE,'T OF JuSncE, (March 1987). See also The Chances of Becoming
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