Complaining witnesses as prosecutors
Our magistrates are allowing private citizens to prosecute criminal cases. I have not seen much resistance to this by the bar, but I think we need to put a stop to it. The typical scenario is:
An individual feels wronged, is assaulted, employer is mad at employee, neighbors have a dispute, family members fight, etc. The most common cases are assault and battery, trespass, breach of trust, harassment, or unlawful use of telephone. Police are called, they investigate but do not find sufficient evidence to make a charge. The officer informs the complaining witness that they are not going to charge the subject, but informs them that they can apply to the magistrate for an arrest warrant. This seems to be a way to placate the complaining witness so that they are not completely dissatisfied with the police and courts, and so that they do not make a scene with the officer.
The officer's incident report will usually reflect that the case is administratively closed, sometimes saying specifically that the reason is for lack of evidence, and that the "victim" was advised to apply to the magistrate for a warrant. The complaining witness goes to the magistrate, who issues and signs a warrant for them, which is then served on the now defendant.
When the defendant arrives on his court date, the judge treats them as if they are litigants in a civil action, except the end result could be a criminal conviction, not a civil judgment. When the defendant retains an attorney and requests a court date, often the complaining witness does not pursue the case, fails to appear at the roster meeting and on the trial date, and the case is dismissed.
Sometimes if the complaining witness does show up on the trial date, an assistant solicitor in the magistrate court will pick up their case even though it is not of the type they are there to prosecute, and regardless of the merits of the case. But when a prosecutor does not pick up the case, some magistrates are allowing these complaining witnesses to prosecute the cases themselves, making motions, arguments, cross-examining witnesses, etc. I have watched a local attorney allow this to happen without objection, and try a case against a private citizen (and the defendant was convicted on one of two charges).
By allowing private citizens to swear out warrants, anyone is permitted to perform the function of a law enforcement officer, investigating a crime, then presenting their evidence to a magistrate who then signs an arrest warrant. But what happens then if there is no prosecutor to pick up their case? Can they then perform the function of a prosecutor representing the State in a criminal action? S.C. Code Sec. 40-5-310 makes the unauthorized practice of law a criminal offense punishable by up to 5 years in prison:
No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.
The right of pro-se representation is preserved by S.C. Code Sec. 40-5-80, which says:
This chapter may not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires.
However, it is the State who is the plaintiff in a criminal action, not the complaining witness. If an individual is wronged, they can seek redress in tort, and they have the right to represent themselves. This statute does not give to individuals the right to represent the State against a person charged with a "public offense." S.C. Code Sec. 17-1-10 states:
A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof.
In re Lexington County Transfer Court summarizes the limits of unauthorized practice of law in the context of criminal prosecutions, holding that:
The representation of a party in a guilty plea in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187 S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d 259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to extend Messervy exception denied).
Complaining witnesses are not parties in a criminal prosecution. The State and the defendant are the parties. Unless the complaining witness is an arresting officer or their supervisor, they cannot prosecute a criminal case.
