NH Law About ...: Private Prosecutions: Read About The Law ...

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Introduction

A criminal offense is considered an offense against the State, rather than against an individual. The power to enforce the criminal laws of New Hampshire is generally entrusted to the state through the attorney general, the county attorneys, and local prosecutors. In New Hampshire, however, criminal complaints may also be filed and prosecuted by private citizens or private attorneys under very limited circumstances.

There is no statute or court rule that expressly permits or prohibits private prosecution of a criminal complaint by an interested party or that person's attorney. RSA 592-A:7 provides that criminal proceedings before a district court begin when a complaint is filed with the court but does not specify who may file those complaints. It is New Hampshire's courts that have held that the power of private citizens to file and prosecute criminal complaints exists.

Bear in mind that a private prosecutor does not have prosecutorial immunity and bears all costs of the arrest, examination, and conveyance of the defendant. Any fine that may be imposed will go to the town or county, not to the private prosecutor, and making a false statement on the complaint may result in criminal prosecution of the private prosecutor.

Online

37 Suffolk U. L. Rev. 497 (2004). Michael T. McCormack, The Need for Private Prosecutors: An Analysis of Massachusetts and New Hampshire Law
"The state of New Hampshire allows private prosecutors to try criminal cases. Recently, the New Hampshire Supreme Court limited the reach of private prosecutors in criminal cases to those cases with no possibility of imprisonment for the defendant. The court, however, did not address the issue of the constitutionality of private prosecutions as a whole. Consequently, the ruling of the New Hampshire Supreme Court allows crime victims access to the courts for minor offenses not involving a potential jail sentence when government prosecutors choose not to prosecute such crimes."
90 A.L.R.6th 385. Power of Private Citizen to Institute Criminal Proceedings Without Authorization or Approval by Prosecuting Attorney
This annotation collects and discusses cases having considered the propriety and procedure of privately instituting criminal prosecution.

Print

Criminal Practice and Procedure by Richard B. McNamara
Call Number: KFN1280 .N48 v. 1-2A 2023
Publication Date: 2023
Criminal Practice and Procedure has a good general discussion of the private prosecution for crime in New Hampshire. The author observes that one of the problems with private prosecution is that it can lead to an abuse of the criminal justice system through the bringing of "malicious and vexatious claims." Also, he discusses the Attorney General's handling of procedural issues relating to private prosecutorial situations and the prosecutors authority to nolle prosequi a private complaint, which means that it will not go any further.
Criminal Procedure by Wayne R. LaFave; Jerold H. Israel; Nancy J. King; Orin S. Kerr
Call Number: KF9619 .L34 2015
ISBN: 9780314645043
See Volume 4, Chapter 13, "The Decision Whether to Prosecute."
Private Prosecution in America by John Bessler
Call Number: KF9640 .B47 2021
ISBN: 9781531020064
Publication Date: 2022-01-01
Private Prosecution in America is the first comprehensive examination of a practice that dates back to the colonial era. Tracking its origins to medieval times and the English common law, the book shows how "private prosecutors" were once a mainstay of early American criminal procedure. Private prosecutors--acting on their own behalf, as next of kin, or through retained counsel--initiated prosecutions, presented evidence in court, and sought the punishment of offenders.

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