Key Concepts

  • Participation of a private attorney in the prosecution of a criminal case is rare, but it is legally permitted under certain conditions.

The North Carolina constitution vests sole authority for the prosecution of all criminal offenses in the office of the district attorney. See N.C. Const. Art. IV, § 18; State v. Loesch, 237 N.C. 611 (1953). “However, the elected District Attorney may, in his or her discretion and where otherwise permitted by law, delegate the prosecutorial function to others. For example, where the District Attorney consents to the employment of a private prosecutor and continues in charge of the prosecution, the trial court may permit such a private prosecutor to appear for the State.” State v. Camacho, 329 N.C. 589 (1991); citing State v. Best, 280 N.C. 413, (1972);  see also State v. Misenheimer, 304 N.C. 108 (1981) ("Several of defendant's brothers and sisters, including four who testified for the state at trial, hired a private prosecutor to represent the family. He aided in preparation and sat with the state's prosecutor at trial, but did not examine or cross-examine witnesses.").  The discretion to permit private prosecutors to appear with the District Attorney's consent “has existed in our courts from their incipiency.” Camacho, 329 N.C. at 593.

In addition to requiring the consent of the prosecutor, it is also in the trial judge’s discretion whether he or she will allow a private prosecutor to participate in the case. See Best, 280 N.C. at 417 (“It is within the discretion of the trial court to allow special counsel to aid the prosecuting attorney in the prosecution of a case, and such discretion will be interfered with only on a showing of abuse thereof”).

Practice Pointer

Attorney General’s Office
The concept discussed in this entry is distinct from the statutory authority granted under G.S. 114-11.6, which authorizes the Special Prosecutions Division of the Attorney General’s Office to prosecute (or assist in the prosecution of) certain cases, if requested by the District Attorney’s office for that district. This may occur, for example, if the District Attorney’s office has a conflict of interest in prosecuting the case.

Although it is uncommon in practice, appellate cases interpreting the law on private prosecutors have held that a district attorney may consent to the participation of a privately-employed lawyer to assist in prosecuting a criminal case, as long as the district attorney retains control and management of the prosecution. “The law in this State with respect to private prosecutors is clear: absent some evidence that the private prosecutor has in fact ignored the interests of justice in seeking a conviction, his assistance of the public prosecutor is not a per se constitutional violation. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907 (1977); State v. Best, 280 N.C. 413 (1972); State v. Westbrook, 279 N.C. 18 (1971), death penalty vacated, 408 U.S. 939 (1972); State v. Carden, 209 N.C. 404, cert. denied, 298 U.S. 682 (1936).” State v. Moose, 310 N.C. 482 (1984) (citations condensed) (court noted that in this case the district attorney was always in control of the prosecution and adequately supervised the private prosecutor). See also State v. Camacho, 329 N.C. 589 (1991); State v. Chapman, 294 N.C. 407 (1978); State v. Best, 280 N.C. 413 (1972).

Practice Pointer

Never heard of it?
The issue does not come up very often in modern practice, but it might arise in a case where a victim has retained private counsel to handle a related civil suit for damages arising out of an assault or motor vehicle collision, and that attorney wants to be actively involved in the criminal case. Legislation was proposed that would have expanded and codified the role that private prosecutors can play in a criminal case (see House Bill 935, Session 2015), but so far the matter has not been formalized beyond what is expressed in the cases cited above, and the active involvement of a private attorney in a criminal prosecution remains an unusual occurrence. Such an arrangement creates a risk of complications that may impede the successful prosecution, since the prosecutor and private attorney may have different objectives and obligations. Assistant district attorneys should always consult with the elected district attorney in his or her district before agreeing to any such participation. It is usually preferable to prosecute the criminal case separately, and simply agree to keep the private attorney updated and informed about the progress of the case.