NH Law About... Private Prosecutions

Introduction to... Private Prosecutions

Posted April 6, 2018.

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 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.  

The opinion in State v. Martineau reviews the history of private prosecutions in New Hampshire and it was this opinion that made it clear that private prosecutions are allowed only in minor cases, such as those punishable by fines, and not for more serious cases where the punishment may be imprisonment.  

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.  

Bear in mind that a private prosecutor does not have prosecutorial immunity and is responsible for all costs for 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.

Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ... is not a substitute for the services of an attorney. 


Read about... Private Prosecutions

WEBSITES

37 Suffolk U. L. Rev. 497 (2004). Michael T. McCormack, The Need for Private Prosecutors: An Analysis of Massachusetts and New Hampshire Law

Link verified on: April 6, 2018

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.   GO>


PRINT

Criminal practice and procedure / by Richard B. McNamara. New Providence, NJ : LexisNexis Matthew Bender, 2017. 6th ed.   GO>

Link verified on: April 6, 2018

Back to the top

Read the law about... Private Prosecutions

NEW HAMPSHIRE STATUTES

RSA 592-A:7. Proceedings in Criminal Cases. Jurisdiction and Procedure Generally; Complaints  GO>

Link verified on: April 6, 2018

RSA 601:1. Indictments, Informations, and Complaints; Indictments, Necessity   GO>

Link verified on: April 6, 2018

RSA 618:15. Fines, Costs, and Discharges; Liability for Costs  GO>

Link verified on: June 5, 2017

RSA 641. Falsification in Official Matters  GO>

Link verified on: June 5, 2017

RSA 7:6. Powers and Duties as State’s Attorney  GO>

Link verified on: April 6, 2018

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: May 18, 2018

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

4 N.H. 149 (1827). Waldron v. Tuttle

Link verified on: April 6, 2018

Sound policy requires perhaps that private individuals should have the power to prosecute in the name of the state. But every person, at all conversant with the subject will be satisfied that such prosecutions should not be pursued at the public expense until sanctioned by some proper officer of the government. They are often commenced in very doubtful cases and for the most trivial offences and are not unfrequently found to originate in private quarrels and to be carried on to vex and harass an opponent. In many cases the public derives no benefit from them that can justify the expense and in some cases they are pursued in a spirit that renders them injurious to the public morals.   GO>

101 NH 87 (1957). State by Tucker v. Gratta

Link verified on: April 6, 2018

The complainant followed the not uncommon practice here of instituting a private prosecution for assault. The fine imposed inured to the benefit of the town. RSA 618:2. The practice of pursuing private prosecutions at public expense was disapproved of by this court as far back as 1827.   GO>

111 N.H. 57 (1971). State ex rel. Bokowsky v. Rudman

Link verified on: April 6, 2018

The powers of the Attorney General are broad and numerous. Some grow out of the common law, and many are specified by statute. He is specifically charged with enforcement of the criminal laws of the state, and supervision of criminal causes pending before the Supreme and Superior Courts. His authority to enter a nolle prosequi is clear. This authority is not limited to prosecutions initiated by public officials but extends also to those originated by a private person. Reasons therefor are, among others, that the complainant is liable to limit his view of the matter to its effect upon himself and his particular interests, and to lose sight of the rights of the respondent; the state regards the rights of the respondent as well as those of the complainant, and in addition thereto the rights of the public.   GO>

129 N.H. 684 (1987). State (Haas Complainant) v. Rollins

Link verified on: April 6, 2018

The common law of this State does not preclude the institution and prosecution of certain criminal complaints by private citizens, although any such prosecution is subject to the authority of the attorney general or the appropriate county attorney to enter nolle prosequi.   GO>

147 NH 270 (2001). Rogowicz v. O'Connell

Link verified on: April 6, 2018

Criminal contempt proceedings arising out of civil litigation are between the public and the defendant. Generally, a proceeding for criminal contempt must satisfy the procedural requirements of a criminal proceeding. The common law of this State, however, has not precluded the institution and prosecution of certain criminal complaints by private citizens within established limitations. This common law principle, we believe, extends to the initiation and prosecution of a criminal contempt proceeding by a private attorney. When a private prosecutor represents a party involved in the prosecution, the prosecutor's public duty to pursue justice may be compromised by the duty to zealously represent the interests of his client. The appearance of impropriety and the potential for conflicts of interest are inherent in such a situation.   GO>

148 N.H. 259 (2002). State (Premo Complainant) v. Martineau

Link verified on: April 6, 2018

Because the legislature has never limited the initiation of the criminal process to public prosecutors, private prosecutions continue to exist as a matter of New Hampshire common law, so long as they are not repugnant to the rights and liberties contained in the constitution. We conclude from a review of our case law that the common law does not authorize private prosecutions of criminal offenses which may be punished by imprisonment.   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: May 18, 2018

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

NEW HAMPSHIRE COURT RULES

New Hampshire Rules of Criminal Procedure  GO>

Link verified on: April 6, 2018

Learn About New Hampshire Court Rules: Follow this link to learn how to search court rules online as well as what court rules are and how they're published. GO>
 

FOR MORE HELP ...

New Hampshire Law Library

Link verified on: May 18, 2018

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


Back to the top

Supported by Altos   

DISCLAIMER: This website is designed to collect and organize reliable, authoritative legal information about New Hampshire law. The links from this site are to sites over which we have no authority or control. We assume no responsibility for the accuracy of the information you may encounter once you leave our site.