Committee on Judicial Ethics — Prosecution by Lay Complainant: Joint Opinion 10-170/11-03

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NYS Advisory Committee on Judicial Ethics

Prosecution by Lay Complainant

Joint Opinion 10-170/11-03

Background: Two town justices asked how to proceed when lay complainants file complaints regarding alleged criminal violations, and the district attorney declines to either prosecute the matter or to designate another prosecutor to do so. In one instance, the DA has declined to prosecute violations unless they involve a family or school offense. The justice had also determined that the DA cannot delegate the authority to prosecute. In the second inquiry, the justice stated that the DA had declined to prosecute, as a matter of policy, charges of harassment in the second degree.

Opinion: Whether a judge may permit a lay complainant to prosecute an alleged criminal violation is a question of law beyond the committee’s jurisdiction. If a judge determines that the district attorney’s implicit or explicit delegation of authority to prosecute a particular matter is not lawful, then the judge should decline to preside over such matters. But, if a judge determines that such delegation is lawful, them the judge may preside in such matters, although the judge must remain fair and impartial and may not provide either side with guidance on procedural or substantive issues.