On April 23, 2008, the Pennsylvania Superior Court issued a decision in Commonwealth v. Michaliga, 2008 Pa. Super 78 (2008), which reaffirms that the District Attorney’s Office’s has the sound discretion to approve or disapprove criminal charges commenced by private criminal complaint.

What is interesting about this case, is that the District Attorney (“DA”) of Luzerne County initially approved the charges in the private criminal complaint. After review by several Assistant DAs, their office felt that the alleged victim had adequate remedies available in civil court because the case really involved a contract dispute and was civil in nature, and withdrew the charges. The private criminal complainant then challenged the DA’s decision, and the trial court ordered the DA to prosecute. On appeal, the Superior Court disagreed with the trial court.

In an opinion by Judge Allen, the Court reiterated that, in challenging the DA’s decision to withdraw the charges, the private criminal complainant must prove that there was an abuse of discretion where the DA’s decision amounted to bad faith, fraud or unconstitutionality, which is a heavy burden to overcome. The court noted that there is a presumption that the DA acted in good faith in approving or denying a private criminal complaint, and the fact that there were adequate civil remedies available was sufficient reason for the decision not to continue with prosecution in this case.

To read Michaliga, click here. If I had to state just one good reason why the holding in this case is good, it would be that we don’t want to force our prosecutors to prosecute people they don’t want to prosecute. DAs and Assistant DAs hold a lot of power when it comes to the prosecution function of their job. If their office has good reason not to prosecute, and public sentiment says otherwise, we want the DA to be able to do the unpopular thing. Why? Because the general public would then get to decide who gets prosecuted and who doesn’t. Also, the judge in any particular case doesn’t know the facts of the case like those who conduct the investigation and maintain a file on it, so judges shouldn’t get to decide who the DA prosecutes. If the DA, who is in the business of prosecuting, says don’t prosecute, shouldn’t we listen?