If the State drops or loses a criminal prosecution, does that automatically let the court tax court costs against the prosecuting witness, and does the judge have to make written findings of fact before doing so?

Plain-English summary

Judge Gary B. Tash of the 21st Judicial District Court asked the AG two related questions about taxing court costs against a prosecuting witness under G.S. 6-49: (1) does the statute let the court tax the costs against the prosecuting witness just because the prosecution did not result in conviction; and (2) does the judge have to make findings of fact first?

The 1980 AG said no to (1) and yes to (2).

G.S. 6-49 makes a prosecuting witness potentially liable for the cost of prosecution (including witness fees) when one of these happens: the defendant is acquitted; nolle prosequi is entered; judgment is arrested; or the defendant is discharged for want of probable cause. But the statute requires more than just one of those events. Cost assessment is appropriate only when the court is of the opinion "that there was not reasonable ground for the prosecution, or that it was not required by the public interest."

That qualifier is the key. The fact that a prosecution did not proceed to a full hearing or did not result in a conviction does not raise a presumption of unreasonable prosecution. Cases drop or end for many reasons. Witness unavailability, plea bargaining, evidentiary problems, prosecutorial discretion, and procedural irregularities can all terminate a case without saying anything about whether the prosecuting witness's complaint was reasonable in the first place. The statute is not a default-cost-shifting rule for failed prosecutions.

The findings-of-fact requirement comes from case law going back to the 19th century. State v. Roberts, 106 N.C. 602, 10 S.E. 900, 901 (1890), interpreted the predecessor statutes (Sections 737 and 738 of the Code) with virtually identical language and held that "the right of the court below to tax the prosecutor with costs does not arise as a matter of course. It only exists when one of the states of fact above recited is made to appear, by the expressed opinion or judgment of the Court." The court that taxed costs in Roberts without making findings was reversed; "[t]his has no warrant in the law."

So the procedural rule is: when a judge decides to tax costs against the prosecuting witness under G.S. 6-49, the judge must make explicit findings of fact that there was no reasonable ground for the prosecution or that the prosecution was not required by the public interest. The findings must be specific enough that an appellate court can review them. A bare order taxing costs is insufficient.

The opinion's protective principle: G.S. 6-49 is a powerful statute that allows shifting the costs of a failed prosecution to the citizen who brought the complaint. The legislature did not intend that consequence to follow automatically from non-conviction, because doing so would chill legitimate complaints. The findings requirement ensures the statute is applied only in genuinely abusive cases.

Currency note

This opinion was issued in 1980. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. 6-49 has not seen wholesale revision, but District Court practice and reported case law continue to evolve. Modern prosecuting-witness cost questions should be verified against current case law and District Court forms.

Historical context: what the AG concluded

The opinion is short but does two things effectively. First, it parses the statute correctly: the triggering events (acquittal, nolle prosequi, arrest of judgment, discharge for want of probable cause) are necessary conditions for cost taxation, but not sufficient. The judge must also form the opinion that one of the two substantive grounds applies (no reasonable ground for prosecution, or prosecution not required by public interest).

Second, the opinion grounds the findings requirement in State v. Roberts, an 1890 case that interpreted virtually identical statutory language under the Code. The pedigree is helpful: if the Code provisions and G.S. 6-49 read the same way and Roberts required findings under the Code, then findings are required under G.S. 6-49. The interpretive principle (cost taxation against a prosecuting witness is the exception, not the rule, and must be justified by judicial findings) carries through.

The policy rationale, while not explicitly developed in the opinion, is straightforward. The prosecuting witness in many criminal cases is a victim or a person with first-hand knowledge of an offense. The system relies on those persons to come forward and report crimes. If they fear being saddled with court costs every time a case fails to produce a conviction, they will be less willing to come forward. The legislature reserved cost taxation for cases of genuinely unreasonable or abusive complaints, and the Roberts findings requirement enforces that limitation by requiring the judge to make a record of why the statute's high standard was met.

The practical procedural rule the opinion produces: in a case where the judge is considering taxing costs against the prosecuting witness, the judge should hold a hearing (or at least consider whatever record is available), make a specific finding of fact about whether there was reasonable ground for prosecution and whether the prosecution was required by the public interest, and only enter the cost order if those findings support it. The order itself should recite the findings, both to comply with Roberts and to facilitate appellate review.

Background and statutory framework

G.S. 6-49 is part of North Carolina's general statute on costs in Chapter 6. The general background principle (cited in the opinion through State v. Johnston and City of Charlotte v. McNeely in related contexts) is that the right to tax costs is purely statutory and is strictly construed.

The provision allowing cost taxation against the prosecuting witness has been part of North Carolina law since at least the Code of the late 19th century, when the predecessor statutes (Sections 737 and 738 of the Code) used virtually identical language. State v. Roberts (1890) interpreted those provisions and established the findings-of-fact requirement.

The substantive grounds for cost taxation ("no reasonable ground for the prosecution" or "not required by the public interest") are independent. Either is sufficient. "No reasonable ground" focuses on whether the complaint had any factual or legal basis; a complaint based on mere personal animus or fabricated facts might fall in this category. "Not required by the public interest" is broader; a complaint that, even if technically founded, addresses a trivial matter that the public would not benefit from prosecuting might fall in this category.

The procedural setting matters. Cost taxation under G.S. 6-49 typically arises after the prosecution has ended without conviction. The court may then consider, on its own motion or on motion of the defendant, whether costs should be taxed against the prosecuting witness. The findings-of-fact requirement gives both sides a fair opportunity to present their views before costs are imposed.

The 1890 State v. Roberts case is significant because it predates many of North Carolina's modern procedural reforms but its core holding (cost taxation requires findings) has been treated as enduring. The opinion's reliance on Roberts over 90 years later signals the AG's confidence that the rule remains good law.

Common questions

What's the difference between "no reasonable ground" and "not required by the public interest"?

"No reasonable ground" is about the complaint itself. Was there any basis for thinking a crime occurred? Was the prosecuting witness's account at all credible? "Not required by the public interest" is about the social value of pursuing the case. Even if a technical violation occurred, was the matter so trivial or so private that prosecuting served no public purpose?

Can the prosecuting witness appeal a cost taxation?

Yes. The findings-of-fact requirement exists partly to facilitate appellate review. If the prosecuting witness believes the trial court's findings were unsupported by the evidence or that the legal standard was misapplied, an appeal is the remedy.

Can the court tax costs against the prosecuting witness even after the State has paid them?

The opinion does not address this scenario. The typical procedure is that the court orders the prosecuting witness to pay (reimbursing the State if it has advanced costs) or designates the prosecuting witness as the party responsible for unpaid costs.

What kind of evidence supports a "no reasonable ground" finding?

Evidence of fabrication, malice, knowledge of the falsity of the charges, or a pattern of vexatious complaints would support such a finding. A simple lack of corroboration is probably not enough; the standard is the absence of reasonable ground, which is a high bar.

Does this opinion's reasoning apply outside criminal cases?

G.S. 6-49 is specific to criminal cases. Civil cases have their own cost-shifting rules under different statutes. The findings principle (cost shifting requires specific judicial findings) is consistent across many cost statutes but the specific grounds vary.

Source

• Landing page: https://ncdoj.gov/opinions/criminal-law-and-procedure-costs-taxing-cost-against-prosecuting-witness/

Citations

• G.S. 6-49
• State v. Roberts, 106 N.C. 602, 10 S.E. 900, 901 (1890)

Original opinion text

Requested By: Gary B. Tash, Judge 21st Judicial District Court

Questions:

• Does G.S. 6-49 empower the court to assess costs against the prosecuting witness solely because prosecution does not result in a conviction of the accused?
• Is the presiding judge, prior to taxing costs against a prosecuting witness, required to make specific findings of fact?

Conclusions:

• No.
• Yes.

G.S. 6-49 provides, in pertinent part, that a prosecuting witness is potentially liable for the cost of prosecution, including witness' fees, ". . . if the defendant is acquitted, nolle prosequi entered, or judgment against him is arrested, or if the defendant is discharged from arrest for want or probable cause. . . ." The assessment of costs is appropriate where the court is of the opinion" . . . that there was not reasonable ground for the prosecution, or that it was not required by the public interest. . . ."

The fact that a prosecution does not proceed to a full hearing or result in a conviction should not raise a presumption that no reasonable ground existed for it, or that the public interest did not require it. This statute indicates that costs are to be charged against a prosecuting witness only when certain circumstances exist.

Case law requires that the presiding judge make findings of fact to bring the taxing of costs against the prosecuting witness within the requirements of G.S. 6-49.

In State v. Roberts, 106 N.C. 602, 10 S.E. 900, 901 (1890), the North Carolina Supreme Court stated:

"But the right of the court below to tax the prosecutor with costs does not arise as a matter of course. It only exists when one of the states of fact above recited is made to appear, by the expressed opinion or judgment of the Court. In the present case, there is no finding of fact by the judge in this regard, but simply a judgment that the prosecutor pay costs. This has no warrant in the law."

State v. Roberts, id, was interpreting Sections 737 and 738 of the Code, the language of which is virtually identical to G.S. 6-49 with respect to the questions under consideration.

Rufus L. Edmisten
Attorney General

Millard R. Rich, Jr.
Deputy Attorney General