Could a private citizen prosecute a South Carolina fraudulent check case if the solicitor declined?

Plain-English summary

A magistrate asked who could prosecute a fraudulent check case when the solicitor would not do so personally. The Attorney General concluded in 2005 that a private citizen had no basis to prosecute the criminal case on their own. The solicitor retained control of the prosecution in magistrate's court, including after an initial refusal to prosecute.

The opinion distinguished a private citizen from a private attorney permitted to assist with prosecution. It quoted earlier opinions and state decisions under which the solicitor could allow a private attorney to prosecute a magistrate or municipal court case, subject to the trial judge's approval and continued solicitor control. It also noted the need to avoid a private attorney gaining an unfair advantage in related civil litigation. A private citizen could still be a prosecuting witness.

Currency note

This opinion was issued in 2005. 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.

Common questions

Could the person who reported a bad check prosecute the criminal case personally?
The AG said no; he found no basis for a private citizen to take over prosecution.

Did the solicitor lose control after declining to prosecute personally?
No. The opinion said the solicitor retained control of a magistrate court criminal case even after initially refusing to prosecute it.

Could a private lawyer handle the prosecution?
The opinion said the solicitor could grant that request, with the trial judge's approval, while retaining control and guarding against conflicts involving related civil matters.

Could the complainant appear as a witness?
Yes. The AG expressly said a private citizen could serve as a prosecuting witness.

Background and statutory framework

The AG began with Section 17-1-10's statement that a criminal action is prosecuted by the State. He then relied on earlier AG opinions and South Carolina decisions addressing solicitor control and the limited role of privately employed counsel.

Citations and references

• Section 17-1-10: criminal action prosecuted by the State.

Official title

Questioning who prosecutes a fraudulent check case when the solicitor will not.

Requester

The Honorable Thomas Ed Taylor, Summary Court Judge

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-28-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05nov28taylor.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATTORNEY GE'.\iERAL

November 28, 2005

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The Honorable Thomas Ed Taylor
Summary Court Judge
8150 Augusta Road
Piedmont, South Carolina 29673
Dear Magistrate Taylor:
In a letter to this office you questioned who prosecutes a fraudulent check case when the solicitor will not. In an Opinion of this Office, dated November 7, 1990, the issue presented was the authority of a private citizen to prosecute cases in magistrate's court. In that opinion it was stated that

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[p ]ursuant to Section 17-1-10 of the Code, "(a) criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof" In State v. Addis, 257 S.C. 482 at 487, 186 S.E.2d 415 (1972) the State Supreme Court indicated "(i)n every criminal prosecution the responsibility for the conduct of the trial is upon the solicitor and he must and does have full control of the State's case.... " In State v. Nichols, 325 S.C. 111, 119, 481 S.E.2d 118,122-123 (1997) the Supreme Court had referenced that in State v. Addis, 257 S.C. at 487-88, 186 S.E.2d at 417 it had stated that we declined to find error in the allowance of a private attorney's participation in a criminal trial. The trial court has discretion to allow the solicitor to have the assistance of counsel employed by the prosecuting witness or other person interested in securing a conviction with the consent of the solicitor... A special assistant solicitor is not automatically disqualified betause of his simultaneous representation of an interested party. Disqualification occurs when a special assistant solicitor attempts to use his authority in the criminal action to the advantage of his civil client or otherwise compromises his neutrality in the criminal proceeding. State v. Mattoon, 287 S.C. at 494-95, 339 S.E.2d at 869. There is no evidence the private attorneys who acted as special assistant solicitors here stood to gain an unfair advantage in the

a.~E~~lNG • PosTOFFICE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 •

FACSIMILE: 803-253-6283

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The Honorable Thomas Ed Taylor
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November 28, 2005
civil matter as frowned upon in In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977). Further, the solicitor maintained control of the case. We do not find error in the use of private attorneys here. An opinion of this office dated August 5, 1997 stated that

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As to your question regarding the authority of an affiant on a warrant to nol pros a case and a solicitor's authority to assume control of a case after initially refusing to prosecute the matter, ... the Supreme Court in Addis affirmed a solicitor's control of every criminal prosecution. This would include situations such as that where the solicitor initially refuses to prosecute the matter. I am unaware of any authority for an affiant to nol pros a case. Moreover, nothing should be construed to indicate that the Attorney General or any of his representatives has affirmately delegated the prosecutorial function to an affiant on a warrant. That opinion further stated that While the Court in Mattoon discouraged the use ofprivate prosecutors, the decisions of the Court have consistently upheld their use when attacked by the defendant. The ... (decision in Nichols) ... reiterates this view. Accordingly, based upon the Court's recent decision in Nichols (citing Addis, Mattoon, etc.), it would appear that the 1990 Opinion of this Office is still valid. In summary, the following basic principles are established in the 1990 Opinion and the cases rendered by our Supreme Court:

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I. The Solicitor must be deemed to maintain control of criminal cases brought in magistrate's court.

2. However, in the discretion of the solicitor, the solicitor may grant
   requests by individuals to prosecute cases in magistrate's or municipal court. The trial judge should approve the private attorney who will prosecute the case as well.
3. The degree of the Solicitor's involvement in particular magistrate's
   court cases is a matter within the Solicitor's discretion.
4. There must be a certainty that the private attorneys who prosecute
   such cases do not stand to gain in any related civil action. Consistent with such, inasmuch as pursuant to Section 17-1-10 of the Code, "(a) criminal action is prosecuted by the State", I am unaware of any basis for a private citizen himself to "prosecute" a case against a person charged with a fraudulent check case. As stated above, a solicitor is deemed to maintain control of any criminal case brought in magistrate's court. If the solicitor chooses not to prosecute personally a particular case in magistrate's court, as referenced above, a solicitor may grant

The Honorable Thomas Ed Taylor
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November 28, 2005

requests by private attorneys to prosecute such cases. Of course, in all instances, a private citizen can serve as a prosecuting witness. Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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RObertD.COOk
Assistant Deputy Attorney General

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