Private Financing of Public Prosecutions-Part I

In my last post I mentioned the recent Wisconsin State Journal article entitled "Fire Investigations face scrutiny." It is my belief that with the fiscal attitude of the legislature and executive branch, the criminal justice system will remain grossly underfunded, including not only counsel for the accused but also prosecutorial agencies. This will put pressure on District Attorneys and law enforcement to rely on private funding for investigations and prosecutions. This reliance raises a host of not only public policy concerns but the fundamental due process rights of defendants.

The general issue of the private financing of public prosecutions as against public policy was set forth as early as 1928 in the State of Wisconsin. In State v. Peterson, 195 Wis. 351, 218 N.W. 367, the Supreme Court stated: "In the prosecution of criminal actions, the district attorney prosecutes for public wrongs, not private wrongs, and such prosecution should be by a public officer, not a private party. This court has from earlier days given full effect to our statutory scheme, and has declared it the public policy of the state." Id. at 369.

Unfortunately in terms of the scope of this decision, the case involved the egregious facts of an attorney being hired by the complaining witness and actively assisting the prosecution during trial. Second, the court's ruling was dependent on the statutes which as we know can be changed without much notice or public input. Is there a constitutional barrier to this type of activity? How far can a private party go in assisting the prosecution? Initial investigation by the internal security of the company (think employee theft by store clerk)? Hiring of experts to assist the prosecution (think insurance companies in arson cases)? Payment of experts to testify at trial (same)? As one can see the degree of influence and financial assistance by the private party is one of degree and when and where do things cross the line?

In constitutional terms, due process mandates that the public prosecutor be impartial. In the landmark case of Berger v. United States, 295 U.S. 78, 88 (1935), the Court observe that , "the United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." This impartiality requirement has been part of the touchstone along with public policy concerns in cases decided across the country raising this issue. My next entry will discuss two of the more prominent cases. Until then, enjoy your summer.