Private Financing of Public Prosecutions-Part II

Where does one draw the line? How much private assistance can be rendered by purported victims to local prosecutors in a criminal case? Investigation? Assistance during the execution of a search warrant? Hiring experts to do analyses that will be used in court? Will only wealthy "victims" have their cases handled in an adequate manner by public authorities? Do we use private resources to make cases that would otherwise never be solved? The public policy issues are complex and pose serious questions for the future.

In Massachusetts, the legislature passed a statute which basically, authorized the creation of an insurance fraud prosecution unit in the Attorney General's office. It would be funded by a special assessment on two insurance industry trade groups and the insurance industry will also create a fraud bureau to lend assistance to the state prosecutors. The constitutionality of the statute was challenged in Commonwealth v. Ellis. Unfortunately, the court denied the defendant's challenge in large part due to the fact, that the statute in question left the ultimate decision to prosecute in the hands of the public prosecutors. Additionally, the fact that this was a legislative creation subject to public input and review saved the statue and this form of private industry financing.

In California, the software developer, Borland International, suspected that a former employee had been conveying internal information to a competitor. The Santa Cruz County DA's office obtained a search warrant for the competitor's computers. Borland hired one consultant and the DA's office hired another. Borland paid for both consultants. Additionally, Borland paid for a private service to transcribe audio taped interviews of Borland employees. The trial court's decided to disqualify the entire DA's office from prosecuting the case due to Borland's various funding of the prosecution efforts. On appeal, the question framed was "whether a crime victim's payment of substantial investigative expenses already incurred by the public prosecutor creates a disabling conflict of interest for the prosecutor..." Under a unique provision of the California code, the California Supreme Court ruled yes. See People v. Eubanks, 14 Cal.4th 580 (1997).

Bottom line: With prosecutor positions being limited or cut, this issue will continue to arise and rear its ugly head. Know the law and arguments that need to made. Adios until after Thanksgiving