Abstract

American law, typified by Supreme Court decisions like Linda R.S. and Leeke, operates on the assumption that private citizens lack a “judicially cognizable interest” in the criminal prosecution of another and cannot, for instance, challenge the non-prosecution decision of a public prosecutor, however discriminatory. This article shows that the assumption has no substance. Examining nineteenth-century criminal procedure and Congressional enactments after the Civil War, including the Civil Rights Act of 1866 and the Fourteenth Amendment, I argue that Americans long enjoyed a well-defined, personal, civil right to initiate criminal proceedings against wrongdoers.

Through an examination of the era’s legal sources, this article demonstrates that crime victims and eyewitnesses long possessed the right to initiate criminal proceedings. I examine treatises, statutes, and, innovatively, malicious prosecution cases, which usually detailed the underlying arrest, to argue that Americans expected their oath, sworn on personal knowledge before a local magistrate, to trigger arrest and a probable cause examination. 

During Reconstruction, Southern states weaponized anti-testimony laws to deny freed people this common right to access criminal justice. Even when Southern legislatures passed limited testimony laws under federal pressure, they often burdened the testimony of Black Americans, such as by requiring that their testimony be taken only orally, when most criminal complaints had to be reduced to a written deposition. No article, to my knowledge, has ever discussed these technical burdens on Black testimony during the post-war period.

In response, Congress drafted the Civil Rights Act of 1866—a foundational text for interpreting the Fourteenth Amendment—to secure the right to “give evidence” in “proceedings for the security of person and property.” Given the context of the era’s criminal procedure, these provisions must be understood as safeguarding Black Americans’ access to arrest and examination proceedings against both discriminatory legislation and discriminatory enforcement. Thus, history demands a revision of our understanding about the “cognizable interests” of crime victims and witnesses. 

Keywords

Private Prosecution, Nineteenth‑Century Criminal Procedure, Civil Rights Act of 1866, Give Evidence Clause, Reconstruction Criminal Justice, Equal Protection of the Laws, Magistrate’s Ministerial Duty