Who Is the Injured Party? Standing in Criminal and Civil Cases

"If nobody was injured, where is the crime?" The question has intuitive force. In a civil lawsuit, a plaintiff must show that he was harmed. Why should a criminal prosecution be different? And if the government is the party bringing the case, in what sense has the government been injured by, say, a person driving without a license on an empty road?

The question deserves a careful answer because it rests on a real legal concept, standing, and applies it in a setting where the law has historically operated on a different theory. Separating the two settings, and identifying who the parties actually are in each, answers most of it.

Injury in civil cases

In federal court, a plaintiff must have standing, which the Supreme Court treats as part of the case-or-controversy requirement of Article III of the Constitution. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Court described "the irreducible constitutional minimum of standing" as three elements: an "injury in fact," meaning "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent," rather than conjectural or hypothetical; a causal connection between the injury and the defendant's conduct; and a likelihood that the injury will be redressed by a favorable decision. The archive's entry on Lujan examines those elements more closely.

The purpose of the requirement is to confine courts to actual disputes between parties with something at stake. A person who is merely interested in a question, or who shares a grievance with the public at large, generally cannot sue about it.

Who brings a criminal case

A criminal prosecution is not brought by the victim. It is brought by the government, in the name of the United States, the state, or "the People." That is not a modern convenience. It reflects one of the oldest structural features of the common law.

Blackstone opened the fourth volume of his Commentaries on the Laws of England (1769) by dividing wrongs into two kinds: private wrongs, or civil injuries, which he had treated in his third volume, and public wrongs, meaning crimes and misdemeanours. Private wrongs infringe the rights of individuals; public wrongs, he wrote, are a breach of the "public rights and duties, due to the whole community." Criminal law, he wrote, is called "the pleas of the crown" because the king (spelling modernized), "in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public right belonging to that community, and is therefore in all cases the proper prosecutor for every public offence."

That passage is the clearest historical statement of the theory. A crime is treated as an injury to the community and its order, and the sovereign, as the community's representative, is the injured party and the prosecutor. In the American system the people, acting through their governments, took the place of the king.

The modern Supreme Court on the government's injury

The Supreme Court has confirmed this theory in the language of modern standing doctrine. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000), a case about private citizens suing on behalf of the United States under the False Claims Act, the Court observed that a complaint alleging fraud on the government asserted "both the injury to its sovereignty arising from violation of its laws (which suffices to support a criminal lawsuit by the Government) and the proprietary injury resulting from the alleged fraud."

The parenthetical is the key. The Court treated the violation of the sovereign's laws as itself an injury sufficient to support a criminal prosecution, without any requirement of a separate, identifiable private victim.

Why victims cannot prosecute

The other side of the same principle is that private persons, including victims, generally have no legally enforceable interest in whether someone else is prosecuted. In Linda R.S. v. Richard D., 410 U.S. 614 (1973), a mother sought to compel Texas officials to prosecute the father of her child for non-support. The Court held that she lacked standing, explaining that "in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another," and referring to "the special status of criminal prosecutions in our system."

Victims do have recognized rights in criminal proceedings, but they are participatory rights, not control over the case. The federal Crime Victims' Rights Act defines a crime victim as "a person directly and proximately harmed as a result of the commission of a Federal offense," and gives victims rights including notice of public proceedings, the right to be reasonably heard at release, plea and sentencing proceedings, the right to confer with the government's attorney and the right to full and timely restitution as provided in law (18 U.S.C. §3771(a), (e)). The same statute provides that "nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General" (§3771(d)(6)).

Sorting the roles

Several roles are often run together:

A plaintiff is the party who brings a civil suit and must show his own injury.

A prosecutor represents the government in a criminal case.

The sovereign (the United States, a state, the people) is the party in whose name a criminal case is brought and whose laws were allegedly violated.

A victim is a person harmed by the offense, who may have statutory rights but is not a party.

A complaining witness is a person who reports an offense or gives evidence; this may be a victim, a police officer or someone else.

The strongest version of the question

Put at its strongest, the question is not really about standing doctrine at all. It is a question about the proper scope of criminal law: whether conduct that harms no identifiable person should be criminal. That is a serious question with a long history in legal philosophy, and reasonable people disagree about where the line should fall. The archive's entry Before Victimless Enforcement traces the historical role of harm in the foundations of legal authority.

But that is an argument about what legislatures ought to make criminal. It is not a procedural defect that can be raised in a particular prosecution. The civil standing requirement of Lujan governs plaintiffs who invoke a court's jurisdiction to remedy their own injuries. A criminal prosecution rests on a different and older foundation: the sovereign's interest in enforcing its laws, which the Supreme Court has described as itself a sufficient injury.

What the record supports

Civil plaintiffs must show concrete, particularized injury. Criminal prosecutions are brought by the government because the law has long treated crimes as injuries to the public order, with the sovereign as the injured party and proper prosecutor. Victims have recognized rights but no control over prosecution, and private citizens generally cannot compel or prevent one. Whether particular conduct without a direct victim should be criminal is a legitimate question of policy; whether a prosecution of such conduct requires a private injured party is a question the law has answered for centuries.