Clients often call me and tell me the alleged victim is “not pressing charges.” They say that the witness has even gone so far as to tell the prosecuting attorney that they want to “drop the charges.” “So,” the client asks me, “if no one is pressing charges, why am I still being charged?”
The myth of victims dropping charges
The myth that an alleged victim can “drop the charges” probably stems from crime dramas. The plot twist occurs when the victim “drops the charges” on the day of court. In Idaho, it is not the alleged victim that files the charges. Consequently, it is not the “victim” that “drops the charges.”
Prosecutors file charges
A complaining witness can file a “complaint” with the proper authorities, such as a police department. The law enforcement agency then takes the complaint and files it with the prosecuting attorney’s office. The prosecutor then reviews the complaint and determines whether to file charges and what type of charges to file. It is the prosecuting attorney who then files the charges with the court. Finally, the court then makes an initial finding of probable cause. It then does one of two things: it either issues a warrant for the defendant or a “summons” that orders the defendant to appear in court.
Prosecutors dismiss charges
Since it is the prosecutor who files the charges, they are the only person who can dismiss them. As you can imagine, if the
When a prosecutor may dismiss a case
The prosecuting attorney has the discretion to dismiss the case. However, it is unusual for a prosecuting attorney to be persuaded to dismiss their case. The only thing that may convince a prosecutor to dismiss the case is one of the following conditions:
- The prosecuting attorney is satisfied that their evidence is unreliable.
- It is impossible for the state to prove one of the elements of the charge.
- There is a plea agreement in which the defendant pleads guilty to some charges and the prosecutor dismisses the rest.
- There is an agreement in which the defendant will do something, such as take a class, and provide proof in exchange for a dismissal.
Other effects of witness reluctance
While a reluctant witness may not be able to get the state to drop charges, there are other effects they can have on a case. The prosecuting attorney will often consider witness reluctance when deciding whether to take a case to trial, plead it out, or dismiss it. That is especially true when it doesn’t appear that the victim is in need of protection, as with a property crime case. If the property owner decides against pressing charges, then the prosecuting attorney may lose interest in prosecuting the defendant.
Effects on domestic violence charges
On the other hand, if it is a domestic violence case, things are handled differently. If the alleged victim requests that the state stop pressing charges, then her desires may not be relevant to the prosecution’s decision to prosecute. However, it may still have a bearing on the type of plea agreement the prosecutor is willing to extend to the defendant.
Some cases, especially domestic violence cases, often do not begin with a victim filing a complaint. Quite frequently the alleged victim does not want charges in the first place. However, the police submit a complaint to the prosecuting attorney anyway. Again, this is a legitimate means of starting a criminal prosecution. The law does not require a victim to file a complaint before the state can file charges.
Do not ask the victim to “drop the charges”
If the State has charged you with a crime, do not ask the victim to drop the charges. First, do not request the victim to drop the charges because the victim cannot. Worse yet, if you ask the victim to do this, the state could construe it as witness tampering. The state calls this witness intimidation and could charge you with a felony.
Hire a competent attorney to help address your case. Do not try to handle things yourself. You will only make your situation worse.
what if a name is incorrect?
This is a very vague question. I do not know how to answer a question with so few details.
So my wife has offensive touching pending against me. The neighbors filed the complaint i never wanted to press charges to begin with. I told the police that and they continued with the process. Is there anything i can do to get rid of these charges on my wife?
What happens when the victim, is in another state, and can not attend the court hearing?
I’m sorry for responding late. I am only now aware of these comments on my site, and I’m responding to them as quickly as I can. If a victim is in another state, and her presence is required, the State should be able to help the victim attend. The victim should call the State prosecutor, and explain the situation if he or she cannot make an appearance. If the victim’s attendance is necessary to prove the case, and they fail to appear. Unless the State can either prove the case without the victim’s attendance or somehow secure the victim’s attendance, then the case will likely have to be dismissed.
My son has been charged with domestic violence four times by his girlfriend, on all four occasions it’s been around the holiday time and she has received victim assistance four times and after getting the money, she goes downtown and drops the charges on him and gets back with him , is this legal to keep doing
I’m sorry for the late response, I have recently hired a moderator for my website, and he has notified me of these comments. The girlfriend isn’t charging your son, the State is charging your son. The girlfriend is making a complaint to the State, and the State is choosing to follow through and charge your son with the crime. If the State chooses to keep dismissing the cases after the girlfriend no longer wants to cooperate, then that’s their decision. Unfortunately, it is legal. However, it is not legal to file a false police report. If she is making false reports to reap some financial benefit, and it can be proven, then the State could charge her with filing a false police report.
I went to jail on a domestic violence charge and 2 theft charges all mist. crimes. This happened between my mother and step dad vs me. I went to jail for a few days got out and my parents dropped the charges. It has been 2 years since over 800 days and we all get letters in the mail saying the same picked up the charges… What is going to happen to me? My mother and step dad are both going with me to court will I be charged? I have only been give a 2 week notice for court I can’t get a lawyer in that little of time
I’m sorry I’m only responding to this now. I hired a moderator for my website, and he is notifying me of these comments. The short answer to your question is, yes you can be charged with a crime, even if the witnesses involved do not want the charges pressed. The State is the one who makes that decision. Whether you are convicted of that charge or not is up to you if you want to plead or not, and up to a jury if you decide to go to trial.
If a plaintiff filed charges and then didnt come to court for the hearing would the plaintiff be charges or in trouble with the court?
I apologize for responding so late, I hired a moderator for my website who is bringing these to my attention, so I’m only getting to answering them now. In answer to your question, “plaintiffs” do not file criminal charges. The State and Federal government’s file criminal charges, they are the so-called “plaintiffs” in the case. Individuals can only file civil cases. If a state’s witness in a case doesn’t appear in the matter, the only way that witness is going to get in trouble is if the State seeks a warrant for their appearance. They could get arrested for not appearing on the subpoena.
If the victim initially makes it known their unwillingness to help with the prosecution and in turn the prosecution no bills the charges but there is proof that the defendent contacted the victim via email the same day he was arrested and wrote several emails asking her to go to the courthouse and take a class to help get the charges dropped can the charges be brought back up against the defendent? It has been 9 months and the defendent is still in jail because he was out on bond when he was arrested and in State of FL vs Parker this revokes the bond until those old charges are closed. I know that the statute of limitations for domestic violence is 5 years but if the charges were initially brought but not formally can they be brought back agains the defendent if the victim is now willing to cooperate, especially because the defendent has been threatening her
I’m sorry it took me so long to respond to this. I have a moderator who notified me of this question, and so I’m only getting to it now. Your question is difficult to answer without knowing more. Is this a misdemeanor charge? Is this a Florida case? If so, one thing you will want to look into is whether a dismissed misdemeanor in Florida can be refiled. In Idaho, where I practice, they cannot be. Once a misdemeanor charge is dismissed, they cannot be refiled in Idaho. I do not know what the law in Florida is, but I wouldn’t be surprised if it was the same.
My boyfriend is being charged with assault on a female. I am the victim and the state took the charges out on him. There are no names on his report what I saw but mine. It was just said what a neighbor said that called in but no names on the paper. I gave the magistrate my story of what really happened, but they put what others said instead. Anyway if I don’t show up for court since I have no court date for it but my boyfriend does should I go or not. If I don’t go is there a chance it can be dismissed. It’s a misdemeanor charge and his first as well. Right now we have no contact order, but can that change even if they don’t dismiss and he takes a class, will we be allowed contact even if he is taking a domestic class
There are numerous hearings that your boyfriend will likely have to attend. The only hearing that your presence will be likely necessary for will be the jury trial. In some cases if a witness fails to appear for a jury trial, it can result in the case being dismissed for lack of evidence. But that doesn’t work in every case, some cases have evidence that can be submitted in the absence of the alleged victim’s testimony. Also, if you are subpoenaed by the State to show up for the trial, and you do not show up, there can be consequences for your failure to appear, like a witness warrant. A witness warrant is a warrant issued by the court, that gives the State authority to arrest the witness to bring them to court. Witness warrants are not frequently used, especially in misdemeanor cases, but it is a tool at the prosecutor’s disposal if they wish to use it.