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 or already decided to file the charges, they are unlikely to dismiss them. A victim asking for the state to dump the case does not often change their mind, since it is common for victims to make that request.
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.