What If the Victim Doesn't Want to Press Charges

What If The Victim Doesn't Want to Press Charges?

     If you've been arrested for a crime that involves a victim or victims, sometimes those victims will tell you that they don't want to press charges. Maybe they've changed their mind, or maybe they didn't realize what a big affect their allegations would have on your life. When a victim says this, you wonder if that means the entire case will be dismissed. I get this question regularly in my practice. Obviously, it's always good news when a victim takes this position but it is not a magical resolution to your case. Don't believe what you see on TV. On many crime shows, the victim says "I won't press charges" and suddenly the case is dismissed. It doesn't usually work like that in real life.

What if a Victim Doesn't Even Want Me to Be Arrested?

     Once the police are involved in an incident (usually through a 911 call), the police alone will make the decision as to whether arrest you. If the police believe they have probable cause to arrest you, they usually will. Even at this early stage, before an arrest has actually happened, a victim saying they don't want to press charges doesn't prevent the police from acting. We see this most commonly in situations were some kind of assault or battery has occurred between family members or people in a relationship. The police do not allow the arrest decision making to be on the victims because the police worry that the victim is either afraid to ask that someone be arrested (or being influenced not to ask for an arrest) or they don't realize the danger they may be in if the person isn't arrested. Even when a victim is adamant that they won't cooperate with the police, an arrest can still happen. 

What if a Victim Doesn't Want Me Prosecuted?

     More often, defense attorneys hear from victims some time after the arrest has happened. It's usually because the victim and the defendant are back to having a positive relationship, and don't want the trouble of proceeding with the case. They want to stop the case from being prosecuted. Victims will call me and usually ask what they can do to end the case. However, victims do not have the power on their own to drop charges.

     What I usually tell victims is if they want to have input in how the case is handled, they need to contact the District Attorney's Office (prosecutor's office) directly. Many prosecutors offices have victim advocates, who are employees dedicated to handling the victim's needs in cases. The victim can contact them and say whatever they want. Sometimes, the victim advocate will proactively reach out to the victim to get a statement in writing as to what they want to have see happen in the case. I will never tell a victim what to say to the prosecutors. Defense attorneys need to be careful that they are never pushing a victim to say or do anything. However, anytime a victim tells the prosecutors that they don't want to see a client get prosecuted or punished, that is very helpful. This gives us much more leverage in negotiating a resolution or planning a strong trial strategy.

What if the Victim Writes An Affidavit That No Crime Happened?

     Often victims will offer to write an affidavit saying that the police got it wrong or that whatever the victim said at the time of arrest never actually happened. I appreciate that victims want to help, but they need to be very careful about writing an affidavit right away. Affidavits are sworn written testimony.  First, the police likely recorded what the victim told them during the arrest on their body camera. So, if the victim comes back later and says it never happened, it may appear that the victim either lied to the police (and falsely reported a crime) or they are lying in their testimony in the affidavit, which is perjury. 

      It's actually much smarter to wait and see what the police videos and reports show. The victim can review that evidence and then decide how they want to write an affidavit. Sometimes, we can see by the body camera videos that perhaps the police did misinterpret a situation or overcharged the defendant. In those cases, an affidavit may help. Other times, the video shows that the victim said or demonstrated in no uncertain terms that a crime occurred. If that is the case, it might end up being better to avoid an affidavit all together and simply press the prosecutors very hard to go lightly on the defendant. 

What if the Victim Refuses to Testify?

     The victim is almost always required to testify at a trial. Even if the victim doesn't want to come to court, the state can serve the victim with a subpoena that requires their presence in court. A subpoena is a court order to appear. If the victim does not appear, the sheriff will arrest them and bring them to court. Once on the stand, a victim will be required to answer questions. Lying under oath could place a victim in serious trouble. The prosecution will have copies of any body camera footage, interviews, 911 calls and other statements that the victim made at the time of the alleged crime. It will put the victim in a tough position to contradict what was said at the time of the crime. Of course, there may be a middle ground between the victim denying it happened entirely, and being forced to agree with everything they said at the time of the crime. It can be reasonable for a victim to admit they were overly emotional at the time of the incident and may have exaggerated somewhat. It will depend on the specific facts of each case. 

What Do I Tell The Victim If They Don't Want to Have Me Prosecuted?

     If the victim in your case decides they don't want to see you prosecuted, you need to be very careful. It is always important not to appear like you are influencing their testimony. If you are allowed to have contact with them, you can direct them to call your lawyer. Your lawyer will be able to assess how best to use the victim's willingness to help in the best way.