Clients often call me and tell me the complaining witness (also known as the “alleged victim”) is not “pressing charges.” They say that the complaining witness has even gone so far as to inform 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 too many crime dramas where a plot twist occurs when the victim “drops the charges”. In Idaho, it is not the “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 officer. The law enforcement agency then takes the complaint and files it with the prosecuting attorney’s office. The prosecuting attorney’s office then reviews the complaint and makes a determination whether to file charges and what type of charges to file. It is the prosecuting attorney who then files the charges with the court. The court then makes an initial finding of probable cause and then does one of two things. He either issues an arrest 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, the only person who can dismiss the charges is the prosecutor. As you can imagine, if the prosecuting attorney already made a determination to file the charges, they are not frequently persuaded to then drop the charges. A victim asking does not often change their mind since it is very common for victims to request this.
When a Prosecutor May Dismiss a Case.
The prosecuting attorney has the discretion to dismiss the case. However, it is not common 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:
- The prosecuting attorney is satisfied that their evidence is unreliable.
- It impossible for the State to prove one of the elements of the charge.
- There is a plea agreement where the defendant pleads guilty to some charges and the prosecutor dismisses the rest.
Other Effects of Witness Reluctance.
On the other hand, there are other effects a reluctant witness can have on a case. The prosecuting attorney will often consider this fact when deciding whether to take a case to trial, to plead it out, or dismiss it. Especially when it doesn’t appear that the victim is in need of protection, such as in a property crime case. If the property owner does not desire prosecution, then the prosecuting attorney may lose interest in prosecuting the defendant.
On the other hand, if it is a domestic violence case and it is the wife of the accused that no longer wishes to press charges, then her desires may not be relevant to the prosecution’s decision to prosecute. However, it may still be related to what type of plea agreement the prosecutor is willing to extend to the defendant.
Most cases, especially domestic violence cases, do not begin by a victim filing a complaint. Quite frequently the alleged victim does not want charges in the first place, but 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 in order for the State to press criminal charges against the defendant.
Do Not Ask Victim to “Drop the Charges”
If the State has charged you with a crime, do not ask the victim to drop the charges. The victim cannot drop the charges. Worse yet, if you ask the victim to do this, the State could construe it as witness tampering, or witness intimidation, and 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 things worse.
Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.
Ask Craig to review your case.