I frequently get calls from prospective clients who have been charged with criminal charges who inform me that the complaining witness (also known as the “alleged victim”) is not “pressing charges”, and 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, “Why am I still being charged?”
The myth that an alleged victim can “drop the charges” probably stems from too many crime television shows where a plot twist occurs when the victim “drops the charges.” In Idaho, the truth of the matter is it is not the “victim” that files the charges and it is not the “victim” that “drops the 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 either issues a warrant for the defendant to be arrested, or a “summons” that orders the defendant to appear in court.
Since it is the prosecuting attorney who files the charges, the only person who can dismiss the charges is the prosecuting attorney. As you can imagine, if the prosecuting attorney already made a determination to file the charges, they are not frequently persuaded to then subsequently drop the charges, as alleged victims so frequently try to do.
The prosecuting attorney does have the discretion to file a motion to dismiss the case, and the judge will dismiss the case upon such motion, but it is not common for a prosecuting attorney to be persuaded to dismiss their case. Generally prosecuting attorneys will file a motion to dismiss a case when they subsequently become convinced that the evidence is unreliable, or that there is a fundamental failure in the case to prove the elements of the charge, or if there is a plea agreement that results in the defendant pleading guilty to some charges and the prosecuting attorney dismissing the others.
On the other hand, when a complaining witness no longer wishes to pursue a case the prosecuting attorney will often take this into consideration when deciding whether to take a case to trial, to plead it out, or straight out dismiss it. This is especially true when it doesn’t appear that the complaining witness is someone who needs to be protected, such as in a property crime case. If the property owner no longer desires that someone is prosecuted for trespass, then the prosecuting attorney may have no desire to continue to prosecute the defendant. On the other hand, if it is a domestic violence case for example and it is the wife of the defendant that no longer wishes to press charges, then her desire for the defendant to be prosecuted may not be relevant to the prosecution’s decision to prosecute. Although it may still be relevant to what type of plea agreement the prosecutor is willing to extend to the defendant.
Most cases, especially domestic violence cases, are not even the result of a complaint being filed by a victim. Quite frequently the alleged victim does not desire that charges be pressed in the first place, but the police file a complaint with the prosecuting attorney anyway. Again, this is a perfectly legitimate means of starting a criminal prosecution. It is not required that a victim files a complaint in order for criminal charges to be pressed against a defendant.
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.