Very commonly in assault cases, the alleged victim of an offense will want to “drop” the charges. This can be for a variety of reasons, including that a romantic couple has reconciled, that the alleged victim regrets getting the police involved, or that the charges were fabricated or exaggerated. Unfortunately, once an accusation has been made, it can be very difficult to get a case dismissed based on the wishes of the victim. One common way that a victim in Texas may attempt to get the case dismissed is by filing an affidavit of prosecution.
Before taking any action that may impact a criminal case (including preparing a statement or affidavit of non-prosecution), it is very important to consult with an experienced criminal defense attorney. If you are the defendant in a criminal case, you could face additional serious charges if you are accused of attempting to influence the statement of a witness, and you should avoid speaking with the alleged victim about the incident or attempting to obtain a statement.
What is an affidavit on non-prosecution?
An affidavit of non-prosecution is simply a sworn statement (typically notarized) from the victim stating that he or she does not wish to pursue charges and wishes charges against the defendant to be dismissed (here is an example of what an affidavit of non-prosecution looks like). Most affidavits of non-prosecution simply state what the alleged victim’s wishes are and do not discuss the facts of the case (as discussed below, depending on the facts of an assault case, a truthful statement from the alleged victim may be more effective than a typical affidavit of non-prosecution). The sworn statement is then typically provided to the District Attorney’s office with the goal of getting the case dismissed.
Do prosecutors have to dismiss a case when they receive an affidavit of non-prosecution?
No. An affidavit of non-prosecution has no formal legal effect, and prosecutors can still go forward with a criminal case regardless of the wishes of the alleged victim. However, in many cases, prosecutors may take the wishes of the complaining witness into account when deciding whether to dismiss a case or offer a particular plea agreement (for one thing, prosecutors need the alleged victim to come to court and testify if there is a trial, in most cases). In general, an affidavit of non-prosecution may have more influence on prosecutors in cases that are less serious and do not involve significant injuries.
Who should prepare an affidavit of non-prosecution?
A victim should not prepare any kind of statement or affidavit of non-prosecution without first consulting with an experienced criminal defense attorney. It is also very important that the defendant in an assault case (or any criminal case) does not discuss the facts of the case with the victim or attempt to influence the victim to make a statement or sign an affidavit of non-prosecution. When the defendant becomes involved in attempting to influence or even record an alleged victim’s statement, he could be accused of a serious offense, such as tampering with a witness.
If the alleged victim wishes to drop the charges and sign an affidavit of non-prosecution, the best practice is to have the victim represented by her own attorney or to have the defendant’s attorney (or their investigator) assist with preparing the affidavit.
If the alleged victim wishes to make a truthful statement regarding the facts of the case (perhaps to clarify an untrue or misleading statement that was previously made to the police), these facts can be included with an affidavit of non-prosecution. In fact, a truthful statement addressing the facts of the case may be more effective than a statement that simply expresses the alleged victim’s wishes that a case be dropped.
Attorney Jose Ceja is a former prosecutor with extensive experience handling all types of assault cases and violent crimes. If you have been charged with any assault offense in the Houston area, call Ceja Law Firm today for a free consultation.