By Criminal Defense Lawyer Jeremy Rosenthal
This most common question I get in domestic violence cases is this: if the victim doesn’t want to prosecute then won’t the case go away?
The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more. The prosecuting attorney makes the decision whether to go forward with a family violence charge. Will the prosecuting attorney go along with the “victim’s” request to dismiss charges? This is the million-dollar question which is different in every case.
Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.
District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants. In theory, you would think they would be sensitive to pleasing the person they purport to protect. Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.
Affidavits of Non-Prosecution
An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed. An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.
Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?
I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.” Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.
When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true. They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt. I’m sure sometimes they are right.
Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution. They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.
What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?
This happens. I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.
The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath. A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.
It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation. You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.
The Firewall – The Jury
The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.
Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.
Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Super Lawyer by Thomson Reuters.