Even though your loved one may have been asked whether they want to “press charges,” your criminal case is usually out of their hands.

When police officers report to the scene where domestic violence is suspected and choose to make an arrest, they almost always ask if the person allegedly hurt wants to “press charges.” This often creates misunderstandings in terms of what your loved one can do to have your criminal case dropped, or dismissed.

It is important to know that even if someone was allegedly victimized by a crime, that person does not “press charges.” Only people who work for the State can. That includes law enforcement (police) officers and prosecutors. When police officers report to the scene and ask someone if they want to press charges, what they are really asking is if that person is willing to cooperate and help the State build their case against the person accused of committing a crime. It’s a question asked in the heat of the moment to see whether a witness or alleged victim will assist in seeing this case to the end, especially when the police decide to arrest someone to have them formally charged soon after.

Even if your loved one called 911 and spoke to police, that person cannot “drop charges.” By the time the police arrive, a loved one’s insisting that they don’t want to “press charges” usually gets ignored and an arrest is made anyway. When it comes down to it, your loved one never filed the charge(s) in the first place. They might have called for police officers to come to the scene, where they conducted their own, likely imperfect investigation. Based on law enforcement’s observations (some that might be inaccurate), they decided to route their case file to the district attorney’s office. In most situations, this happens immediately after the arrest. Through the district attorney’s office, a prosecutor formally filed the charge against you. At this point, even if your loved one did not and does not want you prosecuted, they are now a potential witness for the State.

Even though your loved one is not in a position to actually drop the charge(s) against you, a prosecutor may consider their concerns and desires. To formally express their desire that the prosecution not pursue a case against you, your loved one may prepare a statement contained within an affidavit of non-prosecution. Your loved one would need to sign this document in front of a notary public. While there are some samples available online, standard affidavits of non-prosecution usually don’t persuade prosecutors to dismiss a criminal case. Your loved one should be specific about the facts and circumstances behind what happened. But depending on the evidence that the prosecution has and how they feel about the seriousness of the charge(s), they can simply disregard the signed affidavit of non-prosecution and choose not to dismiss the case. It may be the situation that the prosecutor does not necessarily need your loved one to cooperate and testify against you if your case goes to trial. It is also possible, for a variety of reasons, that an affidavit of non-prosecution may not be helpful to achieving a favorable outcome. Again, this largely depends on the facts of your case.

A diligent criminal defense attorney should be able to review the evidence in your case and recommend whether an affidavit of non-prosecution is needed. Additionally, affidavits of non-prosecution may be treated differently by different prosecutors, depending on what you are charged with. Remember that in most every criminal case, the decision to dismiss rests with the prosecutor. Your loved one’s following up with police, calling the district attorney’s office, and even preparing an affidavit of non-prosecution may not be enough to dismiss your case. Even if an affidavit of non-prosecution isn’t likely to make a difference, a criminal defense attorney should still propose alternative strategies to increase your odds at favorable results.