Many Collin County criminal cases start with someone contacting the police and filing a report. This is a common occurrence in family violence cases–someone tells the police their partner assaulted them. After some time has passed, however, the accuser may not wish to go forward with criminal prosecution. Maybe the person made up the whole thing. Or perhaps they simply want to put the incident “behind them” and avoid testifying at a public trial. A person in that situation may be able to file an affidavit of non-prosecution.
Can the alleged victim of a criminal case drop the charges?
There is a misconception among many people that an accuser can simply “drop the charges,”. Many think that ends the criminal case against the defendant. But that is not how the criminal justice system operates. In a civil case, a plaintiff may voluntarily dismiss his or her lawsuit against the defendant. In contrast, a criminal case is handled by the District Attorney, not the accuser. The DA is the legal representative of the State of Texas. Once a case is in the system, it is up to the DA to decide whether or not to proceed.
Obviously, a DA’s job is more difficult if the accuser no longer wishes to cooperate. Prosecutors will certainly take the accuser’s wishes into account, but they are not legally bound by them. If the DA decides to proceed, he or she can compel the accuser to testify in court by issuing a subpoena. If the accuser tries to ignore the subpoena, the court may issue an arrest warrant. The court also cites the person for contempt of court.
An accuser may avoid testifying by filing an affidavit of non-prosecution
That said, the accuser may try to avoid the need for testifying by filing a document known as an “affidavit of non-prosecution” (ANP). An affidavit in Texas is basically a written document sworn before a notary that states certain facts and attests to their truthfulness under oath–i.e., under penalty of perjury. While the precise form will vary based on the case, an ANP essentially states that the accuser does not wish to pursue charges against the defendant and presents any additional facts or circumstances the District Attorney and the judge should be aware of before proceeding any further with a prosecution. The ANP should also make it clear the accuser understands she may still be compelled to testify in court. It must also show that she is signing the affidavit voluntarily. She is not under coercion, threat, or promise of any future consideration.
This last point is critical. The defendant must not take any action in order to secure an ANP. It must be the accuser’s free and voluntary action. And in many family violence cases, a defendant who attempts to contact the accuser about an ANP may also violate a standing order of protection. So, under no circumstances should a defendant ever try to pressure or lobby their accuser into making a statement renouncing their previous allegations.
If you are a defendant facing a false accusation or an accusing witness looking to avoid a trial, contact the criminal lawyers in Collin County at Rosenthal Kalabus & Therrian, today if you need immediate legal advice or assistance.