When the Alleged Victim Doesn’t Want to Prosecute:
Domestic violence allegations can tear families apart. In many cases the witness or alleged victim later has second thoughts, regrets, realized they made a mistake or fabricated a report, etc… and ultimately wants the case dismissed. California law, however, leaves charging decisions in the hands of prosecutors, not victims. Even if the person who made the report no longer wishes to cooperate, the district attorney can – and often will – proceed with a domestic‑violence case. That is why it is critical to retain experienced counsel like Radford and Rome, LLP who understands both the prosecution’s discretion and the rights of victims and defendants.
Who Decides Whether to Drop Charges?
Contrary to popular belief, an alleged victim cannot “press charges” or “drop charges.” Once law enforcement takes a report and submits it to the district attorney’s office, prosecutors decide whether to file a complaint and which charges to pursue. Prosecutors are under pressure to aggressively prosecute domestic‑violence cases, even when witnesses recant or decline to testify. They can rely on 911 recordings, medical records, photographs of injuries and statements to police. They can also subpoena reluctant witnesses. California courts may hold uncooperative witnesses in contempt, but the law protects victims of domestic or sexual violence from being jailed for refusing to testify. Instead, the court may impose fines or other sanctions.
How a Witness or Victim’s Wishes Can Be Conveyed:
Although the ultimate decision rests with the prosecutor, a complaining witness’s position is still relevant. There are several ways an attorney can convey that the alleged victim does not want to go forward:
Affidavits of Non‑Prosecution
One option is an affidavit or declaration explaining that the witness does not wish to prosecute. The affidavit can set out the witness’s state of mind at the time of the original statement, clarify whether anyone exerted pressure to make the report and explain why the witness would invoke the Fifth Amendment rather than testify. Because statements made under penalty of perjury can expose the declarant to criminal liability, the witness should not prepare such a document without counsel. An experienced attorney can draft an affidavit that is truthful and minimizes the risk of self‑incrimination while still making clear that the witness will not cooperate.
Letters to the District Attorney
Counsel can write to the prosecutor explaining the witness’s desire that the case be dismissed. The letter may note any issues with the evidence, such as inconsistencies or a lack of corroboration, and may highlight the potential trauma of forcing a reluctant victim to testify. While prosecutors are not obligated to dismiss a case, they are more likely to exercise discretion if they understand that the key witness is unwilling and may be unavailable at trial.
Declining to Testify Under the Fifth Amendment
If a witness’s truthful testimony could tend to incriminate them – for example, if they admit to having lied or to having engaged in mutual combat – they may assert their privilege against self‑incrimination and refuse to testify. When the witness indicates an intent to plead the Fifth, the prosecutor may decide that the remaining evidence is insufficient to prove the case beyond a reasonable doubt. A knowledgeable defense lawyer can advise the witness on whether this privilege applies and can represent them at a hearing to assert the privilege.
Marsy’s Law and Victims’ Rights
Victims of crime in California have a constitutional right to be treated with dignity and respect and to be reasonably protected from intimidation. Our firm helps victims exercise these rights by communicating their wishes to prosecutors, attending court with them and ensuring they are not harassed. Although Marsy’s Law does not give victims the power to dismiss cases, it does ensure they have a voice.
Why Prosecutors Often Proceed Anyway
District attorneys in California typically proceed with domestic‑violence charges even when the alleged victim recants. They may believe that recantation results from fear or coercion, or they may rely on other evidence to prove the case. In addition, state grants and public pressure incentivize aggressive prosecution of domestic‑violence crimes. Prosecution is sometimes politically motivated, unfortunately, since California District Attorneys are elected positions. Because of this institutional momentum, it is rare for prosecutors to dismiss charges solely at the victim’s request.
How Radford & Rome Can Help
As former prosecutors, the attorneys at Radford & Rome, LLP understand how domestic‑violence units operate and what persuades them to dismiss or reduce charges. We can:
- Evaluate the strength of the case. By reviewing police reports, recording statements and physical evidence, we identify weaknesses that make a conviction unlikely without the victim’s testimony.
- Prepare and file affidavits or declarations. We help witnesses safely explain why they do not wish to prosecute, ensuring their rights are protected.
- Negotiate with prosecutors. We present the victim’s position and argue that justice is not served by pursuing a reluctant witness. If prosecutors insist on moving forward, we use every available defense strategy to seek dismissal or acquittal.
- Protect victims from harassment. We assert rights under Marsy’s Law and the California Code of Civil Procedure to prevent courts from imprisoning victims for refusing to testify and to ensure they are treated with respect.
Domestic‑violence cases are complex and emotionally charged. Whether you are an accused person whose partner wants to retract allegations or a victim who feels misrepresented by law enforcement, Radford & Rome, LLP can help. We serve clients throughout Los Angeles and Southern California, working tirelessly to achieve the best possible result.