By far the most frequent question I get from clients accused of family assault is why the case cannot go away if the other spouse wants it to? To individuals embroiled in an argument, the whole affair feels like a private matter. When the State prosecutes, it doesn’t cease to be a private matter to them, and it is impossible to believe that it should not be resolved in a private way. Unfortunately, once the police are involved, a private argument becomes a very public affair.
The prosecution believes that their duty is to protect the complaining spouse. Although the spouse may fully believe the event was a one time issue, the prosecution has been trained to consider it an ongoing problem. I always tell clients that it is “helpful” when a complaining spouse tells the DA to drop the charges, but it is never the determining factor for the prosecution. It is one factor that they will look to in making their decision on how to resolve the case.
How important that factor is will depend on the facts. The best way to get an assault against a family member, or anybody else for that matter, dismissed is to attack the case early. When I am told that a spouse has exaggerated the story that led to an arrest, I attempt to speak to the complaining spouse as soon as possible. You should always keep in mind that the DA will be attempting to do the same thing. In fact, it is not unusual for an assistant district attorney or her intern to call the complainant as soon as the case is assigned to a particular court. I make sure that I solidify the facts that will be reported by the complainant before she has a conversation with the District Attorney. This is important because the conversation with the prosecutor will not be recorded, leaving the prosecutor free to interpret.
This strategy only works if the individual charged gets an attorney as soon as they are able. Many of my clients hire me two weeks down the line after attending their first court date. This leaves me with fewer options.