At least once a week I receive a phone call from a girlfriend, wife or husband who regrets calling the police on their loved one and wants to know how to “drop” charges. I know what she wants. She wants to go back in time and erase the problem without having to deal with the court system or the expense of lawyers. I don’t blame her, but she knows what I’m going to tell her. Buy now it is well understood that only the State prosecutor can dismiss charges against someone charged with Assault. However, to be fair, that’s not the whole story.
It is not irrelevant to the prosecution that the aggrieved family member wants the case dismissed. They are not stupid. The State knows that they have a much better case when the complaining family member persists in his desire for prosecution. The last thing they want is to have to deal with a recalcitrant or difficult complainant. My experience has been that if the prosecutor has a good factual reason to dismiss an assault, and the complainant is on board with the dismissal, she will do so.
On the other hand, if in addition to the complainant’s statements to the 911 operator, the prosecutor has photographic evidence of physical injury or statements from third party witnesses, she is less likely to dismiss. The last thing she wants to do is dismiss an Assault case and it winds up biting her in the ass later when the abuse is repeated. However, even with that additional evidence it still does not mean that the case won’t ultimately be dismissed.
People caught up in the criminal justice system often get frustrated with prosecutors who refuse to dismiss because it sometimes appears they are trying to inject their personal beliefs about what is best for the family. In particular, a Magistrates Emergency Order of Protection can be horribly intrusive to a family with children, since it prohibits the accused from going back to the family home for 60 days.
But… lets look at it from the prosecutor’s perspective since it will be up to the prosecutor to dismiss when and if it is proper. What motivates the prosecutor? First and foremost, he wants to make sure that if violence occurred that it not be repeated.
Resolving this concern should be the first responsibility of the defense attorney. Obviously, if the defense can provide a reasonable argument as to why violence never actually took place, the decision to dismiss will be easier for the prosecutor. However, this is often a gray area, especially when the case involves an emotional plea for help to the 911 operator.
In my experience, there are other ways for a defense attorney to fill in the blanks on a case that will alleviate the concerns that a prosecutor may have. For instance, the prosecution usually has no idea what took place prior to the alleged act of violence. It may be that the smack that the family member complained of occurred as a result of previous violence against the accused. It is often the case that alcohol or infidelity was the fuel that ignited the argument and although both parties were involved in the violent behavior, only one of them called the police.
The prosecutor has no real idea about the depth of the relationship between the parties. For instance, he will find it important that the parties have been married for twenty years with no prior difficulties, making the act complained of an aberration not likely to reoccur. Only the defense attorney can provide this information.
A complainant sometimes tells me that she lied to the police and wants to come clean. This puts me in a difficult position since I don’t represent the complainant. However, I do my best to admonish the complainant about the dangers of admitting to this lie. Although I have not known of a complainant in an Assault case charged with a false report to a police officer, the possibility exists. In these circumstances I usually tell the complainant to delay any further communication with the prosecution or law enforcement until I can review the offense report. If I feel like the complainant is in any danger I will advise them to get representation. Her lawyer can both protect her and help me facilitate the information where it is most helpful to my client.
Sometimes I am told by the complainant that she will not come to court when called to do so. I understand this philosophy. Her belief is that if she does not come to court, the case will be dismissed. This might be true. However, it is not always in my client’s best interest for her to refuse to come to court. A prosecutor does not have to dismiss simply because the complaining witness is not present. She is merely one witness and if he has other admissible evidence sufficient to proceed to the jury, he is permitted to do so. I can tell you from personal experience that it can be a frighteningly difficult task to defend a case when the complainant is not available and the prosecutor has third party witnesses that can describe the assault. Those third party witnesses have no idea what occurred prior to the assault, and in that vacuum the jury can be prone to attaching motive for the complainant’s absence that is not helpful to my client.
In 27 years, I have not lost a jury trial when my client was charged with Assault of a Family Member. However, that doesn’t mean I will continue to go undefeated. It is always better to resolve the case by dismissal and this should always be the paramount goal. I have worked out many more dismissals than acquittals. However, the way to do this isn’t for the defense attorney to thrust the complainant out to the prosecutorial wolves. He should use the complainant’s desire in a way that will achieve both her and his client’s goals.