How Do You Not "Press Charges"?

In many criminal cases, the complainant, also known as the victim, no longer wishes to be involved. Sometimes that's because he or she is trying to move past it. It could also be because the complainant called the police in a heated situation and now regrets it. Or the complainant was not truthful with the police and for that reason does not want to testify at trial. Or another reason. Regardless of the reason, the decision to proceed with a criminal case, for which probable cause has been found by a court, is the State's. 

Crime victims (although I prefer the term complainants because victim presupposes that a crime has been committed, our law uses the term victim) have several rights, including being allowed to talk to the prosecuting authority and speaking in court before a plea deal is accepted or a sentence is imposed. The decision to "press charges" belongs to the police, after they have been called, by them deciding to make an arrest or seek a warrant, and the State after an arrest is made. 

It is a common belief (and in other states may be the case) that a victim in a domestic violence case can have the case dropped by not cooperating or not showing up at trial. The State has the ability to subpoena the victim as a witness and require him or her to testify in court. If the witness testifies inconsistently or no longer remembers what the witness told the police, the State could impeach the witness (even though it called the witness) through past, recorded statements to get that information into testimony, as allowed by State v. Whelan. Failing to appear in court when under subpoena could lead to the State seeking enforcement of the subpoena through a capias which would allow a marshal to take the witness into custody. In felonies, the State could seek a material witness warrant to detain a witness it suspects may flee the state. 

The State may decide that it does not want to go forward with an uncooperative witness and could nolle the charges or make a favorable offer to the defendant to resolve the case. 

What can the witness do if he or she does not want to testify and is ordered court? Consulting with an attorney is a good start. The witness, through counsel, could move to quash the subpoena. If it is a situation in which the witness was not truthful in previous statements (which could expose the witness to criminal charges), the victim-witness should really hire an attorney. If it is just a matter or moving on from the incident or the accused, then the witness should use his or her opportunity to inform the State or victim advocate of that.


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