If you are facing criminal charges and the alleged victim does not want to prosecute you, what should you do? You may be wondering if the case against you will just go away on its own. Maybe you do not need to hire a lawyer at all. In this post, I will address what experience has taught me about this type of situation.
Uncooperative Witnesses or Victims
Those who report crimes against people they know and love often wish they had not done so. There could be many reasons for such regret. Yet, it does not always amount to a "not guilty" verdict in court.
Sometimes the person who called the police did so while they were angry or scared, and now they want to make the case against you go away. At the time, they felt they needed police intervention, but now they do not want to participate in a criminal prosecution.
It could be that they were not honest with police about how the incident transpired. Perhaps they lied to exaggerate your wrongdoing and to minimize their own. However, they may be reluctant to admit this, so they may simply insist on the case being dropped.
A witness who said on thing to police, and later want to change their story or recant, may be discouraged by the legal consequences. It is possible to be charged with making a false report to police or for committing perjury in court.
Prosecutors spend a lot of energy trying to distinguish victims in need of protection from those who fabricated or exaggerated their report to the police. Prosecutors want to choose the right cases to prosecute. This is especially true when it comes to domestic violence, which results in many homicides in our community.
Suffice it to say "the victim doesn't want to prosecute" will not automatically lead to charges being dropped in every case.
Do not ask a witness not to come to court
This situation is not something you should handle on your own by asking the victim not to "press charges" against you. After an arrest, the accused is often ordered by the court not to have contact with the alleged victim while the case is pending. This is the standard practice after an arrest. If you are ordered to have no contact with the alleged victim, make sure you follow that order.
Failure to do so can lead to new criminal charges, which are treated seriously because they amount to disobeying a judge.
Do not send another person to contact the alleged victim for you for any purpose. This is called "third-party contact" and is a violation of the court's Order of No Contact. It is especially important to avoid third-party contact related to the victim's cooperation with the prosecution.
Instead, your lawyer can contact them to find out what their thoughts and feelings are about the case without applying any type of pressure on them.
Avoid witness tampering
This conduct is also witness tampering, a serious offense under Florida Law. Witness tampering increases in severity and penalty depending on the type of charge about which the witness would be called to testify. For example, tampering with a witness to a misdemeanor (like simple domestic battery) carries a five-year maximum penalty, while tampering with a witness to a life or capital felony is punishable by life in prison. Fla. Stat. Section 914.22.
Modifying the Order of No Contact
However, if the alleged victim is a family member or significant other, they may request contact with you during the pendency of the case. They can make that request at your first appearance the morning after you are arrested, or at a later time.
If the alleged victim wants to have contact with you, your lawyer should file a Motion to Modify No Contact Order and let the alleged victim be heard by the judge and prosecutor in court. Alternatively, if the prosecutor is able to contact them outside of court, the prosecutor may agree to modify the Order of No Contact without a hearing. This allows you to avoid the appearance of improperly influencing the alleged victim.
Writs of Bodily Attachment
If a witness is properly served with a subpoena to give testimony in court and fails to appear, the prosecutor may ask the court to issue a writ of bodily attachment. This is a warrant to arrest the witness to bring them to court.
In my experience, this measure is rarely used. However, most witnesses who understand this serious consequence of ignoring a subpoena will instead choose to comply and appear in court.
You may think the witness will not come to court, but most people will not risk their own arrest to avoid testifying against you in court.
The Best Strategy
If the witness or victim does not wish to prosecute you, let the lawyers handle it. A good defense attorney can advocate for charges to be dropped or reduced after evaluating the evidence of your case, the statements of the witnesses, and the law relating to the criminal charges pending against you.
When prosecutors encounter a witness or victim who does not wish to prosecute, they will sometimes decide on their own not to pursue criminal charges. However, it certainly helps to hire a defense attorney without delay so they can advocate on your behalf to have the charges dropped.