Who “Presses Charges” – The Prosecutor Or The Victim?

Most crimes are committed against other people. These include assaults, domestic violence, sex crimes, robberies, fraud and others. But when it comes to pressing charges against those who commit crimes, does the victim have any say in whether charges should be filed?

Why The Prosecutor And Not The Victim Makes the Decision

When someone has been harmed by the actions of another, it can rise to criminal conduct if it was done with intent to commit an illegal act or to inflict harm on the victim. However, not every apparent criminal act is prosecuted for a variety of reasons, foremost being a lack of evidence to convict the alleged perpetrator. A prosecutor must weigh whether the evidence at hand is sufficient to convict the accused on all elements of the offense by the standard of beyond a reasonable doubt.

A prosecutor is also presumably obligated to pursue justice and the truth without influence from the victim, media or community. The prosecutor also has a duty to protect victims from undue harm and to protect their rights as well as to hold the guilty accountable. Such decisions are not always so apparent.

There are a number of factors that a prosecutor considers in whether to bring charges:

  1. Doubts about the evidence supporting the accused’s guilt
  2. The adequacy of incriminating evidence or whether it is admissible
  3. Whether financial restitution is available and adequate
  4. The mental status or credibility of the victim or accuser
  5. Whether such offenses have been routinely not enforced
  6. If the harm to the victim was negligible
  7. Plausibility of the accused’s alibi
  8. If prosecution would result in undue hardship to the victim
  9. If the offense is relatively minor
  10. If the victim is non-cooperative
  11. If the accused is being cooperative

Any of these factors alone or in combination can be persuasive in whether a prosecutor will decide to bring charges or not.

Role Of The Police Report In A Filing Decision

A key element in a prosecution are the police reports. They are usually the most relevant document in the prosecutor’s decision whether to press charges or not. They establish whether the elements of a crime are present and if the evidence found at the scene or which may lead to other evidence is adequate, credible and legally obtained.

Police reports are prepared by the arresting officer with input from other officers participating in the arrest and investigation and approved by a superior. Because these officers are usually the first responders, the report can include the sights, sounds, smells, stains and the demeanor of the victim, accused and witnesses.

The reports are based on notes compiled by the officer at the scene or shortly thereafter and also contain witness statements, measurements of evidence such as skid marks, discovery of potentially incriminating evidence and conclusions. Later investigations will follow up on the initial report, sometimes verifying what was found or discrediting it. What the officer found and observed at the scene can color a prosecutor’s perceptions on the innocence or guilt as well as the honesty or deception of the parties involved.

In many cases, a prosecution will stand or fall on the credibility of the police report. If the officer omitted a key piece of evidence that was later discovered and found to be potentially exculpatory or even incriminating, failed to document that proper protocol was followed in the chain of evidence or did not follow proper police procedures, then the defense can seize on the improprieties and possibly move to have relevant evidence suppressed or charges dismissed.

Why Intervening Before Charges Are Filed Is A Good Idea

Retaining an attorney following an arrest and before charges are filed is a sound idea. If you feel that charges are imminent and have not yet been arrested, then promptly meeting with your attorney is equally as important. Your lawyer will need to know as much as possible about your situation, the basis of the potential charges that you face and the evidence supporting them before meeting with the prosecutor handling your case.

In some cases, arrests are made based on faulty identification or the ulterior motives of someone like an estranged spouse or intimate partner. Misunderstandings are not uncommon. Still, going to speak to a prosecutor alone is never a good idea who may not be willing to speak to you anyway unless you are represented and accompanied by counsel.

If you have an alibi and can prove you were elsewhere at the time of the crime, your attorney can corroborate this and then schedule a meeting with the prosecutor to discuss. You might use this tactic if you can demonstrate that an accuser is mentally unsound or has a motive for alleging you committed some wrongdoing and the evidence is not credible or cannot be corroborated.

In matters where you may be charged with a serious crime where others are involved, you might consider cooperating with the prosecution. Your offer could include your testimony or providing of documentary evidence against other culpable parties in return for either having no charges filed, being granted immunity from prosecution or promised a greatly reduced sentence. Be aware that there are different types of immunity, if it is offered, and that you could still be charged based on other evidence. Your defense attorney needs to explain this to you and assess the current and potential incriminating evidence against you.

For other matters, intervening early and offering to plea to charges being contemplated might be preferable if there is a real possibility the prosecutor could bring additional and more serious charges should you plead not guilty and proceed to further stages in the criminal process. Prosecutors do have limited resources and their goal is to seek convictions if the facts and circumstances warrant it. If you plead out early, the prosecution can report it has a conviction and use its limited resources to focus on other possible perpetrators or crimes.

2 comments

Juanita Fernandez

My Boyfriend and his ex got into an argument 6 years ago and she call the cops on him. he ran because he is undocumented. we recently went to pull his previous dui info and come to find out that dv case is still open with a bench warrant. his ex claimed she dropped the charges. he didnt hit her. she is actually the violent one but being a man he wont admit that she would hit him. what should he do?

Hi Juanita: His ex doesn’t have the authority to “drop the charges.” Only a prosecutor may dismiss pending charges unless the Judge determines there is a legal basis for a dismissal after a motion by a party to the action. Your boyfriend needs to hire an attorney to assist him with having the warrant recalled and appropriately handling the case thereafter.

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