Can the victim drop domestic violence charges?
In Texas, the District Attorney is the only person who can pursue or drop charges. It is common for a victim to request that charges be dropped against the person accused of assault. In many counties, the District Attorney’s Office will request an affidavit of non-prosecution (“ANP”) from a victim of domestic violence. Although an ANP is a written request to drop charges, the prosecutor does not always agree to drop the charges. A victim’s request to drop the charges can be a convincing way to get a case dismissed. It may also be helpful information to present as part of a grand jury packet when a case is pending before the grand jury. A grand jury may decide not to indict (file formal felony criminal charges) a case because the victim is requesting the case be dismissed.
Should a victim complete an affidavit of non-prosecution anyway?
There are a number of reasons why completing an ANP would be beneficial to a person accused of assault even if the charges are not automatically dropped. First, a victim might want to clarify what was told to the police on the night of the alleged incident. If the police did not get the entire story from the victim about what led up to the alleged assault or who the primary aggressor was during the incident, that could play an important role in defending the charge. Second, the victim may want to urge the prosecutor to consider leniency on punishment. Third, the combination of the initial facts reported by the police and the ANP may be enough to convince a prosecutor to dismiss charges once an attorney pressed the matter in court. Finally, having an additional written statement from the victim that supports the accused may be used at trial. The ANP can be important if the victim changes their testimony later because the prior written statement could be used for impeachment of the witness on the stand.
Does the Defendant have access to the Affidavit of Non-Prosecution?
Yes, the Texas Code of Criminal Procedure article 39.14 requires the prosecutor to provide copies of all relevant information received by the State. Plus, if the ANP contains statements that are different or inconsistent with prior statements made by the victim, the prosecutor has a duty to turn it over as potential impeachment evidence. Under Brady v. Maryland, the prosecutor is required to turn over information and/or evidence that could be used for impeachment purposes. It does not matter if the prosecutor believes the information in the ANP is true or accurate. The prosecutor must turn over the information regardless.
If you are accused of assault, you need an experienced criminal defense attorney to properly advise you on the proper path. Each case is unique and there are no universal answers on how to proceed. Contact the Fredericks Firm to schedule a consultation and start planning your defense.