The prosecutor is the only party who has the discretion to drop charges. It is a common misconception that the complaining witness can choose to drop charges; once a person swears to a complaint, changing their story could result in an aggressive prosecutor threatening to charge that person with perjury.
When deciding whether or not to drop charges, the prosecutor will consider how compliant the complaining witness is going to be in the prosecution of the case. If the complaining witness is not going to be cooperative and has expressed that they do not want to testify against the defendant, then the prosecutor may decide to drop the case. Sometimes the phrase “die on the vine” is used because they will run out of statutory time.
Another reason a prosecutor may decide to drop a case is that there is not enough evidence to sustain the high burden of beyond a reasonable doubt. However, most prosecutors in New York State would rather try a weak case and let the jury decide than dismiss a case. One reason for this is to avoid seeming weak and/or having the defendant incur an additional charge of domestic violence. A second reason is that the local jurisdictions receive funding when they prosecute domestic violence cases, so it doesn’t behoove a local prosecutor to dismiss a case without seeking some type of resolution or conviction.
I Was Charged With A Domestic Violence-Related Offense, But I Was Only Acting In Self-Defense. Shouldn’t I Have The Right To Defend Myself?
Everyone has a right to defend themselves. When a client wants to assert the defense of self-defense, they must understand that they assume the burden to prove an affirmative defense. For example, if a spouse accuses my client of assault, the burden of proof beyond a reasonable doubt is on the prosecutor; if my client wants to assert self-defense, then they must prove that there was no alternative means of protecting themselves other than to assault or injure the other party.
For instance, if a wife was being attacked by her husband while cornered in the bathroom with no means of escape, then the use of a utensil to injure the husband and get away from harm would be a classic example of self-defense. However, if a similar situation were to occur in a kitchen where the wife could easily escape the situation without using force, then injuring the husband with a utensil would not be considered self-defense.
We always ask the jury to put themselves in the shoes of the spouse who is asking for the self-defense charge. This triggers the prosecutor to provide ways in which the defendant could have avoided the assault, which could effectively water down their case. We take the issue of self-defense very seriously and ensure that when we use it as a defense, it fits the fact pattern.
I Have A Previous Criminal Record For Assault That Was Not Related To Domestic Violence, And I Was Recently Charged In A Domestic Violence-Related Case. Will A Judge Or Prosecutor Automatically Assume I’m Guilty In This Case?
A defendant can almost always count on a prosecutor assuming guilt; prosecutors are not open-minded fact-finders in the way that judges should be. However, judges will take into account a defendant’s prior criminal history when they set bail. If there’s a history or a pattern of non-domestic-related assaults, then the judge may use that as a foundation to impose bail and require that the defendant remain incarcerated until bail has been posted. Having local knowledge of who the individual judge is and how they’ve acted in the past is extremely important when trying to determine whether a judge will remain unbiased. In some cases, it may be best to have a jury trial instead of a bench trial, and to select jurors who can be unbiased and come to the table with a clear mind.
I Was Arrested For Domestic Violence Against My Spouse. Since I Have Been In Jail, She’s Tried To Contact Me To Work Things Out. Am I Allowed To Speak To Her?
Once someone has been accused of a domestic violence-related incident against their spouse, there will almost always be an order of protection. One type of order of protection is called a stay-away order, which prohibits contact between the accused and accuser—regardless of whether the accuser is the one who is trying to initiate contact. I would never advise a client to speak to an alleged victim, even if there is only a refrain-from order, which means the defendant must refrain from committing a crime against the alleged victim.
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