Family violence is a serious accusation that can have serious consequences for the person accused. Family violence allegations are not limited to people you are related to or married to but can include roommates and former partners and spouses as well.
An important way to defend against an allegation of family violence is to have the complaining witness sign a non-prosecution affidavit. This is a sworn document in which the complaining witness declares his/her desire NOT to prosecute the case or participate in the prosecution of the case. This affidavit can be obtained several ways. The complaining witness can request one from law enforcement at or after their loved one is arrested. The complaining witness can also contact a victims’ service coordinator at the District or County Attorney’s Office, let them know of their wish to sign one, and go to the office to sign. If your attorney has an investigator on staff or available, then the investigator can also contact the complaining witness and have get the signature on the affidavit.
It is important to note three things about a non-prosecution affidavit. One, the prosecutor is not required to dismiss the case if a non-prosecution affidavit is filed. Often times, the prosecutor can rely on law enforcement evidence or other witnesses to prosecute the case if the complaining witness does not want to cooperate. Although the prosecutor may still proceed despite this affidavit, it can be persuasive to a jury to know the complaining witness did not want to participate.
The second thing to remember is that the attorney should not be the one to have the complaining witness sign the non-prosecution affidavit. Although the attorney will draft the affidavit, coordinate with the investigator to have it signed, and submit it to the prosecutor, the attorney may become a witness if he or she participates in the actual signing of the affidavit. If the attorney is now a witness, then it becomes difficult for him or her to continue to act effectively as your attorney.
The third thing to know is complaining witnesses are not required to sign a non-prosecution affidavit. The complaining witness may not want to participate in the prosecution, but they do not have to sign an affidavit. Additionally, neither you nor your attorney should attempt to force a complaining witness to sign one. Not only could that result in additional charges for you, but attempting to coerce the affidavit would also undermine the reliability of it.
Cases involving family violence can be emotional and difficult, and non-prosecution affidavits are just one piece of that puzzle. If you are accused of an offense involving family violence, it is best to reach out to an attorney immediately to discuss your options.