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“BUT SHE’S GOING TO GO IN AND DROP THE CHARGES”

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I understand the confusion about this issue.  It seems logical enough.  In fact, prior to going to law school, I think I used to have the same notion.  Practicing law now I realize that most people don’t understand that the complainant in a criminal case does not have any unilateral control over a criminal prosecution.  The complainant cannot come to the courthouse and “drop the charges.”  Once the police are called, the criminal process is generally out of the hands of the complainant and in the hands of designated government employees.  In fact, overtures to a complainant in order to get her to drop the charges are often just more evidence that State will use against you at trial.

In a civil suit the plaintiff can almost always unilaterally end the litigation.  If we were talking about someone getting sued for money – the complainant (‘plaintiff’) can almost always end the suit without any input from anyone else.  On the other hand, in a criminal case, the State of Florida is the plaintiff and the State of Florida has no obligation to follow the wishes of the complainant.  I find myself explaining this to clients and potential clients on all levels of the sophistication/education continuum.  I figured I would write a blog post about the issue so I could just point people here in the future.

All Tallahassee lawyers have spent time in a dreary First Appearance proceeding and rolled their eyes when a prisoner or his misinformed acquaintance tells the judge/prosecutor/defense lawyer that the complainant was planning to “come in and drop the charges.   It’s almost as if the people who say this believe there is a computer terminal at the Office of the State Attorney which would allow someone to come in and check off a few boxes to get rid of a criminal prosecution.  People exclaim this to the sitting judge at first appearance with considerable zeal.  They surely believe the judge and the prosecutor should stop what they’re doing and immediately discharge the defendant from custody based on his representation that the complaining witness plans on informing the State that she does not wish to proceed.

This is not the case for the reasons I am going to discuss below.  Additionally, and this relates to my earlier post about working on the case yourself, defendants can step in their own cases by operating under this mistaken belief.

Pursuant to Florida Constitution Article II, Section 3, Florida is supposed to adhere to a strict separation of powers which prevents one branch of the government (the Court) from interfering with any other branch (the Executive = Prosecutors in our example).  Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or to dismiss charges is a determination to be made by solely the State.  This means that, without a legal basis, the prosecutor and not the Court will decide whether or not to dismiss a case.   Look at the paperwork associated with the case: it is the State versus an individual.  It is not an individual versus another individual.

This means that a prosecutor can continue with his case when the victim really doesn’t want him to do so.  The inverse is also true and a prosecutor can dump his case when the complainant really wants him to keep going forward (although this is rare).

In practice, complainants (mostly in a misguided manner) routinely approach the Office of the State Attorney and submit affidavits in which they request no further prosecution go forward.  This does not always mean great things for the defense – bad things can happen.  The reality is that prosecutors do notroutinely roll over and dump their cases when they are presented with an unwilling complainant.  In fact, there are prosecutors who claim that a hesitant/reluctant complainant is better for the State than the enthusiastic/eager complainant.  You read that correctly – there are prosecutors (and good ones) who claim to prefer a hedging, recanting complainant for tactical reasons at trial.

Having said all of that, I should also mention that the desires of the complainants are not completely alien from a prosecutor’s thinking in every case.  Sometimes such requests can be very effective in both negotiations and dispositions of a criminal case.  These requests and/or statements can help a criminal defense strategy when the timing and facts are appropriate.  But who would know?  Well… you’re defense lawyer should know following an examination of the facts and law associated with your individual case.

Occasionally trying to work on a case without a defense lawyer getting involved can hurt the case.  Statements of sympathy/remorse are admissible in court in a criminal case.  What about the property damage case where you or your dad offered to make the victim whole after your arrest?  What recourse do you have after the complainant takes your payment and the State decides to prosecute you nonetheless?  You’re probably going to wind up hiring a lawyer anyway to get the disposition you need to apply to med school.

A criminal prosecution is not a lawsuit for monetary damages.  There is litigation… but the individual is litigating against a wholly unaccountable, governmental entity.  Private agreements or intentions regarding the case do not carry the day in front of a judge who constitutionally removed from the process.  As with the “don’t work on it yourself” advice – I advise people to stay away from any misguided reliance on “she’s dropping the charges” without a defense lawyer on board, calling the shots.

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