UPDATED 8/18/2021, Original Post: October 25, 2018
In the heat of the moment, we can all say and do things that we regret. Domestic violence situations often involve these regrettable actions.
So do false domestic violence accusations.
There are a handful of reasons why an alleged victim would report domestic violence. Still, before they know it, they are faced with testifying in court and seeing their partner face jail time, custody loss, or other penalties.
The whole case would be dropped if the victim just took back their accusation, right?
Not so fast. Even if the alleged victim was the sole witness to the alleged domestic violence, they alone could not drop charges unless new information has been provided detailing a domestic violence crime has not occurred. Alleged victims can, however, have a big impact on the outcome of a case.
In this post, we will detail how you and your criminal defense lawyer can work with an alleged victim of domestic violence to help get your case dismissed.
Why Can’t Texas Domestic Violence Victims Drop a Case?
Before we get into what alleged victims can do, let’s talk about why they alone can’t drop the charges against you.
When Prosecutors Have “No Drop” Policies – Domestic violence is a crime in Texas. When someone is accused of domestic violence, the State takes up the issue, rather than the victim – and the State will not drop the charges just because the victim takes back their accusations.
Texas wants to create a safe environment for people throughout the State. Over 80% of domestic violence victims may recant their statements, but their intentions are not always for their benefit or the safety of their community.
Sometimes, victims recant out of fear, the charges are dropped, and the abuser continues to abuse the victim. Continuation of abuse is not something that law enforcement wants to happen, so the word of victims is not always the final word.
What Alleged Victims of Domestic Violence in Texas Can Do to Help
Not all domestic violence or family violence accusations come from an alleged victim approaching law enforcement. If the police enter a scene that appears to be domestic violence, they will be encouraged to act and arrest the person that they believe is the abuser. They may misinterpret the situation and make a mistake.
Other times, as mentioned above, one partner might make a false accusation then later regret it. In any case, their testimony can have a significant impact on the outcome of the case.
If the alleged victim genuinely and sincerely wants the case to be dismissed, they have a few options:
- They can talk directly to the prosecutor. Remember, it is up to the prosecutor to drop the charges. It is unlikely that a simple request to dismiss the case will result in dropped charges, but it is worth the effort to call and make certain the prosecutor is aware of any facts that show a domestic violence crime did not occur.
For instance, if the alleged victim was unclear in the original statement as to whether she suffered any injury or pain, the alleged victim must share this fact with the prosecutor. Why? Because physical pain is an element of the crime of domestic violence assault that the prosecutor must prove. This new fact creates exculpatory evidence that shows the person charged with the crime did not commit a crime.
- They can give testimony in favor of the defendant. Throughout the case, it will be up to the alleged victim to recant their testimony and show that they want charges dropped. Suppose the domestic violence case proceeds to a jury trial. In that case, the alleged victim can recant their testimony or provide any vital information to clear up any confusion about what happened. A criminal defense lawyer can help you through this process.
- They can provide an Affidavit of Non-Prosecution. An affidavit of non-prosecution requests for the case to be dropped will not result in a dismissal. Instead, a testimony that outlines facts that create reasonable doubt for the domestic violence charge can be extremely helpful in disposing of a case.
For example, suppose an alleged victim realizes that the original police reports did not accurately reflect what happened because they were in an emotional state that clouded their judgment. In that case, the alleged victim can provide facts in the affidavit that can significantly improve the defense’s prospects of getting the case dismissed. An experienced criminal defense attorney can give you guidance in this process.
- They can remain calm and seek professional help. The symptoms of domestic violence are not just physical – domestic violence also deeply affects mental and emotional health. If an alleged victim wants to show that they have not been negatively impacted by domestic violence, they need to remain calm and prove emotionally stable. A psychological assessment can be used as evidence to show that the alleged victim has not been subject to any severe domestic violence.
Stay calm – defendants are innocent until proven guilty. Charges are not convictions, and with the help of the alleged victim and your criminal defense lawyer, you will have a better chance at getting your case dismissed.
Challenges of Dropping Assault Charges
In the heat of the moment, it’s easy to do things we regret. And when the police arrive at the scene of a domestic disturbance, our emotions are flying, and at the time, it’s possible to make mistakes. If you want to take back a statement to the police and clear things up, it’s not always easy to do after the incident.
There are several ways that alleged victims can help, which we’ve outlined above. However, none of them are 100% effective at getting charges dropped. You may think it’s as simple as speaking with the police and asking them to drop the charges. Then, some prosecutors might not want to talk with you. Or, they may proceed with the charge, regardless of the explanation you provide.
Unfortunately, because of the reasons we listed below, it’s not always in the prosecutor’s best interest to trust you, the alleged victim, when you say that the assault never occurred. Even if you fabricated events, some prosecutors might feel like it’s within the public’s interest to proceed with charges regardless. Under Texas law, it’s within the prosecutor’s rights to do so. After all, it’s the prosecutor, not the alleged victim, that brings assault charges against a defendant.
What’s the best thing you can do?
If you would like domestic assault charges dropped, it’s best to work with the criminal defense attorney that’s representing the defendant. In some cases, your family member, household member, or partner, may not have an attorney. In this case, you must secure an attorney for both of you and have an in-person consultation right away.
Earlier, we learned of several methods for having a judge grant your request for dismissal (which results in the charges being dropped). These include completing an affidavit of non-prosecution and giving favorable testimony for the defendant. However, there are some additional ways that you can improve your odds of success. Here are some steps an attorney might take to help you drop assault charges:
Create a sworn correction statement
Sworn statements are legal documents that are relevant to legal proceedings. Your attorney might help dismiss a wrongful charge by having you create a sworn statement that corrects your statement to the police. It provides a detailed account of the incident while also explaining why you’re attempting to have the charges dropped against your family member, housemate, or partner.
Attend counseling or anger management training
This step falls into the “seek professional help” section, but it’s essential to understand alternate ways to have prosecutors drop the case. One way to show the prosecutor how serious you are about the charges being dropped is by working out a deal to receive counseling or anger management training. Likewise, the defendant can also show good faith by doing the same.
Provide all the incident details with your lawyer
As a lawyer goes over the case and builds a defense, they’ll want to understand your perspective of the events. As the star witness, you can provide details to the lawyer working on behalf of the defendant and provide background on the incident. This information will uncover ways that your attorney can convince a prosecutor to drop charges.
There are some additional ways that you can influence a prosecutor to drop charges. However, you mustn’t speak with a prosecutor until you have a criminal defense attorney for yourself and the other party. Each case is different, so you’ll need a custom strategy if you want the best odds of a suit being dropped against a family member, housemate, or partner.
So, why is it that you shouldn’t speak to a prosecutor before finding legal counsel? It’s simple. Some prosecutors might threaten you by asking that the case be dropped. It’s not unheard of for prosecutors to risk jail time or legal charges for lying to law enforcement against alleged victims that are trying to get assault charges dropped. By working with an attorney, it’s your lawyer that handles discussions with the prosecutor on your behalf.
Can’t I get charges dropped by refusing to testify?
As the alleged victim and primary witness, you would think that the case can’t proceed without you. However, even if you decide that you’d like the charges dropped, the State of Texas might move regardless. Because prosecutors will proceed without your cooperation, you must be vocal throughout the case. Sitting back and hoping that charges are dismissed is not doing enough.
How can the state work around my unwillingness to testify?
At trial, there are several ways the State will try to prove the assault charge. One strategy is by calling another witness. Another common technique is to subpoena you. And even if you don’t want to testify, the court has the power to receive a writ of attachment. If the court provides this power to the State, then a Sheriff’s Deputy will track you down and physically bring you into court.
The key to ensuring this doesn’t happen is by working with a criminal defense attorney as soon as an incident occurs. The more time you have before the trial begins, the easier it will be to get your case dismissed favorably. And even when it’s not possible to receive dismissal for a case, having access to a criminal defense attorney that understands your situation will help you fight during the defendant’s trial.
But how can the State prove a case without a witness?
As stated earlier, the State can do several things when a witness fails to appear. They might request a Continuance and effectively reschedule the trial date. Likewise, they might ask a sheriff’s deputy to arrest you, to compel your testimony. The defendant’s battle isn’t with the alleged victim because the incident occurred, and you provided testimony to responding police officers. Instead, it’s a case between the Government and the defendant.
However, let’s say that as the “victim” of a case, you don’t show to court. In many cases, prosecutors don’t need live testimony to win a case. Instead, evidence from a 911 call or testimony from a responding police officer provides enough information to proceed with the trial. They can legally play audio and video recordings, with certain exceptions, as evidence of domestic violence.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.