How do you handle an affidavit of nonprosecution at trial?

Our office allows victims to sign these affidavits when the wish to "drop charges". We've considered stopping this practice, but then the defense attorneys will pick-up where we left-off. By allowing victims to sign the affidavit, we at least have the opportunity to meet with the victims once before trial, and get a feel for what the situation is really like. Of course, these are usually domestic violence cases. However, the affidavit is coming back to haunt us at trial. Any ideas on how to deal with them?

You may want to check out Logan v. State, 71 SW3d 865, a 2002 case from the Ft. Worth court of appeals. There, the defense tried to admit an affidavit of non-prosecution against the State through the arresting officer. A hearsay objection kept it out. How are they trying to use the non-pros against you at trial?

I would continue having victims who want to sign a non-pros come to your office to sign it. At least that way you know the circumstances under which it was signed. I recently had one presented to me that I found out was signed in the defense attorney's office after the defendant drove the victim there and told her to sign what was given to her. While you may not choose to dismiss the case, at least you know that the victim was not coerced at the time the affidavit was signed. Also, if the defense attorney gives you an already signed non-pros, I still insist on meeting with the victim. You can also take the opportunity to see if she still agrees to the statement made to the police, because that often changes too with a little pressure from the defendant and it is essential to continuing your case if you choose to despite the non-pros. Also you can and offer some help planning an exit strategy for your victim if the abuse continues in the future.

We do not accept any non-pros filed at a defense attorney's office, or one proffered by the defense attorney. We have the victim come into to our office, attorney assigned to the case talks to the victim, the investigators talk to them before they take the non-pros and then they sign the sworn statement. The statement always indicates whether or not the victim agrees with the police report. (We also have the investigators photocopy id's.) Any decision to go forward is made based on our affidavit and the case itself.

Speaking from my prior prosecution days, the argument that always worked was relevance. If the state can initiate charges, and it is not up to the victim to press the charges, unless it is tied to some type of defense, the wishes of the victim are irrelevant, and not evidence pointing to the defendant's innocence or guilt.

If you office is lucky enough to have a Victim/Witness Coordinator or victims' services person, get her/him involved in the meeting with the victim. Maybe the victim needs some on-the-spot counseling when she's put in that position of being told, "You get down there and drop charges." Our office has been recently blessed with a Victim/Witness Coordinator, and it really helps. We had a woman recently come down and ask to file an affidavit, and after visiting with the VWC, we discovered that she was only here because the defendant's bondsman in Nevada threatened her with deportation if she didn't do it. Being not legal and uninformed about the legal system, she was scared and was doing as she was told. We didn't take an affidavit (which I once heard pronounced, "Act of David") from her.

Our office has adopted a policy that when a victim of a domestic assault comes in to "drop charges," we won't talk to them until they have attended a family violence course put on by our local Families in Crisis folks. At least they will have been exposed to information about the problem of such violence. At the same time, we strongly urge our local police agencies to do an even more thorough job of investigating these offenses so as to minimize reliance on the victim to prove the case (photographs, on-scene statements, 911 tapes, etc.). Finally, it is a voir dire problem to educate the jury panel on why victims may recant where it is anticipated the victim will do just that on the stand. There's not much more that you can do.

Out of curiosity, has anyone else had defense attorneys filing non-pros affidavits with the court? Here's how it has gone down here in a few cases recently: Defense attorney get affidavit, attaches it to a motion requesting that the case get dismissed, and files it with a form requesting a hearing. Obviously this is a motion with no basis under existing law, but I guess the point is to get the non-pros before the presiding judge in some form or fashion. I don't think we can do anything about them being filed this way, but it's irritating nevertheless.

A "Motion to Dismiss" filed by the Defense? In a criminal case? Am I missing something?

You should file a reply, citing CCP art. 1.052. Any motion to dismiss filed by a defense attorney is an obvious motion designed to harrass. Seek sanctions.

Sure, you could seek sanctions. I'm sure that you will have an easy time getting a defense attorney to admit in a hearing regarding the motion, that:

(1) The motion is groundless;
(2) It has no basis in law or fact; and,
(3) It was not warranted in good faith argument that the current law should be reversed.

Your reply is premised upon the dubious presumption that it matters what a defense attorney like yourself says...

Prevailing in a sanctions hearing positively does not require an admission by the offending party.

Certainly, if a motion to dismiss is backed up by a defense-created affidavit of non-prosecution which is later found to have been created in a coercive environment (e.g. the Defendant and victim are standing in the same room in the defense attorney's office while the victim is "asked" to sign some pre-typed garbage affidavit) moving for sanctions should be merely the beginning of a our job to fight back against such shady dealings. As for next steps, maybe consider Tampering with a Witness, Obstruction/Retaliation, Conspiracy to commit Perjury. If they want to play dirty, we just have to play hard.

It doesn't matter whether the affidavit is accurate or not. My point is that there is no provision in the law for a defense attorney to present evidence to a court, whether by affidavit or other means, and ask for the dismissal of a case on the basis that a victim doesn't want to prosecute.

So, the only purpose that a defense attorney can have in filing such a motion is to harrass that victim, present improper evidence to a judge, pollute the public record, and otherwise muddy up the proceedings. That is offensive and should be challenged by a prosecutor.

Assuming the affidavit says nothing more than the victim doesn't want to prosecute, there isn't any legitimate purpose for the affidavit. Such evidence should not be admissible before a jury.

Perhaps if there is court sentencing it could be admissible, but I would hope that no judge would give such a statement much weight.

I just logged in to get your reply. In as much as we've never met, I will overlook your rather inhospitable 'defense attorneys such as yourself'.

We all have a job to do, and the truth is that you will not win every case, nor every argument ever made on behalf of your client (whether you are a prosecutor or a 'defense attorney' such as myself).

In the end, we are all lawyers upholding the integrity of the profession, not cannibals feeding on our own.

In a motion for sanctions, as you suggest, the defense attorney will have an opportunity to argue that the law should and ought to be changed, and they want to do just that.

I tried to be informative with my answer. Didn't mean to step on your toes. But, what the heck, I'm sure it makes you feel stronger when you cannot win your case to blame the 'defense attorney'. In this 'I'm OK, You're OK, touchy-feely, self-help generation, blame casting (as opposed to acceptance) is perfectly acceptable. I guess that makes you completely normal.

Rebecca, the fact that 1.052 may have large holes in it may or may not be a reason for the State's counsel to refrain from asking for relief thereunder. Certainly a "good faith" argument should require something more than "I have good reason to believe the current law is bad and therefore should be changed", particularly when it is the legislature and not a court which would have to change Chapter 32. As John has pointed out, there is no legitimate reason for a defense attorney to ask for dismissal of a case based on the availability or willingness of a particular witness to provide proof. There are legal bases for dismissal of a case or setting aside an indictment, but that is clearly not one of them.

Because it is so hard for the prosecutor to know whether someone has "coerced" a witness or whether the affidavit of nonprosecution makes any false statements, I would think most defense attorneys would want to be extremely careful in doing anything other than referring the witness to the prosecutor. It is a hard enough decision for us to dismiss a case merely because a key witness has reversed their testimony. Why make the decision even more difficult by raising doubts about who might have influenced the witness's decision? Just because the defense attorney may avoid being held in contempt or sanctioned hardly means he has any right to file a motion that can serve no legitimate purpose. Other than the prosecutor moving for sanctions, how do you propose the problem be handled (short of pretending it is not a problem, or is an ethical tactic of defense counsel).

I absolutely agree. Having been the prosecutor for our district who was in charge of felony crimes against women and children, I see the areas for abuse and extreme concern.

However, I am ever mindful that we might have gone too far. I know a few women I would not bank a case on, even if they did give an excited utterance. What the legislation is trying to cure is the cycle of domestic violence. I agree that it is an extreme problem that needs to be addressed. However, I am of the belief that before you prosecute in the absence of the victim's wishes, you should familiarize yourself with the individual situation, and make a call as to whether this is the type of situation the law is trying to protect.

What if you have a case where a woman initiates the fights and then calls the police when she loses, just to get the upper hand. It happens, we all know people in relationships do stupid things.

I think that, ultimatley, the victims wishes should be honored. If the victim doesn't want to prosecute, don't prosecute absent a clear and convincing showing of a cycle of domestic violence.

Further, I would like to go on the record saying that I believe that defense attorneys that threaten or harass a victim into signing a non-prosecution statement are acting improperly, and have every right to be taken to task. However, if the defense attorney is the only person taking the victim's wishes and memorializing them, then I, as one of those 'defense attorneys' am very concerned about the state of the law.

Now I'm not one to discriminate against defense attorneys, hey...I'm the son of a defense attorney. But since this is a discussion site on a prosecutor forum, shouldn't we limit the folks who post here to those actually currently involved in prosecution?

Are there not sites for defense attorneys to make postings regarding their views on how we should operate our practices? I would think that this site would be more useful to Texas Prosecutors as a whole if it was an idea exchange, rather than a site to rehash the debate of affidavits of n-p.

of two key phrases in any indictment or information.

One: "The State of Texas v. ...."

Two: "...against the peace and dignity of the State"

We bring charges against a defendant, not in the name of the victim, but in the name of the people of our State. We prosecute cases not simply because a particular victim was harmed, but because the peace and dignity of our society is degraded due to criminal behavior. With this in mind, why should the victim's desire to drop charges be dispositive? The victim is but one voice in the equasion. An important voice, no doubt, but still just one. By "honoring the wishes" of a victim who files an ANP, and dismissing our case, we are completely abrogating our responsibility to the other 99.999% of the people of the State of Texas in whose name we are supposed to be acting.

If the State starts indiscriminately "honoring victims' wishes" in all FV/Assault cases, how can it not also do so in FV/Sexual Assault cases?

As for limiting the TDCAA forum to members only, that idea has been debated and rejected several times. I, for one, like the diversity (and the occassional, unintentionally humorous posts). So, all are welcome here, but they shouldn't complain if they aren't treated with kid gloves ...

Now, now, kids play nice. I think it's helpful to have everyone's point of view. Helps to know what the "dark side" is thinking. =)

Having said that, I must take issue with:

"don't prosecute absent a clear and convincing showing of a cycle of domestic violence." Sorry, but I'm not going to wait for a body bag to know that this isn't a one-time thing. Don't have any stats handy, but anyone who has handled these cases knows that the odds are great that the first time the cops are called is NOT the first time there's been a beating applied.

Secondly, if it's important / bad enough to call the police, it's important / bad enough to prosecute. I don't want the officer's time to be wasted on a call that is later labeled "frivolous". There is so little time for doughnuts as is.

I think some folks may be looking too hard at the defense lawyer, who, after all is probably trying to accomplish his / her client's wishes. Most likely the coercion has been applied well in advance of the visit to the lawyer's office (physical, emotional, economic). I do agree that using a NPF as basis for frivolous motion subjects one to sanction.

Finally, the simple fact is, there are some folks in this world who need to be protected, even if they are too "(choose your personal favorite)" to realize it. Need proof, look at Springer.

At the risk of incurring the wrath of nearly everyone, I humbly ask: Why is it that prosecutors (of which I am a former) place so much emphasis on the victim's wishes when those wishes mesh with the desires of the prosecutor, and yet they completely discount the victim's wishes when those wishes coincide with the defense position?

Is it too much to ask that prosecutors adopt a consistent position, with respect to the involvement of victims in criminal cases? That is, either let the victims control the cases, or disregard the victims and let the actual prosecutors control the cases. The uncertainty is what bothers me most of all.

I understand the victims' rights advocates; and I understand the prosecutors' reluctance to ignore such a strong and vocal lobby. But the bottom line, for me, is: Why should we prosecute "to the fullest" those cases in which the alleged victim doesn't want that to happen?

Aren't there enough deserving cases out there? Or, do we need to concoct even more cases to justify our budgets?