As a defense lawyer in Houston who handles a lot of domestic violence cases, I am often asked about Affidavits of Non-Prosecution. Many times, my clients ask me about this, or the complainant on one of my criminal cases reaches out to me, or sometimes individuals want to hire me to represent them when they are the alleged victims.
An affidavit of non-prosecution is basically a letter that a complainant writes to a DA staying their desire that the case be dismissed, or no longer prosecuted. In most counties this will not result in an automatic dismissal. Let’s talk about the good and bad of Affidavits of Non-Prosecution.
Affidavits of Non-Prosecution will put the DA on notice that you want the case dismissed. What this basically means to a DA is that you are more than likely not willing to testify against this individual, and that you are likely not going to be a great witness for the state.
It also tells the DA that you don’t want this person to be convicted, and this might help for two reasons:
- If it is a very close case, and the DA does not know if they will be successful, this might be the tipping point to dismiss the case.
- If the DA feels that some sort of class (typically a domestic violence class) might be appropriate in exchange for a dismissal, then the approval of the complainant helps. It is better than having a complainant who wants the defendant to be punished “to the fullest extent of the law”.
Affidavits of Non-Prosecution typically (in general) mean nothing to prosecutors. If I had to guess, I would say on average over 80% of complainants in cases end up wanting to help the defendant or write some sort of Affidavit of Non-Prosecution.
This is understandable because these are typically cases within families. After the dust settles, and emotions calm down, most people realize how serious the cases are and regret placing charges (whether an assault happened or not).
Even if a person says they lied and made everything up, prosecutors almost never believe this because people change their stories on almost every case. The prosecutors are still going to do their job and investigate their case. They will work the case up with the assumption that they won’t have a witness. They will see If they have other evidence (911, videos, medical records, photos, statements) that can help them prove their case. The Affidavit of Non-Prosecution will not cause a DA to file a dismissal.
Should A Complainant Write an Affidavit?
In my opinion the worst that can happen is that the DA ignores it, so why not. It puts your feelings out there, and while it might not cause the DA to dismiss the charge automatically, it might be what sways them in the end to let it go if it is a close decision.
If you are a complainant in a case, I would recommend you reach out to an attorney. You need to know your rights, and things that could possibly get you in trouble. If you do things right, you should have nothing to worry about, but false statements could put you in danger of being prosecuted yourself.
If you have any specific questions about Affidavits of Non-Prosecution, reach out to me and I will be happy to talk to you about your situation.
Eric Benavides is a Houston Criminal Defense Attorney. He is a co-founder of Benavides & Serrano, PLLC. He is a graduate of the prestigious Texas Criminal Defense Lawyers Trial College, and is a proven trial lawyer. He has been recognized as one of the best criminal lawyers in Houston by the Houstonia magazine, and has earned a perfect 10.0 rating on AVVO.