Many people who call the police on someone only to later regret it want to take it back. Take a husband and wife who get into an argument and the wife calls the police. When they arrive she tells the officers that her husband assaulted her. Maybe it happened just like she said it did. Or maybe she made up the assault because she was angry. Maybe the police pushed her to say something she didn’t really mean. Maybe she didn’t understand completely due to a language barrier. Or maybe she thought the police wouldn’t arrest him, they’d just make him leave and they could both just cool off. I’ve heard every one of these explanations in my years of practice. What many people don’t matter is what that call to the police is made, how the situation is handled is taken from the complaining witness’s hands and put in the hands of the police and prosecutor.
In a civil case, the people themselves control the case. In a lawsuit where Sally sues James over a car accident, Sally controls whether or not she continues to prosecute the lawsuit against James. If she decides she wants to drop the case, she can (herself or through her lawyer) file a motion to dismiss the case. In a criminal case, it’s not Sally vs. James; it’s the State of Texas vs. James. The State of Texas (the police and prosecutor) take Sally’s place in the driver’s seat. They control whether a case is brought against James and, if it is, whether it’s dropped or taken all the way to trial. Sally in the criminal case is no longer a party to the case with control, she’s only a complaining witness. Her wishes are taken into account, but they do not control what the state does on her behalf. Put simply: Sally can try to drop the case but that will not stop the prosecutor from taking the case and running with it.
So what can Sally do if she doesn’t want to prosecute? She can submit an affidavit of nonprosecution (often called an ANP). An ANP is an affidavit filled out by the complaining witness which states that they do not wish to prosecute. That alone, however, will not necessarily stop prosecution. At the Law Office of Mike Howard, when a complaining witness contacts us about wanting to “drop a case” against our client, we meet with them and interview them about what really happened. We draft an affidavit with their story in their words. If they didn’t fully understand due to a language barrier, we explain that. If they were angry and said more than they meant, we explain that. It’s important to note that we don’t represent the complaining witness, so we can’t give them legal advice. To protect them we always advise them of this and that should they have any questions about legal liability attached to the affidavit, they can and should consult another lawyer.
Every case is different, so there is no cookie-cutter approach. We carefully weight the facts of each particular case, what our client says happened, what the complaining witness initially told the police, what the complaining witness now says happened, and devise a strategy.
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