Who Can “Drop the Charges”?

breaking handcuffsMany times, someone will say that they heard that the victim of their criminal or traffic case intends to “drop the charges” and the person just wants to confirm that they will be able to do that. Well, unless the “they” that’s being referred to is the prosecutor, “they” can’t. Not even a judge can “drop charges.” Your ex-girlfriend, wife, boyfriend, the guy with whom you had a misunderstanding with at the local bar: none of these people can drop charges. The only person who has the authority to drop criminal charges is the person who charged you in the first place (and that’s not really even a person at all—it’s the government). Federal, State and Local Prosecutors have the constitutional and statutory authority to bring charges on behalf of the people; that is to say all the people within their respective jurisdictions.

Who can Press Charges?

Victims of crime however, do not “press charges” — the government does. Why does it matter? Many people think that if the victim of a crime does not cooperate, then the case must automatically be dismissed. This is not true. An uncooperative complaining witness or victim is just one factor the prosecutor considers when deciding whether to charge or continue with the prosecution of a suspect, although it is often the most important factor.

Prosecutors ask themselves, “How likely is it that I can prove my case beyond a reasonable doubt without X or Y witness?” A victim is a very important witness for sure, and in most cases the victim’s cooperation and testimony is essential to the prosecution’s case. But that’s just most cases. If the prosecutor determines that there is enough evidence to sustain a finding of guilty without the victim’s testimony, they can still lawfully and ethically proceed with the prosecution. In some cases, there are other independent witnesses, video of the crime, previous written statements from the victim or other incriminating evidence that may allow a prosecutor to proceed with the prosecution of the case without the assistance or consent of the victim.

Why Can’t Victims Drop Charges?

When you are handed a DUI ticket by a Chicago police officer, the caption reads “The People of the State of Illinois verses YOU”. The traffic ticket never reads “The police officer or the citizen who saw you driving recklessly on the highway” verses YOU. That’s because only the prosecuting authorities (such as the State’s Attorney’s office or a local municipal prosecutor) prosecute suspects on behalf of The People of their jurisdiction. Even crimes that are clearly committed against individuals in Illinois are still considered crimes against all The People of the State of Illinois.

Domestic Battery is a good example of the fact that technically and practically the victim of a crime cannot “drop charges” — because in what other type of case is the harm to a victim more personal and harmful? If a victim of domestic battery says that he or she is no longer scared of the defendant or that they don’t want the defendant prosecuted, shouldn’t the charges be dropped? Legally, the answer is “no”. Why? Just because the victim may no longer be concerned doesn’t mean that the defendant isn’t going to cause the same harm to another member of the public, according to prosecutors –and as the prosecutor represents ALL the members of the community (not just the one victim), he or she still has reason to be concerned about the public’s safety.

What if the Witness Refuses to Cooperate?

Witnesses can make a prosecutor’s lives miserable by refusing to cooperate. Victims of domestic violence can ignore subpoenas (not lawfully) and make the State’s case very difficult to prove, just like retail stores can refuse to send their loss prevention officers to court to testify against you. Maybe you have been accused of stealing running shoes from a small independent shoe store? Perhaps the store owner calculated that sending their only employee to court to testify would cost them more money than the value of the shoes you allegedly ran off with (without paying for them)?

The lack of a witness makes for a very poor retail theft case if you are a prosecutor. This means that in practice, many cases are eventually dismissed for lack of an essential witness. However, this is determined on a case-by-case basis by the prosecutor. Often there are video tapes, physical evidence or other independent witnesses to crimes that may provide the prosecution with enough evidence to prosecute the case anyway without their main preferred witnesses being present.

Can a Judge “Drop the Charges”?

No, not even the judge can “drop charges.” Judges can find “no probable cause to detain” you after a bond hearing. Judges can find you “not guilty” after trial. Judges can grant defense motions that make the prosecutor’s job impossible by throwing out (refusing to consider) certain illegally obtained evidence. Judges can rule, for example, that the police seized narcotics in violation of defendant’s constitutional rights, and therefore the State (prosecutor) cannot use that evidence at trial. This would make the prosecution of this defendant practically and legally impossible. But in ALL cases, it is the prosecutor, and the prosecutor alone, who decides whether to drop the charges.

Contact an Experienced Criminal Legal Team

The concept of “dropping charges” is very often misunderstood, as most people incorrectly believe that the victim has complete control over whether a case goes forward or is dismissed. Call Mitchell S. Sexner & Associates LLC today at (312) 644-0444 and speak to a knowledgeable attorney or contact us online. Our phone lines are open 24/7.

Written by Mitchell S. Sexner Last Updated : January 13, 2023