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Can A Victim Drop Charges?

Almost never does a day go by without someone, whether that person is currently a client, a prospective client, or a friend, telling us in all earnestness that their case should be "no big deal" because the victim (or as a Defense Attorney refers to him or her - the complaining witness) wants to drop the charges, not testify, and forget the whole thing. If only it was that simple. The reality is that the victim (or complaining witness) has no power to prosecute a charge or to cease prosecution of a charge. That power lies solely in the hands of the prosecuting authority. Whether your case was in Chicago or anywhere else in Illinois, the “prosecuting authority” means either the State’s Attorney for that county, the Illinois Attorney General, or a local City, Village, or Town Prosecutor (in the case of Ordinance or Traffic Violations). For purposes of this article, let us consider the role of an Assistant State’s Attorney, because most of the time, it is he or she that has the job of confronting a reluctant, or even unwilling, complaining witness.

Role of the State’s Attorney

In the criminal courts, every court room has assigned to it a judge, a court clerk, courtroom bailiffs or deputies for security, at least one prosecutor, and (usually) at least one public defender. The prosecutor is called an Assistant State’s Attorney (in other states they are often referred to as District Attorneys) and they do the day to day work of prosecuting crimes on behalf of the People of the State of Illinois for their county, such as Cook, Du Page, Lake, Will, Kane or McHenry counties. Only a prosecutor can bring charges, amend charges, or dismiss charges. Ultimately, the Judge presiding over the case can only decide whether or not a defendant has been proven guilty or not guilty, or whether certain evidence may be used at a trial or hearing, and the Judge has no authority over the State to force any amendment, reduction, or dismissal of charges. In fact, Judges are prohibited from requiring the parties to discuss a plea agreement, or from themselves initiating plea discussions.

What Factors Influence the Prosecutor?

This is not to say that the absence of a victim, or the refusal of one to testify against a defendant, will have no impact upon a prosecution. The point to be made is that it is not the end-all and be-all that the victim desires the case to disappear. The outcome depends upon the facts and circumstances of each individual case. There is no real way to be 100 percent certain of the outcome in any situation that may arise, but in our experience, there are patterns as to how certain offices handle these situations. There are numerous factors to consider in determining whether or not the absence/refusal to testify of a victim will cause the case to be dismissed. Among them are the jurisdiction of the prosecution, the local rules, the nature of the offense, and whether or not there is independent evidence apart from the victim’s testimony which would suffice to prove the case in court even in the absence of a victim.

Dismissal of Domestic Violence or Driving Under the Influence

Without citing specific counties, suffice it to say that in some jurisdictions, the prosecutors are more controlling about their cases and they have a strict policy to prosecute all crimes (or at least certain crimes) even in the face of a complainant that now has "buyer’s remorse." For example, when it comes to crimes involving domestic violence or driving under the influence, you can be fairly sure that almost every prosecutor’s office has a strict policy about the circumstances under which a case can be dismissed or the charges amended so that a defendant cannot get a free pass just on the whim of the alleged victim. Certainly, felonies almost never get dismissed for this reason alone. On the other hand, this is not true in all Illinois counties and there are certain offenses in certain other jurisdictions for which the failure of the complaining witness to appear may result in the immediate dismissal of the charges on the State’s own motion.

Dismissal of Charges Based on Lack of Witness

So, how does one know whether their case may get dismissed upon the failure/refusal of the victim to testify? The answer is, of course, that one cannot "know" this with absolute certainty. At best, one can only take an educated guess. However, there are some circumstances when the failure of the complaining witness to appear, or refusal to cooperate in the prosecution, will likely meet with the dismissal of the charges. For example, in a minor traffic accident, where the police did not witness the event, and citations were issued for alleged moving violations that may have contributed to the accident based upon the complaining witnesses’ statements.

In that case, the officer witnessed nothing, and cannot testify to the out of court statements due to the rules against hearsay evidence. A defendant has an absolute right to Confrontation of the Witnesses, under the 6th Amendment to the United States Constitution and Article 1, Section 8 of the Illinois Constitution. The Hearsay Rule protects a Defendant from having out of court statements, made by another person, being offered to prove the matter being asserted in court, where said person is not available and cannot be subject to cross examination. Thus, the charge should get dismissed under these circumstances.

How Far Will the Criminal or Traffic Prosecutor Go?

In fact, in any criminal case where the only way to prove the case is the live testimony of a witness or witnesses and the State has exhausted all means of securing their presence in court to testify, the charges will ultimately have to be dismissed. The only question is, to what lengths may the State go to secure the witness’s appearance? There is no set answer to this question. It is completely dependent upon the factors mentioned above. However, if you were to try and predict the types of cases that the State will pursue more aggressively than others, it is very likely that non-violent offenses, or those not involving alcohol (DUI, Driving while license revoked/suspended for DUI), may get dismissed quicker and with greater ease upon a witness’ failure to appear/refusal to testify. When considering violent felonies, Domestic Violence, DUI, Driving With a Revoked or Suspended License based upon a prior DUI violation, one can anticipate that the State will sometimes prosecute these as far as possible and make every effort to get their witnesses to appear in court. Sometimes, a particular offense becomes the “hot button item of the day” and a greater amount of attention is paid to their prosecution. For instance, for a period of time, graffiti writing / criminal damage to property (also known as “tagging”) was aggressively prosecuted in Chicago, and still continues to be strictly pursued by State’s Attorneys in many court houses.

Another recent example of this phenomenon are prosecutions being brought for solicitation for prostitution, as the direct result of a national campaign to crack down on Sex Slavery Trafficking. In an effort to reduce the demand for prostitutes that advertise on social media platforms such as Craig’s List and others, police would set up stings where they would advertise as a prostitute (often an underage prostitute) and set up meetings with potential “Johns” (the name given to the men that avail themselves of a prostitutes services). The unsuspecting target shows up at the agreed meeting place, only to find himself under arrest. Even worse, after going through the arrest procedure, and being released from custody, their names were published in the news, identifying them as being arrested in connection with Sex Trafficking, which served to give the impression that they were actively involved in the kidnapping of women to force them into the sex trade, when in reality, they were often just lonely men looking for love in the worst of all places.

In the past, solicitation for prostitution usually was met with a “slap on the wrist”, a warning, and often times a “deferred prosecution” that could result in dismissal of the charges at a later date. But for many types of cases, prosecutor attitudes tend to change (and sometime change back) over time. In a recent run of cases related to sting operations such as these, prosecutors in some counties indicated that there would be no further “deferred prosecutions” and that all defendants were to be prosecuted. In cases where the officers failed to appear in court, the State obtained continuances to try and bring the officers in, so that they would not be forced to dismiss the charges. Whether prosecutor attitudes towards this crime (and other) will soften or harden in the coming months and years remains to be seen.

Don’t Take Chances. Call an Experienced Chicago Criminal Attorney Now

So, if you think that your case is simply going to "go away" because you believe that the "victim" will not testify against you, think again. If you are charged with any criminal, DUI or traffic offense, you need smart, aggressive and determined Chicago criminal defense attorneys to represent your interests in court. The lawyers at Mitchell S. Sexner & Associates LLC are ready to help with offices in both Arlington Heights, Chicago and appointments available elsewhere as well. Call us today for a free confidential consultation at (800) 996-4824.