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Dropping the Charges

Posted by E. W. Childers | Aug 26, 2019 | 0 Comments

What We Think About Dropping Charges

Many people are confused about the process by which charges are or must be dropped. This is because they are often confused about how charges get filed in the first place. We all watch a lot of TV and believe that after whatever incident the victims get to press charges or decline to press charges and that this decision on the victim's part is controlling on the whole infrastructure of justice such that if the victim declines to press charges then the prosecutor is obligated to "drop the charges".

The Truth About Dropping the Charges in Oklahoma

In Oklahoma, however, this is not true. The charging authority in the vast majority of cases is the district attorney wherein a crime was alleged to have happened. In the cases where it's not the district attorney it's still never the victim. From hereon we will refer to the victim as the complaining witness, because that's all that they are for most purposes in a criminal case, another, albeit important, witness.

Whether a crime was committed or can be prosecuted is not directly related to the wishes of the complaining witness. Rather, it is determined by th he evidence available to the prosecuting authority. The complaining witness declining to assist the district attorney can be deadly to their case and they will often dismiss a charge based on such lack of cooperation. But this doesn't always happen. The decision is actually based on the evidence available to the prosecutor. If they have enough evidence to continue the prosecution without the cooperation of the complaining witness then they usually do. If they do not have enough evidence then they usually do not. In my practice I've seen it go both ways

An Example

This usually comes up the most in a domestic violence prosecution so that's the example I'm going to use to illustrate how this works.

Joe and Susie are a couple with a domestic relationship. One night Susie calls the local police and complains that Joe is hitting her. The police appear, take Susie's statement and a few pictures, arrest Joe and leave. The police formalize their report and send it to the DA, Joe bails himself out in the meantime. The DA reviews the report and decides there is enough evidence to prosecute Joe for Domestic Violence by Strangulation, a felony offense. He files an "Information" (charging document) and Joe is arraigned on his charges. Joe hires a lawyer to defend him against the charges.

Scenario 1) Joe consults with his lawyer. Since the initial report Joe and Susie have reconciled and are going to counseling together. Susie absolutely refuses to cooperate with the DA and wants the case dismissed, in fact, she's the one who bailed Joe out in the first place since he has to go to work to support her and their children.

In this scenario, the DA will not usually dismiss without at least setting the matter for a preliminary hearing. He will notify Susie of the hearing and probably send a subpoena (court order commanding her to appear and give testimony) to her. If she fails to appear he will probably ask the judge for a continuance and he will usually be granted one. He will send Susie another subpoena. If Susie's testimony is crucial to the prosecution then he will usually dismiss the charge without costs (meaning he can re-file the charge if Susie changes her mind). Susie's refusal can be said to have caused the charges to be dropped but that's only because she was the source of the necessary evidence to prosecute.

Scenario 2) Joe consults with his lawyer. Since the initial report Joe and Susie have reconciled and are going to counseling together. Susie absolutely refuses to cooperate with the DA and wants the case dismissed, in fact, she's the one who bailed Joe out in the first place since he has to go to work to support her and their children.

However, this time, the DA absolutely refuses to dismiss the case because Susie's sister, Heather was present when the incident happened and will testify to all the necessary details of what happened. The DA does not need Susie to prosecute Joe because he has independent source of the evidence necessary to convict him.

The Prosecutor Does Not Need the Consent of the Victim (complaining witness) to Prosecute, He Only Needs Evidence

What we can see is that what Susie wants does not matter unless the prosecutor needs it. Dropping the charges is something only the prosecuting authority can do.

If you need to talk to someone about your charges call a criminal defense lawyer at (405) 310-9890 for a free consultation.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

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