What is an Affidavit of Non-Prosecution?
It is like a letter the complainant writes to the DA (district attorney or “prosecutor”) saying they want the case dismissed, or not prosecuted. What makes the letter an affidavit is that it is sworn to and notarized (signed before a public notary), so the prosecutor will know the letter came from the complainant. However, a family violence case is not automatically dismissed just because the complainant turns in an affidavit.
According to Texas law, the DA represents the State in all criminal cases, and the primary duty of all prosecutors is not to convict, but to see that justice is done. If the prosecutor believes an assault of a family member occurred and the assault can be proven at trial, the prosecutor does not have to dismiss it.
Is the Affidavit Helpful at All?
The Affidavit of Non-Prosecution tells the prosecutor that you want the case dismissed. In other words, the prosecutor will know that you probably are going to make it harder for them to get a conviction at trial by either refusing to testify against the accused or by not being a good witness for the State. If that is true, the Affidavit could help in other ways.
It could be the decisive reason to dismiss the case if the evidence is not strong and the DA doubts whether they can win at trial.
It also helps to have the complainant’s approval if the DA believes that a dismissal is appropriate in exchange for the accused taking an anger management or family violence class. Certainly, this is less likely to happen when the complainant is unforgiving and wants harsh punishment.
Why Not Use an Affidavit?
Prosecutors are rarely moved by Affidavits of Non-Prosecution. For prosecutors, the affidavit is of little value and not worth the paper it is printed on. In my experience, the vast majority of complainants in domestic violence cases want the case dismissed, whether an assault occurred or not.
This makes sense because these cases generally are filed in the heat of the moment against other family members. After emotions cool down and there is time to reflect upon what happened, most complainants come to their senses. They realize the seriousness of the charge, especially when filed against the sole breadwinner who could lose their job, and they regret calling the police.
Unfortunately, after a complainant says they were assaulted or went along with the suggestive questions posed by the police, prosecutors rarely believe them when they later change their story or claim they just flat out lied. The prosecutors will still do their job, investigate what happened, and prepare their case with the assumption that the complainant will not testify. They will determine if they have other evidence with which to prove their case, such as a 911 recording, body worn camera videos, eyewitnesses, scene photos, statements, and medical records. A prosecutor will not dismiss a case just because an Affidavit of Non-Prosecution is filed.
James G. Sullivan and Associates | Houston Domestic Violence Attorney
Contact James G. Sullivan and Associates today at (281) 546-6428 for a free consultation concerning affidavits of non-prosecution or if you are charged with family violence in the greater Houston area. James Sullivan is an experienced criminal defense attorney in northwest Houston who will make every effort to help you achieve the best outcome for your case.