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Dropping the Charges in New York City Domestic Violence Cases - Myths and Reality

By far the most common issue that causes the most confusion in a domestic violence situation is the situation in which the complaining witness expresses the desire to “drop the charges”.

What many people don’t seem to realize, however, is that the Government, and by Government I mean the police and prosecutors, are not the puppets of we citizens who are there simply to do our bidding and jump to our tune.  Once we as citizens choose to introduce the Government into our lives (by calling the police for example), when and under what circumstances the Government chooses to exit our lives is no longer up to us.  It is up to the Government.

Therefore, when the police are called to respond to a domestic violence call, it may be tempting for the person who made the call to the police to believe that, once the police have calmed down the situation, she has the power to tell the police that everything is now fine and they can be on their way.

That’s not the way it works.  By making the call to the Government, the Government has responded.  Now it is up to the Government to make an assessment of the situation and decide whether further action needs to be taken.  If the police believe that they have come upon a situation in which a crime was committed, they are going to act upon that belief in accordance with their duty as police which is to investigate crime.

That could mean that they will decide to make an arrest, even if the person who initially called them to the scene is of the belief that the police have done what SHE wanted them to do, which may have been to “calm things down”.

At this point, the complaining witness is simply a witness, like any other witness, in a criminal investigation being conducted by the Government.  The complaining witness in a criminal case has no more power to control the prosecution of the domestic violence prosecution than a witness to a bank robbery has to control the prosecution of the bank robbery.

Once the Government is brought into your life, the Government decides when it is time to leave, not anyone else.

Therefore, the issue of a complaining witness “dropping the charges” in a domestic violence case is really wrong terminology.  What the complaining witness is really looking for is for the GOVERNMENT to drop the charges.  And that decision is up to the Government.

Now this is not to say that a complaining witness in a domestic violence case has NO power at all.  In a misdemeanor domestic violence case, the Government is often (but not always) going to need a SIGNATURE of the complaining witness on a document that swears to the truth of the accusations against the defendant.  This signature can be obtained on one of two documents.  The first document is called the Domestic Incident Report, something that is often prepared by the police very quickly at the scene where they respond to the domestic violence call.  The second document is called the "corroborating affidavit" which is a document prepared by the Government with the criminal court complaint.  The corroborative affidavit is a document that affirms under oath that the information provided by the complaining witness is true.  For more information about this portion of the process and the leverage that a complaining witness may have in domestic violence prosecution, visit the article about the significance of the complaining witness' signature.

BY: DON MURRAY, Partner in the New York Criminal Defense Law Firm Shalley and Murray