Pressing Criminal Charges: Who makes the call?

In movies and television shows, you frequently see that the victim of a crime deciding to “press charges,” or later wanting to “drop the charges.”  These are handy plot devices used to create twists and turns in the storyline, but in reality victims often have much less control over pressing criminal charges and, in fact, over the case overall.

Who decides to press criminal charges?

Briefly stated: the prosecutor brings charges against a defendant. Here’s how the process works:

When the alleged victim or “complaining witness,” files a complaint with the police, an officer usually conducts an investigation and, in most cases, makes an arrest.  Once an arrest is made, the police hand the case over to the local prosecutor’s office.  A prosecutor will then review the case and determine whether to file charges, and what kinds of charges to file.  The prosecutor then brings charges against a defendant.

Ultimately, it is up to the prosecutor, not the victim to decide if the case goes forward.

A complaining witness can try to persuade the prosecutor to drop the charges, but the prosecutor might not agree.  In many cases, especially domestic violence cases, the complaining witness either never wants to press charges or quickly decides to drop the charges.  In these cases, prosecutors may continue to prosecute the case anyway.  Ultimately, it is up to the prosecutor, not the victim to decide if the case goes forward.

What power does the victim have?

The victim–or complaining witness–remains a crucial part of the case.  Without a cooperative complaining witness, a prosecutor may not be able to prove beyond a reasonable doubt that the crime was committed. In some cases, without the complaining witness’s cooperation, a prosecutor cannot even bring the case to trial, since the witness is needed to establish probable cause.  While prosecutors can subpoena witnesses to trial, prosecutors typically do this in only the most serious cases, because no lawyer wants to base their case on an uncooperative and unpredictable witness.  More often, a complaining witness’s refusal to participate in a prosecution leads to the eventual dismissal of the case.

Although prosecutors control criminal cases, victims can always file a civil suit. Unlike a criminal offense, which is an offense against the State, and only the State can issue or drop a charge; a civil offense is an offense can be against an individual victim.  It is generally easier to win a civil suit, as the standard of proof is lower than for a criminal case.  In a criminal case, the standard of proof is “beyond a reasonable doubt,” while in a civil case the standard of proof is “preponderance of the evidence,” or about a 51% chance that the defendant committed the acts.  The defendant will not go to jail or prison simply because you win the civil case against them, but they will be held liable for the damages incurred.