How to Create an Affidavit of Nonprosecution That Works

Most Affidavits of Nonprosecution Don’t Work

When you’re charged with domestic violence in Texas, one way to try and help your case is with an affidavit of nonprosecution. An affidavit of nonprosecution is a written statement by the alleged victim in a domestic violence case asking the prosecutor to dismiss the case. The purpose of the affidavit is to convince the prosecutor to dismiss the case.

The problem is that in Bexar County and most other counties, the prosecutor will ignore the affidavit. There are two reasons for this. First, it’s not up to the victim in the case how the prosecutor should proceed. If the prosecutor feels that the defendant committed a crime, they usually feel the need to prosecute the case.  Second, prosecutors generally feel that there is a cycle of violence that involves periods of domestic violence followed by periods of harmony. If they dismissed charges that happened during the periods of violence when there was a period of harmony, the alleged abuser would never be punished for the abuse. The problem with that is that it assumes that everyone charged with a domestic violence case is guilty and that they are involved in this cycle of violence.

The Problem With Most Affidavits

The actual reason that prosecutors ignore affidavits of nonprosecution is not important. What is important is knowing when it’s still a good idea to do an affidavit, how to draft it, and what you should be working on instead. Most affidavits of nonprosecution that defense attorneys use are forms that simply ask the prosecutor to dismiss the case at the request of the victim. If the prosecutor ignores this affidavit (they will) it cannot serve any other purpose, because it doesn’t show that the defendant is actually innocent. I recently took over a case where the affidavit of nonprosecution done by another defense attorney actually confirmed what was in the police report, showing that the defendant was guilty, and helping the prosecutor get one step closer to a conviction.

How to Make Them Effective

There is a way to have the alleged victim do an affidavit that can benefit the defendant, but it’s not appropriate in all cases. There are only two times it’s a good idea to have the victim sign an affidavit. First, is if there is a discrepancy between what actually happened and what the victim told the officer. If their story has changed or if the officer just misunderstood what happened, an affidavit can clarify what actually happened. Second, is when the victim says that an element of the offense didn’t actually occur or brings up a defense like self-defense. It can also be useful to show the assault wasn’t voluntary or was done in self defense.

Do Not Give the Prosecutor the Affidavit

In most cases, I still recommend not giving the prosecutor the affidavit. Most prosecutors assume that most defendants are guilty. When you hand the prosecutor and affidavit, they will probably think that it is not true or was simply drafted by the defense attorney in an attempt to have the case dismissed. If the affidavit is a form with no substance, there’s nothing for them to do but continue on with the case. If the affidavit has substance, they now know what the defense attorney’s strategy is and they know that if this case goes to trial, what they need to focus on to win at trial for them to win.

Instead, we hold on to the affidavit until trial and there are many ways that we may be able to use the affidavit of nonprosecution. It may show that the alleged victim’s story has changed, it may show that they are not truthful,or it may show that there is a valid defense and that the defendant did not break the law. A jury is usually going to be more open minded than a prosecutor and this can help win a a domestic violence case.

Having contact with the victim, when possible, is one of the most important steps your attorney can take to try and get the best resolution in your case.

If you have questions about affidavits of nonproseuction, if you’re wondering if it is appropriate for you case, or if you’re being charged with a domestic violence case, call or click below to set up a free consultation.

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