Declination of Prosecution
DECLINATION OF PROSECUTION, or
DROP CHARGE AFFIDAVIT (plus example form)
Many criminal charges have an alleged victim. In such cases, there's always a chance a criminal defense attorney may obtain a sworn affidavit from the alleged victim informing the court that she desires that the charges be dropped. The most common case involving a declination of prosecution is domestic violence battery, but declinations are used in all sorts of other cases like grand theft or petit theft, criminal mischief, worthless check charges, assault, and the list goes on and on (as long as there's a victim, you can file a declination).
This document that tells the world an alleged victim no longer wishes to press charges is known as either a Declination of Prosecution, a Drop Charge Affidavit, or in some jurisdictions, it is called a Waiver of Prosecution. But there's no magic form here, as these written statements basically say two things:
- the alleged victim does not want to press charges nor cooperate with the prosecutors, and/or
- the statements contained in the police report attributable to the alleged victim are inaccurate or incomplete.
The most common form of a Declination of Prosecution is the first kind, a sworn statement (in other words, notarized) informing the prosecutor and judge that the alleged victim does not wish to prosecute. Of course, while these wishes are important to make known, filing this document provides no guarantee that the State of Florida will obey those wishes.
In domestic violence battery cases, for example, some jurisdictions require further efforts by the alleged victim before a case can be dropped (maybe a class or two, for example). Because prosecutors often proceed with a case in spite of a victim's wishes, its always best to hire a criminal defense attorney before drafting a declination of prosecution, as we want the declination crafted in such a way so as to provide a defendant with his best chances of success (it's awkward to file a second declination because the first was incomplete!). Furthermore, certain statements contained within a declination may expose an alleged victim to criminal charges like perjury or filing a false police report--so do not draft a declination of prosecution without first hiring counsel! Got it?
A declination of prosecution should be a sworn statement. Thus, it needs to be the truth. Now, that's easy when we're dealing with the first type of declination, the type that merely informs the court that the alleged victim does not wish to press charges. But the second type of declination, the one which contains further facts about the incident, this declination must (yes, must) be reviewed by an attorney. After all, it is rare that the police report contains the whole truth, and nothing but the truth. Police reports typically contain information to which the police officer has no personal knowledge, so it can be important for a witness clarify or correct what is written in a police report. A whole other can of worms can be opened when an alleged victim actually recants her story. A recantation may limit the prosecutor's ability to even call their star witness to the stand. Attorneys must be involved in such situations, read my article entitled "Recanted Testimony in Battery Cases" for more information.
There's a huge potential pitfall to filing a declination of prosecution: any conflict between a sworn statement given at the scene of the crime, versus the new sworn statement given within the declination, can be used to arrest the alleged victim on felony perjury charges. So, I'll say it again, don't draft a declination without an attorney's assistance.
Here's what a Declination of Prosecution looks like. Urban myths indicate that this document is somehow magical--don't believe the hype. Important? Yes. Magical, no. Enjoy.
IN THE COUNTY COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO. 48-2013-MM-0000-A-O
STATE OF FLORIDA,
DROP CHARGE AFFIDAVIT &
DECLINATION OF PROSECUTION
Before me, the undersigned authority, personally appeared ALLEGED VICTIM, who being by me first duly sworn, deposes and says: I am ALLEGED VICTIM. On or about June 17, 2013, battery charges were brought against the Defendant, Accused Guy. I am the alleged victim and complaining witness against the above named individual.
I have by execution of this document, advised the State Attorney's Office in Orange County, Florida, that I do not desire criminal action and proceedings in this case, I do not desire the case to be prosecuted further, and request the charges against the Defendant be dismissed. I now request that the State of Florida consider the following additional information involving the case against the defendant:
MAY ADD IMPORTANT INFORMATION, LIKE "WE HAVE BEEN MARRIED FOR 20 YEARS, 4 KIDS TOGETHER, THIS WAS ALL A BIG MISUNDERSTANDING", OR ANY OTHER INFORMATION THAT THE ATTORNEY & ALLEGED VICTIM DEEM APPROPRIATE FOR ALL TO HEAR
I am executing this affidavit voluntarily and of my own free will, without coercion or undue pressure from anyone. The foregoing document was acknowledged before me this _____ day of July, 2013, by ALLEGED VICTIM who has presented _____________ as identification and who did take an oath.
NAME, Alleged Victim (signature) NOTARY PUBLIC (signature)