Declination of Prosecution

DECLINATION OF PROSECUTION, or
DROP CHARGE AFFIDAVIT (plus example form)

Domestic violence battery cases leave many alleged victims wishing they had never called the police to begin with.

The problem for most couples is simple:  they've had a few drinks.  They're drunk.  They argue, and someone calls the police.  This is not a formula for accurate information.  Most eyewitness testimony is suspect even when done sober on a sunny day.  

So, many alleged victims have that pit in their stomach when they read a police report that either (a) is a lie, or (b) doesn't tell the whole story.

What can be done to fix this?

I know what I'm about to say will shock you, but, the answer is simple.  Hire an attorney (don't even read the rest of this page).  Now that you've read the usual disclaimers, let's dig deeper.

Unfortunately, court records rarely reflect the wishes of an alleged victim.  That's because most victims merely call the prosecutors and tell them that they don't want to press charges.  Or better yet, some victims don't even answer the prosecutor's phone calls, and so the prosecutor is left believing the words of their officers.

These verbal statements to some unknown person assigned to a cubical at the State Attorney's Office will get you nowhere.  Your voice will not be heard.  To really make your wishes known, and to tell the World what really happened, you'll need to file an official sworn statement in the court file.  We call this a Declination of Prosecution, or a Drop Charge Affidavit, or a Waiver of Prosecution.  

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, 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).

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

  • the statements contained in the police report attributable to the alleged victim are inaccurate and/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 the judge that the alleged victim does not wish to prosecute. Without this statement, it is doubtful the judge will ever become aware of what really happened (because, as we said earlier, the prosecutors rarely inform the court of the verbal wishes of a victim).  

Of course, while these wishes are important to make known, filing a declination provides no guarantee that the State of Florida will obey those wishes.  We defense attorneys get calls all the time, asking "Can I just file a declination and get my boyfriend out of trouble?"  No, you can't.  That's not all there is to it.

There are plenty of reasons why a Declination of Prosecution will be ignored, and the case will press on.  There are plenty of people in prison, right now, who had declinations filed.  Yet, they were still convicted.  Again, this is why you need an attorney.

The most common reason why a declination is ineffective is that the document doesn't give the prosecutor any reason to drop the charges.  And by "reason", I don't mean that you want your man back home, that you have kids together, that he is the sole provider for the family.  All of this is important, but it's not legally significant.  You cannot expect charges to be dropped just because you want your husband home with the kids.  

A declination must tell a different side of what happened, in a way that will not cause a perjury charge or lead to a filing of a false police report charge.  Yes, this can happen, so I'll repeat my previous disclaimer that you should get an attorney to help with this process. Let's face it, the police are not going to tell the "whole truth", they're only going to put enough in their report to have your loved one arrested.  You'll need to counter their misleading arrest report with additional facts that explain why the defendant is not guilty of the allegations.  

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 a declination that merely informs the court that the victim does not wish to press charges.  A prosecutor's typical response to this sort of generic affidavit is "So What?"

But, a properly drafted declination will contain supplemental facts about the incident that will help the prosecutor decide whether or not they are able to proceed with their case.  This declination must (yes, must) be reviewed by an attorney. It is rare that the police report contains the whole truth, and nothing but the truth.  But prosecutors may be able to review additional evidence beyond the victim's written statement, body cam video footage is a common example.  You don't want to say one thing in a sworn declination, only to be contradicted by the statement given to the police.  You may want to start this process by going to the police department and obtaining a copy of your sworn victim's statement.  After all, your sober reflection of the event may be far more accurate than the statement given to the police in the heat of the moment.

Declinations are important statements because police reports typically contain information to which the police officer has no personal knowledge--so it can be important for a victim to clarify or correct what was written in the arrest report.  Now, while it is important to clarify or supplement a statement, it is whole separate can of worms when an alleged victim actually recants her story.  Let's face it, people lie.  Prosecutors will want a victim to continue telling the same lie, so long as that lie gets them a conviction, but most alleged victims do not want to make matters worse by continuing the lie so they'll recant their entire statement.  This is tricky.  Don't do it without an attorney.  A recantation may limit the prosecutor's ability to even call their star witness to the stand.  If you want to dig deeper on this issue, 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.  The jail is full of guys who thought they didn't need an attorney because their girlfriend filed a declination.  I'm just saying.

IN THE COUNTY COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA

CASE NO. 48-2018-MM-0000-A-O

STATE OF FLORIDA,
Plaintiff,

vs.

ACCUSED GUY,
Defendant
/
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, 2017, 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:

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.  AND ADD FACTS THAT WILL HELP THE DEFENDANT, FACTS THAT THE POLICE CONVENIENTLY LEFT OUT OF THEIR REPORT AND THAT WERE LEFT OUT OF THE INITIAL SWORN STATEMENT OF THE VICTIM.

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, 2017, by ALLEGED VICTIM who has presented _____________ as identification and who did take an oath.



NAME, Alleged Victim (signature)             NOTARY PUBLIC (signature)

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