Who “Presses Charges” – The Prosecutor Or The Victim?

In this post I am going to explain how and why prosecutors and not victims are the ones that decide when charges are filed in a criminal case.

Why The Prosecutor And Not The Victim Makes the Decision

When someone has been harmed by the actions of another, it can rise to criminal conduct if it was done with intent to commit an illegal act or to inflict harm on the victim.

However, not every apparent criminal act is prosecuted for a variety of reasons, foremost being a lack of evidence to convict the alleged perpetrator.

What Are The Obligations Of The Prosecutor?

A prosecutor must weigh whether the evidence at hand is sufficient to convict the accused on all elements of the offense by the standard of beyond a reasonable doubt.

A prosecutor is also presumably obligated to pursue justice and the truth without influence from the victim, media or community. The prosecutor also has a duty to protect victims from undue harm and to protect their rights as well as to hold the guilty accountable.

Factors That a Prosecutor Considers in Whether to Bring Charges:

  1. Doubts about the evidence supporting the accused’s guilt
  2. The adequacy of incriminating evidence or whether it is admissible
  3. Whether financial restitution is available and adequate
  4. The mental status or credibility of the victim or accuser
  5. Whether such offenses have been routinely not enforced
  6. If the harm to the victim was negligible
  7. Plausibility of the accused’s alibi
  8. If prosecution would result in undue hardship to the victim
  9. If the offense is relatively minor
  10. If the victim is non-cooperative
  11. If the accused is being cooperative

Any of these factors alone or in combination can be persuasive in whether a prosecutor will decide to bring charges or not.

Role Of The Police Report In A Filing Decision

A key element in a prosecution are the police reports. They are usually the most relevant document in the prosecutor’s decision whether to press charges or not

They establish whether the elements of a crime are present and if the evidence found at the scene or which may lead to other evidence is adequate, credible and legally obtained.

Who Writes The Police Report?

Police reports are prepared by the arresting officer with input from other officers participating in the arrest and investigation and approved by a superior.

Because these officers are usually the first responders, the report can include the sights, sounds, smells, stains and the demeanor of the victim, accused and witnesses.

What is Included In The Police Report?

The reports are based on notes compiled by the officer at the scene or shortly thereafter and also contain

  • Witness statements,
  • Measurements of evidence such as skid marks,
  • Discovery of potentially incriminating evidence and conclusions.

Are There Additional Reports?

Later investigations will follow up on the initial report, sometimes verifying what was found or discrediting it.

What the officer found and observed at the scene can color a prosecutor’s perceptions on the innocence or guilt as well as the honesty or deception of the parties involved.

What Happens If The Police Report Is Not Accurate?

If the officer omitted a key piece of evidence that was later discovered and found to be potentially exculpatory or even incriminating, failed to document that proper protocol was followed in the chain of evidence or did not follow proper police procedures, then the defense can seize on the improprieties and possibly

Why Intervening Before Charges Are Filed Is A Good Idea

Retaining a criminal defense attorney following an arrest and before charges are filed is a sound idea. If you feel that charges are imminent and have not yet been arrested, then promptly meeting with your attorney is equally as important.

What Your Attorney Will Need To Know?

Your lawyer will need to know as much as possible about your situation, the basis of the potential charges that you face and the evidence supporting them before meeting with the prosecutor handling your case.

In some cases, arrests are made based on faulty identification or the ulterior motives of someone like an estranged spouse or intimate partner. Misunderstandings are not uncommon.

Still, going to speak to a prosecutor alone is never a good idea who may not be willing to speak to you anyway unless you are represented and accompanied by counsel.

Do You Have An Alibi?

If you have an alibi and can prove you were elsewhere at the time of the crime, your attorney can corroborate this and then schedule a meeting with the prosecutor to discuss.

You might use this tactic if you can demonstrate that an accuser is mentally unsound or has a motive for alleging you committed some wrongdoing and the evidence is not credible or cannot be corroborated.

Possibly Making A Deal With The Prosecution

In matters where you may be charged with a serious crime where others are involved, you might consider a plea bargain cooperating with the prosecution.

Your offer could include your testimony or providing of documentary evidence against other culpable parties in return for either having no charges filed, being granted immunity from prosecution or promised a greatly reduced sentence.

There Are Different Types Of Immunity

Be aware that there are different types of immunity, if it is offered, and that you could still be charged based on other evidence. Your defense attorney needs to explain this to you and assess the current and potential incriminating evidence against you.

We Can Help

If you are seeking an attorney to represent you in a criminal matter pleasse contact Aizman Law Firm for a confidential consultation at 818-351-9555.

7 comments

Avatar Juanita Fernandez

My Boyfriend and his ex got into an argument 6 years ago and she call the cops on him. he ran because he is undocumented. we recently went to pull his previous dui info and come to find out that dv case is still open with a bench warrant. his ex claimed she dropped the charges. he didnt hit her. she is actually the violent one but being a man he wont admit that she would hit him. what should he do?

Hi Juanita: His ex doesn’t have the authority to “drop the charges.” Only a prosecutor may dismiss pending charges unless the Judge determines there is a legal basis for a dismissal after a motion by a party to the action. Your boyfriend needs to hire an attorney to assist him with having the warrant recalled and appropriately handling the case thereafter.

My husband was a passenger in a drunk driving accident that killed his friend, the driver. A year later he is being charged with driving and trying to cover up… AND a charge of if he was not the driver ‘he had a legal responsibility to not allow him to drive with involuntary manslaughter’. We are heading to court in April for a jury trial. I still can’t believe they can accuse you of something, then say… but if you didn’t… Anyway, we can prove 100% he was not driving. So now we have been told the family of his friend want my husband ‘to pay and will not back down.’ I am very confused as to HOW the family can tell the prosecutor what they want and continue to get it? Can you please help me understand this. If the family would except what happened, an accident, we would not be in this mess. If my husband was injured would I then be able to press charges on his friend’s family? Why does the family have so much influence in the court?

What an awful situation. I’m so sorry. In which state did this occur?

I think you are asking me what state? Michigan

Laws are different from state to state. We are only licensed in California and therefore can not advise you as to the laws in Michigan.

My wife called cops on me and told them I hit her,she gave them pictures and everything but she’s not going to go to court and testify,can the d.a still prosecute???

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