The general public commonly misunderstands who holds the power to decide whether a case will be prosecuted. Sometimes people call the police to prove a point or send a message without intending to “press charges.” Much to everyone’s dismay, there is much less to the concept of “pressing charges” than is portrayed on television. In fact, in a misdemeanor case, a statement to the police by the complaining witness will usually do the trick.

After a misdemeanor assault arrest, the only remaining formality for a case to be filed is for the police agency to submit their report and affidavit to the district attorney. From the moment a person is placed in the back of a squad car, the State of Texas has the power to decide whether or not the a case will be prosecuted – and they almost always are.

The question becomes what to do when the State is ready to go forward when the complaining witness is not interested in the prosecution. Like any other legal matter, attorneys on both sides should learn what the witnesses have to say. While the complaining witness’ input is not the only factor of consideration, their opinions do matter to the attorneys for the State. Many times, a minor complaints can be resolved favorably for everyone when it is clear that the complaining witness is not subject to future harm.

If a complaining witness is not interested in prosecution, this information should be provided to the prosecutor through an attorney. Conversations with complaining witnesses must be handled with a certain degree of professionalism which avoids impropriety or even the appearance of impropriety. By no means should a defendant ever seek to influence the testimony of a witness–this is a guaranteed way to make things worse.