What is an affidavit of non-prosecution? As an attorney who handles domestic violence cases I am frequently asked this question. An affidavit of non-prosecution is simply a follow-up statement by an alleged victim in which he or she is given the opportunity to express to a prosecutor his or her desire in prosecuting the defendant, cooperating with said prosecution or being called as a witness. In addition, the alleged victim is given an opportunity to elaborate upon or make corrections to the facts they initially reported to the police.

One of the biggest misconceptions about the affidavit of non-prosecution is that charges will no longer be “pressed” once it is signed. An alleged victim’s subsequent statements and expressions of non-prosecution can be a major factor in persuading the prosecutor to drop or reduce charges, but the ultimate decision on whether to continue pressing the charges rests with the prosecutor.

Below are some frequent Q & A’s relating to affidavits of non-prosecution.

Q: Should I ask or encourage the alleged victim to sign an affidavit of non-prosecution?

A: No. As a general rule, discussing any aspect of your case with an alleged victim should be avoided. The last thing you want to happen is alleged victim to perceive your efforts as interfering with his or her ability to participate in the prosecution. This sort of scenario could quickly turn into a felony Tampering with Witness charge. Communications of this nature should be handled by an attorney.

Q: What happens after the affidavit of non-prosecution is signed?

A: This depends upon the case. Usually the affidavit is presented to the prosecutor in plea negotiations. In response, the prosecutor can ignore it and proceed to trial, can reduce or dismiss charges, or can modify the terms of the existing plea offer. It is not uncommon for a prosecutor to be initially dismissive of an affidavit of non-prosecution or question the sincerity of the alleged victim. If a prosecutor is unwilling to give the affidavit due deference, it is important to discuss with your attorney the merits of setting the case for trial.

Q: Can I be present for the meeting when the alleged victim signs the affidavit?

A: This is a bad idea. As discussed above, prosecutors are naturally skeptical when a defense attorney presents an affidavit of non-prosecution in plea negotiations. The biggest battle for the defense lawyer is to get the prosecutor to treat legitimate affidavits as legitimate. The situation described above could be perceived as the defendant forcing the victim to sign off on an affidavit. This could hamper plea negotiations, or worse, be brought out during a trial.

Q: What is this class the DA wants the alleged victim to attend?

A: Keeping in mind all  of the prosecutorial concerns already touched upon, sometimes the prosecutor requests the defense lawyer to have the victim attend a class or session at a domestic violence advocacy center. This sort of request presumes that the defendant’s attorney has developed some sort of relationship with the victim or is somehow acting as a mediator amongst the parties—this would be a flawed presumption. Whether an alleged victim attends a class or counseling session is a personal decision and not a legal requirement, and generally should be a request made by the prosecutor to the alleged victim.