Something I hear all the time from prospective clients is that the case will be easy because the complaining witness wants to drop the charges. THAT IS NOT A THING. In Texas, in every Criminal Case, the State of Texas is the entity that is charging you and prosecuting you for a crime. The complaining witness is merely a witness for the state. If that witness wants the case Dismissed, they will not likely be a very good witness for the State of Texas, but that does not mean that the State will just quickly drop the case. I also hear people say “the State picked it up”. Every Criminal charge in Texas involves the state “picking it up”.
Why is this idea so prevalent? Many things contribute to this idea, but the real problem is that it keeps getting reinforced by a few things. For example, the Chris Rock/Will Smith slap. It was reported that LAPD chose not to arrest Will Smith because Chris Rock did not want to make a police report/press charges. Logically, this does not make sense. The reason why Will Smith was not arrested was because he is Will Smith. Average people, who are not rich/famous/influential, do not get this luxury. Logically, Chris Rock does not need to make a police report or press charges for Will Smith to be arrested and charged with Assault. What if Will Smith walked up on that stage and shot/killed Chris Rock, would Will Smith not be charged because Chris Rock didn’t want to press charges? Obviously not. Don’t assume you will be treated the same way as Will Smith. What would have happened if Will Smith had been arrested and charged? He would have gone to court, Chris Rock probably would have done everything he could to make sure Will was not convicted, and Will Smith would have eventually gone to some rehab program for anger management. He could probably benefit from some counseling. In the end, it is unlikely that he would have been convicted, and he would then be a mental health advocate and be as popular as ever.
In reality, when a Defendant has an Assault charge where the complaining witness doesn’t want the Defendant charged, there are many things a Defense Attorney can do to get a great outcome. First, I always try to get an Affidavit of Non-Prosecution from the complaining witness if they are willing to sign one. This affidavit essentially says they want the case Dismissed and they are not going to hold anyone accountable for Dismissing the charge. Second, I explain that the courts are very overwhelmed with cases and if they are very vocal about wanting the case Dismissed, the prosecutor will eventually respond. Many people are not comfortable being this assertive. Third, I insist on finding a path to Dismissal. There are many ways to go about this. This is where the negotiation skills and persistence of your Defense Attorney come in.