Under what circumstances is the victim of a crime (in the US) required to press charges before prosecution can go forward?
I haven’t heard the term for a while, and I’m wondering if there is still such a thing.
Peace,
mangeorge
The acquiescence of the victim isn’t needed for a criminal case to go forward, although as a practical matter cases are often dropped if the victim is not cooperative with the prosecution and/or signs an affidavit of nonprosecution. If a victim of domestic violence has had multiple cases dropped against a defendant, prosecutors will often file a case against their wishes.
To pravnik’s point, in criminal cases, the plaintiff is normally the city, state, county or other community body. They will prosecute if they believe it is in the best interest of the community to do so. The offended party can be compelled to testify, even if they don’t want to. This sometimes makes them bad witnesses. However, in the US, a spouse cannot be forced to testify against their spouse, which makes domestic abuse cases difficult, when there is no witness to testify, even against their wishes.
As an example, say I am at a bar, being a real asshole provoking people, and a couple of guys decide to “shut him up”, and proceed to beat the shit out of me. The bartender called the cops, but didn’t see the fight start, so can’t testify who, if any, actually committed a crime. All the patrons claim they were “in the restroom” or “staring into their beer”. I’m beaten to a bloody pulp and the two guys who did it have cuts and scrapes on their hands indicating they likely did it. The cops have a pretty good idea that those two are guilty, but unless I “press charges”, they don’t have enough to go on to support a successful prosecution. My “pressing charges” is not a necessity for them to continue, but unless I do, given those circumstances, they are just wasting their time.
IANAL, but I don’t believe “pressing charges” is an actual legal term. It’s just what it would be called in common parlance.
You don’t press charges, you file a report. If the police believe there is enough for an arrest then they take appropriate actions. Once they have done this, you are out of the loop, unless they want you to testify. You won’t even have to file any report or anything if the officers witness anything, like one guy holding you up while the other beats you.
This is only as I understand it, and no I am not a lawyer.
I was in a fight with another guy once, nothing big a few punches thrown. The cops were nearby and heard the fight and broke it up. Because the guy punched first and was drunk the cops asked me whether I wanted to press charges. I declined because it was a onetime thing and no real harm was done. I believe if I would have pursued charges the cops would have put a little more work into the reports and covered their bases a little more, as it was they were just able to say “don’t do it again” and leave. Before they left they did explain that it was the DA’s office call as to whether charges would be pressed and if they were I would still have to testify.
Okay, let’s look at what an arrest is, legally, presuming “English law” (the ‘common law’ system of England, Wales, the U.S., Canada, Australia, and New Zealand). In addition to the presumption of innocence until convicted at trial, we are all presumed to be going about our lawful pursuits, immune from more than brief detention for questions by a police officer (to, e.g., assure himself that the reason you’re loitering outside a closed business is that you are waiting to be picked up by a vehicle, not awaiting your opportunity to break into it). To remove that immunity, there needs to be lawful grounds to arrest us.
In theory, a judge is presented with an information or complaint alleging that a crime was committed at a given place and time and that Melvin Miscreant is believed to have committed that crime. He then issues a warrant for Melvin’s arrest. A police officer may also arrest without a warrant if he (a) observes a crime being committed, or (b) has probable cause to suspect a person of having committed a crime and to believe that taking the time to obtain a warrant would cause undue delay in making the arrest (e.g., if the suspect is likely to flee the scene and/or hide out). In practice, the majority of arrests for violent crimes seem to follow the latter route, though things such as embezzlement, possession of stolen property, sexual abuse, and air or water pollution will go the warrant-from-judge route.
It is, I believe always, the State or Crown, in its capacity as defender of the public peace, that is the plaintiff in a criminal case. Officer Friendly, D.A. Hardcase, or Veronica Victim are not the plaintiff, the state (or Crown) is, because the commission of a crime is an offense against all of us, not just the victim.
What convinces a judge to issue a warrant, or to sustain a warrantless arrest when such a case comes before him, is a document called an information or complaint which summarizes the reasons to believe that a crime has been committed and that the accused was the one who committed it. (There’s a technical difference between an information and a complaint, which I’m not clear on and which is irrelevant to this discussion I believe.)
Ordinarily it is the investigating/arresting officer who produces the information or complaint that results in the arrest warrant or justifies his warrantless arrest. However, as Cheshire Human and sitchensis note, there are circumstances in which the police have insufficient grounds to make an arrest or seek a warrant, but nonetheless suggest to them that a possible crime has occurred. In such cases, the victim (or rarely a third party) may make the complaint that initiates the arrest process. “Pressing charges” literally means to produce the document to begin that process, to press before the judge the reasons that an arrest should be or was already validly made. And when the police offer the apparent victim the choice of whether to press charges, it generally means that they’re prepared to take his statement down as the grounds for an information or complaint, and cannot or choose not to proceed without it.
sounds pretty clear. Thanks
I have a question. Can I press charges directly? Can I show up at the courthouse with a “complaint” all written up and get a judge to decide to issue an arrest warrent? Obviously the police will do the arresting, but do all “complaints” have to come from police? I understand that the chances of a judge agreeing with me is pretty small, but what if I had a completely valid “complaint” with evidence to back it up-say whatever the police would have produced if they had investigated. I know I can go to a justice of the peace and make an accusation and if the JP agrees with me the police have to act on that (in Louisiana), but that isn’t the same as an arrest warrent-I don’t think it is.
Does that apply to domestic abuse cases? I know that in alot of family law proceedings (especially where children are involved) spouse can be force to testify against eachother. Granted as a practicle matter I can see how a DA would be reluctant in the extreme to throw an uncooperative domestic abuse victim (or God-forbid a rape victim) in jail even if he technically can. Kinda hard to sell that to voters.
My understanding (admittedly based mostly on British legal dramas) is that private prosecutions are still possible in England for a variety of offences (including homcide), but they’re freakishly rare in modern times. Not to mention expensive, risky (since a private plaintiff doesn’t have the resources or immunity the Crown has), and it’s very hard to find counsel that’ll accept a private prosecution brief. Wasn’t there a real life case in New Zealand a couple years ago when a family launched (& won) a private homicide prosecution against a bunch of police officers?
Some jurisdictions do make an exception to the spousal immunity and marital communcations privileges in those circumstances - since the purpose of the privileges are preservation of marriage and family, they aren’t applied in circumstances that would be “destructive of the family unit,” like domestic abuse.
Testimony privilege (or immunity) applies to criminal proceedings, but not to civil proceedings with some exceptions. See Spousal privilege - Wikipedia
For a charge of domestic abuse as a criminal matter, a spouse cannot be compelled to testify against their spouse.
I don’t know about US, but under English law you can in theory. Though such occurances are extremely rare.
The most recent famous exampleof thisthe case of Stephen Lawrence, a black teenager who was murdered in London in 1993 by a gang of white youths with racist motives in an unprovoked attack. The Police arrested the accused but the CPS (Crown Prosecution Service) did not bring the case to court due to lack of evidence, an inquiry into the police investigation would later famously describe them (the Metropoloitan Police) as “institutionally racist”.
The family of the murder victim decided to bring a private prosecution and managed to raise money to fund an investigation and several famous lawyers offered their services pro bono. The case did come to trial, but the accused were acquitted. IIRC The judge though recognised the merit of the private prosecution by ordering the prosecution costs should be paid out of public funds.
The reason for the extreme rairty of private prosecutions is that in most cases where the usual prosecuting body has refused to investigate/continue with a case the costs and risks vastly outweigh the slim chance of securing a conviction.
True in some jurisdictions, but not all; a majority of states have created an exception to the spousal immunity privilege in cases of domestic violence. In my own state, the testifying spouse is the holder of the privilege and may testify against a spouse if he or she wishes, but may not be compelled. However, an exception exists where one spouse is charged in a crime committed against the other spouse, or against a minor.
However, many locations have implemented “zero tolerance”, since for various reasons spouses tend to change their mind despite obvious signs of abuse. The statements of either spouse may be used in evidence whether they choose to testify or not, along with medical evidence. Since charges are usually laid or not at the discrestion of the state (or crown in Canada) the prosecutor under zero tolerance refuses to heed the wishes of the battered spouse to withdraw charges. Once sufficient evidence of domestic abuse is there, charges go to trial.
If the victim (or the defendant) choose to testify and explain the situation, they will be confronted with that evidence that led to the charges.
If I recall correctly doesn’t the victim of Roman Polanski says she will not cooperate or testify against him, should he ever be brought back to America?
The laws allow a spouse to testify against it’s spouse if it so chooses, right? I’ve always thought the law was that a wife couldn’t testify against her husband. Was that the case back in the day (50s, maybe)?
peace,
mangeorge
That’s what I heard, that it was consentual and she was tired of the whole issue.
Whoa now - she never claimed it was consensual. She’s said it’s a 33 year old case, that Polanski is 76 years old now and isn’t a threat to anyone, she’s moved on with her life, and she personally doesn’t want to have spend months in a courtroom and dodging/dealing with the media. She never said anything about it being consensual.
That’s what I get for listening to rumor.
Of course, it can’t be consentual if she’a a minor.
A wife can testify is she wants to, but cannot be forced to. Pretty sure that’s how it’s always been.