Criminal Justice Insider

TV shows spread a pernicious myth about the criminal justice system: that a victim of a crime has a say in whether the prosecution proceeds. This is the notion of “pressing charges” or alternatively “dropping charges.” All too often on television, a fictional victim agrees to “drop the charges” following an epiphany or reconciliation with the defendant. While such a tactic makes for great television, it bears little resemblance to real life.

In the real world, the “People” (in the state system) or the “United States of America” (in the federal system) are the prosecuting party, not the victim. Prosecutors have sole discretion over the charges presented to the grand jury and, following indictment, whether those charges proceed to trial. The victim has little to no say in whether charges are “pressed” or “dropped”.

The only real influence a victim can exercise is through cooperation with law enforcement authorities. If a victim decides not to cooperate by willingly providing information to investigators or prosecutors, the prosecutors may decide not to proceed with the case. Further, if a victim is unwilling to prepare for trial testimony with prosecutors in advance, a prosecutor may not wish to proceed to avoid a disastrous showing at trial

The prosecution of Amy Cooper provides a real-life example this tactic in action. Ms. Cooper is accused of falsely reporting to police that Christian Cooper, an African American man birdwatching in Central Park, threatened her. Video of the incident taken by Mr. Cooper blatantly contradicts Ms. Cooper’s report and records her repeatedly referencing his race as a means of intimidating Mr. Cooper. However, Mr. Cooper has publicly declared that he will not cooperate with prosecutors as he feels Ms. Cooper has been sufficiently tried in the court of public opinion and that the ends of justice are not served by further prosecution. At the time of this blog, it is unknown whether prosecutors will continue to pursue Ms. Cooper without the victim’s cooperation.

However, as demonstrated in equal measure, Mr. Cooper’s unwillingness to cooperate does not end the prosecution. The encounter was recorded on video. Assuming that the prosecutors can find an evidentiary basis to admit the video without Mr. Cooper’s testimony, and they can overcome the attendant Sixth Amendment confrontation clause issue, the prosecutors may not need Mr. Cooper to testify at trial in order to convict Ms. Cooper. Further, prosecutors can potentially subpoena Mr. Cooper in order to compel his testimony, though by doing so they risk eliciting testimony from a witness whom they have not prepared.

Often victim non-cooperation occurs in domestic violence cases. A battered spouse can reconcile with their abuser or wish to avoid significant disruption to their family dynamic before trial. Accordingly, the victim ultimately decides not to cooperate with the prosecution of their abuser. Though exceedingly rare, prosecutors can opt to proceed without testimony from the victim by, for example, eliciting testimony from a police officer who responded to an emergency call about what he observed.

Prosecutors can also call for a Sirois hearing. If prosecutors can demonstrate by clear and convincing evidence at such a hearing that the defendant induced a witness not to testify, prosecutors can use out-of-court statements made by the witness such a grand jury testimony rather than live witness testimony.

The notion that a victim can require prosecutors to “drop the charges” is just one more piece of Hollywood fiction. However, victims can exercise limited influence over the proceedings by declining to cooperate. In turn, prosecutors have tools to proceed in the absence of the victim.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533