Understanding the Prosecution of Criminal Cases
Almost never does a day go by without someone, whether currently a client, a prospective client, or a friend, telling me in all earnestness that their case should be "no big deal" because the victim (or, as a Defense Attorney refers to him or her, the complaining witness) wants to drop the charges, not testify, and forget the whole thing. If only it was that simple. The reality is that the victim, or complaining witness, has no power to prosecute a charge, or to cease prosecution of a charge. That power lies solely in the hands of the prosecuting authority. Whether your case was in Chicago or anywhere else in Illinois, that prosecuting authority would be referring to either the State’s Attorney for that county, a local prosecutor, or the Illinois Attorney General. For purposes of this article, let us consider the role of an Assistant State’s Attorney, because most of the time, it is he or she that has the job of confronting a reluctant, or even unwilling, complaining witness.
Role of the State’s Attorney
In the criminal courts, every court room has assigned to it a judge, a court clerk, courtroom bailiffs or deputies for security, at least one prosecutor, and (usually) at least one public defender. The prosecutor is called an Assistant State’s Attorney (in other states they are often referred to as District Attorneys), and they do the day to day work of prosecuting crimes on behalf of the People of the State of Illinois for their county, such as Cook, Du Page, Lake, Will, Kane or McHenry counties. Only a prosecutor can bring charges, amend charges, or dismiss charges. A judge can only decide the case, and has no authority over the State in that regard.
What Factors Influence the Prosecutor?
This is not to say that the absence of a victim, or the refusal of one to testify against a defendant, will have no impact upon a prosecution. The point to be made is that it is not the end all, and be all, that the victim desires the case to disappear. The outcome depends upon the facts and circumstances of each individual case. There is no real way to be 100 percent certain of the outcome in any situation that may arise, but in our experience, there are patterns as to how certain offices handle these situations. There are numerous factors to consider in determining whether or not the absence/refusal to testify of a victim will cause the case to be dismissed. Among them are the jurisdiction of the prosecution, the local rules, the nature of the offense, and whether or not there is independent evidence, apart from the victim’s testimony, which would suffice to prove the case in court even in the absence of a victim.
Dismissal of Domestic Violence or Driving Under the Influence
Without naming names, suffice it to say that in some jurisdictions, the prosecutors are more controlling about their cases, and they have a strict policy to prosecute all crimes (or at least certain crimes) even in the face of a complainant that now has "buyer’s remorse." For example, when it comes to crimes involving domestic violence, or driving under the influence, you can be fairly sure that almost every prosecutor’s office has a strict policy about the circumstances under which a case can be dismissed, or the charges amended, so that a defendant cannot get a free pass just on the whim of the alleged victim. Certainly felonies almost never get dismissed for this reason alone. On the other hand, this is not true in all Illinois counties, and there are certain offenses in certain other jurisdictions for which the failure of the complaining witness to appear may meet with the immediate dismissal of the charges on the State’s own motion.
Dismissal of Charges Based on Lack of Witness
So, how does one know whether or not their case may get dismissed upon the failure/refusal of the victim to testify? The answer is, one cannot "know" this with absolute certainty. At best, one can only take an educated guess. However, there are some circumstances when the failure of the complaining witness to appear, or refusal to cooperate in the prosecution, will likely meet with the dismissal of the charges. For example, in a minor traffic accident, where the police did not witness the event, and citations were issued for alleged moving violations that may have contributed to the accident based upon the complaining witnesses’ statements. In that case, the officer witnessed nothing, and cannot testify to the out of court statements due to the rules against hearsay evidence. Accordingly, the charge should get dismissed under these circumstances.
How Far Will the Criminal or Traffic Prosecutor Go?
In fact, in any criminal case where the only way to prove the case is the live testimony of a witness or witnesses, and the State has exhausted all means of securing their presence in court to testify, the charges will ultimately have to be dismissed. The only question is, to what lengths may the State go to secure the witness’s appearance? There is no set answer to this question. It is completely dependent upon the factors mentioned above. However, if you were to try and predict the types of cases that the State will pursue more aggressively than others, it is very likely that non-violent offenses, or those not involving alcohol (DUI, Driving while license revoked/suspended for DUI), may get dismissed quicker and with greater ease upon a witness’ failure to appear/refusal to testify. When considering violent felonies, Domestic Violence, DUI, DWLR or DWLS based on DUI, one can anticipate that the State will prosecute these as far as possible, and make every effort to get their witnesses to appear in court.
Don’t Take Chances. Call an Experienced Chicago Criminal Attorney Now
So, if you think that your case is simply going to "go away" because you believe that the "victim" will not testify against you, think again. If you are charged with any criminal, DUI or traffic offense, you need smart, aggressive and determined Chicago criminal defense attorneys to represent your interests in court. You need the lawyers at Mitchell S. Sexner & Associates LLC. With offices in both Arlington Heights, Chicago and appointments available elsewhere as well, we are ready to represent you. Call us today for a free confidential consultation at (800) 996-4824.