Surprisingly, one of the most common phone calls we receive as defense attorneys at Banks & Brower is that of a victim wanting to drop charges against a defendant and/or looking to hire us to help the defendant. And, even more unsurprisingly, as former prosecutors, these calls made up probably 50% of the calls we received when we worked for the state of Indiana. Why are they so common? The answer probably lies in the fact that victims believe that they are in control of how the criminal process plays out. That makes sense, right? A victim is the one that called the police. The victim is the one that gave a statement. The victim is the one that told them they want to press charges. So it should be the victim that controls when they get dropped, right? Wrong.
Lets start with how a criminal case is actually brought in a victim-based scenario. First and foremost, a victim has been wronged — 90% of the time in those situations, the victim either calls 9-1-1 and/or reports the wrongdoing to a police department. Inevitably, the police show up at the house/property in the form of a street officer and/or a detective. That officer collects the report and decides whether the wrongdoing rises to criminal conduct (note we didn’t say the victim decides if criminal conduct has occurred). If so, the police officer/detective will draft a probable cause affidavit and submit it the prosecutor’s office for prosecuting. The prosecutor’s office of the county where the crime was committed will review the probable cause affidavit and decide whether a crime has actually occurred, whether the defendant should be prosecuted, and what specific charges should be filed.
Note…in the paragraph above, the victim only played one role…reporting the crime. There are rare circumstances where the officer will ask the complaining witness whether or not they want to press charges. However, most of the time (probably 85% of the time or more) the officers will pursue criminal charges against a defendant, regardless of whether the victim begs them not to, if they believe the defendant has committed a criminal act worthy of prosecution. And, despite what people believe, if the police leave without the defendant being arrested, the prosecutor’s office can still pursue charges later on — and that can be very frustrating for people who believed that charges weren’t to follow because the defendant wasn’t outright arrested.
The reason why victims don’t control whether or not criminal charges are pursued is because the State of Indiana is the one that actually prosecutes defendants, not victims. Thus victims don’t bring or drop charges against defendants, prosecutors do. Plain and simple. Victims often recant their testimony once things calm down with the defendant and/or the relationship with the defendant heals. Prosecutors know this. If they are in charge of the criminal process, they know regardless of the condition of the relationship between the defendant and the victim, they control whether or not to stop pursuing criminal proceedings.
So what does a victim have control over? Other than deciding to cooperate with the prosecution or not, not much. Even then, the prosecutor’s office can compel cooperation of victims by way of subpoena power. Therefore, once criminal charges are brought, the only say the victim has in their criminal case comes at the time sentencing, and even then, they don’t have much control.
IC 35-38-1-8.5 and IC 35-35-3 both say that a victim must be notified of the fact that defendant is being sentenced by way of a plea agreement and that they have a right to be present to speak (to express support for or against the outcome). Note, again, neither of those statutes require victim approval. Rather, the only thing that is required is notification. Once again, the victim does not control the final outcome either.
With all of that said, victims do have some power. Often times if a victim refuses to cooperate with the prosecution and/or the victim changes their testimony of what actually occurred, the case weakens significantly. Many times if the victim stops assisting and/or changes their story, the prosecution won’t fight as hard for the case to move forward — but not always. One of the best things a defendant can do to beat charges against him or her is to hire an experienced criminal defense attorney rather than try to manipulate the victim. A good criminal defense lawyer can exploit weaknesses in the State’s case and/or can give voice to a victim by giving them a chance to talk under oath.
Therefore if you or a loved one is facing a criminal charge in Indiana, don’t hesitate. Give the experienced former prosecutors at Banks & Brower a call or email today. We are available 24/7/365 at 317.870.0019 and info@banksbrower.com. We stand ready to assist you at a moment’s notice.