Affidavits of Non-Prosecution: What are they? Can it help me in my assault case?

Posted by Tab Lawhorn | Jun 05, 2023 | 0 Comments

An affidavit of non-prosecution is a legal document in which a victim or witness of a crime indicates that they do not wish to pursue criminal charges against the person who has been accused of committing the crime. The affidavit is usually filed with the prosecutor's office or the court handling the case.

In some cases, victims or witnesses of a crime may decide not to cooperate with the prosecution, either because they believe that the charges are unwarranted or because they want to protect the accused person. An affidavit of non-prosecution can be used to support this decision and may be taken into account by the prosecutor when deciding whether to continue with the case.  However, in Texas, the rules of evidence allow for the prosecutors to proceed to trial on a case even without the cooperating testimony of the victim in domestic violence cases.

It is important to note that an affidavit of non-prosecution does not automatically result in the charges being dropped. The decision to pursue or drop charges rests with the prosecutor, who may take into account a range of factors, including the victim's wishes, the strength of the evidence, and the interests of justice.

Is it illegal for me to ask my spouse to sign an affidavit of non-prosecution in a my assault case?

Generally, it is not illegal to ask a victim to execute an affidavit of non-prosecution.  However, it may be violation of your protective order and/or your bond conditions to have any direct or indirect contact with your spouse. Furthermore, you will need to hire an experienced criminal defense lawyer to arrange the execution of the affidavit, often times with an affidavit that is in the form that the local prosecutor prefers.   However, if you are allowed to have contact with your spouse, or, if you are not under investigation or have been arrested yet for the incident, it is important to ensure that the victim is fully informed and understands the implications of signing the document.

When seeking a victim (usually a spouse or family member) to sign an affidavit of non-prosecution, there are several things to be careful not to do. For example:

  1. Do not coerce or pressure the victim into signing the affidavit. The decision to sign the document should be voluntary and made without any undue influence.

  2. Do not misrepresent the purpose or effect of the affidavit to the victim. The victim should be fully informed and understand the implications of signing the document.

  3. Do not make promises or guarantees to the victim about the outcome of the case or the effect of the affidavit. It is important to be honest and transparent with the victim about the limitations of the affidavit and the role it may play in the case.

  4. Do not withhold information from the victim that may be relevant to their decision to sign the affidavit. The victim should be provided with all relevant information to make an informed decision.

  5. Do not interfere with the victim's right to testify or provide evidence in the case. The decision to sign an affidavit of non-prosecution should not interfere with the victim's right to participate in the legal process.

  6. Do not violate your bond conditions or a protective order (restraining order).  If you are under conditions of bond, or, if there is a protective order in place, you can be arrested for a new crime if you violate that order or bond condition if you are prohibited from contacting the victim.  

At Lawhorn & Malouf, PLLC, our experienced attorneys have handled many criminal cases involving affidavits of non-prosecution and can guide you through the process quickly and thoroughly.  Call 903-999-1234 to schedule a consultation about what is possible in your case.

About the Author

Tab Lawhorn

Attorney, Tyler Office Tab E. Lawhorn is a principal partner at Lawhorn & Malouf, PLLC in Tyler, Texas. Mr. Lawhorn represents clients in Tyler and throughout Smith County who are victims of a personal injury caused by negligence. He regularly handles matters involving car wrecks, trucking accidents, wrongful death and premises liability.


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