What is an Affidavit of Non-Prosecution?

An Affidavit of Non-Prosecution is simply a sworn statement (a written statement that’s been notarized) by an alleged victim in a criminal case that expresses a desire to halt prosecution. In Texas, only the prosecuting attorney has the right to drop criminal charges but an affidavit of non-prosecution may influence a prosecutor’s decision.

Upon request, the prosecuting attorney’s office may choose to provide a generic affidavit of non-prosecution for a complainant that states his or her wish that the case be dismissed. This provides support for the prosecutor in the event he or she decides to dismiss the case but no real disincentive to continue pursuing a conviction.

The primary purpose of an affidavit of non-prosecution drafted by a prosecutor is to provide C.Y.A. in the event that a case is dismissed and the defendant later commits a serious crime. In Texas, both district and county attorneys are elected officials. As such, they want to avoid the appearance of having let a dangerous criminal “off the hook.”

In my experience as a criminal defense attorney, it is not uncommon to learn from an alleged victim that arresting officers stretched the truth or exaggerated certain facts to justify an arrest or file more serious charges against the defendant. Sometimes the alleged victim reveals that the officers didn’t get the complete story due to another factor like a sloppy investigation, witness intoxication, or even intentional dishonesty.

When appropriate, I work with the alleged victim to draft an Affidavit of Non-Prosecution that is tailored to the facts of the case and corrects the record regarding the false allegations. Such an affidavit can be a powerful tool for the defense because it weakens the prosecutor’s case and, as a result, can lead to a dismissal.

If you are the alleged victim in a criminal case, you should be aware that the defendant’s attorney cannot legally represent your interests, even if you were the one who actually hired the attorney. The defendant’s attorney has an ethical duty to represent only the defendant’s interests, which may conflict with yours. This is especially important if you want to contradict a previous statement, which may cause you to have criminal liability for perjury or filing a false report.

If you are the alleged victim in a criminal case pending in Travis County and you plan to recant, then you may want to hire your own criminal defense attorney with experience in Travis County. Your attorney can help you prepare an Affidavit of Non-Prosecution that will balance the goal of obtaining a favorable resolution against the chance that you are charged with a crime. Your attorney can also advise you regarding the likelihood of such an outcome, which the defendant’s attorney is prohibited from doing due to a conflict of interest.

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