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James Daloisio
James Daloisio, Lawyer
Category: Criminal Law
Satisfied Customers: 98
Experience:  30 years experience in criminal law, continuing education.
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Second opinion] How do I best convince my prosecutor to drop

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Second opinion] How do I best convince my prosecutor to drop a domestic violence case? The charge is Cyber harassment and Cyber stalking. The case is now in the state. It was a complete misunderstanding considering I technically the victim did not even call the police. I want the case dropped.

Hi, my name is*****'m a former prosecutor and although I understand your question to be "how do I best convince my prosecutor to drop a domestic violence case?" I must tell you that the chances of getting a prosecutor to dismiss a DV case are slim to none at best. Prosecution agencies always take the position that DV victims do not control whether or not a person is going to be prosecuted. The victim is merely a witness in their case. So your focus has to be on the person who is being prosecuted, not on the victim. In that regard, there are a number of factors that a prosecutor will look at in deciding how to proceed with a DV prosecution.

1. The relationship between the victim and the defendant. Is it ongoing or has it terminated? Do the parties reside together? Are there children whose interests need to be considered?

2. The safety of the victim. Is the victim in danger of physical or emotional harm if the defendant is not prosecuted, or placed on probation and required to comply with terms and conditions; or is it possible that there are others who may be potential, future victims?

3. The defendant's past history. A person with no prior offenses or DV incidents will more likely receive lenient treatment.

4. The defendant's economic situation. Does the victim depend upon the defendant for support or not? Does the defendant have a job that will be impacted by a conviction?

The idea is to present a picture showing that a criminal prosecution would do more harm than good to the parties. Now, there is going to be some conduct by the defendant that the prosecution wants to punish the defendant for, and wants to make sure the defendant does not repeat that conduct. So it's important that the defendant be remorseful and make an honest, good faith effort to demonstrate that remorse, comply with any requirements of counseling, conduct, and restitution, and in general show that there is no risk of recidivism. It's also helpful if the defendant goes out and tries to get help while the case is pending, to show an intention to comply with the law.

Unfortunately, many victims say they want the case dropped but don't understand that it's not their decision to make. You have to understand what drives the prosecution and present facts that would cause the prosecution to consider leniency. They aren't going to do that merely because it's what you want. That said, I hope things work out with your situation. If this has helped you, a positive rating would be appreciated. Thank you!

Customer: replied 30 days ago.
We do not reside together. The relationship will most likely not be ongoing and there are no children involved. I was never in any physical or emotional harm or distress. His past history is clear he has never gotten in trouble with the law before. He also had a traumatic brain injury that has clearly had an emotional toll on him will this help his case? and I do not depend on him whatsoever. with tis information do you think we have a good chance of getting it dropped?

Hi,

It's difficult to evaluate the chances of a case being "dropped" without knowing what it was that he was alleged to have done. Obviously, the more serious the offense, the less likely the state will abandon its prosecution. His lack of prior record helps. It's possible that his traumatic brain injury might be a mitigating factor, depending upon its severity and the nature of the offense. If you were in a dating relationship with no reasonable likelihood of it continuing, that would help his case as well, as long as he is perceived as ready to move on and not be obsessed with you. But in any DV case, it's more reasonable to hope for some type of alternative sentence such as probation/counseling, etc., because prosecution agencies are extremely reluctant to dismiss such cases. They want to be able to monitor the progress of the defendant for some reasonable period of time to make sure he does not re-offend. So to answer your question, no, I do not believe you have a "good" chance of getting the case dismissed; however, if the nature of his conduct was such that no one was ever in danger, no one was threatened, and there is no apparent likelihood of it happening again, he may have a good chance at some leniency, perhaps a lesser charge, a less onerous set of probation conditions than those usually associated with DV cases, and a shorter period of probation.

Customer: replied 30 days ago.
But he won't face jail time?

That's a question I cannot answer. It depends upon the offense charged, the severity of the charge, the severity of his conduct, and the risk that he might re-offend if not incarcerated. Some criminal offenses, not many, but some, carry mandatory minimum sentences. Based upon what you've told me so far, as a prosecutor I probably would not be seeking jail time in this case, as long as I was satisfied that the defendant has accepted responsibility, is remorseful, is willing to comply with terms and conditions of probation, and is making a good faith effort to not commit any new offenses.

Customer: replied 30 days ago.
Okay thank you so much. How do I reach out to my prosecutor?
Customer: replied 30 days ago.
or should I not speak to them till the court date?

If you are listed as the victim in the reports you should have been contacted by the district attorney's victim/witness coordinators. If no one has attempted to contact you, just telephone the district attorney's office and ask for the victim/witness coordinator or similar individual. All offices should have a designated contact to coordinate with DV victims. If you were not listed as the victim, but are still a witness, someone should have contacted you. Again, the simplest way is just to telephone the DA's office and ask to speak to the prosecutor who is handling your case. Be prepared to give them the defendant's name, your name, and the court case number ***** you have it.

Customer: replied 30 days ago.
This incident happened 4 days ago so should I wait to hear from them or call ASAP?

You should try to call. It may be too soon for the information to be available to the support staff; however, it's better that they know you're interested in speaking with them at an early stage.

Customer: replied 30 days ago.
Would it be a good or bad idea to work with the defendants lawyer?

You are free to discuss the case with anyone you wish. You should be up front with the prosecution if they are treating you as the victim, if you decide to assist the defense. Hopefully it won't get that far. While I do not see dismissal as a likely resolution to this case, I do not see it as a case in which the prosecution would want to punish the defendant excessively, at least not on the facts you've given me. My advice is to contact the prosecution, find out what they intend to do with this case, find out if they intend to have you testify as a witness, and then decide whether you want to assist the defense. If you are in fact the victim in this case, the prosecution is working with your best interests in mind. Just be honest with everyone.

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