Dropping your Fairfax assault prosecution is not guaranteed

Dropping your Fairfax assault prosecution is not guaranteed, particularly if the complainant / alleged victim does not seek dismissal. As a Fairfax criminal lawyer, I know that even when the complainant seeks a dismissal, that is not a foregone conclusion. Calling the police to report an alleged crime is like lighting a forest fire where no rain has fallen for months. Once you call the police, the police and prosecution control the extent to which the case gets pursued in court. Consequently, anyone contemplating exaggerating or prevaricating to the police to “teach a lesson” to the accused, or worse, should stop and consider: (1) A materially false report to law enforcement officers (LEOs) is a jailable crime and (2) your state of mind that leads you to call the police at this moment may later change its mind and be unable to undo your call to the police.

Efforts at dropping Fairfax assault prosecutions involve a prosecutor’s office that proclaims to be progressive and is looking at the alleged victim’s welfare

As a Fairfax criminal lawyer, I often get hired by assault defendants whose complainants are interested in dropping the prosecution. When I say complainant, I mean alleged victim. The people who call the police often are not even the alleged victims. When an alleged victim calls the prosecutor’s office asking to drop the case, they may get a response that the prosecutor wants to first speak with the case’s police officer on the trial date. By the time the trial date arrives, one or two so-called “victim witness” police staffmembers are likely to be present. They might try to convince the complainant that the assault prosecution should not be dropped. Let’s not mince words here. One of my colleagues aptly referred to such police staffmembers (and such people can also be present as prosecution office employees) as “huggers,” not in the justice-helping sense. Their very presence sitting next to complainants inevitably will send a message — whether intended or not — to some or many alleged crime victims not to talk with criminal defense lawyers, when the lawyers professional conduct rules generally bar a lawyer from telling a non-client (and alleged crime victims are not prosecutors’ clients) not to talk with an opposing attorney. Of course, some alleged crime victims obtain attorneys to advocate for them in the prosecution, which bars the criminal defense lawyer from speaking with the complainant without the complainant’s lawyer’s authorization.

A complainant wanting to dismiss a Fairfax assault case / Virginia prosecution can more effectively do that with a lawyer advocating for the complainant

Many alleged crime victims will be in a malleable state with a prosecutor, police officer or victim witness advocate when seeking a case dismissal. The prosecutor, police officer and victim witness advocate can smell hesitation a mile away. If the Virginia assistant commonwealth’s attorney, LEO or witness advocate has their own agenda not to dismiss as many of such cases as are being dismissed, they may be very resolute in convincing the alleged victim to pursue the prosecution. Even if the complainant insists resolutely on dismissing the prosecution, the prosecutor is still permitted to proceed to trial, to put the complainant on the witness stand, and to ask the complainant what happened. Then what? If the Virginia criminal defendant did indeed commit a crime, the complainant’s testimony will help get the defendant convicted. If the complainant was partially or fully untruthful with police, the complainant may feel an urge to stick to the same untruthful story they gave to the police, even when doing so violates their oath. The ideal solution for the complainant who wants to be dropping a Fairfax assault prosecution / Virginia criminal case is to obtain their own lawyer to advocate for such a dismissal.

What can a capable Virginia lawyer do to advocate for a complainant who wants my Fairfax assault prosecution dismissed?

When you hire a Fairfax criminal lawyer to defend you for your pending assault case and you know or anticipate your complainant may or will want to be dropping your case, talk with your attorney about whether your lawyer knows of attorneys with the right stuff to pursue such a defense for the complainant. I say that because two Virginia criminal defense lawyers whom I otherwise see as good attorneys disappointed me when they opined that the universe of instances where a complainant can assert the Constitution’s Fifth Amendment right to remain silent was much more crabbed than the wide universe that I see existing. As a Fairfax criminal lawyer, I may not advise a complainant about their Fifth Amendment rights as to my criminal defense client, because I am not the complainant’s lawyer. The complainant’s lawyer may advise them about their right to remain silent. However, the prosecutor may attempt to get around the assertion of the Fifth either by offering immunity to such testimony (a capable lawyer can argue the level of insufficiency of such offered immunity) or by asking the judge to order that a particular prosecutorial question be answered, thus getting into the argument and parsing over each question from the prosecutor, with a complainant who may not have the confidence to keep refusing to answer questions when facing such pressure on the witness stand. In one such trial where the prosecutor’s witness wanting a dismissal was not the alleged victim but instead an eyewitness to my client’s alleged assault of their very young daughter, the wife’s lawyer did brilliantly in getting heard by the judge in advocating for the applicability of the Fifth Amendment to virtually every instance in which his client asserted the Fifth, and we obtained an acquittal in that Fairfax assault trial.

What if I am a Fairfax assault defendant, my complainant wants my case dismissed, but does not want to pay for a lawyer?

If your assault complainant wants to be dropping your prosecution and does not want to pay for a lawyer, talk with your Fairfax criminal lawyer about what your attorney can lawfully and ethically do to offer for you to pay for all or part of that attorney’s fee. This blog is not legal advice and this matter is sensitive, because such a move must avoid coming in the form of witness tampering nor intimidation, the complainant has to be able to choose their own lawyer (regardless of how helpful or not that attorney is to your plight), and you and your lawyer will not be permitted to have any role in the matter other than your lawyer arranging for your funds to get to the complainant’s lawyer if such a reimbursement agreement is reached. When you have a Virginia criminal lawyer, make sure that you are letting your lawyer make such communications and actions on your behalf.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. You can usually within one business day obtain a free, in-person confidential consultation with Jon Katz about your court-pending case, by calling 703-383-1100, info@BeatTheProsecution.com , and (text) 571-406-7268.