Los Angeles Criminal Defense Lawyer and DUI Attorney
Most people really misunderstand the idea of "pressing charges" as it pertains to criminal law.  Don't get me wrong, a victim's cooperation and statements are an important factor in the government's decision to bring criminal charges.  But, contrary to popular belief the decision to bring criminal charges rests entirely with the government.  After police investigate an occurrence and/or file a report, the prosecutor will review the evidence and choose whether to bring charges.  If police and the prosecution each believe a crime has been committed, and believe there is enough evidence to convict, criminal charges are often filed, whether the victim wants the defendant to be prosecuted or not.  By contrast, in regards to civil claims, a victim (or plaintiff) has exclusive control over the decision to file suit and seek relief for injuries.  So, a victim's wish to "press charges" is a relevant, but non-dispositive factor in the charging decision prosecutors make.  

This debate frequently manifests itself in domestic violence cases.  Domestic violence cases are unique in many ways, and many Los Angeles and southern California courthouses handle DV cases separately, in their own court rooms.  Determining what actually happened in these cases can be difficult.  Sometimes, a victim of abuse from a loved one is unwilling to come forward or cooperate in criminal proceedings.  Conversely, there are false accusations, used to "get back" .  Prosecutors are inclined to believe victims, but bear the difficult task of trying to figure out which victims aren't being truthful.  They don't want to charge someone they think is innocent, but do not want to ignore an incident if they believe a crime has been committed.  Victims recant their accusations, and prosecutors are left to decide whether the initial police call during a fight or the later-expressed opinion that is true.

Since it was the victim's phone call or waving down a police officer that often initiates criminal investigation, why is their opinion the the matter later ignored?  Should the victim's choice end there?  Is an instant reaction more trustworthy or otherwise more important than a decision made later?  

Theft is another example where a victim's choice is limited.  The defendant is not guilty of theft if he/she had consent from the owner of the property to be in possession thereof.  So, if I notice my car missing in the morning, call the police, and later find out that my roommate borrowed it, I could say that I actually consented to him having my property, and it wouldn't be a theft.  Theoretically, however, a victim of theft could after-give consent to someone who stole their property.  What if only after really thinking about it, I decide that I don't think my roommate was wrong to borrow my car, but only make that decision afterwards?  What if the thing "stolen" has to value to its owner (e.g. fruit from a tree, with rotting fruit below it)?  Should the owner be able to "dismiss" charges?

There are problems with letting victims make all the decisions.  Irrational victims shouldn't be able to set criminals free.  Moreover, offenders would be able to buy a plaintiff's decision, having a disproportionate effect for poor victims and rich offenders.  

Another argument against victim control over the charging decision is the thought that we could let victims seek more punishment for defendants instead of less, but I would never advocate that level of victim impact on the decision.  I merely believe a victim's desire not to press charges should have more force.  Whether presented as a defense, handled within the prosecutor's agency or at argued at sentencing, I think there should be a mechanism for removal of the criminal charge or punishment by the victim.

Perhaps the strongest argument against letting victims absolve a criminal defendant is that a victim's choice to proceed with charges would create resentment.  But maybe that should be a condition of bringing criminal charges.  There need to be checks for irrational decision-making, but if a statutorily defined "victim" doesn't wish to punish a defendant, how much power to create a wedge between them should the government have?

Some would say it's fine the way it is, but I think there is a reason most people think they get to choose whether to press charges.  There is something intuitively pleasing about the autonomy to decide for ones self whether you're a victim.  The autonomy to decide whether someone else has wronged you to the point of it being a crime.  

California does allow for a "civil compromise" in some misdemeanor offenses, but not in domestic violence cases or public offenses.

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Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017

By Nicholas Loncar



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