In the context of child abuse cases, sex offense cases and especially domestic violence cases, people often ask whether or not the charges will be dropped if the victim recants his or her allegation. The answer is no; only the state of Florida can file formal charges. When someone reports that there may have been some form of abuse to a minor, the minor is interviewed in some way, shape, form or fashion. At that time, a law enforcement officer will decide whether or not there is probable cause. The threshold is very, very low to have a probable cause determination. If an officer believes that probable cause exists, then the state will decide whether or not to file formal charges.
In some states there will be a grand jury proceeding, where a group of people from the public are empaneled, the prosecution presents evidence and then the grand jury decides whether or not to indict someone. That’s known as a true bill. If they do not find a true bill, the person is not indicted or formally charged. In these types of cases, Florida does not use grand juries. In fact, Florida doesn’t use grand juries very much at all. Instead, Florida uses a completely different procedure known as “information of indictment,” whereby a state attorney reviews the factual information, the evidence, allegations etc., and then make a judgment call. If their judgment call is that they believe the evidence supports the allegations, then they will file a charging document. Only a practicing lawyer of the state attorney’s office may file formal charges.
Only the state can drop or dismiss charges. Now, there are exceptions. There can be a rule 3.190(c) (iv) motion to dismiss filed, which is very rarely done. If one is filed and granted, then the court can dismiss it. But the complaining witness-whether an adult or a minor-cannot drop the charges. A key skill, however, is for a practicing lawyer (or preferably a full-blown legal defense team) to use that information in the proper way in order to bolster a request to drop charges. There is a technical way to do this that laypeople don’t know about. Frankly, many lawyers don’t do it correctly. A lawyer should not instruct the original complaining witness to just run down to the state attorney’s office and request that the charges be dropped. That’s not the correct way to do it. If a complaining witness recants or changes their mind, there is a technical way to handle that correctly. It is not something that automatically happens by having them run down to the state attorney’s office and say, “I changed my mind.” The legal system doesn’t work that way.
Should I Hire An Attorney Beforehand If I Suspect I’m Under Investigation For Child Abuse?
A lot of people have a concern that doing certain things will make them look guilty. The classic example is participating in DUI school when charged with a DUI. The reality is that participating in DUI school is a requirement of getting a hardship license by the Department of Highway Safety & Motor Vehicles. Thus, people suffer the dilemma of feeling like they will appear guilty if they take it, but being disallowed from having a license if they don’t. I tell people to go to DUI school; it doesn’t make them look guilty in the criminal court, and they have to do it as a requirement to get a hardship license, even if they’re as innocent as the driven snow.
Likewise, when it comes to child abuse allegations or sexual abuse allegations, hiring a lawyer does not make someone look guilty. In fact, it’s the smartest thing that a person can possibly do. When a lawyer gets involved in a case, there are two principles to remember. The first is that problems do not get better with time. When someone is being investigated for this type of offense, it’s not going to get better with time. The second is that a criminal case with a felony of this magnitude is so severe that it can be likened to fighting Godzilla- the creature from the old movies that would aggressively stomp through major cities, causing massive damage and killing hundreds, if not thousands of people. So, when is the best time to kill Godzilla? The best time is while Godzilla is still in the egg.
When to Kill a Warrant?
The best time to kill a warrant is before a warrant request is made. There is an entire procedure for what a law enforcement officer has to do to get an arrest warrant for someone’s arrest if they suspect that they may be guilty of a crime. The best time for an attorney to get involved in a case involving sex abuse or child abuse is prior to the conclusion of that investigation. I had many examples during my career where somebody hired me prior to an arrest, and because we were able to get to work immediately, we were able to bring out favorable facts, information and evidence that the law enforcement officer would not have known about. For example, if someone is making a false allegation or someone has made a mistake of fact, they are not going to point it out to the law enforcement officer. As defense lawyers, that’s where we come in. If there is an arrest, we also want to prevent the police from showing up at the person’s work or home and making their arrest a public show. We can arrange for a more discreet and voluntary turn-in, which often results in a lower bond.
When handling these pre-arrest kinds of cases, we want two objectives to be met. First of all, we want no arrest; that’s our ultimate goal. However, we don’t plan for things to go perfectly all of the time. Those who wait for the traffic lights of life to all turn green simultaneously never make any progress. They stop before they start. We plan for things to go wrong even though we don’t want them to go wrong. Part of our contingency planning is that if someone is going to be arrested, we want to do everything possible to make the turn-in as painless as possible and to get the lowest bond possible. Having enough lead time makes that more likely. The sooner a criminal defense team gets involved in these major felony types of charges, the better. Don’t get me wrong; there will still be a lot of waiting for other people to do things. But by gathering factual information, learning about evidence, making decisions about how to present that evidence and many, many, many other things, early involvement can mean the difference between being arrested and not being arrested.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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