Agreement Not to Prosecute

Question

Alleged victim told police he just wanted money back & if paid, he'd not pursue charges. Client has money to pay & police say when employer tells them money is paid, case closed. Client would like to get a written agreement not to prosecute from the alleged victim to prevent employer and police from changing their minds after money is paid. Is that enforceable?

Answer:

To make that happen, you should have the D.A. sign off on it. Even though the alleged victim says they do not want to prosecute, it is not their call. The state can and most likely will move forward.

Be careful with this as there is a potential issue with 36.05 Tampering With Witness. This section has caused trouble for those engaged in "settling" criminal cases without getting the approval of the local prosecuting attorney (as found in 36.05(c)). This section calls for reasonable restitution and the agreement by the state's attorney.

Any such document is probably not legally enforceable as an agreement not to prosecute. The State has the right/obligation to pursue any criminal allegation and the complainant is merely a witness who can be forced to participate. I even doubt having the DA sign off on such an agreement is binding on him/her because all he/she needs to do is refer it to the
grand jury and then be "forced" to prosecute. That being said, we all
would hope a DA would honor such an agreement if the complainant
signs it.


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