When a person is wronged, they have the right to sue and file a case against another person in court. However, there are instances wherein these feuds are settled amicably and the complainant or the person who has been wronged do not wish to pursue the case anymore. It can also be the case wherein the complaint was filed against an innocent person who did not commit the crime. In such cases, an Affidavit of Desistance may be filed or submitted to show investigators or the court that you are no longer interested in the case and you want it dismissed. Read More
Simply put, an affidavit of desistance is a legal document where the complainant states that they are no longer interested nor do they intend to institute the case against someone. It also means that the complainant does not want to prosecute or testify in court against the accused.
However, even with an affidavit of desistance, it cannot be used as a ground for dismissal of a criminal case. The case can only be dismissed if the prosecutor can no longer prove the accused guilty of the charges filed against them beyond reasonable doubt without the complainant’s testimony or any evidence from them. The decision to dismiss the case ultimately lies with the investigators or the presiding judge.
How To Write And Affidavit of Desistance
An affidavit of desistance is a sworn statement made by the complainant which informs investigating officers and the court that they are no longer interested in pursuing criminal charges against the accused and should be filed before the court or office where complaint is pending or being investigated.
To create your Affidavit of Desistance, you will need to follow these steps to get you started:
Gather all information that you need
Be sure that you understand the purpose of the affidavit of desistance before you start writing one. Once you are sure of your decision to submit a copy, you will need to gather the minimum information that will be included in the affidavit.
Identify the affiant and make a statement of truth
The affidavit of desistance can only be made by a complainant of a case that was filed against another person or the accused. This means that the affiant must have filed a case that has active investigation or pending in court. The affiant must identify if they are an individual or a business and other details such as full legal name or business name, current address, and nationality. A sworn statement must also be made that will attest to the truthfulness of the facts stated in the affidavit.
Provide all pertinent details about the filed complaint or criminal case
Aside from the affiant details, you should also include the information about the accused or the person whom the complaint or criminal case was filed against. Write down a brief description about the complaint such as the crime involved, complaint or criminal case number, etc
Include a closing statement of truth and review the affidavit
After writing down all the important statements of facts, close your affidavit with another statement of truth. This is a reaffirmation of the oath in accordance with the law. Understand that this is admissible in court and any false or inaccurate statements can be used against you. You are liable for any falsified information and can be subjected to perjury and other criminal charges. So, make sure that you review the affidavit carefully and you are sure that there are no errors and you correct any erroneous information before signing.
Take the affidavit for signature, stamp, and seal
After reviewing your affidavit and everything is in order, you may now take your affidavit to the notary public. Don’t sign it yet as the notary public has to witness your signature on the document. You will also need to bring with you a government-issued ID for verification. Once your identity has been verified, only then will the notary public sign, stamp, and seal your affidavit.
Execute the affidavit of desistance
Once the affidavit bears all necessary and required signatures, it is now ready for execution. You need to submit it to the investigating officer or submit it to the court. Remember, this affidavit does not mean that the case against the accused is dismissed—it simply means that you are no longer interested to witness or pursue a case that has been filed.
When do you need an affidavit of desistance?
An affidavit of desistance is usually needed when you, the complainant, is no longer interested in filing criminal charges against the accused for the following reasons:
You have reached amicable settlement with the other person
You don’t want to spend anymore time prosecuting the accused
The complaint of criminal case was filed against the wrong person
How is an Affidavit of Desistance different from recantation?
Recantation means that the witness who have testified against someone declares that the testimony they had given is not true. On the other hand, an affidavit of desistance simply states that you do not wish to pursue criminal charges against the accused. Simply put, recantation means withdrawing false statements made against the accused, while desistance means stopping any form of assistance in prosecuting the accused.
Can my affidavit of desistance be used to drop charges against the accused?
No. As mentioned, the affidavit of desistance is a declaration that the complainant will no longer help or assist in the prosecution of the accused. However, the charges or cases against them can only be dropped or dismissed if the prosecution or judge finds that the complaint filed is not a criminal action or does not have enough evidence against the accused.
For those instances where the complainant no longer wishes to pursue criminal charges against the person who wronged them, an affidavit of desistance is filed. However, this type of affidavit does not bar the state or the government from prosecuting criminal action. This affidavit also does not justify dismissal of a complaint and can only operate as a waiver of the right to pursue civil indemnity. If the prosecution finds that the act committed constitutes a felony, the affidavit does not obviate criminal liability against the accused.