Legal Question in Criminal Law in Virginia

When you say "you can't," I am not sure what that means.

Usually it is almost impossible to get a criminal case dismissed before the appointed court date, because no one in the prosecutor's office even opens the court file until maybe the day before the day of court.

Also, technically, a crime (if it occurred) is a violation against hte public order and the laws of the Commonwealth. Therefore, technically it is the prosecutor's decision whether or not to proceed with a case or to drop the case.

However, a criminal case must be proven beyond a reasonable doubt.

If neither of you are willing to testify against the other it would be impossible for the prosecution to prove their case. Therefore, although it is technically the right and power of the prosecutor to make the decision, normally a prosecutor is not going to proceed if his or her witnesses are unwilling to testify.

Sometimes the Sherriff's deputy can testify. But if the Sherriff's deputy only came LATER after the fact then the Sheriff's deputy's testimony would be HEARSAY and would not be valid testimony. (Unless perhaps one of you admitted it.)

Could you take the 5th? Well, yes, I suppose since both of you are charged, then BOTH of you could reasonably decide not to testify at all on the chance that your testimony might work against you (each of you).

ALSO: One thing that would be effective in making the case go away would be if each of you sign an affidavit of a statmeent. If each of you has signed a statement absolving the other, then it would be impossible for the prosecutor to go forward with the case.

WARNING # 1: However, you have to be very careful. Making a false report to the police is a crime in itself. You must be very careful that anything you say does not sound like you are admitting that you made a false report to the police. They coudl then (maybe) charge you with that.

WARNING # 2: You might not be able to plead the 5th Amendment if you say ANTYHING on the same topic.

You cannot pick and choose what you say on a topic, and hten claim teh 5th Amendment only on SOME parts of the topic.

This in fact would be a good argument why you should take the 5th Amendment completely. if you start to talk about the topic at all, you will waive your 5th Amendment rights. You cannot say only things that help you and then not say things that hurt you. Once you start to testify about a topic, you have opened the door to EVERYTHING on that topic.

Therefore, you cannot make any statement about the substance of the events without risking a WAIVER of your 5th Amendment rights.

But you could each send in a written statement, and file it with the Court and with the prosecutor (under the case file number), saying that

1) You (each writing spearately) believe you should invoke your 5th Amendment rights

2) You understand that this requires you not to testify about ANY part of the topic. You cannot pick and choose what you are willing to testify about

3) After having time to cool down and reflect on the events you believe that prosecution of these charges would be inappropriate and excessive.

4) While you honestly believed that your report was appropriate at the time, you have now had time to think more clearly and get a better understanding of the law.

5) You (each writing separately) want to have the case dropped, and do not want to testify, and do not want to come to court.