An affidavit of desistance is a sworn statement by the complainant or offended party declaring that they are no longer interested in pursuing the criminal case, often stating that they have forgiven the accused or that the filing was a misunderstanding. A common misconception is that such an affidavit automatically results in the dismissal of the criminal case. It does not. The general rule is that an affidavit of desistance, by itself, is not a ground for the dismissal of a criminal case once it has been filed in court, because a crime is an offense against the State, and the offended party is merely a witness for the prosecution; the control of the criminal prosecution is with the public prosecutor and, once filed, with the court, not the private complainant. Thus, the State may continue to prosecute the accused despite the complainant's desistance, especially where there is other evidence of guilt. Courts view affidavits of desistance with disfavor and suspicion, because they can be easily obtained through intimidation, or by monetary consideration, and are often executed as an afterthought. That said, an affidavit of desistance is not entirely without effect. It may be given weight when executed before the prosecution rests, and it may create a reasonable doubt as to the accused's guilt when it casts doubt on the truth of the complainant's original accusation, especially if the desistance is credible and the remaining evidence is weak; in such cases it can lead to acquittal, not because the case was dismissed on the affidavit alone, but because the evidence no longer proves guilt beyond reasonable doubt. In private crimes (such as adultery, concubinage, seduction, abduction, and acts of lasciviousness), the offended party's pardon or desistance, if made before the institution of the criminal action, bars the prosecution, given the private nature of these crimes. So an affidavit of desistance generally does not dismiss a criminal case, though it may affect the outcome when it creates reasonable doubt, and it has a stronger effect in private crimes.
It Does Not Automatically End the Case
An affidavit of desistance is the offended party's sworn statement that they no longer wish to pursue the case. It does NOT automatically dismiss a criminal case — a crime is an offense against the State, controlled by the prosecutor and court.
Viewed With Disfavor
Courts treat affidavits of desistance with disfavor and suspicion, because they can be obtained by intimidation or payment. The State may continue to prosecute despite desistance, especially with other evidence of guilt.
Its Limited Effect and Private Crimes
It may create reasonable doubt when it credibly casts doubt on the original accusation and the remaining evidence is weak, leading to acquittal (not dismissal on the affidavit alone). In private crimes (adultery, concubinage, seduction, etc.), pardon or desistance before the action is instituted bars prosecution.
Practical Takeaways
- An affidavit of desistance does not automatically dismiss a case;
- The State may prosecute anyway; courts are suspicious of such affidavits;
- It can create reasonable doubt, and it bars private crimes if given before the action.
Frequently Asked Questions
Does an affidavit of desistance dismiss a criminal case? Generally no. An affidavit of desistance is not, by itself, a ground for the dismissal of a criminal case once filed in court, because a crime is an offense against the State, controlled by the prosecutor and the court, not the private complainant.
Why do courts distrust affidavits of desistance? Because they can be easily obtained through intimidation or monetary consideration and are often executed as an afterthought, so courts view them with disfavor and suspicion.
Can an affidavit of desistance still affect the case? Yes. It may create a reasonable doubt as to guilt when it credibly casts doubt on the original accusation and the remaining evidence is weak, which can lead to acquittal, though not to a dismissal on the affidavit alone.
Does desistance matter in private crimes? Yes. In private crimes such as adultery, concubinage, seduction, abduction, and acts of lasciviousness, the offended party's pardon or desistance, if made before the criminal action is instituted, bars the prosecution.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.