West Yellowstone, MT asked in Criminal Law for Idaho

Q: How can I get an alternative writ of mandate created and served to a prosecutor in idaho

An assault was reported to the police. The victim was obviously assaulted. The police report was given to the prosecutor. The prosecutor chose not to charge the offender with the crime. Offender has a long record of assault on this victim and others. How do I get him charged and punished for the assault?

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1 Lawyer Answer
Kevin M Rogers
Kevin M Rogers
  • Criminal Law Lawyer
  • Boise, ID
  • Licensed in Idaho

A: A Writ of Mandate in Idaho law, is reserved for those for whom a duty is owed by some person in power. It is designed and reserved to enable someone for whom a duty is owed, to require the empowered to do what is "required" of him/her to do.

The Prosecutor does not owe you a duty, first of all. The Prosecutor also is not "required" to charge a crime. Great discretion is granted by statute to prosecutors to weigh the evidence brought to them to determine whether to file a criminal charge. The way your question is posed leads me to think that you were not the victim of the assault? If you were not the victim of the assault are you a witness to it? If you were an eye witness to an assault and the prosecutor doesn't charge the crime, you may have a point. In that scenario, the prosecutor may have other reasons for not charging the crime. Perhaps a conflict of interest? Perhaps the prosecutor had that person as it's "victim" in a different case? In that situation the prosecutor may contact a sister county prosecutor and see if they want to prosecute, explaining to the other county prosecutor why they can't prosecute. Then it will be the new prosecutor's decision. Either prosecutor must then take the eye-witness information and determine if the eye witness' account is credible? Can it be corroborated by anyone else? Do the two combatants have a "history" together of back and forth charges? This would potentially diminish the prosecutor's desire to prosecute because of the inevitable 404(b) issues which would come up in trial. Lots of considerations to worry about. However, there is NO authority to force a prosecutor to or not to prosecute a crime in Idaho.

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