Can A Domestic Violence Case Be Prosecuted If The Alleged Victim Does Not Testify?
This happens a lot in Los Angeles County in these domestic violence or spousal abuse cases where the alleged victim does not want to testify.
The prosecutors try to make them testify, threaten them, tell them they will get in trouble, and try to serve them with a subpoena. But still, no matter what they do, sometimes alleged victims simply don't want to testify for many different reasons.
Maybe the other person is innocent and embellishes their story. Perhaps it's their spouse or loved one—their meal ticket. So, there are many different reasons why people don't want to testify.
Then the issue becomes, can the prosecutor still make the case if the person doesn't testify? The answer is sometimes.
Crawford Case
If they don't have somebody to testify, they must figure out how to get that testimony in. There's a case called Crawford, and basically, Crawford involves allowing testimony to come in even without the alleged victim testifying.
The defense's argument is that if you just let—for example, a body cam video of a person giving a statement, saying that one person is guilty—you just let the body cam evidence come in, the problem is that the defense doesn't get a chance to cross-examine that witness because that witness is not there.
So, that's where this Crawford case comes in. One thing I see where they use Crawford to still prosecute the case without the alleged victim being there on a domestic violence case in Los Angeles is they will bring in body cam evidence where a person gives a statement.
They'll bring in a 9-1-1 tape and combine this evidence with the police officer's observations when they arrive.
If they don't have body cam evidence, they might not be able to get the person's statement as they tell it to the police. Still, they can get the police to testify that the person was crying, the person looked upset, the person had a black eye, the whole apartment was in disarray and broken light, and there had been a horrible fight. So, there are a bunch of different things they can get if they are available to them.
Reviewing All The Evidence
In determining whether or not they are going to be able to prosecute the case without the alleged victim being there, you're going to have to talk to a seasoned Los Angeles domestic violence attorney.
You can't just make a snap judgment on this. The defense attorney is going to have to review all of the evidence. A lot of times, what I do is I say, well, no, I don't think they should be able to, and if they try and do that if their alleged victim doesn't show up,
I'm going to file a motion to block it and try to keep them from getting this evidence in. I'm going to argue that's not fair. I'm not getting the opportunity to cross-examine this alleged victim, and therefore, I can't even challenge their evidence, statement, or credibility and reliability.
So, without the ability to do this, how is that fair to my client's due process rights? How can you convict somebody of a serious crime when they can't confront their accuser? That's the big argument that can't be made on a snap judgment. That will have to be made after viewing all of the evidence.
So, if you hire me, we'll go through everything. You'll give me all the information, and I'll tell you what I think. We'll do some investigation. Sometimes, I've had cases where the alleged victim doesn't show up.
The prosecutors can get the evidence in through this Crawford case that I mentioned — whether it be 9-1-1 evidence or body cam evidence that's permissible under the Crawford case, and I decide we need to send our investigator out to find the alleged victim and get him in here because they're so not credible that once we get him on the witness stand, we're going to be able to take their credibility apart – destroy it – and that will undermine the prosecutor's case. Then, we'll be in a position to get the dismissal.
