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. They threaten them. They tell them they’re going to get in trouble. They try to serve them with a subpoena. But still, no matter what they do, sometimes alleged victims simply don’t want to testify for a lot of different reasons.
Maybe the other person is innocent and they embellished their story. Maybe it’s their spouse or loved one — their meal ticket so-to-speak. So, there’s 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. If they don’t’ have somebody to testify, then they have to figure out some way to get that testimony in. There’s a case called Crawford, and basically what Crawford has to do with is allowing testimony to come in even without the alleged victim testifying. The argument by the defense is going to be, if you just let — for example, a body cam video of a person giving a statement, saying that one person is guilty — and 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 then they’ll combine this evidence with the police officer’s observations when they got there. They might not be able to get the statement of the person is as they tell it to the police if they don’t have body cam evidence, but they can get the police testifying that the person was crying, the person looked upset, the person had a black eye, the whole apartment was in disarray and broken light there had been a horrible fight. So, there’s a bunch of difference things they can get in if it’s available to them.
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 criminal defense 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 I’m going to 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, challenge their statement, and challenge their 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 don’t even have the ability to confront their accuser? That’s the big argument and that just can’t be made on a snap judgment. That’s going to have to be made after viewing all of the evidence.
So, if you’re going to hire me, we’re going to go through everything. You’re going to give me all the information. I’m going to tell you what I think. We’re going to do some investigation. Sometimes, I’ve had cases where the alleged victim doesn’t show up. The prosecutors are able to get the evidence in through this Crawford case that I mentioned — whether it be 9-1-1 evidence, 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 prosecutors case. Then we’ll be in a position to get the dismissal.
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