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Can Prosecutors Still Proceed On A Domestic Violence Case If They Don’t Have The Victim Available To Testify?


I’ve done a lot of domestic violence cases in Los Angeles throughout many years of practicing criminal defense. The law has gone back and forth and changed in relation to whether or not the prosecutors can get the statements in of alleged victims in domestic violence cases. As it currently stands, there’s a case called People v. Crawford, which allows the prosecutors to get a statement in from the victim if they can prove that the statement was at or around the time of the alleged incident and they have the statement memorialized and it’s a statement of a person basically operating and talking about the case and operating under fear.

Where I see them being able to use Crawford to get in a statement of an alleged victim that would normally be hearsay is, for example, if they have a 9-1-1 tape and the person is describing the beating that they allegedly took on the tape, crying and talking about it, and then the prosecutors would usually use that if the person testified in order to corroborate their statement, but they also could use it in place of the person testifying.

I’ve actually had cases like that in Los Angeles County where my client is charged with domestic violence. They can’t get the reason there for whatever reason and the judge permits them, pursuant to this People v. Crawford, to play the 9-1-1 tape. Another one that I’m seeing now is that a lot of the police officers in Los Angeles County in these domestic violence cases have body cam video evidence. So, they’re coming up and talking to the alleged victim. She has a cut over her eye. She’s crying. She’s all beat up, hair messed up and that statement is being memorialized on the body cam.

Then they come to trial and they can’t get that person into the trial, they then use the body cam video pursuant to that People v. Crawford case in order to show the jury. See look, here’s her statement right here. Right at the time. It’s more effective for them if they could get her in there to testify, but on the flip side it hurts the defense because the defendant can’t cross-examine the witness now. How do you cross-examine body cam or 9-1-1 evidence? You can’t do it. So, now you have to call your client in most of these cases because otherwise, how are you going to counter that individual’s statement unless there are some other independent witnesses.

So, this Crawford case can really make things difficult in a domestic violence prosecution. You really have to know how to deal with these cases and obviously, as a defense attorney, you have to know the evidence in the case. When they put on the video evidence or they put on the 9-1-1 tape, you have to think, the police also have the surrounding circumstances, so if the person says they got punched in the eye real hard, do they have a picture of the person’s eye being beaten up? Is the house in disarray? What did the client say at the time? Were there any independent witnesses?

There’s a whole array of different things that go into making the decision whether or not your client is going to testify in a domestic violence case and whether or not – when the prosecutor just puts on that 9-1-1 tape or just put on that body cam video – is that enough to convict the client? Sometimes it might be, so, as a defense attorney, you really have to huddle up with your client and make an informed, educated decision as to whether or not you’re going to rest on the state of the evidence once they play that body cam video or 9-1-1 tape or whether you’re going to call your client.

I even had a case where I was able to get a not guilty verdict, but they put in the 9-1-1 tape which sounded pretty convincing because the alleged victim was crying and screaming on the 9-1-1 tape. Then we decided that we were going to call my client. He testified and we still weren’t sure what the jury was going to do with that case, so we ended up going and tracking down the wife and calling the wife as a witness. After the jury heard all the testimony, the 9-1-1, the wife, my client, the police officers, and looked at the evidence, fortunately, they found my client not guilty, but you never know what a jury is going to do on a domestic violence case in Los Angeles County, but I know one thing they’re going to do – if somebody makes a statement and they claim a bunch of stuff and they’re the victim of domestic violence, they’re going to look to see if the surrounding circumstances match up with what they say. In other words, if they claim they were punched in the face by a 220-pound man, if there’s not an injury there, the prosecutors are going to have a problem with that case.

Because it has to match up with what the person is saying if you want the jury to believe them. And of course, they’re going to listen to the criminal defendant as well. The criminal defendant in a domestic violence case in Los Angeles is going to need to be credible. The bottom line is, they do not need the alleged victim in a domestic violence case to testify in Los Angeles, but it sure makes their case a lot easier to prove. If you have a situation where the domestic violence victim is not testifying and that person is charged with a crime, you have to look at the other surrounding evidence and make the decision of whether or not your client will testify and whether or not you want to put on any other evidence to challenge the prosecutor’s evidence.

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Named Top Los Angeles Criminal Attorney by LA Times and named one of the Top 100 criminal defense attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.

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