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  #1  
Old 12-11-2013, 04:54 PM
dolphinboy dolphinboy is offline
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When a crime isn't really a crime

This thread may end up in Great Debates, but let's start it here...

According to USA Today... "Prosecutors say they will not file domestic violence charges against George Zimmerman, who was arrested last month after his girlfriend made accusations against him. She said she did not wish to pursue the case."

So if the alleged victim refuses to cooperate there is no prosecution possible? What if the victim is in fear of their life, knowing the perpetrator is going to get out of jail eventually, but doesn't want to say so publically?

I guess a crime is only a crime if the victim says so. How does this make any sense in our great criminal justice system?
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Last edited by dolphinboy; 12-11-2013 at 04:55 PM..
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  #2  
Old 12-11-2013, 05:04 PM
Chronos Chronos is offline
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Whether a crime was committed is independent of whether a victim wishes to pursue it, and the state can pursue charges whether the victim wants to or not (and a good thing, too, or murder would be impossible to address). But having a live victim who chooses not to press charges makes it much harder to get a conviction, and so the prosecutor will often choose not to make the attempt.
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Old 12-11-2013, 05:11 PM
Loach Loach is offline
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When most if not all of the evidence in a particular case comes from victim/witness testimony the case falls apart without their cooperation. It does not make sense to go forward if there is no way to get a conviction. You still have to prove beyond a reasonable doubt regardless of who the suspect is.
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Old 12-11-2013, 05:28 PM
dolphinboy dolphinboy is offline
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So let's say I assault and battery someone. What stops me from threatening and intimidating the victim to drop charges against me?
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Old 12-11-2013, 06:07 PM
UDS UDS is offline
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Originally Posted by dolphinboy View Post
So let's say I assault and battery someone. What stops me from threatening and intimidating the victim to drop charges against me?
Well, people regularly try that, and sometimes succeed.

And, in a domestic assault case, if the victim/principal witness indicates that they do not want the case to proceed, the police will generally talk to them to try and get a sense of whether this is a factor, will refer them to agencies which can support them, etc. to try and get them to change their mind.

But the bottom line is you don't prosecute unless you can get a conviction. And you can't get a conviction if you don't have the evidence. And if your principal witness is uncooperative or even hostile, unless you have other witnesses who can prove all the elements of the charge you're not likely to get a conviction.
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Old 12-11-2013, 06:30 PM
Loach Loach is offline
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Originally Posted by dolphinboy View Post
So let's say I assault and battery someone. What stops me from threatening and intimidating the victim to drop charges against me?
Well the threatening and witness tampering is probably going to be a bigger crime than an assault.

What do you think the alternative is? How well do you think a trial will go without the cooperation of the victim? And what do you think they should do to compell the victim? Believe me they are talked to and and the prosecutor tries to talk them into going forward. But there is a line of cases behind them.
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Old 12-11-2013, 06:34 PM
Trinopus Trinopus is offline
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This is part of the protection of "proven beyond a reasonable doubt." If the prosecutors don't think they have enough evidence to convince a jury, there is little point in going ahead with the case.

It's a consequence of the motto, "It is better to let ten guilty people go free, than convict one innocent person."

So, yeah: sucks when a bad guy walks free... But it's the price we pay for not having to fear being wrongly locked away ourselves.

(I *think* this is a factual answer as well as an opinion.)
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Old 12-11-2013, 06:38 PM
dolphinboy dolphinboy is offline
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Thanks everyone. I guess that makes sense.
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Old 12-11-2013, 06:46 PM
PastTense PastTense is offline
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The girlfriend/wife not wanting to prosecute is probably more common in domestic conflicts than wanting to prosecute.
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Old 12-11-2013, 09:33 PM
dolphinboy dolphinboy is offline
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Originally Posted by PastTense View Post
The girlfriend/wife not wanting to prosecute is probably more common in domestic conflicts than wanting to prosecute.
And as a result boyfriends/husbands don't pay for beating up their SOs? No wonder domestic violence is a growing problem in the US...

According to the National Coalition Against Domestic Violence...

One in every four women will experience domestic violence in her lifetime.

An estimated 1.3 million women are victims of physical assault by an intimate partner each year.

85% of domestic violence victims are women.

Historically, females have been most often victimized by someone they knew.

Females who are 20-24 years of age are at the greatest risk of nonfatal intimate partner violence.

Most cases of domestic violence are never reported to the police.

The system is broken...
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Old 12-11-2013, 09:46 PM
njtt njtt is offline
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Originally Posted by dolphinboy View Post
And as a result boyfriends/husbands don't pay for beating up their SOs? No wonder domestic violence is a growing problem in the US...

According to the National Coalition Against Domestic Violence...

One in every four women will experience domestic violence in her lifetime.

An estimated 1.3 million women are victims of physical assault by an intimate partner each year.

85% of domestic violence victims are women.

Historically, females have been most often victimized by someone they knew.

Females who are 20-24 years of age are at the greatest risk of nonfatal intimate partner violence.

Most cases of domestic violence are never reported to the police.

The system is broken...
Are you under the impression that this a new or worsening situation? It has been like this since time time immemorial, except that things are almost certainly gradually improving (and have been, gradually, for a long time).



From what I hear, you dolphins are even worse than us humans. (See especially items 1 and 5.)
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Old 12-11-2013, 10:52 PM
Northern Piper Northern Piper is online now
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The system is broken...
How would you fix it? how do you successfully prosecute a case when the sole witness to the crime refuses to testify?
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  #13  
Old 12-11-2013, 10:55 PM
jtgain jtgain is offline
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Some cases can still be prosecuted. If the police get a 911 call, show up, and the woman is beaten to a bloody pulp, and the man has scratches on his fists, then a case can be made notwithstanding the victim.

The problem with that is that the defense will then call the victim to perjure herself, forcing the prosecution to cross examine the victim and basically call her a liar. So, you might get a conviction, but the state is now putting the victim through MORE trauma.

So a lack of victim cooperation is still a high hurdle, but it's not an automatic dismissal like it used to be before the early 90s.
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Old 12-12-2013, 02:28 AM
runningdude runningdude is offline
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Originally Posted by Loach View Post
When most if not all of the evidence in a particular case comes from victim/witness testimony the case falls apart without their cooperation. It does not make sense to go forward if there is no way to get a conviction. You still have to prove beyond a reasonable doubt regardless of who the suspect is.
And by not going forward, you leave the door open for the victim to change her mind should she wish to later press charges.
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Old 12-12-2013, 03:15 AM
Kenm Kenm is offline
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Originally Posted by dolphinboy View Post
So let's say I assault and battery someone. What stops me from threatening and intimidating the victim to drop charges against me?
Nothing. Ask da mob.
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Old 12-12-2013, 03:41 AM
pkbites pkbites is offline
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YMMV depending on the state. But here in Wisconsin I've made zillions of arrests in domestic cases, and in many of them the victim has later came to the DA's office and stated they didn't want the case pressed.

Tough shit!

Most of those cases still got pressed because the "victim" is the state, not the partner. That's the way the domestic violence law works here and it's a good thing.
The arrest was based on what I observed and/or the evidence I collected at the time of arrest. The partner can refuse to testify in court and we still get a conviction.

I have no idea how things work in Florida or any of the other cheeseless 49.
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Old 12-12-2013, 03:50 AM
DataX DataX is offline
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I've seen the state force a woman to testify. They call her to the stand and basically treat her as a hostile witness using her statements to the police against her if she says anything contradictory. She wasn't so much perjuring herself as just not being overly helpful.

I've also seen a woman invoke spousal privilege. One weird thing I didn't realize until I saw it in court - is apparently - in Maryland at least - if I was understanding the questions from the judge correctly - it is a one time thing. I don't get why that would be. If she uses it - can she then use it for a different husband in the future? What about the same husband, but he is accused with a drug charge and not beating her - can she still invoke?

Anyway - in the case I saw it done (questioning - not privilege - it was a girlfriend) - it almost looked like the prosecutor was being sensitive to any retribution the victim might face and seemed to phrase a lot of the questions like "and did you tell officer so and so that your boyfriend hit you?". She was kinda caught between a rock and a hard place - and I don't really remember exactly what happened - or why the guy didn't take a plea.
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Old 12-12-2013, 05:34 AM
UDS UDS is offline
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. . . Anyway - in the case I saw it done (questioning - not privilege - it was a girlfriend) - it almost looked like the prosecutor was being sensitive to any retribution the victim might face and seemed to phrase a lot of the questions like "and did you tell officer so and so that your boyfriend hit you?". She was kinda caught between a rock and a hard place - and I don't really remember exactly what happened - or why the guy didn't take a plea.
It may have looked sensitive, but he was actually treating her as a hostile witness, by putting leading questions to her. (Normally you're not allowed to put leading questions to your own witness.)

He fears that if he asks "did your BF hit you?" she may answer "no". If he says "did you tell the officer that your boyfriend hit you?", she's more likely to answer "yes" because she knows not only that she did tell him that but that it can be proven (by the officer's evidence) and while she might be willing to lie, she might be less willing to lie if exposure of the lie is inevitable.

Plus, if she starts out by testifying that she wasn't hit, that creates a certain impression which the prosecutor then has to try and break down by cross-examination or further evidence. Whereas if she starts out by conceding that she said she was hit, it's then up to her to dissipate the impression created by going on to say ". . . but I didn't mean it" or ". . . but I was confused". Tactically, a much better position for the prosecutor.
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Old 12-12-2013, 11:52 AM
jtgain jtgain is offline
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And by not going forward, you leave the door open for the victim to change her mind should she wish to later press charges.
I'm not sure what you mean by that. First she wanted to press charges, then she didn't, but now the state should press them anyways in case she wants to change her mind and press them again?

I sympathize with women who are domestic violence victims, but the state has limited resources and can't play ping pong with someone, or waste taxpayers funds by going forward with a case that the prosecutor knows will be lost on a directed verdict. I don't believe it is even ethical for a prosecutor to file a case he knows does not have evidence to survive a directed verdict.

Further, this being GQ, I think that it is factual to say that many people have abused the system by alleging domestic violence where none occurred, or where the "victim" was just as culpable. It seems to be common knowledge that a 911 call, a chant of the familiar mantra "reasonable fear of harm," and a few tears will get an emergency protective order where you get to jab the other party by seeing him pack his stuff and sleep at his buddies for a few days. If he owns guns, you get to see the police seize all of those as well. Then tax payer funded groups send "advocates" to your aid and take your side in the dispute regardless of the evidence.

As I said, I sympathize, but the whole system would be better with a reboot and some consequences for frivolous complaints.
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Old 12-12-2013, 12:21 PM
Telemark Telemark is offline
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I'm not sure what you mean by that. First she wanted to press charges, then she didn't, but now the state should press them anyways in case she wants to change her mind and press them again?
I think the point was that if you go ahead with a weak case because of no victim cooperation and lose you can't re-prosecute due to double jeopardy. If you hold off and wait until she cooperates you still get a good bite at the apple.

I think he's saying the exact opposite of what you got from that statement.
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Old 12-12-2013, 12:24 PM
Bricker Bricker is offline
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Originally Posted by dolphinboy View Post
So let's say I assault and battery someone. What stops me from threatening and intimidating the victim to drop charges against me?
What stops you from robbing a bank? What stops you from setting fire to a trash can?

Presumably, the fear of legal consequences.

So, too, here. A witness who is thus threatened can tell the police, and the malefactor can then be charged with witness intimidation. Indeed, someone facing a misdemeanor domestic assault charge might find himself upgraded to a felony. In my state, using threats of bodily harm or force to try to intimidate or impede a witness is a felony.
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Old 12-12-2013, 12:43 PM
kayaker kayaker is online now
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Originally Posted by pkbites View Post
The partner can refuse to testify in court and we still get a conviction.
If the victim refuses to testify for the prosecution, can the defense call her as a witness? Wouldn't the prosecution be limited as to what the can ask on cross?
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Old 12-12-2013, 12:48 PM
Really Not All That Bright Really Not All That Bright is offline
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YMMV depending on the state. But here in Wisconsin I've made zillions of arrests in domestic cases, and in many of them the victim has later came to the DA's office and stated they didn't want the case pressed.

Tough shit!

Most of those cases still got pressed because the "victim" is the state, not the partner. That's the way the domestic violence law works here and it's a good thing.
The arrest was based on what I observed and/or the evidence I collected at the time of arrest. The partner can refuse to testify in court and we still get a conviction.

I have no idea how things work in Florida or any of the other cheeseless 49.
It works the same way in Florida, but in the Zimmerman case there probably isn't any other evidence of assault to collect. At most, there's evidence of property crimes.
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Old 12-12-2013, 01:25 PM
Fotheringay-Phipps Fotheringay-Phipps is offline
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Some cases can still be prosecuted. If the police get a 911 call, show up, and the woman is beaten to a bloody pulp, and the man has scratches on his fists, then a case can be made notwithstanding the victim.

The problem with that is that the defense will then call the victim to perjure herself, forcing the prosecution to cross examine the victim and basically call her a liar. So, you might get a conviction, but the state is now putting the victim through MORE trauma.

So a lack of victim cooperation is still a high hurdle, but it's not an automatic dismissal like it used to be before the early 90s.
Former NY State Senator Hiram Monserrate
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Old 12-12-2013, 03:11 PM
runningdude runningdude is offline
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I'm not sure what you mean by that. First she wanted to press charges, then she didn't, but now the state should press them anyways in case she wants to change her mind and press them again?
No. If the victim doesn't want to press charges, the case may result in a dismissal due to limited evidence without the victim's cooperation. By not pressing charges without the witness, the state could reopen charges later should the victim change her mind, as double jeopardy has not come into play.

Quote:
Further, this being GQ, I think that it is factual <???> to say that many people have abused the system by alleging domestic violence where none occurred, or where the "victim" was just as culpable. It seems to be common knowledge that a 911 call, a chant of the familiar mantra "reasonable fear of harm," and a few tears will get an emergency protective order where you get to jab the other party by seeing him pack his stuff and sleep at his buddies for a few days. If he owns guns, you get to see the police seize all of those as well. Then tax payer funded groups send "advocates" to your aid and take your side in the dispute regardless of the evidence.
This statement is bullshit.

Last edited by runningdude; 12-12-2013 at 03:14 PM..
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Old 12-12-2013, 05:13 PM
Tom Tildrum Tom Tildrum is offline
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Here, the problem is not just that the victim does not wish to press charges; it's that she has changed her story and says now that the allegations of him threatening her were inaccurate. Now, even if she does change her mind again later and want to prosecute, the defense will make hay with the inconsistency.
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Old 12-12-2013, 05:21 PM
Duckster Duckster is offline
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Kyron Horman. Scuttlebutt has it the police/prosecutors known Kyron is dead and who killed him. Evidence is lacking to complete the ties to the killer that will result in a conviction.
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Old 12-12-2013, 09:18 PM
Mosier Mosier is offline
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Originally Posted by dolphinboy View Post
And as a result boyfriends/husbands don't pay for beating up their SOs? No wonder domestic violence is a growing problem in the US...
Hyperbole. Boyfriends/husbands go to jail for battery domestic violence very frequently.

Do you think domestic violence is a "growing" problem, or a shrinking one? Are you more likely to get away with beating up your girlfriend now, or 50 years ago?

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The system is broken...
How should we fix it?
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Old 12-13-2013, 09:29 AM
Loach Loach is offline
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Hyperbole. Boyfriends/husbands go to jail for battery domestic violence very frequently.
As do girlfriends/wives although that is less likely to be reported.
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Old 12-13-2013, 09:31 AM
Fotheringay-Phipps Fotheringay-Phipps is offline
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As do girlfriends/wives although that is less likely to be reported.
Also, even if it is reported, the girlfriend/wife will generally claim that she was defending herself against her boyfriend/husband, so he is usually the one who goes to jail anyway.
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Old 12-13-2013, 10:01 AM
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I have seen prosecutors pursue domestic violence cases with such poor evidence that if it had been any other case with evidence of that quality it would have rightly never left the police station. Victims cooperating is good, but not necessary. So it should not be construed that domestic violence is not pursued with vigour.

I do not want to in anyway lessen the horror that DV is though. I work with an NGO on DV and some of the cases I get referred.........my god humans are bastards.
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Old 12-13-2013, 01:39 PM
pkbites pkbites is offline
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If the victim refuses to testify for the prosecution, can the defense call her as a witness? Wouldn't the prosecution be limited as to what the can ask on cross?
If I show up and one person has a swelled up eye and states "they punched me in the face", and the couple co-habitate, there is the domestic violence. If the suspect admits to it, even better. I'm the one who testifies as to what I saw and what was said. We really don't need any other testimony in most of these cases.

When called as a [possible hostile] witness and the victim changes their story, they can be charged with filing a false report and obstructing. Both parties are often charged with things in domestic cases. If the DA isn't a hard ass with both, and someone down the road gets murdered, it'll be a huge media story about how a domestic abuser got off in the past.

The caveat of this is that often in first time offenses deferred prosecution is used (keep your nose clean for 6 months and this goes away). Which means it ends up being a first offense every 6 months!
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Old 12-13-2013, 03:28 PM
Loach Loach is offline
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Also, even if it is reported, the girlfriend/wife will generally claim that she was defending herself against her boyfriend/husband, so he is usually the one who goes to jail anyway.
That is untrue. One of the easiest ways to lose your job is to drop the ball of a DV case. When we are sent to investigate a crime we are required by law to actually investigate. Which includes hearing both sides and seeing if the evidence matches the statements. No one gets arrested just because they are male.

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If I show up and one person has a swelled up eye and states "they punched me in the face", and the couple co-habitate, there is the domestic violence. If the suspect admits to it, even better. I'm the one who testifies as to what I saw and what was said. We really don't need any other testimony in most of these cases.

When called as a [possible hostile] witness and the victim changes their story, they can be charged with filing a false report and obstructing. Both parties are often charged with things in domestic cases. If the DA isn't a hard ass with both, and someone down the road gets murdered, it'll be a huge media story about how a domestic abuser got off in the past.

The caveat of this is that often in first time offenses deferred prosecution is used (keep your nose clean for 6 months and this goes away). Which means it ends up being a first offense every 6 months!
That is not what happens here. In 15 years I have only been involved in 2 cases that went to trial when the victim recanted. Both times the judge felt the need to put it on record but both cases were not guilty verdicts.

We do use deferred prosecution here for minor assaults.
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Old 12-13-2013, 03:30 PM
Northern Piper Northern Piper is online now
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Originally Posted by pkbites View Post
If I show up and one person has a swelled up eye and states "they punched me in the face", and the couple co-habitate, there is the domestic violence. If the suspect admits to it, even better. I'm the one who testifies as to what I saw and what was said. We really don't need any other testimony in most of these cases.
pkbites, how does the statement "they punched me in the face" get admitted as part of the officers' evidence? in my jurisdiction, that would be hearsay. The officers can testify about their personal observations (e.g., black eye, bloody nose, etc.), but a statement by the victim would be hearsay. Is there a special rule of evidence where you are that lets it be admitted via the officers' testimony?
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Old 12-13-2013, 03:34 PM
Northern Piper Northern Piper is online now
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I've been meaning to comment on the title of the thread. It's the not case that something "isn't a crime" if it's difficult to prosecute. Domestic violence is a crime. But the prosecutor must have a solid case to warrant going to trial, let alone secure a conviction. If that's not available in a particular situation, that doesn't mean that domestic violence is not a crime.
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Old 12-13-2013, 04:45 PM
Loach Loach is offline
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pkbites, how does the statement "they punched me in the face" get admitted as part of the officers' evidence? in my jurisdiction, that would be hearsay. The officers can testify about their personal observations (e.g., black eye, bloody nose, etc.), but a statement by the victim would be hearsay. Is there a special rule of evidence where you are that lets it be admitted via the officers' testimony?
It would depend on the exact circumstances but it could fall under the exceptions.

Quote:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Rule 803 Federal rules of evidence.

No, I don't know all the case law on that.
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Old 12-13-2013, 06:07 PM
pkbites pkbites is offline
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pkbites, how does the statement "they punched me in the face" get admitted?
Deputy Beitz: Do you need medical attention

Victim: Yes! My boyfriend punched me in the face.

DB: Did you consent to being punched in the face

Victim: that's the stupidest question I've ever heard

Never would have trouble getting that statement in as far as I know.

ETA: DA's problem though, not mine.

Last edited by pkbites; 12-13-2013 at 06:09 PM..
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Old 12-13-2013, 09:40 PM
Northern Piper Northern Piper is online now
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hmm. I would have thought it was hearsay, but rules of evidence (and hearsay rules) can vary a lot.

Last edited by Northern Piper; 12-13-2013 at 09:41 PM..
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  #39  
Old 12-13-2013, 10:13 PM
Chronos Chronos is offline
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Quoth Really Not All That Bright:

It works the same way in Florida, but in the Zimmerman case there probably isn't any other evidence of assault to collect. At most, there's evidence of property crimes.
Well, there's the recording of the 911 call. The prosecution could try to build a case out of that. They have chosen not to.
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Old 12-14-2013, 08:15 AM
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Hmmm... the defence lawyer putting a recanting partner on the stand, trying to elicit a denial; wouldn't that be suborning perjury? He knows darned well what happened, and he asked questions knowing she would lie on the stand... Is his career and the freedom of a wife-beater worth the risk that someday she sees the light and changes her story? I assume the prosecutor is pretty much obliged to call their key witness, and asking "did you tell the police he beat you" is a way of avoiding asking any question that they know she is going to perjure herself over.

Yes, spouses do falsely allege abuse. So too do women falsely allege rape, for various reasons (Duke Lacrosse, anyone?). I have also heard several people say their children threatened to call the child and family services and say they were being hit. (Kids hear the silliest ideas at school) HOWEVER - the instances where this is a false accusation are far, FAR less than the instances where the offense actually happened.

False spousal abuse or threat allegations are I imagine generally an after-the-fact claim that typically happens during the knock-down struggle of a divorce. Both sides know the system and what buttons to push. He threatens to take away the kids and sue for full custody, she alleges abuse to get an edge in the court drama, and round and round it goes. For example, my boss had his in-laws allege on the stand that he hit his kids, but they couldn't keep their story straight, so he won custody. The classic case is Mia Farrow claiming Woody Allen sexually abused both the little girl and the little boy during their nasty divorce.

(As an aside, my friend's kid tried the "I'll tell them you hit me" routine during a particularly bad screaming match. His reply - "Go ahead. They'll put you with some other family who only look after you because they're paid to; and you won't get allowance, gifts, vacations, or anything else that they aren't paid to give you..." Oddly, a year or two later a classmate of the son tried the exact same thing - she did not want to leave town with the family, and alleged her brother fondled her. Once she saw where she ended up, she tried to recant - but too late. Child and Family Services cannot for safety's sake believe retractions until everything is dealt with.)
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  #41  
Old 12-14-2013, 08:40 AM
kayaker kayaker is online now
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Originally Posted by Northern Piper View Post
hmm. I would have thought it was hearsay, but rules of evidence (and hearsay rules) can vary a lot.
"Statement against penal interest, your honor."

(Ben Stone said that at some point of every Law and Order episode)
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Old 12-14-2013, 08:49 AM
kayaker kayaker is online now
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I represented myself in a civil trial a few years ago. I didn't bother with a lawyer in part because I misread the paperwork I received and thought I was being sued for $300, while the actual amount was $3000. The guy suing me did not use a lawyer either, and he had absolutely no clue what he was doing.

The first thing he said was hearsay, so I objected (meekly). My objection was sustained, and the magistrate explained to the guy that he couldn't testify as to what others had said. The very next sentence out of the plaintiffs mouth was again hearsay, and I objected again.

After my fourth or fifth objection was sustained, the plaintiff told the magistrate the whole thing was "fucking ridiculous". And the magistrate found for the defense.

/hijack.
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Old 12-14-2013, 12:06 PM
jtgain jtgain is offline
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hmm. I would have thought it was hearsay, but rules of evidence (and hearsay rules) can vary a lot.
It is hearsay here. Crawford v. Washington. A statement to a police officer, after the fact that "he punched me in the face" must be presented by the victim. If a police officer testifies that she said that he punched her in the face, it is hearsay and a violation of the confrontation clause.

It is not a present sense impression. The victim is making the statement many minutes after the altercation occurred. Party admission and "statement against penal interest" only applies to an out of court statement made by the defendant against his interests.

Even if a hearsay exception applies, the confrontation clause, per Crawford, disallows the testimony. The defense attorneys in pkbites' jurisdiction are not doing their research.
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Old 12-14-2013, 12:38 PM
Loach Loach is offline
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It is not a present sense impression. The victim is making the statement many minutes after the altercation occurred.
Can you elaborate on that? What would be a good example of a present sense impression?
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Old 12-14-2013, 12:41 PM
dolphinboy dolphinboy is offline
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How would you fix it? how do you successfully prosecute a case when the sole witness to the crime refuses to testify?
My brother is a California Superior Court Judge and I asked him about this. He said that at least in CA the victim doesn't get to decide whether a prosecution happens or not, and that he has resided over cases where the victim recanted their story and prosecutors were still able to win a conviction based on other evidence... but, as others have said, it's the prerogative of the DA to decide whether there is enough evidence to convict or not, not the alleged victim.

Sometimes the DA decides to move the case forward hoping the victim accepts a plea deal, so the fact that GZ's girlfriend chose not to move forward shouldn't have necessarily meant the case was dead... the DA would have to make that decision.
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Old 12-14-2013, 12:46 PM
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Sometimes the DA decides to move the case forward hoping the victim accepts a plea deal,
Typo? You mean "accused", not victim...
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Old 12-14-2013, 12:59 PM
jtgain jtgain is offline
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Can you elaborate on that? What would be a good example of a present sense impression?
Obviously a contemporaneous description would apply. For example, Bob and Dave are in a parking lot of a bar watching a patron stumble to his car and drop his keys. Dave exclaims: Look at how drunk that guy is! He shouldn't be driving.

At said patron's DUI trial, Bob can testify about Dave's present sense observation of the patron stumbling to his car.

Same scenario, but, instead of making it contemporaneously, Dave 45 seconds later after they walk in and sit down: Did you see that guy in the parking lot stumbling to his car? He shouldn't be driving. Probably still a present sense impression.

Not a present sense impression: Four hours later Dave says to Bob, "Hey, remember that guy when we first got here? He was stumbling and too drunk to drive."

There is no bright line rule as to the time limit, but the courts err on the side of inadmissibility if the witness is remembering versus describing.


However, the 6th amendment question also applies in a criminal trial which hinges on whether the statement was "testimonial" or intended to be used at trial. If a police officer walked into the bar to question people about the patron, any such statement would likely be testimonial as the speaker knows that the purpose is for use at a later trial. A 911 call has been held not to be testimonial (and also a present sense impression, or an excited utterance) because the purpose is to communicate the emergency, not to set a record for trial.
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Old 12-14-2013, 01:38 PM
pkbites pkbites is offline
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The defense attorneys in pkbites' jurisdiction are not doing their research.

Incorrect. For one thing, it falls under exception #3 as posted to before.

Also, remember as I posted before, if the victims recant says that he/she lied to the police about the battery the DA just threatens to charge filing a false report and/or obstructing.
They then are quick to say "What? I'm the victim and I could be prosecuted?"

Victim of what?

"My boyfriend punched me in the face!'

Thank you!

Usually victims don't recant. They just go on and on about how they don't want their partner prosecuted. That isn't actually a recant.

And don't forget, there are a lot of cameras and recording devices out there, further fogging up the rules of evidence.

But overall most of this is the exception rather than the rule. A lot of these get the deferred prosecution bs and in substantial battery cases we don't need the victims testimony. Photos of a bashed in face with bruises on the fist of the perp is all it takes. They usually get a quick plea deal.

But the DA around here has been playing somehardball (finally! ) with this horseshit since a guy that slipped through the DV cracks went into a salon and shot up the place, killing a couple of women.
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Old 12-14-2013, 01:43 PM
Hello Again Hello Again is offline
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Can you elaborate on that? What would be a good example of a present sense impression?
"Present sense impression" is a hearsay exception under the Federal rules of Evidence. It means, the hearOR heard the declarant make a statement that reflects something that the other person was experiencing with their senses; they are and happen exactly as the event is occuring. That's why its a present sense impression. .

Let's say there was a car accident. As the car made a turn, a bystander heard a a shout, "slow down, we're going too fast." The bystander's testimony of what he heard could be admissable under the present sense impression exception of the FRE, to prove the car was traveling too fast for conditions and the driver knew it.

By comparison, a police report taken after the accident which states the bystander told police, "I didn't see the accident, but when they went around the turn, I thought they were going too fast" is probably hearsay. It's after the fact, and it's an opinion, and its not the sort of spontaneous statement that makes fabrication unlikely. (since he's not under the stress of witnessing the accident, it's not an Excited Utterance either).

Both PSI and Excited Utterance fall into the category of "res gestae" and are easy to confuse. An Excited Utterance only results from stressful circumstances and can be made after the fact, as long as the declarant is still under the influence of the stress of the event. A PSI doesn't have to be, in itself, excited, it just has to be a perception spontaneously reported as it is occuring. Like if someone just testifies "I was at my teller station when I heard my manager say, 'these signatures don't look the same.'" Since neither the teller nor the manager are in a state of shock or stress its not a EU, but it might be an admissible PSI in the right circumstances.

Last edited by Hello Again; 12-14-2013 at 01:47 PM..
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  #50  
Old 12-14-2013, 02:12 PM
jtgain jtgain is offline
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Originally Posted by pkbites View Post
Incorrect. For one thing, it falls under exception #3 as posted to before.
Let me set up the situation to see if I am understanding you correctly. You respond to a DV call and notice that there has been a dispute. You separate the parties and ask the woman: "What happened here?" She replies: "My boyfriend punched me in the face."

Are you suggesting that at the BF's trial, you can take the witness stand and testify that "When I talked to the victim, she stated that her boyfriend had punched her"?

I suggest that you are not permitted to do that since 2004. Crawford v. Washington is my cite. No matter if it is a hearsay exception (and I contend that done apply) a defendant is entitled per the 6th amendment to confront witnesses against him. Per Crawford, putting a police officer on the stand to repeat testimonial allegations deprives him of that right.

If she takes the stand and claims that he never hit her, your testimony could be used to impeach her, but if she never takes the stand, your testimony never comes in.

Perhaps I misunderstood you, but if not, then defense lawyers in your area aren't doing their job.
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