What happens in domestic assault cases if the parties reconcile and the victim refuses to testify? Can the case still be successfully prosecuted with the injured parties cooperation?
I don’t know that, but I do know that the police can (and frequently do) arrest people for domestic violence even against the victim’s wishes. I see it happen probably twice a week, at the resort I work for.
At a resort? 
I can see ways it can be done. The cops who were first on the scene would testify about finding the couple together, and the physical state of the victim. The prosecution could also call the medical staff who treated the victim, and put into evidence any photographs that were taken at the time. The prosecution would also have to explain why the victim wasn’t testifying, but that could be done by calling the police officer or victim services official who can testify that the victim has been asked to testify, but has refused, appears to have reconciled with the accused, and so on.
It’s obviously a trickier case to prove without the victim’s cooperation, but a crime is a public offence, not simply a private wrong, and a victim cannot prevent the prosecution from moving forward.
Of course! People drink too much, gamble too much, get caught with hookers, and a thousand other things that lead to getting slapped or punched or pushed. It’s Vegas!
Northern Piper has it right. As a prosecutor and now as a magistrate, I deal with DV cases pretty often. Any statements made by the victim before her change of heart may also be admitted under various hearsay exceptions, even if the victim fails to appear for trial, refuses to testify or testifies unhelpfully to the prosecution. Evid.R. 803.
Can the victim be compelled to testify? I can see why the prosecution might choose not to call an unwilling witness, but if they decide to do it I was under the impression that the victim can’t just say “No, thanks.”
Does it matter if the (alleged) beater and beatee are married or not? (Spousal immunity/privilege/whatever?)
Yes, you may call an unwilling witness but you should do so expecting either that the witness will damage your case (purposefully or inadvertently), or will be so unhelpful that it’s usually not worth it. It’s a tactical decision every prosecutor faces eventually. A witness who refuses to testify at all may be held in contempt.
The rule in Ohio (and many other states have similar provisions) is that a person may testify against his or her spouse when “a crime against the testifying spouse or a child of either spouse is charged,” or when “the testifying spouse elects to testify.” Evid.R. 601.
Thanks.
Canada has similar rules to ensure that spousal privileges do not apply in cases of domestic violence.
Here (in Alberta, Canada), the common practice of the police is to get a sworn statement from the complainant as soon as possible - usually videotaped. This is to ensure that the prosecutors will have evidence should the DV victim, as too often happens, decides they’d rather not cooperate when it comes up for trial.
I don’t doubt you, but wouldn’t that violate the accused’s right to confront the witness against him (i.e. his wife)? I can’t see why an exception would be granted since she is able to testify.
Now, I can see how the prosecution could confront HER if she changed her story, but I can’t see how a police officer, for example, could get on the stand and say, “She said” this and “She said” that.
Pretty much can’t. I work in a state with very strict DV laws and mandatory arrests. When the victim is uncooperative the case almost always falls apart. I have had a couple of cases where the victim changed their story at trial or refused to cooperate. No conviction on any of them.
Based on comments from a friend who is a county prosecutor, it seems that the victim refusing to cooperate happens in most of the cases. Or at least half of them.
They prosecute anyway. And win most of them.
The city police are instructed to take statements from the victim at the scene, usually taped, and to get a signed statement. And to take photographs of the injuries. Plus the accused is questioned, also usually taped. They frequently say something like “well, I hit her, but she was asking for it…”. And the police officers have written police reports, and are available to testify.
This evidence is frequently enough to get a conviction, even without the cooperation of the victim.
“Spousal immunity” doesn’t apply because the alleged crime was against the spouse, and the law provides an obvious exception for that situation.
“Right to confront your accuser” does apply, and is satisfied – your accuser is the State of Minnesota, as the County Prosecutor, who is there in court. The other person is merely a witness, or a victim of the crime. And you have the right to call them to testify, even force it by subpoena if needed. You can’t choose to decline to call your spouse/girlfriend to testify, and then claim that you weren’t able to confront your accuser.
There are several different points here. For one almost all domestic violence cases do not go to the county level (YMMV laws are different in each state etc etc). The vast majority are simple assault and are seen at a much lower court. It has to be aggrevated assault to go to county court (serious bodily injury). The full CSI is not done on simple assault. I have been a cop for over 10 years. I have never seen a DV case won where the victim was uncooperative. Not saying it isn’t possible but doesn’t happen very often. Almost all of the time the prosecutor will be unwilling to go forward. And I work in New Jersey, one of the first states to enact strict DV laws and still one of the toughest.
Example 1: Indian woman gets beaten will a broom handle causing severe multiple contusions. Drunk husband is pissed because she isn’t pregnant yet. She explains to me that it is impossible to get pregnant when your husband is drunk all the time and there is no sex. Her English is not perfect but good enough to give a verbal and written statement. pictures are taken of the injuries. The weapon is taken as evidence. Husband is charged with aggrevated assault and using a weapon for unlawful purposes. The charges get downgraded by the county and it goes to municipal court. On the court date the woman no longer understands English. We have an interpretor. She says it didn’t happen like we said and she doesn’t know why her husband was arrested. I talk to the prosecutor and we decide to go forward anyway just to get it on record even though we know its a loser. The husband’s uncle is sitting in the front row with his arms crossed looking very stern. He is the patriarch of the US portion of the family. The woman gets on the stand and says she was never beaten. She claims to have not said the things in the report or didn’t understand the questions. She says she doesn’t know what is on the pictures. Not guilty. Afterwards the judge was disgusted but told me there was nothing he could do.
Example 2: Called to a motel. Woman meets her boyfriend there. She has a restraining order against him but is apparently trying to patch things up. They have a child together, not present. There is an argument. The suspect goes into the bathroom and comes back out to throw a cup of urine on the girlfriend. He then beats her as she is running down the hall and pushes her down the stairs. Part of it is witnessed by a motel employee. I’m am taking her statement when we catch him nearby. He is charged with aggrevated assault and violation of a restraining order. We have statements and photos of the injuries. The trial is sent to county family court because that is where the RO came from. The victim was cooperating with the prosecutor up until the day of the trial. When she gets on the stand it changes to she fell down the stairs. She spilled a cup of water on herself. There was a party at the motel and they happened to see each other so no violation of the restraining order. The judge tells the suspect that she thinks he has been a very naughty boy. Not guilty.
99% just get dropped. The prosecutor usually attempts to get the victim to agreed to suspend the charge. If there are no further instances of domestic violence the charge is dropped. If there are they have the option to go forward. It is usually the best we can hope for.
But isn’t the State technically your accuser in every criminal prosecution? What I’m saying is that wouldn’t the victim be needed to verify the injuries? Even if you had photos and the officer on the stand verifying them, I can’t imagine it being legit. Imagine this scenario in court:
Officer: As you can see here by this photo the victim has brusing on her eye and she told me that her husband punched her causing this…
Defense: Objection, your honor. The “victim” is available. Why doesn’t she tell us how she got those injuries so that I may cross examine the truthfulness of those statements?
Now, you are the judge. How do your rule on that objection?
If this would fly, you could prosecute anyone with a shaky accuser by keeping her (the accuser) off of the stand and simply having the police officer repeat her testimony. Like in the Duke Lacrosse case, one of Nilfong’s stoolies could have repeated the lies that the stripper told.
As a police officer I can testify as to what I saw. I can testify as to what the injuries looked like. I can not testify in lieu of the victim. It wouldn’t be allowed.
Mark this down, here is my prediction. Since the thread is about the Chris Brown thing I predict it will go down like this. Brown will plead guilty to a reduced charge of simple assault and be sentenced to probation. But parties will be happy with this regardless of their current dating status. It will allow Brown to be able to apologize and make PSAs and look like a good guy who make a mistake. It will allow Rihanna to move on and be seen as a performer instead of a victim. All the publicists will be happy. It will never go to trial.
NO what the Judge will say is yes you may call the “victim” as a witness.
The Judge will stop this, and redirect the officer to say only what he saw:
Officer: I observed bruising on the victims’ eye, and took this photo of it.
Whether he could state what she told him, or if that would be considered hearsay, I don’t know – IANAL. He might be allowed to present his police report which records her statement that her husband punched her. In many areas, the police will record her statement, and so that recording could be played in court.
Like Snnipe said, the Judge would probably say that she could be called as a witness, and offer to issue a subpoena if needed.
As I alluded to in my post #6, the usual hearsay exceptions under which the alleged victim’s statements come in are present sense impression, excited utterance, statements offered for their effect upon the listener (“And what did you do after you heard that, Officer Smith?”), and statements made for the purpose of medical care. In very serious cases, it might be a statement made in the belief of impending death, and thus admissible. That’s been my experience in Ohio, anyway.