WILL YOUR DOMESTIC VIOLENCE CHARGE GET DISMISSED IF THE ALLEGED VICTIM DOESN’T SHOW UP FOR COURT?
The answer rests in the facts of the case and the evidence rules and law. The facts are different in every case. Predicting whether a case will be dismissed requires a thorough evaluation of all of the evidence. Also important are the circumstances that unfold with the alleged victim while the charge is pending.
If a victim (1) does not show up in court for trial and (2) the prosecutor believes they cannot prove the case without the victim, then (3) the prosecutor should drop the charge.
THE PROSECUTOR WILL TRY TO GET THE ALLEGED VICTIM TO GO TO COURT
Typically, the prosecutor will not just give up when the alleged victim doesn’t want show up for court. The prosecutor will try to get him or her to show up and testify. What might the prosecutor do to try to deal with a reluctant victim?
- Tell the alleged victim they are required to show up.
- Have the alleged victim served with a subpoena – which is a court order for the victim to appear.
- Threaten to seek a material witness warrant for their arrest if they do not obey the subpoena.
The prosecutor cannot compel a person to show up in court unless the victim or witness has been properly served with a subpoena. If the alleged victim ignores the subpoena, the prosecutor may choose to seek a material witness warrant. The judge decides whether a warrant can issue, not the prosecutor. The prosecutors do not always seek warrants.
The prosecutor may also be suspicious about possible witness tampering by the defendant. Tampering with a witness is a felony. A person is guilty of tampering with a witness if he or she attempts to induce a witness or person that he or she has reason to believe is about to be called as a witness or whom he or she has reason to believe may have information relevant to a criminal investigation to: testify falsely; absent himself or herself from the proceedings; withhold testimony or withhold information from law enforcement.
THE PROSECUTOR MIGHT TRY TO PROVE THE CHARGE WITHOUT THE ALLEGED VICTIM BY USING HEARSAY
The prosecutor’s first choice is to have the victim in court testifying under oath about what happened.
But, if the alleged victim is not at court to testify about what happened, the prosecutor will have to rely on other information – such as what the alleged victim may have told other people. This is referred to as hearsay. Hearsay is any statement made outside of a courtroom that is offered as true. Hearsay is not admissible as evidence in court – unless there is an exception to the rule against hearsay.
In a typical domestic violence case, the alleged victim may have spoken to a number of people about what happened. These people are witnesses to what the alleged victim said:
- Police officers
- 911 dispatchers
- Friends or family
- Emergency personnel
If these people testify to what the alleged victim told them, that is hearsay. Hearsay is generally not admissible, but there are exceptions.
Example of hearsay – statements made outside of court:
If a wife is the alleged victim and she told the police that her husband hit her, what she told the police is hearsay: “Officer, he punched me in the face.” The statement made to the officer was not a statement made in open court and is hearsay. This statement cannot be mentioned in a trial unless there is an exception to the rule against hearsay.
If the alleged victim wife later tells her best friend, “John punched me in the face. I called the police and he was arrested.” The statement made to her best friend was not a statement made in open court – so it is hearsay. Unless there is a hearsay exception that applies to this statement, it cannot be mentioned in a trial.
Examples of not hearsay – statement made under oath in court:
If the alleged victim comes to court and testifies that her husband hit her, that is not hearsay. “Is it true your husband punched you in the face?” “Yes, he punched me in the face.” This answer is not hearsay because it is a statement made in open court.
There are several exceptions to the hearsay rule. The prosecutor and defense attorney analyze all statements an alleged victim made to other people to determine whether they are hearsay or whether an exception to the hearsay rule will apply. Sometimes it’s debatable and the judge decides the issue.
Some common hearsay exceptions from the Washington State Rules of Evidence:
- “Excited utterances” – this is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
- “Present sense impressions” – this is a statement describing or explaining an event or conditions made while the declarant was perceiving the event or condition, or immediately thereafter.
- “Statements made for medical diagnosis and treatment” – statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations or the inception or general character of the cause or external source therof insofar as reasonably pertinent to diagnosis or treatment.
WHEN THE PROSECUTOR CAN PROVE THE CASE EVEN WITHOUT THE ALLEGED VICTIM
Sometimes it doesn’t matter whether or not the alleged victim appears in court. There is other admissible evidence that can be put together to make a case. Factors that we look for include:
- Confessions. If a person confesses, the prosecutor can usually prove the case. “Yes, I hit her in the face.”
- An independent witness saw the event in question. “I looked out my window and clearly saw the man shove the woman.”
- Visible injury to the alleged victim that corroborates other evidence.
- 911 recordings that contain “excited utterances” of the alleged victim. “He just hit me! I ran to the bathroom and locked the door.”
- Exceptions to the hearsay rule appl so that other witnesses are allowed to testify to what the alleged victim told them.
WHEN THE PROSECUTOR CAN’T PROVE THE CASE WITHOUT THE ALLEGED VICTIM – SIMPLIFIED.
- None of the statements made by the alleged victim meet a hearsay exception.
- There is no independent witness
- There is no confession that is corroborated by other evidence e.g., injury to alleged victim.
We can make assessments only after knowing all of the people the alleged victim talked to, what exactly was said, whether they will realisitically be called as a witness and whether a hearsay exception applies. This requires a review of the discovery provided by the prosecutor, possible witness interviews and working closely with the client.
This is not legal advice. This page is for informational purposes only. It is designed to generally acquaint the reader with the basic issues in DV cases with alleged victims who may not show up for trial. This post is not legal advice and should not be relied upon to determine what can happen in an actual legal case. Every case is different and requires individual analysis.