In any Florida criminal case, the testimony of the alleged victim (if available) plays an important role in prosecution. That said, an alleged victim’s refusal to cooperate with police or prosecutors won’t necessarily spell an end for the case – particularly when we’re talking about matters of domestic violence. In these types of criminal cases, victims cannot simply “drop” a case or “refuse to press charges.” Technically, the crime is against the state. It is up to the investigating law enforcement agency and ultimately the state prosecutor’s office to ascertain whether to proceed.
Of course, an alleged victim’s refusal to cooperate can create some evidentiary headaches for investigators, and might lead them to conclude there is not enough evidence to continue. But as Fort Lauderdale domestic violence defense lawyers, we tend to advise clients not to count on this.
Other avenues for evidence in a Florida domestic violence case besides a victim’s own statements may include:
- Photos or videos of the incident, scene, or injuries sustained by those involved.
- Testimony of third parties who may have witnessed the incident.
- 911 calls.
- Electronic communications. This can include social media messages, photos/videos, texts, emails, voice recordings, etc. Always assume that whatever is communicated in these forums may be subject to subpoena and presented as evidence in court.
- Your own words. Too many defendants in domestic violence cases think they can talk their way out of charges. They almost never can. Talking to police or prosecutors without your lawyer present is rarely if ever a good idea.
- Excited utterances. Courts generally do not allow hearsay into evidence. Hearsay is testimony from an under-oath witness who is reciting an out-of-court statement made by another person, the content of which is offered as proof of the truth of what’s being asserted. That typically includes officers who might attest to statements made to them by an alleged victim about what happened – something not personally witnessed by officers. An exception to this is an excited utterance. This is a statement that concerns a startling event, made by a declarant while that individual is still under stress from that event. Statements made by an alleged victim immediately after a reported incident of domestic violence may count as an excited utterance – particularly if the alleged victim is no longer cooperating with investigators.
- Statements made for medical diagnosis or treatment. This is another hearsay exception. If an alleged victim makes a statement for or reasonably pertaining to a medical diagnosis, treatment, or that describes their medical history, this statement may be allowed to be presented at court.
When law enforcement officers arrive on scene for a domestic violence call, they will ask questions, take notes, maybe take photos or videos. All they need to make an arrest is probable cause that a crime was committed. That is a low proof burden, especially when you consider that a simple assault charge under F.S. 784.011 doesn’t even require proof a defendant laid a finger on the alleged victim. All that must be established is the defendant made an intentional, unlawful threat by word or act to do violence on another person AND that individual had the ability to carry out that threat, resulting in the alleged victim’s well-founded fear that violence may be imminent. It’s a second-degree misdemeanor. (More significant charges like battery will be filed if there is evidence one person touched the other or caused injury.)
As longtime Fort Lauderdale domestic violence lawyers, we can tell you from experience that police officers on the whole loathe domestic violence calls. They can be volatile and dangerous and getting to the truth of the matter in the middle of a lot of heated “he-said-she-said” is a bit of a nightmare for investigators. But even if no one has been struck, officers don’t want to be called back to the same residence on the same shift. And they don’t want to risk anyone getting seriously hurt. So it’s not uncommon for them simply to make an arrest on thin evidence of assault just to get the parties to separate and cool down for a bit. That may not be pleasant for the accused, but take heart in the fact that an arrest alone almost never means the matter is open-and-shut. It’s probable you may have grounds for a strong defense – even if the alleged victim is cooperating with authorities.
Police make arrests, but it is the state attorney’s office that decides whether the evidence is adequate to proceed with the case. They are the ones that file the charges with the court. In some cases, particularly when alleged victims aren’t cooperating, your defense lawyer can reach out to prosecutors before charges are filed to argue the case is weak/lacks evidence/shouldn’t be filed. This may save you a lot of trouble down the line, as any charges filed will remain on your permanent public record.
Prosecutors may be somewhat less likely to pursue a case where victims aren’t cooperating, but that should never be taken as a guarantee they won’t. Accusers in domestic violence cases are often remorseful about calling the police. But that instant regret won’t translate into a reverse course because by the time police arrive, it’s out of the accuser’s control. It really depends on the specific facts in the case and how strong the other evidence is. Those facing charges should contact an experienced criminal defense lawyer as soon as possible – and before discussing the incident with anyone else.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
F.S. 741.29, Domestic Violence, Investigation of Incidents, Notice to Victims of Legal Rights & Remedies, Reporting