This is arguably one of the most common questions I get asked as a Fort Lauderdale domestic violence defense lawyer.
The short answer is: Probably.
That said, without the cooperation of the alleged victim, the foundation for the prosecution’s domestic violence case is undeniably weakened. If the alleged victim is actively helping the defense team, that can even further diminish the odds of a conviction. All of that could mean reduced charges or penalties.
However, it doesn’t automatically mean you’re out-of-the-legal-woods. Because it is such a common phenomenon for the alleged victim in these cases to refuse to cooperate with police or prosecutors, answer questions in deposition, or testify in court, the justice system has established a few workarounds (so-to-speak).
For one thing, while most assault and battery cases practically require the cooperation of a victim in order just to make an arrest, that’s not so in domestic violence situations. In fact, F.S. 741.29 states without no equivocation: “The decision to arrest or charge SHALL NOT require the consent of the victim or consideration of the relationship of the parties.” Furthermore, in section 4(b) of that same statute, the law holds that if there’s probable cause to believe two or more people committed a misdemeanor or felony, the officer has to make a determination about who was the primary aggressor. And then from there, the law says that “arrest is the preferred response only with respect to the primary aggressor,” (emphasis mine) and not with the other individual who acted reasonably to protect or defend themselves or someone else.
Secondly, as outlined by the U.S. Department of Justice, prosecutors have a literally playbook of strategies to employ when they’re prosecution domestic violence cases without a victim. Specifically, prosecutors are instructed to use independent, corroborative evidence to prove elements of the crime when they can’t rely on the victim’s testimony. Some examples of this may include:
- 911 call recordings. (Such out-of-court utterances are generally only admissible as evidence in certain situations where they satisfy the hearsay exception and don’t violate the confrontation clause of the Sixth Amendment. However, in the landmark 2006 U.S. Supreme Court case of Davis v. Washington, the majority expressly opened the door to admit 911 calls as evidence in proceedings when the victim refuses to testify.)
- Photographed physical injuries. Usually these would have been taken by a police officer, medical providers, or someone else other than the victim.
- Physical evidence at the crime scene. This could be a weapon, torn clothing, broken furniture, shattered windows, holes punched in the wall, etc.
- Medical testimony documenting victim statements. Medical records in general can be used, but specifically statements made by the victim to the healthcare provider while receiving treatment can become part of the evidence used against the defense in a domestic violence case. These can fall under the “excited utterances” or “spontaneous exclamation” exceptions to the hearsay rule for evidence.
- Transcripts of prior statements made by the victim. This could include emails, text messages, voice recordings, etc.
- Defendant confessions. Yet another reason why defendants should never talk to police without first talking to a defense lawyer.
So again, just because the victim isn’t cooperating doesn’t mean prosecutors don’t have a case. Given the severe penalties and additional consequences that a domestic violence conviction can carry, it’s imperative to contact an experienced Broward domestic violence defense lawyer as soon as possible post-arrest.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Evidence-Based Prosecution: Prosecuting Domestic Violence Cases Without a Victim, January 2005, U.S. Department of Justice, Office of Justice Programs
More Blog Entries:
Types of Evidence Used in Broward Domestic Violence Cases, Aug. 30, 2022, Broward Domestic Violence Defense Lawyer Blog