FOR ATTORNEYS ONLY: The Missing Witness & The Art of the Recantation

By: John Guidry

This section is closely related to the “Declination of Prosecution,” as we find that the Venn diagram of witnesses failing to appear in court overlaps significantly with the folks who file a Drop Charge Affidavit.

• The Reality: As a general rule, no witnesses fail to appear for court more often than alleged victims in Battery Domestic Violence cases.
• The Disclaimer: Obviously, no victim should ignore a court order. However, if everyone simply followed the law, we wouldn’t be having this discussion.

So, let’s look at the legal considerations we attorneys face when the State’s key witness goes missing or changes their story.

Are you a lawyer dealing with a recanting witness? Are you a defendant wondering if the State can proceed without the victim? Call John today at (407) 423-1117.

Practice Tip #1: The Subpoena Loophole (Mail vs. Service)

Before a victim can be arrested for failing to appear, specific procedures must be followed.

1. Rule to Show Cause: The Judge should first hold a hearing. The victim won’t be sent to jail immediately; they must be given Due Process (time to hire an attorney).
2. The Mail Rule: Many victims are subpoenaed via U.S. Mail.
   • The Law: Generally, a person cannot be punished for failing to appear on a subpoena sent by regular mail. They must be personally served to face contempt.
   • Tip: Check the return of service in the court file.

Practice Tip #2: The Constitutional “Right to Be Left Alone”

Many victims tell us, “I just want to be left alone.” Good news: The Florida Constitution agrees with them. Article 1, Section 23 (“Right to Privacy”):

“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life…”

Strategy: We attorneys should include this citation in the Declination of Prosecution affidavit. The victim is asserting their constitutional right to keep the government out of their family affairs.

Practice Tip #3: Recanted Testimony (State v. Moore)

What happens if the victim shows up but changes their story? There is a long line of cases making it impossible for the State to prove their case if the victim has sufficiently recanted.

• State v. Moore, 485 So. 2d 1279 (Fla. 1986): The Florida Supreme Court held that a prior inconsistent statement is, by itself, insufficient to prove guilt beyond a reasonable doubt.
  • The Logic: The risk of convicting an innocent person is simply too great when the conviction relies entirely on a statement the witness now claims was false.
• Santiago v. State, 652 So. 2d 485 (Fla. 5th DCA 1995): Convictions reversed because they were based solely on the “original version” given to police, which the victim recanted at trial.

Strategy: If the victim recants, the State needs independent evidence (injuries, video, etc.). If all they have is the old statement, Moore kills their case.

Practice Tip #4: “I Don’t Remember” & Hearsay

The “I don’t remember” scenario is common.

• J.A.S. v. State, 920 So. 2d 759 (Fla. 2d DCA 2006):
  • The Facts: Officer testified the victim told him the defendant battered him. Victim testified at trial, “I don’t remember.”
  • The Ruling: The officer’s testimony was Hearsay. It did not qualify as an “Excited Utterance” because the State failed to lay the proper foundation. Without the victim’s direct testimony, the conviction was overturned.

Practice Tip #5: Corpus Delicti (The Confession Trap)

Scenario: The Defendant confesses, but the Victim doesn’t testify.

• The Motion: File a Motion in Limine based on Corpus Delicti.
• The Rule: The State must prove the body of the crime (that a crime actually occurred) before they can admit the defendant’s confession.
• The Result: If they don’t have a victim to say “I was hit,” they often can’t prove a crime happened. Therefore, the confession is inadmissible.

John’s 2026 Update: Remote Testimony & Marsy’s Law

Note: In the past, “Failure to Appear” meant the victim physically didn’t show up. In 2026, the State tries to beam them in digitally.

1. Fighting “Zoom” Testimony (Confrontation Clause) In 2026, prosecutors often try to have reluctant victims testify via Zoom to make it “easier” for them.

• The Objection: We object based on the 6th Amendment Confrontation Clause. We argue that “confrontation” means face-to-face, in the same room, where the jury can observe the witness’s full body language and demeanor. Remote testimony dilutes this constitutional right.

2. Marsy’s Law vs. The Right to Privacy Florida’s “Marsy’s Law” (Victims’ Rights) gives victims standing in court.

• The Strategy: We use Marsy’s Law against the State. If the law says victims have the right to be “heard,” we argue they also have the right not to be harassed. If a victim files a Declination of Prosecution, we argue that the State’s continued subpoenas are violating the victim’s rights under the very law designed to protect them.

3. Body Cam as “Excited Utterance” Since victims are recanting more often, the State now relies almost exclusively on Body Cam footage captured moments after the 911 call.

• The Defense: They try to admit the video statements as “Excited Utterances.” We fight this by analyzing the timeline. If the victim was calm, smoking a cigarette, or if 20 minutes had passed, we argue the “excitement” had faded, making the video inadmissible Hearsay.

Know the Rules, Win the Case

If you are an attorney, these cases are won on the margins of Hearsay and Procedure. If you are a client, you need a lawyer who knows that a “recanting victim” isn’t the end of the story—it’s often just the beginning of the defense.

Call me at (407) 423-1117. Let’s file the Motion in Limine.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.