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DV Victim Refuses to Cooperate, Legal Considerations

DV Victim Refuses to Cooperate, Legal ConsiderationsThis section is FOR ATTORNEYS ONLY.

This section is closely related to the Declination of Prosecution section, 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.As a general rule, no witnesses fail to appear for court more than alleged victims in battery domestic violence cases. Obviously, no victim should ignore a court order, nor should they ignore a subpoena to appear in court. That being said, if everyone simply followed the law, we wouldn’t be having this discussion. So, lets take a look at some of the legal considerations we attorneys are faced with under these circumstances.

This goes without saying, but you’re going to want to research the practice tips listed below. I invite you to contact me if you disagree with anything below, as I am open to correction. Actually, I seek it and encourage it.

Here’s some practice tips, enjoy!

Before a victim can be arrested for failing to appear: There are some procedures in place. The judge should first hold a hearing on a rule to show cause. The victim should appear at the rule to show cause hearing, and if the victim does appear, I can pretty much guarantee they’ll be served with a subpoena to appear at a later court date. Nonetheless, a victim won’t be sent to jail immediately following a failure to appear for court, the victim must be given some opportunity (due process) to explain the situation. In other words, time to hire an attorney. Also, it should be noted that many domestic violence victims are subpoenaed via US Mail, and the rules state that folks cannot be punished for failing to appear on a subpoena sent by mail. Again, you’ll need to research this point further, I’m just saying.

Constitutional Right to Be Left Alone: Many victims will come right out and tell you “I just want to be left alone.” Well, I’ve got good news for such folks. The Florida Constitution contains just such a provision. It is found in Article 1, Section 23, entitled “Right to Privacy” and it here it is, in its entirety: Every natural person has the right to be let alone and free form governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. So, we lawyers need to have alleged victims assert these rights in their declination of prosecution and drop charge affidavit.

Recanted Testimony: There’s a long line of cases that make it impossible for the State to prove their case if the victim has sufficiently recanted. Basically, the initial victim statement becomes inconsistent with the current statement, and the Florida “supreme court has previously held that a prior inconsistent statement is, by itself, insufficient to prove guilt beyond a reasonable doubt,” noting that “the risk of convicting an innocent accused is simply too great when the conviction is based entirely on prior inconsistent statements.” State v. Moore, 485 So.2d 1279 (Fla. 1986). Yes, a victim could run into perjury problems, or filing a false police report problems–but that’s why we have lawyers, to avoid such problems. Having a victim honestly recant and avoid criminal legal problems is possible, with our legal help….

Recanting at Trial: Sometimes, the victim doesn’t recant until testifying at trial. This happened in Santiago v. State, where convictions for sexual battery and attempted murder were reverse because the convictions were based on “the original version of the incident given to the police by the victim . . . immediately after the incident”, which the victim recanted at trial. 652 So. 2d 485 (Fla. 5th DCA 1995).

“I Don’t Remember What Happen”: For an analysis of the all too common “I don’t remember what happened” scenario, see J.A.S. v. State 920 So. 2d 759 (Fla. 2d DCA 2006), holding that the State failed to prove a battery when the officer testified that the victim told the officer that the defendant had battered him but that hearsay was not properly admitted as an excited utterance and the victim testified that he did not remember what happened.

Motion in Limine: Of course, the whole idea of filing a Declination & Drop Charge Affidavit is to avoid the shenanigans found in J.A.S. and Santiago, above. I sometimes file a Motion in Limine to prevent the State from calling the victim as a witness, and this motion puts the state on notice that their “victim” has recanted. The State has no right to call a witness when their motive is to elicit the prior recanted statement. Again, to make this work, you’ve got to put the State on notice, in writing, that their so-called victim has recanted.

911 Calls: These 911 calls are coming into evidence because they’re not (typically) testimonial in nature, so the State gets around Crawford. The problem is, what does the 911 call really prove? The alleged victim may have only given her name–not her date of birth, etc. So, how does the State prove they have the “right” victim just based upon a phone call? See Baker v. State for a domestic battery overturned because the 911 call didn’t provide enough evidence to convict. 959 So.2d 1250 (Fla. 2d DCA 2007) Sure, the victim in Baker stated that her boyfriend just “bit” her, but the court wasn’t convinced this was “against her will.”

Without a Victim, How Does the State Prove Identity? the testifying police officer has no personal knowledge of the victim’s identity, so the cop telling the jury who the victim “is” would be hearsay. See Holborough v. State, 103 So.3d 221, where the cops witnessed the defendant beating a woman, its rare to have the perfect cop witness to a domestic battery, right? But, the victim didn’t appear at trial and the only way they could identify the victim was via the cop’s testimony as to what he read off the victim’s driver’s license. That was hearsay, conviction overturned. But be careful here, some prosecutors are attempting to sneak identity in the back door via self-authenticating DL records. Several judges have fallen for this charade, many have not. Some have even laughed out loud (the appropriate response, I think). Just be prepared.

Recanted Testimony–Notary as a witness: If a victim does not appear at trial, but has recanted, how do you get the new statement into evidence? Well, you can call the person who notarized the recanted statement, and she can tell the jury that the victim told her the statement was completely accurate and true. Notaries make good witnesses.Defendant Confesses, but Victim Doesn’t Testify

This combination of facts calls for a corpus delicti motion. Yes, this battery must be proven before the prosecutors can admit evidence of a confession, so you’ll want to file a motion in limine to keep this confession out of evidence until the state is able to prove the body of their case. And, good luck with that if they don’t have a victim….

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