One thing that is very common in domestic violence cases is that the victim of the domestic violence charge very frequently will either recant or say that what she hear he alleged it never happened or express a desire for the defendant not to be prosecuted. This happens in about eighty percent of domestic violence cases. Someone is involved in a domestic dispute they call the police, the police come out and somebody’s arrested.
Then the person’s given a court date for being prosecuted for domestic violence and the person who originally called the police does not want a whole prosecution, does not want this person out of the house and facing all the consequences of a domestic violence charge. What people have to keep in mind is that most states now have what’s called mandatory arrest policies. If there is a call made and a domestic-violence allegation is made, then the police very typically have to take somebody into custody and have to make an arrest. And when they make an arrest, they have to forward the case to the prosecutor’s office. And very often the prosecutor will file charges regardless of what the victim wants to do.
Often it is not enough to simply say the victim doesn’t want to go forward to the district attorney that’s not enough to get the charges dropped. What the district attorney is more interested in is whether they’re able to prove that a domestic violence happened, in court at a trial that’s a more significant factor than somebody saying that they don’t want to go forward. So again we have to go back into the facts of the case.
If there was violence, was my client defending himself or herself? Did they have a reason to use violence? Were they threatened by the victim? We establish that defense if we need to go to court. Is there a motive for the victim not to be telling the truth? I had one domestic violence case, where the victim was very severely injured and she hurt her middle finger, it was broken, we were able to go through and find out that the victim had a very serious mental health history and that was a possible motivation that we brought up in trial. We show that she was not perceiving things correctly and very likely hurt herself in another way, in that case one of being a not guilty verdict.
So one type of scenario that’s frequently comes up in a domestic violence case is how does the prosecutor try to prove a case when the victim, the person who made the initial police report either doesn’t come to court or shows up to court and has now changed their story? It’s a very common situation. California law says, that any prior inconsistent statement prior statement, a prior statement that a witness makes that’s different from the statement they make on the stand is admissible. So, for a witness to take the stand and say nothing happened, I was never hit the prosecutor can then introduce the witnesses statements to the police the night that the defendant was arrested. Just saying nothing happened doesn’t make it go away. What we want to show is that it’s more likely or it’s a reasonable possibility that nothing did happen that it’s more likely that the victims story on the stand is true than the original story that the victims told the police and that there’s a reason for the victim change her testimony.
Another frequent occasion is that the prosecutor will introduce statements that the victim—other statements of the victim made to the police. If the victim calls 911 and makes an emergency statement, something like I need immediate help I’m being hit, that’s what’s called an excited utterance and many times that can be admitted into court whether or not the victim is there to testify. So as part of my defense in domestic violence cases I need to keep these issues in mind even if the victim doesn’t want to go forward, even if the victim isn’t likely to show up to court, how is the District Attorney going to prove their case using other evidence? And then how do I respond by defending my client?