Change of Statements: Domestic Violence Series Part 2
Victim/Witness Participation Issues
Charging Decision
Often in domestic violence cases, the alleged victim no longer wants their partner or loved one to face charges after they reconcile. However, prosecutors frequently still pursue charges when they believe that the interests of justice are satisfied by prosecuting even though all parties involved want to move on. But remember that the government still has the burden of proving their case beyond a reasonable doubt which can be extremely hard without the alleged victim’s cooperation and willingness to testify.
Right to Confront Witnesses
If the alleged victim decides not to pursue charges against their partner or loved one, their prior statements to police during or following the incident may not be admissible in court. In the 2004 landmark case Crawford v. Washington (2004) 541 US 36, the United State Supreme Court held when a declarant is unavailable (or refuses) to testify at trial, the prosecution cannot admit testimonial hearsay evidence against the defendant unless the defendant is given a chance to cross-examine the declarant in a prior judicial proceeding. You can read the Crawford decision here: http://www.law.cornell.edu/supct/html/02-9410.ZO.html
Crawford did not fully define what the Court considered to be “testimonial” but in 2007, the California Supreme Court clarified what the term means in California. In People v. Cage (2007) 40 Cal.4th 965, the Court held that if a declarant’s statement is made in response to an officer’s questioning for the purpose of investigation, then the statement is testimonial and thus inadmissible. However, if the statement elicited by law enforcement is for the purpose of dealing with an ongoing emergency, then the statement is not testimonial and is thus admissible. You can read People v. Cage here: http://caselaw.findlaw.com/summary/opinion/ca-supreme-court/2007/04/09/148790.html.
The rule is thus that statements made by an alleged victim to law enforcement during or shortly after a domestic dispute are only admissible if the alleged victim is unavailable to testify (or refuses) and the purpose of the statement was to help law enforcement deal with an ongoing emergency.
Tape of the 9-1-1 Call
It is settled law that the use of a alleged victim’s statements to a 9-1-1 operator are not “testimonial” and can be played for the jury even if the alleged victim is unavailable (or refuses). (See Davis v. Washington (2006) 547 US 813.)
Victim Can’t Be Held In Contempt For Refusing To Testify
Thanks to a new law passed in 2008, an alleged victim of domestic violence can no longer be jailed for contempt for refusing to testify in court. California Code of Civil Procedure Section 1219(b) states that “no court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.” This means that the alleged victim’s refusal to testify against their partner or loved one must be respected by the court and the prosecutor must find another way to prove their case.
Use of Evidence About Domestic Violence Syndrome
You should also know that if the alleged victim refuses to testify or minimizes earlier descriptions of the alleged violence, and there is a history of domestic violence between the alleged victim and the defendant, the judge may allow the prosecution to present expert testimony about battered women’s syndrome as an explanation for the alleged victim’s refusal to testify or minimization of the crime. However, testimony about battered women’s syndrome cannot be “offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (See Evidence Code Section 1107.)
~Dan Koukol, Placer County Criminal Defense Attorney
Tags: 243, 273.5, criminal, domestic, Felony, misdemeanor, victim, victims, violence