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What if an Accuser in a Florida Domestic Violence Case Doesn’t Cooperate With Prosecutors?

Criminal domestic violence cases have always been heavily reliant on the testimony and perceived credibility of those involved. And yet, it’s estimated that 80 percent of victims in criminal domestic violence cases refuse to cooperate with state prosecutors.

This fact can certainly throw prosecutors for a loop. Even though the decision to prosecute is up to the state attorney’s office - not the victim - victim refusal to cooperate used to be a flat-out case-killer. That is no longer true.

As our Broward domestic violence defense attorneys can explain, prosecutors in this state have become very adept at working around this issue and prevailing despite it. This is why even if you have confidence that the alleged victim isn’t going to cooperate, you still need to prioritize your criminal defense and prepare for the very good chance prosecutors will still pursue their case against you.

Legal Strategies Prosecutors Employ When Victims Won’t Testify

There’s no question that victim cooperation will substantially strengthen a domestic violence criminal case. But it’s no longer the make-or-break that it used to be.

Some of the legal strategies prosecutors are increasingly employing in Florida domestic violence cases when the alleged victim is refusing to testify:

Relying on Other Evidence.

Witness testimony directly from victims can be powerful in any criminal case, but it’s not the only kind that’s valuable. In a domestic violence case, prosecutors may rely on the testimony of other witnesses, medical records, 911 recordings, photographs of the alleged injuries, electronic communications, physical evidence at the scene, etc.

Pushing for Hearsay Exceptions.

Where the alleged victim is unwilling to testify in court, prosecutors may argue for more exceptions to hearsay rules, allowing pertinent evidence to be presented that otherwise wouldn’t be admissible. For example, statements made by the victim out-of-court generally would not be admissible unless it fell under a hearsay exception. Prosecutors may argue that such statements (usually made to police) might fall under the excited utterance exception. This allows admissibility of statements made by someone during or immediately after a starting event while the person is still under the stress of excitement from the event without time for conscious reflection. They might also argue the state of mind exception, which opens the door in limited circumstances where the victim’s state of mind is at issue. For instance, if a victim expressed fear at the scene, those statements might be admissible to refute a self defense argument. Another common hearsay exception in Florida domestic violence cases is the medical diagnosis exception. This allows for admission of a victim’s statements made for the purposes of obtaining medical treatment. (In general, this exception is mostly limited to minor victims, given that allegations of domestic violence against a specific purpose may be irrelevant to one’s medical treatment, unless the victim is a child and the perpetrator needs to be kept away from the child during treatment.)

Requesting Admission of Prior Bad Acts.

Ordinarily, prior bad acts of a defendant are not admissible in a criminal case, the principle being that just because someone broke the law in the past doesn’t mean they’re more likely guilty of the offense at issue. However, because credibility of both parties is so central in domestic violence cases, a victim’s refusal to testify may compel the prosecutor to allow a defendant’s prior bad acts of domestic violence to be admitted as evidence to establish a pattern that can:

  1. Give a better sense of the true dynamics of the relationship.
  2. Help refute defense claims that the injuries were unintentional or accidental.
  3. Help explain why the alleged victim didn’t report the allegations earlier and/or why the victim is now refusing to cooperate.

Typically, prior bad acts must have occurred within the last 10 years, and they must involve substantially similar offenses.

Adopting “no-drop policies.”

Prosecutors have increasingly disregarded victim testimony as a key variable in successful prosecution of domestic violence cases. One study of nearly 100 domestic violence trials in a California jurisdiction revealed that across-the-board high conviction rates were done without testimony from either the victim or the defendant. Another analysis found that conviction rates in domestic violence cases had less to do with victim testimony and more to do with prosecutor persistence.

With this knowledge, prosecutors across the country have adopted so-called “no-drop policies” for domestic violence cases. These are essentially policies that deny alleged victims in a domestic violence case the option to withdraw their complaint once formal charges have been filed. The approach has been pretty effective in securing convictions. For example, a study by the U.S. Department of Justice found that no drop policies resulted in 30 percent of cases brought by police being screened out, and then prosecutors successfully proceeding in about 70 percent of the remaining cases - without victim cooperation.

What About Marital Privilege?

Our Fort Lauderdale domestic violence defense attorneys are sometimes asked whether marital privilege can be cited to prevent discussions or interactions between spouses from becoming part of the public record in a domestic violence case. The short answer is: Probably not.

Marital privilege is a matter of public policy, as outlined in F.S. 90.504, recognizes that in a marriage, both spouses should be able to share secrets with each other with the intention of trusting that they will stay private. Either spouse can invoke this privilege in an effort to refuse to disclose - or prevent the other from disclosing - these private communications between the two of them. There’s a rebuttable presumption in Florida that spousal communications are private unless there’s evidence to the contrary.

However, there are exceptions to when this privilege applies. Those include:

  • A proceeding brought by or on behalf of one spouse against another. (This generally allows for parties in a divorce to testify against each other.)
  • In a criminal proceeding in which one spouse is charged with a crime against the other, their property, or their child. This is the exception generally cited in domestic violence cases.
  • A third-party overheard the communication. If a married couple is shouting at each other and the neighbors overhear everything they’re saying, there is no longer a reasonable expectation of privacy, and marital privilege will no longer apply.

Bottom line: There’s no guarantee that the case will go your way just because the alleged victim is backing off their original claims. That fact may work to your advantage, but it’s critically important to seek advice from an experienced defense lawyer to know how best to proceed and protect your rights.

If you are arrested for domestic violence in South Florida, contact The Ansara Law Firm today for your free initial consultation at (954) 761-4011.

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