Can The Prosecutors Try My Family Violence Case Without The Complaining Witness?
Even if the alleged victim in a domestic violence case wants to drop the charges and has indicated that they are not willing to cooperate with the prosecution and do not want to come to court to testify, it may be possible for the prosecutors to go forward and prosecute the case without the cooperation of the complainant. A good example of this is a murder case. In a murder case, the decedent or the dead person, they are not around to come testify but people still get prosecuted for murder even though the person that got murdered isn’t available to get on the stand and testify. In a domestic violence case, when we see this, it’s often based on the strength of the evidence that a prosecutor would decide to move forward without a complaining witness. Sometimes if there are independent witnesses to the assault, or if it was captured on a surveillance video, or if there are medical records in the statements or complaints given to EMS or a doctor at the hospital, those statements may be used against the defendant even if the complainant does not come to court to testify.
So just because the complainant or the alleged victim does not want to come to court to testify or participate in the prosecution does not automatically mean that the charges are going to get dropped. In fact, many of the cases that go forward to trial in Travis County that result in convictions are cases where the complainant did not come to court to testify. We see an increased use of prosecutors relying on medical records and other evidence such as statements made outside the courtroom to medical professionals like EMS, technicians, first responders and ambulance are also at the hospital which the judges will routinely allow those statements to be admissible against the defendant even if the complainant does not come to court. In fact, it can often be more difficult to defend against these types of cases when the complainant does not come to court.
When the complainant comes to court and testifies, then you get to question them on their credibility and the jury gets to make an independent assessment of the person’s credibility as they are making accusations from the witness stand. However, when the prosecutors choose to go forward in the prosecution of a domestic violence case and the complainant doesn’t actually come to court and testify, we don’t have the opportunity to question them about their background, about the biases that they may bring into their accusations and instead rely solely on the biased statements that they give to first responding medical professionals in defending the case. These types of cases can be very complicated and to help you defend against these types of accusations, we recommend that you consult the services of an experienced and knowledgeable attorney.
One further caveat, and it is that the best right that we have at our disposal in these cases is the right to cross-examine the complaining witness, and there are certain types of cases where the prosecutors may truly need the complaining witness to testify, such as when the defendant was not arrested at the scene, and his identity may be in question, the prosecutors might need the victim to identify the defendant in court. If the prosecutors believe that they can prove that the reason the victim would not come to testify is that the defendant caused them to become unavailable to testify, they can petition the judge to rule that the defendant has forfeited that right to cross-examine by wrongdoing, and if they win, then they can cherry-pick prior statements of the victim and use them without our being able to question the victim. This is invariably devastating to an effective defense and another vital reason you utilize an effective attorney to go between you and the complaining witness and to make sure the prosecutors cannot succeed on such a claim.
For more information on Trying A Family Violence Case Without Complainant, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 601-0009 today.
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