When the Key Witness Won't Speak

In domestic violence cases, the victim plays an influential role. Often, it is the victim who notifies law enforcement and provides necessary information regarding the offense. If the police decide to file a report, this commences the domestic violence case process. During this first stage in domestic violence cases, the information the victim provides is instrumental to the case.

But the victim's role may not be done just yet. The victim may also need to testify in the case. Testimony can be oral or written and is submitted under oath by a competent witness. It can be given in court (at trial) or written in an affidavit or deposition. Testimony from the victim is often a very crucial piece of evidence in domestic violence cases. However important it may be, sometimes, domestic violence victims refuse to provide testimony in the case. They may regret involving law enforcement or do not want anything bad to happen to the alleged abuser, and some victims refuse to testify because the alleged abuser threatens them. Whatever the reason, it is important to understand how a victim refusing to testify can affect the trajectory and outcome of the case.

First, you should know that even in the absence of the victim's testimony, you could still be convicted. A victim refusing to testify doesn't necessarily close the case nor does it mean there is no evidence to convict you.

California's dedicated domestic violence prosecuting units have seen many victims try to withhold testimony to protect themselves or their partner. Thus, they sometimes rely on other pieces of information, some which may be admissible as evidence at trial to build a convincing argument.

Typically, statements made outside of the court and not under oath are considered hearsay, not testimony.

In most cases, hearsay is inadmissible at trial. Statements considered hearsay could, however, be deemed admissible under certain circumstances as there are many exceptions and exclusions to the hearsay rule.

In cases when the victim refuses to testify, statements made outside of court can be useful to the prosecution's argument. If the victim called 911 to report the incident, the recording of the call could be used in the case if it was found to be an exception to the hearsay rule, and they often are in these types of cases. Likewise, if the victim gave initial statements to the police and then later refused to provide testimony, the initial statements could still be used if they met certain conditions, including:

• The statement describes or provides details regarding the offense
• The statement was made around or at the time of the offense
• The statement was made under circumstances that would suggest the victim was trustworthy
• The statement was recorded or made in writing to law enforcement, or emergency medical professional such as a nurse, paramedic, attending physician

It is also important to keep in mind that other witnesses could provide testimony. Someone could have overheard or witnessed the incident. Typically, police will question any nearby witnesses when responding to a domestic violence call, and these witnesses may be later asked to provide testimony in the case. Sometimes witnesses come forward after the police officer has already filed the report. Statements from witnesses can be very powerful, especially when the victim withholds testimony. Likewise, the responding police officer could have witnessed the offense, in which case he or she could later provide clinching testimony in the case.

You should consult with an experienced California domestic violence defense attorney in your area if you find yourself facing domestic violence charges. Regardless of the victim's story, you need to prepare a strong defense if you are hoping to avoid a domestic violence conviction. Don't think because the victim has changed his or her mind that you will be let off easy. You will need an attorney who can evaluate the facts and circumstances surrounding your case and help you build a strong defense to your charges.

Are you in the Visalia or Tulare area and facing domestic violence charges? At The Law Offices of Christopher Martens, we are experienced in domestic violence defense and can tenaciously fight for your rights in court. Criminal defense attorney Christopher Martens has successfully represented clients in criminal trials in Fresno, Tulare, and Kings Counties for over ten years and will not be afraid to take your case all the way to trial. Contact our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] to discuss your case.