The Problem of the Recanting Victim in Domestic Violence Cases in Light of Crawford

[George Costanza]

Hubby wipes up the living room with Wifey on Saturday night. Wifey calls the cops, who come out, take her statement, photograph her injuries and bust Hubby. Fast forward to trial. No Wifey. She has changed her mind, does not want to prosecute, wants Hubby out of custody and has split for some distant, unknown location so she won't have to testify.

The problem of the recanting spouse in domestic violence cases is well documented and well known to every prosecutor who has ever had to prosecute these types of cases. I would estimate that the victim recants well over half the time in domestic violence cases, probably closer to 80% of the time, truth be known.

It used to be that the prosecution could still go ahead with trial in the absence of the battered spouse. They were allowed to put the cop on who took the victim's statement and have him testify to what she told him at the time of the incident. Isn't that hearsay?, I hear you cry. Yup - it sure is. But the prosecution was allowed to do it nonetheless. The legal justification for this practice was either (1) the trial judge found some exception to the hearsay rule or (2) if no exception could be found, it could still come in if the statement of the battered spouse had "some indicia of reliability."

Then, in 2004, the U.S. Supremes handed down the decision in Crawford v. Washington, 541 U.S. 36, which held that the practice of allowing hearsay statements from unavailable declarants on the basis of their having "some indicia of reliability," was violative of the 6th Amendment's guarantee of the right to confrontation.

While not a domestic violence case in and of itself, Crawford nonethelss had a huge impact on domestic violence cases, which typically involve victims who intentionally absent themselves from trial so they don't have to testify against their husbands.

The essence of Crawford is as follows:

Any out-of-court statement that is "testimonial" in nature is not admissible, unless the declarant is unavailable to testify in court, and the defendant has had a prior opportunity to cross-examine him or her.

In domestic violence cases, the declarant is almost always unavailable. However, the defendant NEVER has had a prior opportunity to cross-examine him or her. Result? Case dismissed.

In light of this propensity of domestic violence victims to change their minds, is the Crawford decision REALLY a step forward - or a step backwards?

Thoughts?

 

[ConHog]

I had to text my wife when you pmed me about this George, and here's here thoughts.

I can get around Crawford by introducing the cop as my witness to what he saw while examining the complainant at the time of the initial arrest, while not introducing any statements from the wife/gf. The cop's own observations are of course not hearsay and he is available for cross. Half the time the dumb ass defense attorney ends up himself mentioning the fact that the wife has changed her mind about prosecuting, at which time I can nail his slimy ass on rebuttal. Sorry George she doesn't care for defense attorneys in general

 

[George Costanza]

I had to text my wife when you pmed me about this George, and here's here thoughts.

I can get around Crawford by introducing the cop as my witness to what he saw while examining the complainant at the time of the initial arrest, while not introducing any statements from the wife/gf. The cop's own observations are of course not hearsay and he is available for cross. Half the time the dumb ass defense attorney ends up himself mentioning the fact that the wife has changed her mind about prosecuting, at which time I can nail his slimy ass on rebuttal. Sorry George she doesn't care for defense attorneys in general

Not quite sure how that one would play out. Prosecutor calls the cop. Cop testifies that he went to the residence and spoke with the wife. As he spoke with her, he noticed that she was severely beaten up. He took photos, which are introduced into evidence. Maybe the cop also observed furniture shoved about in the living room and some broken glass.

OK. Yes? So? How does any or all of that relate to proof beyond a reasonable doubt that the defendant (her husband) is guilty of anything?

 

[ConHog]

I had to text my wife when you pmed me about this George, and here's here thoughts.

I can get around Crawford by introducing the cop as my witness to what he saw while examining the complainant at the time of the initial arrest, while not introducing any statements from the wife/gf. The cop's own observations are of course not hearsay and he is available for cross. Half the time the dumb ass defense attorney ends up himself mentioning the fact that the wife has changed her mind about prosecuting, at which time I can nail his slimy ass on rebuttal. Sorry George she doesn't care for defense attorneys in general

Not quite sure how that one would play out. Prosecutor calls the cop. Cop testifies that he went to the residence and spoke with the wife. As he spoke with her, he noticed that she was severely beaten up. He took photos, which are introduced into evidence. Maybe the cop also observed furniture shoved about in the living room and some broken glass.

OK. Yes? So? How does any or all of that relate to proof beyond a reasonable doubt that the defendant (her husband) is guilty of anything?

In and of itself, nothing, except that juries aren't stupid. They see a destroyed house, and a beat up face they can put 2 and 2 together. Victim or no victim. And honestly around here, most cases are plead out anyway, so unless a guy is just dumb he'll take my wife's offer.

 

[George Costanza]

Here is an interesting treatment of so-called "Evidence Based Prosecution":

Evidence-based prosecution - Wikipedia, the free encyclopedia

Most relevant to the topic under discussion.

 

[Wry Catcher]

In the event of a DV call in California there is a manditory arrest policy. As noted photographics are taken at the time the Victim is treated at the ER and in my county the SO and most of the PD's had victim advocates who responded.
The victim advocate guides the victim to a pro bono attorney so that a TRO might be issued and refers the victim to the Victim/Witness program (operated by the DA, Probation or a non-profit, depending on the county).
The victim is also referred to a counseling program, usually a non-profit, which usually have a staff attorney who guides the victim through the court process. Since bruses may take up to a week to become graphic more photo are taken and provided to the DA.
Victims do recant, but I can't recall any of our cases compromised because the victim refused to testify. Of course we had a DV court with DA's, Probation and the Judge all trained in matters of Domestic Abuse.

 

[CMike]

How about this one.

Wife splits with kid. Husband files for joint custody. Wife makes up complaint about domestic violence. Husband arrested.

Ploy works.

 

[bodecea]

How about this one.

Wife splits with kid. Husband files for joint custody. Wife makes up complaint about domestic violence. Husband arrested.

Ploy works.

Do people make up stuff? Sure. But sounds to me that the scenerio you provide does not have any physical evidence to back up wife's story...things such as bruises, etc.

 

[George Costanza]

How about this one.

Wife splits with kid. Husband files for joint custody. Wife makes up complaint about domestic violence. Husband arrested.

Ploy works.

Do people make up stuff? Sure. But sounds to me that the scenerio you provide does not have any physical evidence to back up wife's story...things such as bruises, etc.

Sad to say, they don't have to have visible injuries. It helps, of course, but not mandatory.

The usual scenario (with the lying victim) involves the following: Wife and Hubby get into a verbal argument. He's going to leave her for another woman. She is enraged. She attacks him. All he does is fend her off. She then calls police and claims he attacked her. Guess who the police always belive in such a situation. Game over.

 

[George Costanza]

In the event of a DV call in California there is a manditory arrest policy.

Mandatory arrest policy? What does that mean? That's the first I have heard of that. I'm not saying it doesn't exist, but it sounds to me like whoever points the finger first, the other person has to get arrested. Some clarification please?

As noted photographics are taken at the time the Victim is treated at the ER and in my county the SO and most of the PD's had victim advocates who responded. The victim advocate guides the victim to a pro bono attorney so that a TRO might be issued and refers the victim to the Victim/Witness program (operated by the DA, Probation or a non-profit, depending on the county). The victim is also referred to a counseling program, usually a non-profit, which usually have a staff attorney who guides the victim through the court process. Since bruses may take up to a week to become graphic more photo are taken and provided to the DA. Victims do recant, but I can't recall any of our cases compromised because the victim refused to testify. Of course we had a DV court with DA's, Probation and the Judge all trained in matters of Domestic Abuse.

This (the highlighted part) is the whole point of my thread here. Maybe it USED to be that way, but ever since the Crawford decision, that should have changed. Since Crawford, the officer can no longer "supply" the missing testimony by testifying to what the victim told him about what happened. Since Crawford, the victim has to appear and testify.

Of course, if there are independent witnesses who will testify, that's a different story. But if it's just H v. W and W doesn't want to testify, that should pretty much do it for the prosectuion.

 

[syrenn]

Lots of things going on here and many things to comment on.

The biggest problem I have with all of this "recanting" is that without actual contact with the wife (for the purposes of this convo.) is that you truly don't know the reasons for the "change of heart"

I have seen to many women "recant" not because they truly want to reverse the charges and have changed their minds, but because they fear the consequences or reprisals of not dropping the charges. The fear of a new threat is more intimidating then following through with the original complaint.

Regardless if the wife is there or not the courts should follow through with the complaint. Her presence and or testimony does not change the fact that a crime has taken place.

 

[Wry Catcher]

In the event of a DV call in California there is a manditory arrest policy.

Mandatory arrest policy? What does that mean? That's the first I have heard of that. I'm not saying it doesn't exist, but it sounds to me like whoever points the finger first, the other person has to get arrested. Some clarification please?

As noted photographics are taken at the time the Victim is treated at the ER and in my county the SO and most of the PD's had victim advocates who responded. The victim advocate guides the victim to a pro bono attorney so that a TRO might be issued and refers the victim to the Victim/Witness program (operated by the DA, Probation or a non-profit, depending on the county). The victim is also referred to a counseling program, usually a non-profit, which usually have a staff attorney who guides the victim through the court process. Since bruses may take up to a week to become graphic more photo are taken and provided to the DA. Victims do recant, but I can't recall any of our cases compromised because the victim refused to testify. Of course we had a DV court with DA's, Probation and the Judge all trained in matters of Domestic Abuse.

This (the highlighted part) is the whole point of my thread here. Maybe it USED to be that way, but ever since the Crawford decision, that should have changed. Since Crawford, the officer can no longer "supply" the missing testimony by testifying to what the victim told him about what happened. Since Crawford, the victim has to appear and testify.

Of course, if there are independent witnesses who will testify, that's a different story. But if it's just H v. W and W doesn't want to testify, that should pretty much do it for the prosectuion.

Please see: http://www.abanet.org/domviol/docs/Domestic_Violence_Arrest_Policies_by_State_11_07.pdf

Ca. Penal Code 836 (d), et seq, provides the authority upon which all city agencies (police departments) and the County Sheriff have established Mandatory Arrest Policies in my county and other counties in CA.

Now, I've been retired for over five years, and do not know how Crawford may or may not have changed such policies. But, knowing first hand the nature of domestic abuse calls I'd be surprised if policies had changed.

Please see VAWA (violence against women act):
In order to receive Federal funding, states must adopt certain responses. The Act reads: VAWA 1994: (1) To implement mandatory arrest or pro-arrest programs and policies in police departments, including mandatory arrest programs and policies for protection order violations (Part U, SEC. 2101). This act has had a profound effect on state laws governing domestic abuse.

Of course it is always up to the DA to file the information or complaint, and usually in DV cases there is physical evidence in terms of medical records, photographs and terrorist threats uttered by the offender in the presence of the officer or deputy.

 

[George Costanza]

mandatory arrest

Thanks for all the info, which I have cropped for brevity sake here.

My question is, what does "mandatory arrest" mean in actual practice? What are the guidelines for an officer to determine whether or not he/she must put the mandatory arrest policy into effect?

Police respond to a dom violence call. H and W are screaming at each other in the living room. Cops enter. "He hit me!" yells Wifey. "I did not. She attacked me!" affirms Hubby. Wife has a red mark on her cheek. Hubby has scratch marks on his face. Mandatory arrest?

Wife claims Hubby hit her. No visible injuries. Hubby has left. Mandatory arrest?

I trust you see the problem. Personally, I have no problem at all with a mandatory arrest policy when a true case of domestic violence is apparent to the responding officers. Even though I defend them in court, I most certainly do not endorse the crime they are accused of having committed and if they are actually guilty, they should be punished severely.

But I can see where a mandatory arrest policy might be a bad thing in borderline cases where the "injured party" might be stretching the truth just a tad because she is simply angry and wants to get her guy in trouble. Believe me, there are an awful lot of women out there who know how to use the system.

 

[ConHog]

mandatory arrest

Thanks for all the info, which I have cropped for brevity sake here.

My question is, what does "mandatory arrest" mean in actual practice? What are the guidelines for an officer to determine whether or not he/she must put the mandatory arrest policy into effect?

Police respond to a dom violence call. H and W are screaming at each other in the living room. Cops enter. "He hit me!" yells Wifey. "I did not. She attacked me!" affirms Hubby. Wife has a red mark on her cheek. Hubby has scratch marks on his face. Mandatory arrest?

Wife claims Hubby hit her. No visible injuries. Hubby has left. Mandatory arrest?

I trust you see the problem. Personally, I have no problem at all with a mandatory arrest policy when a true case of domestic violence is apparent to the responding officers. Even though I defend them in court, I most certainly do not endorse the crime they are accused of having committed and if they are actually guilty, they should be punished severely.

But I can see where a mandatory arrest policy might be a bad thing in borderline cases where the "injured party" might be stretching the truth just a tad because she is simply angry and wants to get her guy in trouble. Believe me, there are an awful lot of women out there who know how to use the system.

Mandatory arrest does NOT mean someone is going to jail if LEO respond. It means IF the officer has a reasonable suspicion that EITHER party has committed a violent act an arrest MUST be effected.

Examples:

Officer responds to 911 call. He hit me cries the wife, I did not we were just arguing and she's mad. House looks fine, no marks on wife, no marks on husband. LEO responds with if I'm called out her again tonight someone's going to jail. Dependent on no other crimes being committed of course.

Officer responds to 911 call. Woman answers door with black eye, house in shambles .I ran into a door says the woman. She ran into a door says the man. LEO arrests husband for domestic violence, mandatory. It's up to the DA and ultimately a jury to decide if she really did run into a door.

 

[George Costanza]

mandatory arrest

Thanks for all the info, which I have cropped for brevity sake here.

My question is, what does "mandatory arrest" mean in actual practice? What are the guidelines for an officer to determine whether or not he/she must put the mandatory arrest policy into effect?

Police respond to a dom violence call. H and W are screaming at each other in the living room. Cops enter. "He hit me!" yells Wifey. "I did not. She attacked me!" affirms Hubby. Wife has a red mark on her cheek. Hubby has scratch marks on his face. Mandatory arrest?

Wife claims Hubby hit her. No visible injuries. Hubby has left. Mandatory arrest?

I trust you see the problem. Personally, I have no problem at all with a mandatory arrest policy when a true case of domestic violence is apparent to the responding officers. Even though I defend them in court, I most certainly do not endorse the crime they are accused of having committed and if they are actually guilty, they should be punished severely.

But I can see where a mandatory arrest policy might be a bad thing in borderline cases where the "injured party" might be stretching the truth just a tad because she is simply angry and wants to get her guy in trouble. Believe me, there are an awful lot of women out there who know how to use the system.

Mandatory arrest does NOT mean someone is going to jail if LEO respond. It means IF the officer has a reasonable suspicion that EITHER party has committed a violent act an arrest MUST be effected.

Examples:

Officer responds to 911 call. He hit me cries the wife, I did not we were just arguing and she's mad. House looks fine, no marks on wife, no marks on husband. LEO responds with if I'm called out her again tonight someone's going to jail. Dependent on no other crimes being committed of course.

Officer responds to 911 call. Woman answers door with black eye, house in shambles .I ran into a door says the woman. She ran into a door says the man. LEO arrests husband for domestic violence, mandatory. It's up to the DA and ultimately a jury to decide if she really did run into a door.

Yeah, makes sense to me. Thanks.

 

[Wry Catcher]

Thanks for all the info, which I have cropped for brevity sake here.

My question is, what does "mandatory arrest" mean in actual practice? What are the guidelines for an officer to determine whether or not he/she must put the mandatory arrest policy into effect?

Police respond to a dom violence call. H and W are screaming at each other in the living room. Cops enter. "He hit me!" yells Wifey. "I did not. She attacked me!" affirms Hubby. Wife has a red mark on her cheek. Hubby has scratch marks on his face. Mandatory arrest?

Wife claims Hubby hit her. No visible injuries. Hubby has left. Mandatory arrest?

I trust you see the problem. Personally, I have no problem at all with a mandatory arrest policy when a true case of domestic violence is apparent to the responding officers. Even though I defend them in court, I most certainly do not endorse the crime they are accused of having committed and if they are actually guilty, they should be punished severely.

But I can see where a mandatory arrest policy might be a bad thing in borderline cases where the "injured party" might be stretching the truth just a tad because she is simply angry and wants to get her guy in trouble. Believe me, there are an awful lot of women out there who know how to use the system.

Mandatory arrest does NOT mean someone is going to jail if LEO respond. It means IF the officer has a reasonable suspicion that EITHER party has committed a violent act an arrest MUST be effected.

Examples:

Officer responds to 911 call. He hit me cries the wife, I did not we were just arguing and she's mad. House looks fine, no marks on wife, no marks on husband. LEO responds with if I'm called out her again tonight someone's going to jail. Dependent on no other crimes being committed of course.

Officer responds to 911 call. Woman answers door with black eye, house in shambles .I ran into a door says the woman. She ran into a door says the man. LEO arrests husband for domestic violence, mandatory. It's up to the DA and ultimately a jury to decide if she really did run into a door.

Yeah, makes sense to me. Thanks.

The policy protects the agency from law suits. Sally calls 911, "Joey hit me". Officers respond, counsel as suggested, and twenty minutes after they leave Joey kills wife and her or their kids.
Even if wifey makes a call for attention, and even if the abuse is verbal, Joey goes to jail. Then it's up to the DA to investigate and decide to file or not to file. Police agency had PC to detain and no one will question that judgment, especially those in the justice system who have seen the tragic results of failing to act.