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

Discussion in 'Law and Justice System' started by George Costanza, Jul 12, 2010.

  1. George Costanza
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    George Costanza A Friendly Liberal

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    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:

    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?
     
    Last edited: Jul 12, 2010
  2. ConHog
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    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 :lol:
     
  3. George Costanza
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    George Costanza A Friendly Liberal

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    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?
     
  4. ConHog
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    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.
     
  5. George Costanza
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    George Costanza A Friendly Liberal

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  6. Wry Catcher
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    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.
     
    Last edited: Jul 12, 2010
  7. CMike
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    How about this one.

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

    Ploy works.
     
  8. bodecea
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    bodecea Diamond Member

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    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.
     
  9. George Costanza
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    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.
     
  10. George Costanza
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    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?

    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.
     

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