Case Summaries: Criminal - Domestic Violence Prosecution Without Victim
Crawford v. Washington
Testimonial Out-of-Court Statements Inadmissible in Criminal Cases: The U.S. Supreme Court overturned 25 years of precedent and held that testimonial statements (e.g., recordings fo police interrogations, victim or witness statements, affidavits, 911 tapes, etc.) are inadmissible to prove the guilt of a defendant in criminal cases regardless of the trustworthiness or hearsay status of the evidence. Admission of such statements violates the defendants rights to cross examine any accuser under the Confrontation Clause of the federal Constitution. Although this case involved assault and attempted murder charges, this decision will impede prosecution of domestic violence cases where the victim or witness is uncooperative and unwilling to testify in court against the defendant. However, Crawford only applies to criminal prosecution; it does not affect the admissibility of testimonial statements in civil protection order cases. Moreover, even in criminal cases some out-of-court statements should still be admissible because they are "excited utterances" rather than "testimonial statements." Crawford v. Washington, _____ U.S. _______, Case No. 02-9410 (3/08/2004).
Keywords: reluctant victim,noncooperation,noncooperative victims,recanting victim
Date: 10/4/2004
Fowler v. Indiana
Excited Utterance to Police Officer in DV Criminal Case Is Admissible: After being convicted of domestic battery, defendant appealed arguing that the trial court erroneously admitted hearsay testimony from a police officer to recount statements made at the time of the defendants arrest. The appellate court disagreed, ruling that the statements were "excited utterances," and therefore were admissible evidence. The victims statements were "excited utterances" because they were made to the officer within 10 days of his arrival at the domestic violence scene and at the time the statement were made the victim was still crying and bleeding from the nose, claimed to be in pain, and was having trouble catching her breath. Moreover, the statements were admissible despite the U.S. Supreme Courts recent decision in Crawford v. Washington State, because they were not "testimonial" statements, which were barred by Crawford. Fowler v. Indiana, No. 49A02-0310-CR-930 (Court of Appeals of Indiana, 6/14/2004).
Keywords: reluctant victim,noncooperation,noncooperative victim,recanting victim
Date: 10/4/2004
Improper Dismissal of DV Charges Based On Victim's Wishes:
Defendant allegedly caused physical harm to the mother of his children by punching her in the face and pulling her hair. A police officer swore and filed the domestic violence complaint. Defendant was arraigned. The trial court, after inquiring as to the wishes of both defendant and the mother, dismissed the criminal case. The State objected to the dismissal. The trial court erred in dismissing the charges against defendant without stating the required findings of fact and reasons for the dismissal as was required under Ohio R. Crim. P. 48(B). The trial court never found whether defendant's rights had been violated or whether the dismissal served the interests of justice. Finally, the trial court erred in failing to articulate on the record any of the five factors that courts were to consider before dismissing domestic violence charges. State v. Ferguson, 2003 Ohio App. LEXIS 627 (Franklin, 10th App. Dist.)
Keywords: noncooperation, victimless prosecution, noncooperating victim
Date: 5/16/2003
Prosecution Without Victim
In a 'textbook case of prosecuting the crime of domestic violence without the presence of the victim at trial," defendant was found guilty and sentenced. The trial court, J. Timothy S. Black, ruled that the victim's presence at trial is not required. ("Murder cases obviously go forward without the testimony of the victim.) The victim's statements to arresting officer and on 911 tape were admissible as excited utterances, child's statements to police were admissible on same grounds, and defendant's statements heard on 911 tape were admissible as admissions. This evidence plus testimony of responding officer Concerning physical evidence were sufficient for conviction. Although victim was not physically harmed, "Running around with a knife and stabbing the door and the bedroom mattress is conduct which would reasonably lead any person to fear imminent physical harm." State v. Lee (Hamilton County Municipal Court 1996), 73 Ohio Misc.2d 9.
Keywords: noncooperation, uncooperative, noncooperative
Date: 4/23/2002
Prosecution Without Victim, Excited Utterance
A responding police officer's testimony concerning domestic violence victim's excited utterance to him at the scene, saying that defendant had been abusive to her, had pushed and shoved her, and was highly intoxicated, was admissible under Evidence Rule 803. However, her statements to police three days later did not qualify as an excited utterance and were not admissible. Defendant's attempt to introduce evidence of prior police calls to show victim was trying to get him out of house was properly rejected by trial court. Conviction of defendant without victim's presence at trial upheld. State v. Turner, No. C-950356 (Hamilton 1996), 1996 Ohio App. LEXIS 2627.
Keywords: noncooperation, uncooperative, noncooperative
Date: 4/23/2002
Law Review
See, Angela Corsilles, "Note, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?," 63 Fordham L. Rev. 853, 858 (1994) (concluding "that no-drop policies can play an important role in combating domestic violence because they account for victims' realities, counteract longstanding justifications for inaction, and transform the statutory promise of justice for battered women into a credible threat of prosecution for their batterers").
Keywords: no-drop policy, noncooperation, noncooperative, uncooperative
Date: 4/23/2002
Prosecution Without Victim, Increased Use
It was reported that by 1995, 30 to 40% of prosecutors nationwide were following the approach of proceeding with the prosecution of domestic violence cases when the victim is unavailable, uncooperative, or reluctant. Mark Hansen, "New Strategy in Battering Cases," A.B.A.J. p. 14 (Aug 1995).
Keywords: no-drop policy, noncooperation, noncooperative, uncooperative
Date: 4/23/2002