Mark Bennett said on January 23, 2008  

Yep. You nailed it. Except . . .

Let's say Jane gets use immunity, and truthfully testifies that she lied when she talked to the police. How are you going to convict Jane of making a false report, when the only evidence that the report was false is her testimony to that fact provided subject to use immunity?

 jimbo said on January 23, 2008  

Don't forget my personal favorite hearsay exception: Excited Utterance.

I have won a Domestic Battery on nothing more than the recanting victim's excited utterances (introduced through my LEOs) and the fact that the LEOs saw some blood on the kitchen floor. The jury didn't buy the argument that the blood was either spagetti sauce or blood from a menstrating pitbull- I'm not making this up...

 Douglas said on January 25, 2008  

It seems to me that this is an example of the short-sightedness of prosecutors. You are more concerned with getting the conviction than you are about the actual impact of your actions.

Why do you think that this victim does not want to testify in the domestic violence situation? This person needs help that comes in forms other than prosecution. This victim is most likely going to be involved with the defendant in the future and is concerned about how their actions will affect that relationship. They may have a child in common or family and friends.

On the one hand by forcing testimony from them against their will, you have put them further into the line of fire. Can we assume for a second that they understand the dangers of their life more than a prosecutor does? There must be some reason that they don't want to testify and those reasons might be valid and better serve societal interests as well as their own rather than trying to punish the defendant. For instance, the prosecution might stand in the way of a successful non-violent reconciliation. You need to figure out what those reasons are before deciding that the unwillingness to testify is unreasonable.

But what I see as an even greater problem with your post is that you have not expressed any hesitation about turning a victim into an offender. If we assume that the defendant is actually guilty of the crime charged, then you can see that you are willing to exchange the actual guilty party for an innocent victim in order to get some type of conviction and not walk away empty handed. I ask you, which is better for society: Actual guilty party is acquited but victim is turned into a criminal and punished instead of defendant; or victim is not forced to testify and does not committ a crime and defendant is still not convicted. Since you can't get a conviction against the right person, do we serve any interest in getting a conviction against someone who was actually a victim? Which of those scenarios do you think is more likely to make the victim feel safe in the future about reporting abuse to the authorities?

These cases are more than just a case file that landed on your desk and a prosecutor's job is to do more than just keep score of their conviction rates.

 Mark Bennett said on January 25, 2008  

Jimbo,

I don't think "excited utterance" is still an exception to the confrontation clause post Crawford.

Douglas,

What you say is generally true, but none of it should be the least bit surprising. When Jane told the police that Joe had hit her, she forfeited their right to resolve the situation like grownups.

The job of the police is not to just get Bob out of the house till he cools down and tells Jane he loves her. If that were their job, they'd be out at Jane and Bob's every night. The government is not a family counseling service.

 Anonymous said on January 27, 2008  

Ken:
I don't know how things are handled in your neck of the woods, but from where I sit (a defense lawyer who does not do a lot of these cases), the is paternalistic mentality on the part of many prosecutors in domestic cases that results in belittling, criminalizing and exploiting women, especially poor women who are too used to submitting to authority and who do not retain counsel to represent themselves.
There are certainly many real domestic violence cases that deserve to be prosecuted in then name of the State, regardless of the victim's wishes. That's why I started off saying that I don't know what the practice is in your county or State. But there are also cases which result in mandatory arrests (probably a good idea) in which the parties want simply to get back together. In these cases, the government goes far to far in making the personal political and in breaking up families.
If neither victim nor defendant want the government's help, and if the offense does not rise to a certain level, what is the government's interest in inserting itself into their affairs.

 jimbo said on February 02, 2008  

Mark-
You're absolutely right. In the case I was referring to, the Victim was called to testify and stated that the Defendant did not hit her and her visible injuries were caused by a fight with another female a few days prior.

Since the source of the Excited Utterances testified and was subject to Cross-X, there were no Crawford issues.

 Roadchief said on May 12, 2009  

I have seen many times were one of the parties in a alleged domestic violence case , called the police to get even or to assert authority, this happens with both men and woman. Latter on they figure out they were being over reactive and when it comes to trial the prosecution will do its best to find some one guilty. In my opinion there is no state interest and this crap about “The victim may be too afraid to prosecute” is just a way the state is invading the private lives of people.

This law is being abused by the police all the time. When I was a police officer and they passed this law, we as police, were not in favor of it because it did not give us the opportunity to fairly handle the situation. Many times an officer could separate the parties, and let them cool down. I used to explain that each person had a valid point then ask would you really want to see Jane or John go to jail. Then I would suggest to them, that they think about it over night and if they still felt that way they could speak to a magistrate. This worked well there would be no more incidents and many times the people would later thank us and seam to work things out without fighting etc.

I know there is some srious situations with some domestic calls, but they are not all the same and it is not right to assume some one is an “Abuser” like it is done today. There are some domestic violence personnel who will immediately tell the female, you don’t need him in your life, he’s dangerous, he’s controlling etc. They home in on these situations for their own agendas and try and break people up. In most cases it does not work and they only make people’s lives miserable. The police do not need to arrest anyone on some allegation by an upset person. This law is being abused in many areas of the state and it is destroying lives not helping. Many times one or both persons are drinking and not thinking rationally anyway. The police get tired of dealing with it so they arrest. This is not right and it is the job of police to act as an arbitrator sometimes, it is part of good policing and building trust in the community. I guess this is way now the police have no respect in most communities and arrest because their pissed off. Is this justice?

 zerin hood said on July 17, 2009  

Roadchief,

Exactly. The shall arrest statute is not the best idea. Law enforcement on the scene should be able to exercise some discretion. In our jurisdiction, it is most often handled at the scene so typically our office doesn't see it unless it is egregious or repetitive.

Douglas,
I think you mischaracterize. I don't any prosecutor who keeps track of convictions and has to see someone convicted everytime there is a case. I think the idea is trying to protect the abused from the abuser and to get at the truth, whatever it may be.