ISSUES THAT SURFACE IN THE DEFENSE OF DOMESTIC VIOLENCE CASES WHERE THE COMPLAINANT IS UNCOOPERATIVE WITH THE PROSECUTOR
Many clients incorrectly assume that a domestic violence case must be dismissed when the complainant changes their mind and wants to “drop the charges”. An experienced criminal defense lawyer recognizes that this is not necessarily the case and that the prosecution of the criminal charges can and will proceed in the majority of cases.
The key factors in the ability of a prosecutor to proceed with a domestic violence case center around the availability of evidence and testimony in the absence of the complainant’s cooperation.
Obviously, the strongest evidence for a prosecutor is the “truthful” testimony of the complainant (conveniently referred to as the “victim” by the prosecutor). Where a complainant is uncooperative, a prosecutor can cause a subpoena to be personally served upon such potential witness to compel their appearance in court to give testimony at a trial or hearing. If such subpoena (assuming it was properly served) is ignored, a prosecutor can (and this is not the usual practice) obtain a “material witness order” directing the police to physically bring the complainant before a Judge of the Criminal/Supreme Court to determine if bail needs to be set to insure that person’s future compliance with the subpoena. The witness is entitled to be represented by counsel at this point (as well as at any point in time prior thereto).
A complainant who wishes to claim that they previously made false allegations to have the defendant arrested needs to be very careful. First of all, depending of what they previously stated and how it was said (i.e., written or sworn), any change of position could possibly result in a charge of falsely reporting an incident, perjury or contempt.
It is for this reason that counsel for the defendant cannot ethically “advise” the complainant on how he/she proceed in this setting. The interests of the complainant can and usually are in conflict with those of the defendant which prevent counsel from representing both the complainant and defendant except perhaps in very limited situations. It is usually wise for counsel to advise a complainant to seek the advice of independent counsel where there is an intent not to cooperate with the prosecutor expressed and the complainant might have exposure to sanctions for such cooperation.
Knowing that many complainants later express a desire to “drop the charges” or refuse to cooperate, the prosecution and police are initially very eager to obtain and preserve whatever available evidence they can for use at any possible future trial even if the complainant is not available to testify.
Such potential evidence may include testimony regarding: 1) the “excited utterances” or “present sense impression” statements the complainant made to any 911 operator while first reporting the incident, 2) the observations of the responding police officers (i.e., injuries to the complainant, damages to the residence, recovery of weapons, hysterical cries and emotional state of the complainant), 3) telephone call records evidencing calls from the defendant to the complainant (often in violation of an order of protection) from jail or elsewhere and 4) photographs of the complainant’s injuries (if any) or damages to the household.
Additionally, the police have been strongly encouraged to have complainants sign a “domestic violence incident report” at the time they respond to a call. This document is often used by the prosecutor for filing in the Criminal Court to “support” or “corroborate” the allegations in the Criminal Court complaint and comply with their required task of “converting” a hearsay-based complaint to a non-hearsay information and allow the case to continue until a trial or disposition.
Victor Knapp, Esq. is an experienced Queens domestic violence lawyer who is very mindful of all the factors that can potentially come into play in domestic violence cases and is well prepared to meet these issues head-on for an effective and favorable resolution. To schedule a private consultation, call the Law Offices of Victor Knapp, Esq. at 718-263-9000.