A common question defendants ask their criminal lawyers in San Marcos is whether their case will be dropped if the victim doesn’t testify. This is especially true in domestic violence and sexual assault cases where the entire case may come down to one person’s account of events versus the other’s. The answer to this question is simply “maybe, depending on the circumstances.”
Live Testimony Exceptions
Live testimony is generally preferred at trial with a few exceptions. A witness who will not be available for trial for medical or compelling reasons can be conditionally examined before trial by video that allows for cross examination by an Escondido criminal lawyer. Declarations or written testimony is inadmissible because it is hearsay.
Can Victims Refuse to Testify?
It depends on the case. In some cases, the prosecution does not need the victim’s testimony because they have ample evidence and they may not want to put the witness on the stand whether to protect their case or to help protect the victim from additional suffering. In situations where the entire case comes down to the victim’s testimony though, the victim may be compelled to testify as they are considered to be a “material witness.”
In these cases, victims of most crimes can either be fined or jailed if they refuse to testify as they are seen as being in contempt of court by refusing to do so. Victims of sex crimes and domestic violence are legally protected from being jailed for refusing to testify, but they still must appear in court if called to do so and can be fined for each day they refuse to testify. In these cases, usually the victim has made statements at the time of the incident which the prosecutor can impeach her with if she appears at trial but denies what happened. A rape or domestic violence victim who refuses to even take the stand will be counseled but not jailed.
Will a Case Get Dropped Without Victim Testimony?
It really depends on the case. Again, if the prosecution has a strong enough case, they may choose to not ask the victim to testify at all. If there are many witnesses to the crime, the testimony of the victim will probably be unnecessary. Also, if you confessed to the crime, that might be all the evidence the District Attorney needs to move forward with charges. On the other hand, if your lawyer is able to get the confession thrown out because it was obtained illegally, then it will not count towards the prosecution’s evidence and the victim’s testimony may be necessary.
Generally, statements made by the victim not under oath are considered to be hearsay and inadmissible in court. However, calls to 9-11 are often ruled admissible by the judges and may provide enough evidence for the prosecution to move forward with their case. Similarly, if the police arrived at the scene shortly after the crime, statements the victim made to the police will often be admissible as well. Statements made at a preliminary hearing may also stand-in for victim testimony in a trial, particularly if the defense was able to cross-examine the victim.
The more typical scenario that results in the prosecution choosing to dismiss a case is when a victim cannot be found to be subpoenaed for trial. If the victim shows up for trial, they will at least be subject to impeachment by their previous statements.
Ultimately the decision of whether or not to drop the case will not only depend on the evidence, but also on the prosecutor and judge trying the case. Some prosecutors and judges are more likely to drop cases than others. Similarly, some judges are more likely to allow 9-11 calls and statements to officers to be admitted as evidence than others. It can be beneficial to have a defense attorney in Fallbrook who is familiar with the key players in North County courts so your strategy can be based on what the District Attorney and judge may decide.
If the only evidence against you is the victim’s testimony and the victim refuses to testify though, the case is almost certain to be dropped no matter who is handling it.
Anyone accused of a crime should seek the council of a Rancho Bernardo criminal lawyer to discuss the specifics of their individual circumstances. You can schedule a free consultation with Peter M. Liss by calling (760) 643-4050.
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