NCJ Number
208660
Journal
Prosecutor Volume: 39 Issue: 1 Dated: January/February 2005 Pages: 18,20-21,26,48
Date Published
January 2005
Length
5 pages
Annotation
This article advises prosecutors on obtaining convictions in domestic-violence cases without the cooperation of the victim.
Abstract
The term "evidence-based prosecution" in domestic-violence cases refers to the practice of using independent corroborative evidence to prove the elements of the crime without relying on the victim's testimony. Independent, corroborative evidence that can be used in such cases includes a 911-call recording; visible injuries photographed by a police officer or observed by a person other than the victim; physical evidence at the crime scene such as a weapon, broken furniture, victim's torn clothing, or a telephone ripped out of the wall; medical testimony that documents injuries or statements made by the victim; eyewitnesses who saw or heard the event; transcripts of prior testimony by the victim; statements that fall under exceptions to the hearsay rule; and admissions by the defendant. In evidence-based prosecution, domestic-violence protocols should be developed to assist with the preservation of essential evidence. It should be anticipated that the victim will sign an affidavit in the office of the defense attorney that recants any earlier statement. If presented with a nonprosecution form that requests that charges be dropped, a motion should be filed "in limine" asking the court to suppress the form for lack of relevance or on the grounds that it is hearsay. Also, the prosecution should prepare for a jury nullification defense that asks the jury to acquit the defendant because the victim does not want to testify against him/her. The prosecution should file a motion "in limine" based on relevant case law in the jurisdiction to preclude defense counsel from making this argument. Suggestions are offered for developing a protocol for prosecuting such cases.