Many criminal cases are won or lost based on the testimony of the person who files the complaint. In these cases, the judge or jury often listens to only the victim and the person accused of the crime. The judge then decides the case mainly by deciding which person the judge or jury thinks is the most credible.

At first blush, it’s natural to think that if the victim doesn’t testify or doesn’t want to proceed with the charges, then the charges are dismissed or the defendant will be acquitted. That assumption is often false. The prosecution does have ways of presenting their case without the cooperation of a victim who has decided not to pursue the claim.

Can the prosecutor try to prove a case without the victim’s testimony?

Yes. Prosecutors may try to convince a judge or jury that a defendant committed a crime without the presence or testimony of the victim. Prosecutors may seek to introduce evidence of the crime by:

• Introducing evidence of any physical or emotional harm. If the victim sought medical help for cuts, bruises, bleeding, broken bones, or any other physical harm, the prosecution can request that evidence of the harm and the efforts to treat the harm be introduced. The prosecution can require that the ER doctors, other doctors, or other health providers testify in court and introduce documents to verify any exams, photographs, test results, that show harm to the patient. If the victim saw a psychologist or other emotional and mental health counselors, the prosecution may seek to introduce the reports or testimony of the treating doctors and health counselors.
• Introducing the testimony of any witnesses. If another family member, a friend, a neighbor, or anyone else observed an act of assault, domestic abuse, or sexual assault, that person can be called to testify about what they saw.
• Introducing statements the victim made about the offense. Often victims tell others about the assault before they decide not to testify or cooperate with the prosecution. Skilled defense lawyers will object to the statements on the ground they are hearsay – out of court declarations introduced to provide evidence by people other than the person who made the declarations. The prosecutors will then try to argue that an exception to the hearsay rule applies. Some of the many people who the victim may have spoken to include:
  • Police officers
  • Doctors
  • Emergency room personnel
  • Friends or family

When will a prosecutor dismiss a case if a victim doesn’t want to move the case forward?

A prosecutor may choose not to prosecute a case if:

• The victim doesn’t appear in court; or
• The prosecutor needs the victim’s testimony to convince the judge a defendant committed a crime.

Can a prosecutor compel a witness to testify?

Yes.  If the prosecutor thinks the victim needs protection, or that the accused perpetrator may attempt the alleged crime again (based on a criminal record, for example), he or she may try to persuade the victim to testify by telling the victim he or she has to appear.

If the prosecution needs that witness testimony, however, he or she can serve the victim with a subpoena. A subpoena is a court order to testify. If a person who is served with a subpoena refuses to appear in court, the judge could order that the person be arrested or held in contempt of court.

If the prosecutor thinks the witness isn’t appearing due to pressure by the defendant or another person, the prosecutor may seek to charge the defendant or other person with witness tampering. Witness tampering includes undue pressure on a person to remove herself/himself from court, to testify falsely, or to withhold critical information.

Are the victim’s statements admissible?

Generally, there are fine lines regarding what evidence is admissible. If a witness tells a police officer, “My spouse punched me,” the officer cannot simply state that the victim was punched. The officer can testify that the victim was bleeding and she had bruises, and record any statements the victim made, but he or she cannot say that the victim was punched because it is technically hearsay.

On the other hand, if a victim testifies at a preliminary hearing that a spouse punched him or her, that statement can be introduced at the trial (even if the victim isn’t there) because the statement was made in open court at the preliminary hearing. Additionally, if the victim changes his or her story, that can throw a wrinkle into the proceedings.

Experienced Sevierville defense lawyers understand when hearsay exceptions may apply. Some exceptions include:

• Statements made while the victim is excited or under stress. A common example is when the victim calls 911 and says she/he is being attacked or was just attacked.
• Statements made to obtain a medical diagnosis. The testimony of a physician is often critical in domestic violence and assault cases. Statements to non-physicians may be less likely to be admitted because they’re not specifically made to obtain a diagnosis or treatment.
• Admissions against the interest of the person who made the statement. Generally, people don’t make statements against their interests unless they’re true.

At Delius & McKenzie, PLLC, our criminal defense lawyers assert every legal and factual defense possible for our clients. We seek dismissals and acquittals when prosecutors can’t prove their case beyond a reasonable doubt. We contest the admission of evidence in violation of the rules of criminal procedure. If you’ve been arrested for any crime, including a domestic violence crime, call (865) 428-8780 or fill out our contact form to speak with a premier criminal defense lawyer. We represent defendants in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the surrounding areas.