Prosecutors act on behalf of the People, but we also are charged with protecting victim’s Constitutional rights. We work to protect public safety, which includes the safety of victim’s of crime. We are trained to keep the victim in mind at every stage of the prosecution but that doesn’t necessarily mean that we will discontinue prosecution of a case just because a victim no longer wants it.
Criminal cases involving family members is where we typically see this issue. An emergency or violent crime happens and the police are called. At the time the victim asks for prosecution because of the injuries sustained or the type of crime committed, but over time they start to feel bad for the real-world ramifications their family member is facing as a result of criminal prosecution.
When a victim is uncooperative it adds a layer of complication to the case. First of all, there is a Constitutional right to confront your accuser worked into the criminal justice system. If a victim won’t come and tell what happened we are left with a bunch of inadmissible hearsay. This can stop a criminal prosecution in its tracks; so in order to avoid that outcome we look for admissible evidence to prove our case assuming a victim will not testify at all. This can include: spontaneous or contemporaneous statements of the victim, 3rd party witnesses to the crime, witnesses to prior similar bad actions, physical evidence, photos, or medical records.
#19 involved a victim who was uncooperative. She avoided subpoena service until about three days prior to the trial. She missed our scheduled appointments to meet on several occasions, having an excuse every time. To my surprise she showed up to the jury trial-but she was angry and hostile to everyone involved in the case. Me, our victim advocate, the judge, the defense attorney, she even glared at the jurors while she testified.
The victim answered “I don’t remember” to almost every single question posed. She admitted to daily use of methamphetamine on the stand and strangely enough, while she would not discuss the facts of this case, she freely discussed four prior acts of domestic violence the defendant had committed against her.
We were able to piecemeal a prosecution together using the victim’s prior inconsistent statements, the 911 call, and some very disturbing video evidence of the defendant in the hallway outside of the motel room with the victim. That video captured the defendant wrapping his arm around the victim’s throat and dragging her back into the motel room. We also had a witness to a portion of the event who was so concerned she knocked on the motel room and made contact with the defendant who told her everything was fine. Victim then took the opportunity to flee from the motel room. That witness described the victim’s scared demeanor and the physical injuries she observed.
We were able to convict the defendant of some of the charges, some hung, and some were reduced to lesser charges-based entirely on what evidence we could get out in the trial.
Why was this so important? The victim and defendant had been dating for eight years at the time of this crime and had three children in common. He had previously been convicted of domestic violence charges against her and he committed these crimes despite the presence of a criminal protective order that retrained the defendant from having any contact with the victim or the children. This defendant also had two prior domestic violence convictions with two separate and additional victims from this case.
The defendant also used a knife to threaten the victim, he strangled her, and he broke her phone when she attempted to call 911. He was a danger to the victim and to the public. The victim needed protection even though she did not want to be a victim in the case. An so as a prosecutor, the case went forward, trusting the jury would decide what charges were proved beyond a reasonable doubt.