In case you didn’t know, we are living in a state where uncooperative victims of domestic violence are ducking and running from prosecutors and investigators who wish to compel their testimony. At this very moment, thousands of victims are holed up in their homes or are “on the lam” in their attempts to avoid contact with law enforcement officials.

I have many concerns about the government’s aggressive practice of pursuing uncooperative victims and I believe there needs to be a change in the way our criminal justice system handles first time offenses involving domestic violence.

The Recanting Victim

The “recanting victim” phenomenon is nothing new. Any professional who has ever worked with domestic violence cases knows that a great number of people who report domestic violence frequently change their mind about pressing charges, once things have cooled off and reality sets in about the consequences of a criminal conviction. It is often the case that the accused and accuser make up, move back in with one another, and attempt to make things better.

Out of concern for people inflicted with the “Domestic Violence Syndrome” (i.e., people who are perpetually trapped in abusive relationships), prosecutors have adopted the philosophy that it is their job to rescue victims from making the wrong decision, and that it is their ethical duty to bring the perpetrator to justice, in spite of the consequences a conviction will have on the parties’ relationship or family.

The Use of Spontaneous Statements

Using an exception to the hearsay rule, often called the “excited utterance doctrine,” prosecutors used to successfully prosecute domestic violence cases, when the victim either refused to testify or recanted his or her statement. During trial, the prosecutor would simply play the 911 tapes taken from the incident and call the responding officer to the stand who would testify as to what the victim told him about the incident during the investigation. This type of evidence was permitted under the theory that the victim’s spontaneous statements were reliable since they were made when the victim was under a great deal of stress from the incident, and therefore the victim was not likely to have fabricated his or her story.

Prosecutors knew that it was much easier to secure a conviction when the victim refused to cooperate, given the impossibility for the defense to cross examine a 911 tape or a police officer who is merely regurgitating what the victim had said during the investigation. Thus, the preferred domestic violence case for most prosecutors was one in which the victim refused to cooperate and never set foot in the court room.

The Crawford Decision

In 2003, the glorious days of prosecuting domestic violence cases came to a screeching halt based on a United States Supreme Court decision entitled, “Crawford v. Washington.” According to the Crawford decision, the Confrontation Clause excludes "testimonial" hearsay from trial unless the declarant testifies at trial, or the declarant is unavailable to do so and the accused had an opportunity to cross-examine the declarant at the time of the hearsay. The high court’s decision put an end to the long standing practice of calling police officers to the stand to testify on behalf of the recanting victim. Consequently, it is now necessary in most cases that the victim testifies in order for the prosecution to obtain a conviction.

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