When the Victim Does Not Want to Prosecute
We hear it all the time from domestic violence clients, “The case should be dismissed because my wife/girlfriend/husband/boyfriend will not testify against me!” Unfortunately, that is simply not how it works. If the “alleged victim” does not wish to testify, the prosecution will attempt to call the police officer to testify as to what he/she said to the police officer on the day of the alleged crime. California Evidence Code 1370, may permit the prosecution to enter statements made by the victim into evidence. Of course, we will vehemently object if they attempt to do so.
There are four factors that must exist to permit the prosecution to admit hearsay testimony under Evidence Code 1370.
- The statement must describe the physical or threat of physical violence that occurred to the victim.
- The prosecution must prove the victim is unavailable to testify. (refusing to testify is evidence of unavailability.)
- The victim’s statement must have been made during (the 911 call) or shortly after the incident (statements made to responding officers).
- The victim’s statement must be made in writing or verbally to the police.
If even one of those factors is missing, an experienced, knowledgeable attorney will object to the admission of the victim’s statement and then, if the victim’s statement is the prosecution’s only evidence, the case may be dismissed.
Contact the Attorneys at Wallin & Klarich to Learn More
If you are charged with domestic violence, your freedom may depend on choosing a highly experienced criminal defense law firm to help you. At Wallin and Klarich, we can analyze your case and recognize whether or not an alleged victim’s testimony may be objected to and kept out of evidence. Wallin & Klarich has been successfully defending people accused of domestic violence for over 40 years. Contact us today for a free, no-obligation consultation, and let us help you too.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, you can find an experienced Wallin & Klarich criminal defense attorney available near you no matter where you are located.
Contact our offices today at (877) 4-NO-JAIL or (714) 587-4279 for a free, no-obligation phone consultation. We will be there when you call.