It’s been a conundrum for a long time, the situation of a woman in a domestic violence prosecution. The problem is well known: Allegation of harm, whether being struck once or routinely beaten, resulting in the arrest and prosecution of (almost always) the man in the relationship.
After the man is arrested, the woman’s position shifts. She no longer wants to cooperate. She no longer wants him prosecuted. She claims she made it up. She claims it was a mistake. She claims she wants it over, the case dropped and the man back.
In some instances, it’s accurate to say that the allegations were used as means of getting back at the man, to have police forcibly remove him from the home as a way of lashing out. In most instances, however, it’s submission to threats, fear, overbearing will or some other unsavory purpose that prevents a crime from being prosecuted. There’s nothing like a few broken bones or a black eye and missing teeth to back up the story that it was all a big mistake.
Having been on both sides of this situation, and doing what had to be done to support the outcome my client desired, the dilemma is real and certain. What do do about it is less clear.
The Cuyahoga County District Attorney is seeking the Ohio Supreme Court’s approval of a means of compelling the victims of domestic violence to testify. Via the Columbus Dispatch :
The Cuyahoga County prosecutor’s office wants the high court to instruct judges to consider calling the accusers to the stand in domestic-violence cases. That would give prosecutors a chance to cross-examine them on statements made before they refused to testify.
“Without that procedure, there’s very little the prosecutor can do,” said Matthew Meyer, assistant prosecutor for the county.
The case involves Melissa Mathis, who alleged that she was beaten by her boyfriend numerous times, eventually landing her in the hospital. As trial approached, she recanted. It was all made up, she said.
The prosecutor asked the judge to call Mathis as a “court’s witness” so that she could be cross-examined on her earlier statements. The judge denied the motion, saying there was no proof that she recanted her story because her boyfriend had threatened her. The 8th District Court of Appeals upheld the judge’s ruling.
Meyer said prosecutors once had some latitude to introduce other evidence if alleged victims refused to testify, but now it is “nearly impossible” to win those cases in the aftermath of two U.S. Supreme Court decisions involving a defendant’s right to confront his accuser.
The problem lies in the confluence of confrontation and the inability of a party to impeach its own witness. The prosecution has Mathis’ original statement, but without her on the stand testifying to the truthfulness of that statement, it’s worthless. It can’t be used.
On the other hand, the prosecution is constrained by direct examination not to lead its witness, thus asking the open ended question of what happened. Mathis’ anticipated answer will be, “nothing,” and that’s not going to help them any. The next step, to impeach her with the prior inconsistent statement, isn’t permitted. That’s what the prosecution hopes to do.
If more Ohio judges agreed with prosecutors’ requests to call the victims themselves, they could find out the truth and put domestic abusers behind bars, Meyer said. He is hoping the Ohio Supreme Court sends that message to judges who are unaccustomed or openly hostile to the rule allowing them to call their own witnesses.
This argument is somewhat disingenuous, as it presumes the truth to be what the prosecution wants it to be. That may very well be the case. Or not. The problem is whether the original statement is true or the recantation is true. Or somewhere in between.
Assistant Cuyahoga County Public Defender John Martin warned against assuming that an alleged victim told the truth at first and then lied later. It could be the other way around, he said. “ This court should not assume, as has the state, that she’s necessarily lying,” he said.
Whenever one side tries to tweak the rules in its favor, to permit an “exception” to evidentiary and confrontation rules designed to control the introduction of unreliable evidence because of transitory politically correct notions, the resulting unintended consequences tend to be bad. Material evidence ends up precluded, while unimpeachable yet unreliable evidence ends up admitted. Innocent people get convicted. As do guilty people who otherwise wouldn’t.
Ultimately, the decision should rely on the fundamental premises underlying the criminal justice system, that it’s better that “X number” of guilty defendants go free than innocent defendants are convicted. Of course, Blackstone is long gone, and there are a great many Americans who no longer feel too disturbed at the idea that we lock away a few innocents to put a bunch of guilty defendants in prison.
H/T Billy
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What’s the liklihood that the defendent is innocent in this scenario? Did the woman beat herself up? Or, I guess it is possible the defendent was simply defending himself?
Many years ago I was the receiver of this type of abuse and never called police nor pressed charges. If a woman has a safe place for her and her children and has some positive outlook of the future, I think it is more likely she will speak up. But without protection, the beatings will get worse and she knows it.
In my own experience I had to finally come to know I was as well off dead as continuing in those circumstances. I had to take the chance. It is a psychological maze that needs professionals involved.
I now understand the delima the law has. I appreciate your post.
This sort of exception is a bad idea. We don’t make an exception for the guy who’s afraid to testify against the mob because he’s going to be killed—we instead offer protection.
If the prosecutor were really concerned about domestic violence victims’ safety, he’d advocate for some sort of domestic violence protection program.
I’m sure Meyer cares about domestic violence victims’ safety. But it seems to me he cares about his win/loss ratio more.
We don’t “prove” guilt by probability or negative alternatives. While this is fine for people chatting amongst themselves, it’s not how guilt is proven.
I wouldn’t question Meyer’s good intentions, but that doesn’t change that this goes down a wrong and dangerous path.
They’re pikers in Ohio; Michigan’s statutes include:
MCLA 768. 27b.
(1) Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.
(2) – (6) omitted
MCLA 768.27c
(1) Evidence of a statement by a declarant is admissible if all of the following apply:
(a) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(b) The action in which the evidence is offered under this section is an offense involving domestic violence.
(c) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section.
(d) The statement was made under circumstances that would indicate the statement’s trustworthiness.
(e) The statement was made to a law enforcement officer.
Conviction > reliable evidence, fair trial
Technicalities that get in the way of putting bad guys in prison.
I defend people accused of Domestic Assault in Montgomery County, Tennessee. Here, an uncorroborated accusation usually results in 12 hours in jail without any finding of guilt. Afterwards, if the person can make bail, they are given “conditions of release” that prohibit them from, among other things, returning to their residence or having any contact with the accuser. T.C.A. § 40-11-50.
People have begun to realize that they can have someone arrested, jailed, evicted from their home, and prevented from accessing clothes, car, money, personal belongings, children, etc. for at least a few weeks, and more often a few months, since that’s how long it takes to get the case heard in court.
Commonly, the parties do get back together in violation of the conditions, but one of them now has the power to have the other arrested at will, with a phone call, on the basis that the individual has been in contact with them. It is, of course, a crime for the one party to violate the conditions of release, but not for the other. Again, an uncorroborated phone call will result in arrest, revocation of bond, and new criminal charges.
This is an incredibly useful opening move in a divorce, especially if custody of the children is at issue. To start off in possession of the home, cars, kids, property, and everything else for the first few weeks of a divorce is a significant advantage.
I’ve never seen someone with “few broken bones or a black eye and missing teeth” change their story or refuse to testify. I’ve seen plenty of people with no injuries come in and try to get relationship engineering: they want the other party to attend anger management, or AA, or marriage counseling, or pay child support. Many cases are resolved by jumping through a few hoops “off the record,” paying several hundred dollars in court costs, and having the case dismissed a few months later.
Why shouldn’t they? Who wants to go through the time and expense of trial at that point? The damage has been done, they’ve already been to jail and lost control of their lives. The State can offer a guaranteed dismissal in exchange for payment of fees and costs. No defense lawyer can promise that.
And for those odd cases where the accuser (always referred to by the State as a “victim”) wants to change their story, the State threatens to charge them with making a false report, a felony. No special rules of evidence needed. Somebody is going down for a crime, and one party has the choice of whom. I’ve seen someone admit that they lied, they were arrested on the spot. I see most come out of the back room ready to stick with their original story.
The proposal seems to assume that, in Ohio, people generally tell the truth about assaults, and are lying later when they recant. With the incentives built into the Tennessee system, it is hard to tell whether the reverse might more often be the truth.
Excellent addition of the divorce dilemma, where there’s nothing better than a nice spousal battery allegation to get things off in the right direction.
There is already a provision in the law for the state to treat its own witness as a hostile witness and cross examine, if the witness is actually hostile. This has been the law for at least decades.
But testifying differently that the state would like is not hostile behavior.
People being found not guilty is not a glitch for the legislature to somehow fix. And constitutional rights are not an annoyance for the legislature to engineer around.
Good post.