One of the first rites of passage to becoming a criminal defense attorney is “the call.”
No, this is not a term for a the next tragic event that stabs, mauls and deflates the hope of all Cleveland sports fan. [See "The Decision," "The Drive," "The Shot."]
It is the telephone call a defense attorney gets from the alleged victim of domestic violence. Typically, this girlfriend or wife asks in confusion why the defendant is in jail. “It was just a fight….He needs to get back to his job….He needs anger management class but not jail.” These are many of the responses I hear.
Sadly, many women are ignorant of the process, the politics and the consequences involved with domestic violence prosecution. Here’s a little overview.
The Fight & Arrest
If you’ve ever been in a relationship, you know that fighting can occur – and it’s often intense. For some people, threats of physical violence ensue; and of course, for others, physical violence does in fact ensue. The alleged victim calls the police often out of anger, and sometimes out of fear. Frequently, I believe the alleged victims believe that the police will come and referee the dispute, and maybe tell the guy to go to his buddy’s house and “sleep it off.”
This could not be further from reality. Pretty much every police department has a policy that a domestic violence call requires an arrest – don’t expect refereeing. [Why should we? This can endanger cops' lives, and as you'll read below, the call alone is typically enough evidence for an arrest.]
The Victim’s Statement
In Ohio, alleged victims fill out a report that is a narrative of what occurred. I’ve read a lot of these, and they all seem to have a similar thread: we were angry, he called me a bitch, we were drinking, he pushed me, etc. This statement is definitely enough evidence to arrest and charge a person. It is usually completed at the police station, immediately following the incident.
What if there is no Statement?
In some cases, the alleged victim hasn’t filled out a report that sets forth the facts. [She may be too intoxicated, injured, unwilling, etc.] The police, even without this, have enough evidence to arrest and charge a person. And the prosecution can still make a case without a victim’s statement. How? Through a hearsay exception called “excited utterance.”
An Excited Utterance
A quick tutorial needs to be done to understand this concept. Hearsay, in a trial, is mostly excluded. Hearsay, in the simplest terms I can think of, is:
Witness on stand, testifying; witness on stand says “person Y told me this…” The “this” is typically a very important factual issue that is trying to be asserted/proved/disproved.
The whole idea of excluding this testimony is that person Y should be the one to testify and be subject to cross-examination. Without cross-examination, there would be no tool to test the truthfulness of someone’s testimony. And obviously, you can’t cross-examine someone who isn’t testifying. So the goal is to ensure that key issues to a case are established by testimony direct the witness, and not second-hand.
But, there is a caveat to hearsay. Some hearsay is permitted if it falls into certain categories. The excited utterance is one of those categories. Basically, if a person says something in response to a startling event, and it relates to the startling event, it is allowed into trial.
How does an excited utterance make prosecutor’s job easier?
Domestic violence victims that refuse to cooperate with the prosecutors can present a tricky situation. Usually, they are the only ones that “witnessed” the offense, so without their testimony, it’s darn tough to prove a case beyond a reasonable doubt. However, prosecutors now have a tool in which they can bring in evidence of the victim’s statements to police to prove their case, all as an excited utterance. In Summit County, our court of appeals has given wide latitude to the trial court’s admission of this testimony.
Why prosecute a case when a victim is against it?
From an intuitive standpoint, it seems odd to go against a victim’s wishes. Yet, domestic violence is very much a moral, social and political issue. Prosecutors are elected officials who are ultimately responsible to their constituents. If a prosecutor is “light” on domestic violence, voters don’t take kindly. And quite frankly, a society where couples are fighting, abusive and inclined to use law enforcement as a referee is not ideal.
So in a way, prosecuting domestic violence is the government’s way of saying: if you involve the criminal justice system in your personal life, you better not be toying around.
Do you think prosecutors should be more responsive to victims’ wishes?