Arguably, the most common question I am asked by clients. This happens all the time with Domestic Battery cases. While it’s always better to have a victim, or complaining witness, that is willing to cooperate with the defense, it does not mean that the case will be dismissed or that the Defendant is guaranteed to win their case. Let me explain.
Your criminal case begins when you are arrested by the police. If you are facing a misdemeanor criminal charge, the police will charge you with whatever they believe they can prove in Court. If you are charged with a felony, police will consult with the prosecutor’s office who will review the facts and evidence in your case, and file whatever criminal charges they think are appropriate. Police and prosecutors make the ultimate decision to file criminal charges. The victim’s input is important and almost always taken into consideration. The victim’s wishes are taken into consideration and play a major role in almost every criminal case. However, the victim’s wishes are not determinative of whether criminal charges will be filed or how the case will proceed in Court. Prosecutors are required to keep victims informed about the case and give victim’s an opportunity to attend every court date and address the Court if the need arises. But the threshold issue, of whether criminal charges will be filed, or what criminal charges will be filed, or whether the case will be dismissed, will be decided by the prosecutor based on their discretion and their continuing ethical obligations. The Judge plays no role in those decisions and does not have the power to dismiss charges because the victim is not cooperating with the prosecution and wants the case dismissed.
Situations like this often arise in Domestic Violence cases. The victim and the defendant are in a relationship and the victim does not want anything to happen to the defendant. Many times the victim does not appear in Court for the Defendant’s Domestic Battery case. This is common in Domestic Violence cases. While this is usually good news for the Defendant, it doesn’t mean that the case will be dismissed or that the Defendant will win their case. When victims do not appear in court, it does not mean that your case will be dismissed. The prosecutor has the right to proceed with the case without the cooperation and testimony of the victim. Whether the prosecutor decides to dismiss the case or continue with the case will depend on the evidence gathered by the police. The prosecutor may decide to proceed with the case if they determine that they can prove the Defendant’s guilt without the testimony and cooperation of the victim. I have seen the state proceed with Domestic Battery cases when the victim is not cooperating with the state when the state has other witnesses that are willing to testify, confessions or other statements made by the defendant, and video evidence that shows what happened.