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.
While the victim’s cooperation and assistance in a criminal case with the defense does not mean that the case will be dismissed, it is almost always better to have the victim on the Defendant’s side rather than having a victim that is adamant that the defendant be prosecuted to the fullest extent. The cooperation of the victim will help your lawyer negotiate a successful resolution to your case with the prosecutor. Whenever the prosecutor and the defendant’s lawyer are trying to work out a resolution, the first person that the prosecutor will talk to will be the victim. Generally speaking, prosecutors will not go against the wishes of the victim. While the prosecutor is representing the People, they have a responsibility and obligation to advocate for the rights and wishes of their victims.
That is why I tell my clients facing Domestic Battery charges to be on their best behavior with the victim. or the complaining witness. A cooperating complaining witness in a Domestic Battery case is always preferable than having a complaining witness that is out for blood. Especially in a Domestic Violence case. Besides, there is no down side to being on good terms with the victim.
James Dimeas is a nationally-recognized, award-winning, Domestic Battery lawyer, with over 28-years of experience handling Domestic Violence cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Years 2018, 2019, 2020, and 2021” by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney”, a “Best DUI Lawyer in Schaumburg”, and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by The National Trial Lawyers”. The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois”. James Dimeas is rated ‘Super” by AVVO, 10 out of 10, the highest rating possible for any Domestic Battery lawyer in the United States. The American Society of Criminal Law Attorneys named James Dimeas a “10 Best Attorney for Client Satisfaction”. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois”.
If you are facing Domestic Battery charges in Illinois, you can contact James Dimeas anytime for a free and confidential consultation to discuss your Domestic Violence case. You can always talk to James Dimeas personally by calling him at 847-807-7405.
Will My Domestic Battery Charge be a Felony or Misdemeanor, by James G. Dimeas, Chicago Criminal Lawyer Blog, August 6, 2019.
Domestic Battery in Illinois, by James G. Dimeas, Chicago Criminal Lawyer Blog, November 16, 2017.