Fort Lauderdale Criminal Attorney Blog
Recently, Florida prosecutors dropped criminal domestic violence charges against a professional boxer who had been accused of striking his ex-girlfriend in front of their child. Part of what factored into that decision was that the defendant agreed to complete an Anger Management class and both agreed to begin meeting with a counselor to work on peaceful, effective co-parenting strategies. But probably the biggest reason? The victim recanted her testimony and insisted she no longer wanted to proceed with the case. 
According to local media reports, the pair were arguing over use of a vehicle when the defendant allegedly hit the woman on the side of her head with a closed hand. She called police twice, at one point telling dispatchers that the defendant had attacked and was going to kill her. He was arrested on misdemeanor charges, and bonded out. A few days later, the woman told investigators he’d never harmed her or their daughter, and said they were both responsible for the fight. She no longer wished to proceed with the case.
This raises the question: How much does a victim’s testimony truly matter in a Broward domestic violence case?
The answer depends on the unique facts of the situation, but a victim’s testimony is typically central to a domestic violence case. However, their cooperation is not. As a Fort Lauderdale domestic violence defense lawyers can explain, an alleged victim is not empowered to unilaterally decide whether to drop a domestic violence case or proceed with it. That’s because even though they are the person wronged, the charges actually refer to a violation of state law. So it’s the state’s case and decision whether to press on – not the victim’s.
Of course, as in most criminal cases, the testimony of a credible victim can be as powerful as any physical evidence. If the story changes or is recanted, their credibility is compromised and the case becomes harder to pursue.
However, Florida domestic violence cases are unique compared to other types of criminal matters. The reason is because it is incredibly common for alleged victims of domestic violence to recant or refuse to cooperate, courts courts have made special evidence exceptions to make it easier for prosecutors to get around the issue and still pursue these “victimless prosecutions.” Perhaps the most commonly-employed workaround is the hearsay exception.
The Sixth Amendment, which guarantees the right to a fair criminal trial, requires that defendants be given the opportunity to confront the witnesses against them. This particular bit is called the “Confrontation Clause.” Hearsay is when an out-of-court statement is made to establish or challenge the truth of a relevant matter. If it can’t be directly confronted by the defendant in court, it’s generally considered hearsay and will not be permitted as evidence.
An example of hearsay: Person A saw someone assaulting someone, and later told Person B that the attacker was Person C. If B testified in court about what A had told him, that would be hearsay. If A told the police what he saw, that report and/or the police’s testimony about that statement would be hearsay. Only if A gave that same testimony directly in court would it not be hearsay.
There are some exceptions to hearsay, though, and they are more commonly permitted in Florida domestic violence cases where victims refuse to cooperate. So for example, let’s say Person A is a teenager. The person being assaulted was their mother and Person C was their dad. The teen tells police what happened, the police arrest the dad. Later, neither the mother nor the teen wish to cooperate. They just want to put the whole thing behind them. The court can decide to grant an exception to the hearsay rule. This would allow 911 recordings, police reports, and officer-reported he-said-she-said statements to be entered into evidence.
Many states allow broader hearsay exceptions for sensitive cases, including child physical abuse, child sexual abuse, and domestic violence. With domestic violence, the “excited utterance” exception is probably the most common. These are statements in relation to a startling event and uttered under the stress of the excitement from the event and before the individual has time for conscious reflection. Actual physical violence isn’t required to sufficiently qualify as a “startling event,” but there’s no clear rule on exactly how soon before or after the incident the statement must be in order to be considered an excited utterance.
Bottom line here is that while the words of an alleged domestic violence victim can make-or-break a case, their refusal to cooperate won’t necessarily end the prosecution. That lack of cooperation, however, can be a bargaining tool that your Broward criminal defense lawyer can use to negotiate with prosecutors for a more favorable outcome.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
EVIDENTIARY TRENDS IN DOMESTIC VIOLENCE, August 1998, By Judge David M. Gersten, Vol. 72, No. 7, Family Law, Florida Bar Journal
More Blog Entries:
Is Evidence of Prior Bad Acts Admissible in Florida Domestic Violence Cases? April 28, 2023, Broward Domestic Violence Defense Lawyer Blog
