The Reluctant Victim

The Reluctant Victim

Many of you are familiar with the Rihanna and Chris Brown domestic violence (“DV”) case. It is alleged that they are back together and may even be engaged. Whether that is the case or not, what is clear is that Rihanna is likely to be reluctant to testify against him in the pending criminal case in Los Angeles. Victims of violent crime are often reluctant to come to court and testify, regardless of whether the assailant is a stranger, acquaintance, or family member. Reasons for this reluctance vary. Some common reasons include, but not limited to, victims want to put the whole incident behind them and forget it occurred; a feeling of shame that they are to blame for the attack; unwillingness to face the assailant again in the courtroom; fear of the court process and of being on trial; and terror of future retaliation by the defendant.

In fact, in some cases, a DV victim’s testimony may appear inconsistent with previous statements made by the victim to police, investigators, or the court. The court may determine the reasons for the reluctance of the victim to testify. The court is allowed, for limited purpose of an in-camera proceedings which allows the victim to speak to the judge privately in chambers.
But as a defense attorney, I would strongly object since the conversation may not be, transcribed thus limiting my ability to later cross-examine a victim for any inconsistencies. If the court does allow in-camera inquiry, it should be restricted to discussing why the victim is reluctant to testify and whether anything can be done to remedy this, rather than having the victim actually testify on the facts giving rise to the criminal case.

As a result of the reluctance/refusal of the DV victim, it is recommended that the prosecutor always subpoena a material witness. If a witness fails to appear at the court ordered hearing, the court may issue a bench warrant and even order the witness into custody. The witness may be held in custody for no more than ten days. However, especially in DV cases, the victim/witness being incarcerated could serve only to re-victimize. Thus, most courts use this as a last resort.

If the victim is unwilling to testify, previous statement to the police or testimony may be admissible as exceptions to the hearsay rule, e.g., excited utterances, fresh complaints. But that is the government’s burden to prove that it falls within an acceptable legal exception. When a witness is unavailable at trial, the defendant’s Sixth Amendment Right of Confrontation is raised.
The Sixth Amendment guarantees a criminal defendant the right at trial to be “confronted with the witnesses against him.” All states similarly provide the right at trial, which in essence, is to meet the witnesses against him face to face. In the case Crawford v. Washington, the U.S. Supreme Court set aside nearly a quarter century of precedent in holding that a “testimonial” statement is inadmissible unless: (1) the witness is unavailable; and (2) the defendant had a prior opportunity for cross-examination of the witness at the time the statement was made. Crawford retains the unavailability requirement, but rejects the reliability prong. The court held that “where testimonial statements are at-issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one that that the Constitution actually prescribes: confrontation.

The court defined “core class” of testimonial statements to be: (1) police “interrogations” (2) prior trial testimony; (3) preliminary hearing; and (4) grand jury testimony. If the statements are elicited for the purpose towards trial, they will be defined as testimonial statements. The second inquiry focuses on the questioner such as police officers, investigators, or experts. For example, whether a physician associated with a domestic violence team would understand that the statements elicited during an examination “would be used prosecutorially.”

The above highlights the difficulty of proving a case beyond a reasonable doubt in trial if a victim of a DV case becomes “unavailable.” As a defense attorney, I now have the Crawford case to bolster my position that if a victim is unavailable and prior testimonial statements are requested to be used by the government attorney(s), my client’s constitutional rights will be infringed upon. However, there are many loopholes that allow the prosecution to bring a case to trial even without their “star” (Rihanna) witness in