Prosecuting Domestic Violence Cases Without a Victim

Having served for a combined thirteen years as prosecutors in the Manhattan District Attorney’s Office, the two founding members of Saland Law were privileged to be trained as prosecutors in the Domestic Violence Unit. As such, our New York Domestic Violence lawyers and New York criminal defense attorneys understand the entire process of handling a Domestic Violence arrest from the initial 911 call to the arraignment. Equally important, our criminal defense lawyers have the real world experience to manage a case through the final resolution whether that means negotiating a favorable plea or taking a case to trial before a jury. In fact, one of the skills taught to Jeremy Saland as Assistant District Attorneys was how to prosecute a Domestic Violence case without a cooperative witness or victim. This ability is not only critical in successfully prosecuting crimes of Assault, Strangulation, Aggravated Harassment, Criminal Mischief and other offenses, but exemplifies the severity of any Domestic Violence arrest in New York. After all, even if a complainant does not want to go forward or wishes to “drop the charges,” prosecutors can potentially disregard the desires of an alleged victim.

There are many means by which prosecutors can proceed in cases even where a complainant is uncooperative. Having prosecuted these cases and defended against the same, the following is a short list of some of the methods our criminal lawyers have encountered “victimless” Domestic Violence crimes on both sides of the law:

1. Using Your Admission Against You: Remember how important it is to exercise your right to counsel? Well, should you admit to a crime or attempt to talk yourself out of the same, prosecutors can use your incriminating statement against you in lieu of the complainant testifying. Generally, a statement alone is not sufficient, but some form of corroboration is needed.
2. 911 Calls, Present Sense Impressions & Excited Utterances: Generally, a victim or witness must testify to his or her observations. However, there are certain exceptions. If a 911 call records the complainant stating you are actively perpetrating a crime or it is clear that the statement is being made without time to think it through (judges often look to length of time between incident and statement, whether the person is out of breathe or startled, etc.), Assistant District Attorneys may be able to utilize that statement as proof even without the complainant testifying.
3. Reduction of the Crime: If there is no corroboration from a complainant that you, for example, punched that complainant and caused a black eye, a witness may be able to corroborate a lesser offense of the crime you are alleged to have committed. If the complainant testified as to his or her substantial pain, a Third Degree Assault may be viable in the above scenario. Where a witness testifies without the complainant and he or she can only corroborate that you struck the complainant and the complainant cried or sustained a bruise, prosecutors may have more difficulty with the Third Degree Assault. Even if prosecutors are unable to prove this charge, they still may be able to establish a lesser misdemeanor of Attempted Assault in the Third Degree where the actual injury to the victim need not be proven.
4. Videos, Phone Records, Text Records & Emails: Often seen in crimes involving Assault, Computer Crimes, Criminal Contempt and Aggravated Harassment, the tracks you leave behind can be used against you. IP information from a computer login may come back to your account. Further, emails, phone calls and texts may be from your respective accounts or preserved on a server. In another wrinkle, a video may reflect you attacking, lurking or damaging property even where the complainant does not corroborate or testify as to your actions.

Don’t be naïve in believing that because your spouse, partner, child or girlfriend does not want to cooperate with the police or prosecutors, your criminal case will just go away. If Assistant District Attorneys believes you are a threat to another person’s safety, there has been past abuse, or the complainant is scared to prosecute, prosecutors certainly have the tools do so. For better or worse, you are never “out of the woods” just because a supporting deposition is not signed or a witness is unavailable.

• NY Domestic Violence Arrests, Crimes & Laws
• NY Domestic Violence Arrests: Understanding the Process
• Examining NY Criminal Court Orders of Protection & Restraining Orders
• Defining “Domestic” in NY Domestic Violence Cases
• The Supporting Deposition & Corroborating Affidavit in a NY DV Case
• Prosecutorial & Subpoena Power in a Domestic Violence Case
• The Accuser Lied: Responses to False Allegations
• Starting Your Defense to a NY Domestic Violence Arrest

Remember to protect yourself and put yourself in the best position to defend against any accusation of Domestic Violence or any crime. While it is never acceptable to hurt a loved one in any way, don’t let a misunderstanding by law enforcement, a false allegation, or any other circumstance destroy your career or liberty.