Victim Cooperation is Critical to Proving Domestic Assault

One of the most critical considerations of a domestic assault or general assault case is victim cooperation. Will the victim cooperate (i.e. testify trial) or is the victim expected to no-show. While being subpoenaed by a court requires the victim to appear and testify, it is not uncommon for the victim to still not appear and testify. In the case of no victim cooperation, the State will then most likely try to prove the assault case through audio and/or video evidence of a victim’s statement made at the time of the investigation. This backdoor approach is wrought with Constitutional issues, though, and must be fought by the defendant.

The Constitutional right in play is the Sixth Amendment, which guarantees that an accused (i.e. criminal defendant) shall be able to confront (i.e. cross-examine) all witnesses the State calls to prove its case. This is known as the Confrontation Clause. When there is no victim cooperation, then a defendant or the defense attorney is unable to cross examine the victim because they are unavailable. But, this bar against the admission of prior statements from an unavailable witness only relates to testimonial statements and not non-testimonial statements. Put differently, non-testimonial statements are admissible at trial even when there is no victim cooperation. So, what’s the difference?

Courts look to the primary purpose of the interrogation that led to the taped statement by the unavailable witness. If the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution, then it is a testimonial statement. If, on the other hand, the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, then it is a non-testimonial statement. Here, the police questioning must relate directly to addressing the emergency. As you can probably guess (because the law is always this way), there is a lot of gray area and statements that can be debatable as to which type it is. This leads to extensive and critical litigation as part of any defense trial strategy.

The United States Supreme Court has wrestled with this distinction many times. Looking at cases that fall on either side can help illustrate some examples of what kind of statements are testimonial versus non-testimonial. In the oft-cited case, Davis v. Washington, the Supreme Court noted four factors when deciding the victim’s statement to a 911 operator when the suspect was still in the residence was non-testimonial:

  1. The victim described events as they actually happened and not past events;
  2. Any reasonable listener would conclude the victim was facing an ongoing emergency;
  3. The questions asked and answers given were necessary to resolve a present emergency, rather than only learning about what had happened; and
  4. There was a low level of formality in the interview because the victim’s answers were frantic and her environment was not tranquil or safe.

Conversely, the Supreme Court found that a recorded statement following a Miranda warning was testimonial in Crawford v. Indiana. In perhaps a closer call, the Supreme Court in Hammon v. Indiana found recorded statements were testimonial because the interrogating officer heard no arguments or crashing and saw no one throw or break anything; the victim told the officers when they arrived that ‘things were fine’ and ‘there was no immediate threat to her;’ and the officer was not seeking to determine what was then happening, but rather what had happened. 

In one case, the Minnesota Court drew a line between statements made to a 911 operator and those given at the scene to the officers. The 911 statements were non-testimonial because the suspect was still present for some of the statements and other statements related to the 911 operator’s efforts to calm and comfort the victim’s sister. The statements made to the officers at the scene were testimonial because the emergency had ended and officers elicited statements to determine what happened, not what was happening. On-scene statements, though, are not always testimonial. In another case, the Minnesota court ruled the victim’s on-scene statements were non-testimonial when she appeared wobbly and potentially faint, requiring first aid and the calling of an ambulance to the scene, the suspect was not yet detained, and the officer’s open-ended questioning about the events related directly to addressing the emergency.

A recent court of appeals decision tackled another tough situation. In it, the victim was met outside the apartment, but in the apartment building, and the suspect was inside the locked apartment. While she expressed concern about her three children being inside the same apartment, she did not express fear for their safety or that the suspect had previously harmed them. And while the suspect was not yet detained, the victim claimed he was asleep and the officers had control of any exit point – so the scene was under control and there was no ongoing threat posed to the victim. Finally, the victim’s alleged injuries did not require medical assistance from an ambulance or the officer, and her demeanor and nature of her statements indicated she was calmly and coherently answering the questions. As a result, the questions posed and answers given were testimonial in that they pertained to what had happened, not what was happening.

This is a good illustration of how some statements may be hard to determine whether they are testimonial versus non-testimonial. This court of appeals decision would seem to have some facts that would point to it being non-testimonial, but upon proper arguments and analysis, it was, indeed, testimonial. In that case, the lack of victim cooperation meant the State could not try to prove its case with audio/visual of the prior statements. And when that happens, the most likely result is a dismissal of the case.

As you can see, this is a key part of any case analysis when it comes to developing a trial strategy. Victim cooperation is a must in most circumstances. And when victim cooperation is unknown, litigating the admissibility of the prior statements must be done and aggressively pursued on the defendant’s behalf.