Pulling an Abusive Rabbit Out of the Hat.

• Author: Archer, Shannon
• Position: Special Section on Domestic Violence

IT'S MONDAY MORNING at the Polk County Courthouse in Des Moines, Iowa. At 8:00 a.m., I walk into the courtroom where I'm scheduled to begin a domestic abuse jury trial. The victim was served, in person, with a subpoena to appear at 8:00 a.m. sharp. She is nowhere to be found. Defense counsel, realizing the victim is not present, asks when I will be filing the dismissal. While it is not unusual to dismiss a domestic abuse case when a victim does not appear for trial, this is not one of those times.

I inform defense counsel that I will be proceeding to trial without the victim. Counsel looks at me with a slack jaw and a blank stare and says, "You can't do that." Overhearing our conversation, the judge chimes in, with a smidgeon of condescension, "How exactly are you planning on proving your case, Ms. County Attorney, without calling the victim as a witness?" I hand him a copy of a Motion to Admit (the victim's) Statements under the Doctrine of Forfeiture by Wrongdoing and explain that the State is ready to proceed with an evidentiary hearing to establish the defendant's wrongdoing.

Obviously, this is not a strategy for every case. An evidence-based prosecution requires a special set of circumstances to justify admission of the victim's statements under a hearsay exception and even more unique circumstances to pierce the defendant's constitutional right to confront his accuser. With the support and assistance of law enforcement, however, it is possible to hold some offenders accountable even without victim cooperation. By working together with law enforcement, prosecutors can help officers plan to investigate with an evidence-based prosecution in mind. If every case investigation begins with the assumption that the victim will recant or refuse testify for the prosecution, then the investigation will yield a more versatile case with more evidence and more opportunities to hold a controlling and abusive offender accountable.

It's not about telling the law enforcement officers how to do their job. It's about working towards a common goal as a team. Prosecutors understand, for example, that 911 calls are often admissible even without the testimony of the 911 caller. Establish a classic hearsay exception such as the Excited Utterance Exception or Present Sense Impression, and a caller's statement will likely be considered a non-testimonial Confrontation Clause Exception under Crawford v. Washington, 541 U.S. 36 (2004), as held in Davis v...