No face, no case….not so fast. I'm routinely asked if someone facing domestic violence charges needs a defense attorney if the victim doesn't want to, or isn't going to come to court and testify. The answer is still yes, for a variety of reasons, which I'll explain below.
COLORADO IS A "NO DROP PROSECUTION STATE"
First and foremost, under Colorado law, if a prosecutor believes they can prove a prima facie case, they are not allowed to dismiss or plea a domestic violence charge to a non-domestic violence charge. Simply because the victim no longer wishes to go forward does not mean the case can't be proven, and therefore, it's unlikely that the DA will dismiss the case simply because the victim no longer wishes to prosecute.
Moreover, there are ways to compel the victims attendance in court, ie. a subpoena. If the DA has the victim validly served and they do not appear in court, the DA can ask for a bench warrant for their arrest. While this is a drastic remedy and relatively uncommon, if they wist to pursue this route, they can and do.
THE DA MAY NOT NEED THE VICTIM TO PROVE THE CASE
Simply put, the DA may not need the victim to prove the case. If you admitted to anything, if a third party witnessed any of the acts, if the victim immediately sought medical treatment and made statements to the doctor, if the victim called 911 and was sobbing as she told the operator what happened, if….well you get the point. There are literally to many scenarios to list where evidence of the crime may successfully be admitted in Court without the victim's cooperation, and could result in a conviction. This fact, coupled with Colorado's 'no drop' law, means that even if the case becomes more difficult to prove, the DA still must move forward. Hence the reasons why you need to talk to a criminal defense lawyer who regularly handles domestic violence cases.
DON'T I HAVE A RIGHT TO CONFRONTATION?
Yes. The United States Constitution Guarantees you the accused, the right to confront and cross-examine any witnesses who are compelled to testify against them. The problem with allowing a victim's statements to be told be an officer who recorded them, without the victim testifying is that the statements are hearsay. So they shouldn't come in right? Wrong. As with all rules, there are exceptions. In this instance, the United States Supreme Court case Crawford v. Washington is what creates the exception. Crawford lays out a three prong test that the Court must consider when determining if statement's the victim made are admissible at trial, when the victim themselves doesn't testify. I won't bore you with the analysis applied in Crawford, but be aware that the victim's statements or observations, maybe admissible at trial, even if they aren't testifying.
The bottom line is, you shouldn't assume that the simply because the victim of a domestic violence charge doesn't wish to cooperate means that the case is going to be dismissed, you should always consult with an experienced Colorado criminal defense attorney before you make what could be a costly error.