If the victim fails to appear in court, will charges be dismissed?
A common misconception is that all charges are automatically dismissed if the victim fails to appear in court. This issue is more complex than you might think.
If the victim fails to appear, charges might not be dismissed.
Most people know that if a police officer fails to appear on a hearing for a traffic ticket, the ticket is dismissed. A common misconception is that a criminal matter will similarly be dismissed if the complainant or victim fails to appear. Although it might be possible, charges are not automatically dismissed if the victim fails to appear in court. There are many factors a court and the prosecutor must consider before deciding to dismiss a case. In many instances, the prosecution will proceed without the victim’s participation or consent.
How can the prosecutor proceed without a victim?
The victim, also known as the complainant, is not the plaintiff in a criminal matter. The government is the plaintiff, and the victim is considered the “complainant” or “complaining witness.” Consider a murder case. These matters always proceed to trial without “victim” participation. Whether the prosecution will proceed without the victim in a felony or misdemeanor case is a complex issue involving an evaluation of the statutes, court rulings, the rules of evidence, and constitutional law. If the prosecutor can lawfully proceed to trial using evidence other than the complainant’s testimony, the government will rarely agree to a dismissal.
What evidence can be used if the victim fails to appear for trial?
The prosecution’s best evidence if the victim or complainant fails to appear in court is the testimony of third-party witnesses. Say a husband and wife get into a physical altercation at a family reunion. The wife wants the charges dismissed and refuses to appear in court. The prosecution can proceed by issuing a subpoena to any person who was a witness to the incident.
Alternatively, there are many instances when the government can introduce the victim’s out-of-court statements as evidence at a trial. There are numerous examples of how this might be possible. A person’s out-of-court statements are typically called “hearsay” and inadmissible; however, there are many exceptions to the hearsay rule. Some common exceptions include:
- statements made for medical treatment or diagnosis,
- excited utterances (statements made under the stress of an exciting event), and
- present sense impression (statements made describing an event as it happens).
Anything the defendant says to anyone, including family, friends, police, reporters, or neighbors, is admissible as evidence against the defendant. The defendant’s statements are automatically admissible as admissions. Because a person’s statements can be misconstrued, twisted, or made up, anyone accused of a crime should remain silent and refuse to speak to anyone other than their lawyer.
Physical evidence might also be admissible. For example, suppose a hard object was allegedly used to assault a victim. In that case, the item itself could be strong evidence for the prosecution if it contains the defendant’s fingerprints or DNA.
What if the victim wants all charges dismissed?
Some prosecutors consider the victim’s feelings about whether a charge should be dismissed. Most are indifferent to the victim or complainant’s opinion about the case. Even if a prosecutor is concerned with a victim’s opinion that a matter should be dismissed, they might choose to proceed based on public policy or perceive a need to protect the victim or someone else. Because the victim is not the “plaintiff” or a party to the case, they do not choose one way or the other.
Can the victim be forced to appear for trial or a court hearing?
Any witness, including a victim or complaining witness, can be compelled to appear in court through the court’s power of subpoena. If a witness is subpoenaed and fails to appear, the court can issue a warrant for that person’s arrest. This type of warrant is called a Material Witness Warrant. When they are arrested on the warrant, they can be held in jail until they agree to testify. An aggressive, persuasive defense lawyer might be able to persuade the prosecutor not to seek a warrant under these circumstances so that the case is dismissed.
As an alternative to force, the prosecutor has other tactics at their disposal. For example, they might threaten a victim with criminal charges for filing a false police report if they do not appear and testify in court. In cases with domestic violence allegations, the prosecution or Child Protective Services (CPS) may threaten to file child protective proceedings if a witness refuses to come to court.
Won’t charges be dismissed if the victim says they lied or the crime never occurred?
Prosecutors rarely dismiss a case because the victim recants the allegations. Victims of crime change their stories for many reasons, including to protect the defendant (often a family member or loved one), for the sake of children, because they are financially dependent, or because of fear or threats. Because victims so frequently recant (up to 80% of the time in domestic violence cases, for example), prosecutors are trained to proceed with a prosecution under these circumstances. Most experienced prosecutors obtain convictions even with a recanting victim. The best hope a defendant has of getting a dismissal or acquittal if there is a recanting victim is with a lawyer who has many years of experience dealing with similar cases and situations and maintains a track record of winning.
How can an experienced defense lawyer help?
A highly experienced, formidable, specialized criminal defense lawyer will know all of the most persuasive arguments for the dismissal of charges. Prosecutors routinely get away with admitting questionably admissible evidence in matters where the victim either fails to appear, is uncooperative, or is recanting (saying that the crime did not occur). A prosecutor is much less likely to succeed in getting excludable evidence admitted when the defense lawyer is prepared, knowledgeable, and fearlessly fighting to protect and defend their client.
Experienced Lawyers Seeking Dismissal When a Victim Fails to Appear in Court
The seasoned defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. have extensive experience handling felony and misdemeanor cases with recanting, missing, and uncooperative victims and complaining witnesses. We know every legally astute and compelling argument available when it comes to persuading judges and prosecutors to drop charges when a complaining witness is not cooperative or fails to appear in court for a hearing. Because of our well-known reputation for fearlessly defending and protecting our clients, we can achieve dismissals and extraordinary resolutions when other defense lawyers would be unsuccessful. When there is no room for errors or false promises, it is time to call us for a free consultation and case evaluation. We will find a way to help you!
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.