Florida Domestic Violence and the Non-Cooperating Victim

February 16, 2011

Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter. As a result, there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution. The reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence. What if the victim does not want to cooperate with the prosecution of the case? Can the State Attorney’s Office proceed with the case? The short answer is yes.

State v. The Defendant
The charging document setting forth the criminal allegations will read that the State of Florida is prosecuting the crime. It is not the victim versus the defendant. Therefore, if the State Attorney’s Office elects to prosecute the crime, often times it is against the wishes of the victim.

Independent Witnesses and Evidence
If the State Attorney’s Office does not receive cooperation from the victim, it can proceed with testimony from other witnesses who may have seen the incident or heard statements of the defendant or victim; or they may use additional independent or corroborative evidence to prosecute the case. Evidence such as 911 tapes, photographs, or other forensic evidence is frequently used.

State Attorneys Office may subpoena the non-cooperating victim to testify against their wishes
Depending on the facts of the case, the State Attorney’s Office may decide that even though the victim doesn’t want to testify, they are going to compel the victim’s testimony through the use of a court ordered subpoena. Once served, if the victim fails to appear or refuses to testify, they could be facing a jail sentence or other sanctions.

Fifth Amendment Privilege to refuse to testify generally doesn’t apply to the victims of domestic violence
As a general rule, if you are the victim of a crime you cannot refuse to testify on the basis of the Fifth Amendment. That privilege is invoked when someone is facing a criminal charge. (There may be exceptions that apply. You should consult a lawyer to discuss them).

Husband-Wife Privilege Does Not Apply
In the State of Florida, Husband-Wife Privilege only applies towards communications which were intended to be made in confidence between the spouses. However, Florida law specifically states that there is NO Husband-Wife Privilege when one spouse is charged with committing a crime against the other spouse. This privilege does NOT apply towards observations made by the victim spouse.

Recanting Victim Testimony
If the non-cooperating victim believes that lying or changing their story is the best course of action, they may want to think twice about that. The victim can very easily go from a situation where they are truly the victim to a situation where they are now a criminal defendant themselves. A victim lying to law enforcement or the State Attorney’s Office can lead to many problems. The victim could be charged with perjury, obstruction of justice, filing a false police report, or be held in contempt of court.

The Defendant and the Recanting Victim or Witness
Another significant problem that could develop is when the defendant encourages the victim or a witness for that matter to testify untruthfully. If this information comes to the attention of law enforcement, the defendant could be charged with additional crimes such as Witness Tampering. The State Attorney’s Office would surely bring this information to the attention of a jury; arguing that it showed the guilty conscience of the defendant.

Domestic violence cases can lead to significant legal issues and problems for both the victim and defendant. You are urged to consult with an attorney to discuss these issues as soon as possible.


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