The Use of Hearsay in Domestic Assault Trials
- 03 May
Like DUIs and DWIs, a domestic violence charge is often a client’s first exposure to the criminal justice system. There are wide variations of what is considered a domestic assault—from striking someone to knocking something out of his or her hand—but each type can land you in court if the police are involved.
For one reason or another, complaining witnesses in domestic assault cases often choose not to pursue the case, and decide not to cooperate with prosecutors or police. Others request that the prosecutor, “drop the charges.” And many complaining witnesses and defendants are surprised when the case goes forward against the wishes of the parties. What they often do not understand, is that it is not the complaining witness’s choice to move forward or dismiss the case. Once a case has been charged, the decision to pursue a criminal prosecution against the named defendant rests only with the prosecutor. Many times, the prosecutor will choose to dismiss a domestic violence case if the complaining witness requests it, or does not appear in court on the day of trial. But with the right combination of prosecutor and facts, a defendant may find himself on trial, even without a complaining witness.
When the government chooses to proceed in a domestic assault case without the complaining witness, the prosecution’s case generally relies on “hearsay,” testimony. Hearsay is defined as an out of court statement offered for the truth of the matter asserted. In simpler terms, it means that hearsay occurs when a person sitting in court testifies to what someone who is not in court said to them. In domestic assault cases, hearsay evidence almost always takes the form of a police officer telling the judge what the complaining witness said to him. For instance, a testifying police officer may say that when he responded to the house of the complaining witness, she told him that the defendant pushed her during an argument. That testimony is considered hearsay.
Most of the time, hearsay testimony is not allowed by the judge. However, there are many exceptions to this hearsay rule. The most common exception used in domestic violence prosecutions is called, “excited utterance.” The excited utterance exception basically says that if a person not in court makes a statement while he or she was very excited or agitated, it is likely that that statement is truthful and reliable, and can be admitted into evidence. What this looks like in domestic assault cases, is that the police officer testifies that when the complaining witness claimed the defendant assaulted her, she was yelling or crying, or in some other way excited. If the judge believes the officer’s testimony, and your criminal defense attorney is unable to persuade him otherwise, then the officer’s testimony is allowed into evidence.
There is nothing more baffling or frustrating to a domestic assault defendant then when he is convicted of assaulting someone who never even bothered showing up to court. But the law and practice in Washington, D.C. and Virginia allows this to happen. Your Washington, D.C. or Virginia criminal defense attorney will make you aware of this possibility, and will negotiate with the prosecutor to keep this case out of the courtroom. If that fails, he will fight to keep hearsay evidence out of your case, and increase your chances of a not guilty verdict.