Domestic violence assault cases often include complaining witnesses (we don’t call them “victims” because the question of whether they are victims is the question of whether our clients assaulted them) who have changed their stories after making reports to the police.
The Harris County DA’s office has an entire division — the Family Criminal Law Division (FCLD) that handles allegations of family violence with recanting accusers. FCLD prosecutors believe that these accusers were all telling the truth initially and have changed their stories to protect their men (the accusers are usually women; the accused usually men). Often, however, they were lying initially and have changed their stories to tell the truth. In most cases, the truth is somewhere in between — the initial accusation was neither entirely true nor entirely false. Many domestic violence assault arrests arise from consensual tussles that escalated beyond what the parties intended, and many domestic violence calls are made just to get the accused out of the house.
The accuser who lied to the police and wants to tell the truth is in a difficult position. Making a false report to a peace officer is a misdemeanor. Prosecutions of complainants who have changed their accounts of events are exceedingly rare; a prosecutor will nonetheless, if given the opportunity, threaten a recanting complainant with criminal charges if she persists in recanting. In fact, the Harris County District Attorney’s Office employs family violence “counselors” whose job it is to get accusers to stick with the story the DA’s office wants them to tell; these people are not above using threats and lies to keep accusers in line.
The recanting accuser creates strategic opportunities for a defender. The accuser sometimes wants to tell the DA about her new account; often she will approach the accused’s lawyer, either directly or through the accused, to try to help set the record straight. Because the DA’s office will go to great lengths to ensure that an accuser does not recant, sending the accuser down to the DA’s office to “tell her side of the story” can result in a recanting witness re-recanting.
One way to use the opportunity presented by a witness who might waffle is to ask the witness to set her account down more firmly in an affidavit. The lawyer can help the witness write an affidavit that sets out a true account of the incident that resulted in the arrest of the accused.
A few practice tips (most of which I picked up from John Giofreddi of Dallas):
- Interview the witness at length about the possible defenses that might apply. The police seldom ask about the possible defenses that might apply (for example, “was he defending himself against your use of force?” or “did you consent to his use of force?”), so a witness’s later account that includes facts supporting a defense generally won’t support a false complaint charge. Include any possible defenses in the affidavit.
- Inquire closely about the participants’ states of mind at the time of the incident. Was the witness intoxicated? Upset? Include it in the affidavit. Does she not now recall what happened? Include it.
- Does the witness feel that the prosecutor is meddling in her relationship and should back off? Include that.
- Have the witness take the unsigned affidavit with her with instructions to sign it before a notary. This forestalls any claim that she signed it under duress from you.
We habitually call these affidavits “affidavits of non-prosecution,” but the “non-prosecution” part of the affidavit (asking that the State not prosecute) is of little account compared to the witness’s sworn account of the facts. If a witness says “he assaulted me but I don’t want him prosecuted” the prosecution will continue — the State does not represent the “victim” and doesn’t have to accede to her requests.
Once you have an affidavit showing that there is at least a reasonable doubt about what occurred, what do you do with it? If you show it to the prosecutor he’s going to want the witness to talk to one of the “counselors” I mentioned above. I have never found that encouraging a witness to talk to such a so-called counselor does any good. The official line of FCLD is that they won’t dismiss a case based on an affidavit unless the witness talks to a “counselor,” but the official line is untrue. FCLD prosecutors are generally zealots who think that every accuser is truthful and that every accused is one assault away from murder; they are neither more nor less likely to dismiss a case if a counselor can’t talk the complainant into not recanting. Family violence cases do get dismissed, but for the same reason that other cases get dismissed: because the prosecutors realize that the possible benefit resulting from a trial is less than the potential cost of losing a trial. I favor showing the prosecutor a favorable affidavit from the complainant in an assault case, but not giving the affidavit to the prosecutor until he has made the decision to dismiss and needs to support the decision with documentation in his file.
What if the prosecutor doesn’t dismiss the case? You don’t have any control over whether the witness appears for trial or not (if she asked you, you would tell her that she would have to honor any subpoena with which she was served), but, as a matter of strategy, would you rather she did or she didn’t?
Before Crawford, in the witness’s absence the State would blithely offer the officer’s testimony about her “excited utterances” to prove their case (in fact, often the State wouldn’t even try to get the complainant to court). After Crawford the core question is not whether the witness was excited, but rather whether the statement was non-testimonial. The way Texas caselaw is developing it appears that the crucial question is whether police questioning was “to enable police assistance to meet an ongoing emergency. See, for example, Zapata v. State. This obviously puts a crimp in the State’s former style of trying to prove these cases.
If the State isn’t otherwise going to be able to offer someone else’s account of what the then-accuser said originally, you probably don’t want the witness to take the stand to be impeached with her prior inconsistent statement. If the State is going to be able to offer (as nontestimonial) the complainant’s hearsay statement, you might want the witness to take the stand to contradict it. On the other hand, Rule 806 allows you to offer her later statement (the affidavit) if the state offers her earlier statement under an exception to the rule against hearsay, so even if she doesn’t come to court the jury should hear neither of her accounts or both.
If the “complainant” comes to court and testifies in accord with her affidavit, the jury may agree with FCLD’s assessment — that she is trying to protect the accused now, but was telling the truth before. If she does not, the jury may have nothing more to go on than competing affidavits — and how could those be proof beyond a reasonable doubt?
So, like most strategic questions, this one has at least two fact-specific correct answers. We server our clients not by wishing for one thing or the other but by having the flexibility to deal with either.
If the complainant is still gung-ho about prosecuting, by the way, I would in most cases vastly prefer to see her in court testifying. Generally the fact that she is gung-ho suggests that there is some deeper, longer-lasting animosity than can be explained by the State’s accusation. The jury will see this, and instead of seeing her as more credible it will have more questions than the State can answer. When a person is testifying against a family member, the more gung-ho the better.