Lawyers Manual - Unified Court System

Beyond Victims’ Testimony 207
prosecutors no longer had to convince police to make an arrest nor would they
need the victim to file charges. In 2000, VAWA was extended by Congress to
include teenage victims of domestic violence.
Obviously, working in tandem with the victim is the best scenario and
prosecutors must always balance the needs of the victim against the need of the
community to prosecute offenders. There is a delicate balance that prosecutors
must strike in making a decision about whether to proceed with a case without
the victim’s consent. Without negating the real feelings of fear and the very real
sources of danger, the prosecutor can stress how empowering it can be to take a
stand against the abuse. It is essential to ensure that social and psychological
services are available to assist the victim.
There are some tools in the prosecutor’s belt that allow for a prosecution
without depending on the victim’s cooperation. These tools are part of building
a strong case whether or not the victim is likely to testify. Indeed, a strong
enough case may encourage the abuser to take a plea without going to trial and
thus eliminate the need for the victim to testify.
While murder and serious assault charges are often associated with domestic
violence cases, prosecutors are more likely to see misdemeanor assault, harassment
and criminal contempt. Prosecutors need to be flexible and creative in considering
what charges to bring. If a victim is uncooperative and there are no physical
injuries making an assault or harassment more difficult to prove, other crimes
should be considered, such as criminal mischief for destroying property, which
may even rise to the level of a felony. 9
The first step in successfully prosecuting a case without victim cooperation
is to enlist the help of the police agencies and medical community that are the
first-line responders. It is not enough for the police to know they must make an
arrest. They need to be aware of often subtle pieces of evidence that may become
particularly significant if the victim refuses to cooperate. Much physical evidence
that might otherwise be ignored or lost can be saved and utilized. This can be
accomplished by in-service training by prosecutors for experienced police and
medical personnel as well as teaching at police academies and medical schools.
Photographs of the Victim’s Injuries
Pictures of a victim’s injuries can, in and of themselves, speak volumes.
Even with a cooperative victim, photographs may be the best demonstrative
evidence of the extent of the injuries. This is especially true in misdemeanor