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Colorado Criminal Defense Law – Defending Domestic Violence Cases – Understanding Tactical and Trial Issues -Victim Recantation

When the Alleged Victim Recants: the State of Colorado’s Position

It is common for alleged victims of domestic violence to deny the abuse once the defendant is arrested and in custody.

The five most common reasons given for alleged “victim” recantation are:

• the victim is afraid of retaliation if he or she does nothing to help get the defendant released;

• the victim loves the defendant and believes that the abuse will eventually stop on its own;

• the victim is financially or physically dependent on the defendant;

• the victim is too embarrassed or ashamed to testify; and

• the victim fears “outing,” disclosure of prior drug use, alcoholism, illegal alien status or prior psychiatric treatment.

When a victim recants, the Colorado District Attorney will usually attempt to discern the reason and address the victim’s concerns. Depending on the circumstances, the State will also explore whether the case can be proven without the victim’s testimony, (e.g., the use of spontaneous utterances, medical records for treatment of injuries sustained during the incident, photographs of injuries and witness testimony).

In order to determine whether a recantation is credible, the DA will consider the defendant’s prior criminal record and other relevant evidence for a history of abusive conduct by the defendant toward the victim or any prior partner. Also considered are the police reports, the officer’s observations, any current or prior restraining orders and affidavits filed by the victim and medical and photographic evidence.

If the prosecutor does not find the recantation credible, the DA may actually proceed to trial. Under something known as the disclosure of “Brady Material” the prosecutor must notify counsel for the defendant that the victim has recanted, as such evidence clearly weakens the government’s case and is therefore exculpatory. The prosecutor will also inform defendant’s counsel that the State does not believe the recantation and intends to try the case.

There is a difference between a recantation and a victim stating that he or she does not wish to testify. In the latter, there is no denial of the abuse and therefore no evidence of inconsistency between the victim’s statements at the time of the incident and statements made closer to the date of trial.

Contrary to popular belief, victims do not possess the power to “drop the charges.” Absent a constitutional basis, the case belongs to the State of Colorado until jeopardy attaches, (i.e., the first witness is sworn (in a bench trial) or the first juror is impaneled and the court has no authority to dismiss it over the prosecutor’s objection).

If the prosecutor believes the alleged victim’s recantation and finds no evidence of prior abuse, no physical or medical evidence of past or current abuse and no police observations consistent with abuse, he or she should obtain the appropriate supervisory review of the facts and approval, document the circumstances, and nolle prosequi the case (dismiss the case) or decline to oppose the defendant’s motion to dismiss.

However, before any of this is done, the District Attorney will usually re-interview the victim and explain the circumstances of a nolle prosequi or dismissal.

If an alleged victim who has reported abuse to the police and/or signed an affidavit proposes to testify and contradict his or her report or affidavit, many courts will appoint him or her counsel because perjury and making a false report to a police officer are criminal offenses that could expose the alleged victim to Fifth Amendment problems.

When the Alleged Victim Recants: the Defendant’s Tactical Moves

Upon being informed that the victim has recanted, an effective Colorado Criminal Defense Lawyer should obtain the victim’s consent for an interview and conduct an interview in the presence of a third party. If the interview is reduced to writing and the victim adopts the contents of that writing, counsel for the defendant should make a copy available to the prosecutor.

While actual figures are not obtainable, practitioners see between 25 and 50 percent of alleged victims who either recant or fail to pursue prosecution. The reasons are myriad, but the most common are allegations used to punish a partner for unfaithfulness, failure to provide financial resources promised and frustration when police will not respond quickly enough to situations that may be unlawful but do not entail domestic violence. Abuse of the system is widespread.

Counsel for the defendant should attempt to gather as much evidence as possible to support or corroborate the recantation, (e.g., percipient witnesses, witnesses with whom the victim spoke immediately after the alleged incident or to whom the victim later recanted, evidence of the victim’s bias or motive to lie, the defendant’s lack of prior history of abuse, etc.).

Counsel has the option, if there is evidence to support the credibility of the recantation, to present that evidence to the prosecutor before trial. If the defendant’s evidence is strong enough, the State of Colorado will likely dismiss or nolle prosse the case. If the State possesses conflicting evidence but the defendant’s evidence significantly weakens the State of Colorado’s case, the potential for a plea bargain will increase significantly.

If the State of Colorado proceeds to trial, counsel for the defendant should consider that the prosecutor will have the opportunity to cross-examine the alleged victim. If there is evidence of past abuse or injury, details of prior incidents in restraining order affidavits, photographs or medical records, counsel runs the risk of having the recantation backfire on the defendant.

Therefore, even though the alleged victim has recanted, defense counsel should carefully consider whether calling the individual as a witness would help or hurt their case.

The Use of Spontaneous Utterances Rather Than Testimony at Trial

Use of spontaneous utterances at trial is the most overworked hearsay exception in domestic violence cases. However, practice shows that absent clear physical evidence, juries tend to acquit without the testimony of the alleged victim.

The State is not required to call the alleged victim as a witness in a criminal trial, regardless of the type of case, if the State feels that it can prove the case without such testimony. Generally, in domestic violence prosecutions, the State bases its decision on the victim’s fear of the defendant and the increased risk of harm that might result from the victim’s appearance or testimony at trial.

The Defendant’s Sixth Amendment right to confront witnesses under the federal constitution is not violated by the use of non-testimonial spontaneous utterances (also known as excited utterances or spontaneous declarations). Crawford v. Washington, 124 S.Ct. 1354 (2004)

Under the Crawford case, however, there may be circumstances where the State must produce the victim to testify if the previous out-of-court statements implicating the defendant are inadmissible given the testimonial nature of those statements.

In certain circumstances, a Defense lawyer may decide to file a discovery motion prior to trial seeking to have the DA declare whether it intends to rely on excited utterances at trial in the absence of the alleged victim’s testimony.

Counsel should seek the actual statement(s) and the circumstances that the DA will argue make the utterance spontaneous. This motion should not be used to decide the issue of admission at trial but to better prepare the argument of the motion before trial.

The trial judge has broad discretion in determining whether a statement constitutes an “excited utterance” or “spontaneous exclamation.”

Domestic Violence cases are complex and require a great deal of experience on the part of your criminal defense lawyer – Make sure you have a lawyer with the requisite experience to make the right decisions or to win at trial.