In an attempted murder case, the underlying vicitm is afraid of the defendant and has executed an affidavit of non prosecution. Can the State proceed to trial without a victim? Any help is appreciated.

You should talk to the folks up in domestic violence in Dallas. They have made quite the name for themselves on successful prosecution without the cooperation of the complaining witness.

The short answer is "yes", but you will obviously need to prove the case with other evidence. Whether that other evidence will be admissible in terms of Crawford is always an issue. The defendant may also be in a position to claim self-defense and the absence of the victim could be an even greater problem.

Go listen to the tape. See what you've got as excited utterance statements from the victim. Do you have any dying declarations? Do you have conversations for the purposes of a medical diagnosis?

Answer those questions and then call the Dallas DA's office and ask for a felony prosecutor in the family violence division. And bring some pie.

Bring em a pie.

thanks for all your comments. There are excited utterance, dying declaration issues. :-)

Hello,

You are welcome to call and talk with us in Houston, too. Jane Waters is my chief - in the Family Criminal Law Division.

Our prosecutors try these cases all the time - in fact - we kind of expect this is the "norm" rather than having a "cooperative" witness.

They use 911 tapes, excited utterances, statements, witnesses...and DV cases are not just about this incident. In order to flesh out your case, pull any offense report made about these parties, check calls for service to their home, check civil records - any previous protective orders - CPS records - talk to the next door neighbors, if you can find HER mother, sister or best friend (sometimes listed in other ORs), talk to that person. They will most likely want to help prosecute this guy.

You can also develop a couple of expert witnesses for your area - check with a local women's center. We have staff members in our office (including me) who testify as experts. We can talk about why it is normal to recant, how that is part of her plan to stay safe, how DV impacts children, why it is important that society holds him accountable because it isn't safe for her to, and lethality.

If you have an AM case, I'd guess you've got some serious lethality indicators - use of a weapon is at the top for future risk of lethality. Threats to kill, violence during pregnancy, stalking - all these are indicators too. For research go to: http://www.ncjrs.gov/pdffiles1/jr000250.pdf

Glad you're looking at ways to try this case - if we leave it up to the victim to prosecute, it is just like asking the def if he'd like to be prosecuted - uhhh, no.

Call anytime.

- Jennifer Varela, LCSW
Clinical Social Worker
Director of Family Violence Services
Family Criminal Law Division
Harris County DA's Office
713-755-5892
varela_jennifer@dao.hctx.net

P.S. To e-mail Jane Waters: waters_jane@dao.hctx.net

[This message was edited by Jennifer Varela on 04-26-08 at .]

[This message was edited by Jennifer Varela on 04-26-08 at .]