One of the strongest pieces of evidence used in Domestic Violence cases is personal testimony. When a person who witnesses the whole incident, or even the victim chooses to testify, it makes the case a lot stronger. Other evidence such as a declaration, or police report may also be presented as evidence but when a person testifies as to the incident and actions of the accused, it gives the case more support.
Despite it being excellent evidence, the common problem in illicit testimony is the unavailable witness. A witness is considered unavailable when they refuse to testify. The are several reasons that will cause a witness to deny testifying.
A witness will not testify if they can assert a privilege. This means that because of law, and to protects a person’s interests, there are certain kinds of communications that are privileged. Much of the conversations between attorneys and their clients are privileged and will be held in confidence, as are communications between a Therapist and their patient. Additionally, a spouse will not be asked to testify against their own spouse because of spousal privilege. This is a common obstacle in domestic violence cases. A spouse cannot be made to testify against their spouse, to protect the sanctity and privacy of marriage. For example, Husband hits Wife and wife has filed charges against her husband. She cannot be made to take the stand when the case is being heard and give testimony against the husband, unless she chooses to do so. It is her right to waive the privilege and testify.
Another reason a witness will be considered unavailable is because they refuse to testify. In certain situations a witness will not want to get involved, or divulge testimony in fear of their own lives, or other reasons. For example, if a friend witnesses a friend’s husband hit his wife, the friend may be too scared to testify if she believes the husband is a dangerous guy. In those situations, the witness may refuse to testify.
If a witness dies, or is terminally ill, they will be unavailable to testify. This goes without saying, and defines the term unavailable witness, since the witness is literally unavailable. Similarly, if the person is absent form the State, they cannot testify.
A person may also testify but still be deemed an unavailable witness if the only thing they can testify to is that they do not remember what happened. In this sense, they witness might as well be unavailable, because it is like they were not there, since they do not remember what happened.
Although the unavailable witness is a strong obstacle in domestic violence cases, the Prosecution can still gather enough evidence for conviction. It is important to consult a Los Angeles Domestic Violence lawyer to discuss the many options and defenses available and the strength or weaknesses of your case.