Clayton T. Robertson
Some Approaches to Domestic Violence Cases, Including Cases with a "Recanting" Complaining Witness
Updated: May 19, 2022
By Clayton T. Robertson (Criminal Defense / Civil Rights Attorney)
In domestic violence ("DV") cases, the complaining witness (i.e., "victim") often recants after the alleged incident and prior to trial. To "recant" means the witness is changing his or her intended testimony about what happened during the incident. These changes are often significant and may have case-altering outcomes if properly handled by a criminal defense attorney.
I've itemized below several possible issues arising in DV cases, including specifically cases involving a recanting complaining witness. This list is from the perspective of an attorney and what he or she might consider as part of any DV case investigation or related trial preparation. It is not legal advice.
These issues are case-dependent, and of course, any case needs to be thoroughly investigated prior to trial and evaluated by an attorney for its individual strengths and weaknesses, including witness credibility.
File motions in limine ("MILs") seeking to exclude evidence harmful to the defendant (e.g., 911 calls as non-spontaneous/non-excited utterances, etc.).
MILs for any priors of defendant as unrelated, unduly prejudicial, too old in time, etc.
Ask investigator to meet with the complaining witness to obtain and memorialize any recanting or conflicting statements.
Evaluate providing your investigator's interview report of the complaining witness to the prosecution prior to trial to encourage a dismissal or other favorable disposition.
Evaluate the impact of any conflicting body-worn camera videos, 911 calls, etc.
If there are any injuries, evaluate other explanations (e.g., mutual combat, self-defense by defendant, etc.).
Formulate arguments for why prosecutor's assertions that the complaining witness is now lying for the defendant at trial (due to financial, emotional, family, continuing relationship, cultural, immigration, etc., reasons) are potentially inaccurate.
Obtain the law enforcement agency's policies and procedures manual for investigating DV cases. Review it for errors and inconsistencies in how the investigation was conducted to undermine officer or investigation credibility.
Did the DA follow recommended National District Attorneys Association (NDAA) policies and guidelines for DV cases?
If there are other witnesses to the incident, have your investigator interview them to ascertain if there are conflicts in statements, errors or differences in perception, or other issues that support a possible defense.
Assess the possibility that the complaining witness gave a false statement at the scene and/or fabricated their own injuries.
Assess with client whether to testify at trial to build a defense (e.g., self-defense typically requires a defendant's testimony at trial, but the decision of a defendant to testify at trial is an important case-by-case issue to discuss with an attorney).
Are there any statements on social media by the complaining witness or others that support a defense theory of the case?
Any problematic statements by the defendant on social media?
Were there any prior incidents involving the complaining witness and defendant in which no criminal case was filed (i.e., a DV incident report)?
Were there any prior incidents between the complaining witness and the defendant in which complaining witness was the aggressor?
Did the defendant in this case act in self-defense? Was he or she reacting to a history of violence between the parties ("reactive violence") that places this incident into a larger context?
Has "victim-witness" or some other "victim advocate" organization spoken to the complaining witness? If so, request these reports for possible inconsistencies or statements helpful to the defense.
Did the complaining witness file a "drop" letter with the DA or give a subsequent recanting statement to the DA?
Did the complaining witness ever call the defendant at the jail (and recant or provide conflicting statements)? These non-attorney communications are always recorded.
Did the complaining witness speak with anyone else about the incident (therapist, friend, family member, etc.)? Did he or she recant to them or provide conflicting information?
Any information in medical records helpful to the defense?
Any pretrial motions favorable to the defense?
Any civil proceedings (family law, immigration, etc.) in which the complaining witness gave conflicting or contradictory statements helpful to the defense?
If the complaining witness and/or defendant are non-English speakers, are there any interpretation/translation issues at the scene with law enforcement that could be the reason for subsequent differences in testimony?
Be prepared for the prosecutor's argument that the complaining witness's delay in changing their statement is circumstantial evidence of its lack of veracity.
Was there a Child Protective Services investigation in response to the incident (i.e., was a child a witness or otherwise involved in the incident)? Any evidence favorable to the defendant as part of a CPS investigation?
Any texts or other messages sent by the complaining witness to anyone corroborating your client's version of events or the complaing witness's subsequent recantation? (Be aware of protective order issues here if the complaining witness sent these texts to the client and the client responded.)
What are the complaining witness's priors? Any moral turpitude? Any felonies?
For trial, consider submitting a jury questionnaire to the judge for his or her consideration on DV cases, which can stir up a lot of emotions at trial among potential jurors. Jury questionnaires can facilitiate picking a fair and impartial jury.
Were there parts of the complaining witness's recorded body-worn camera statement that were misstated by the officer in his or her police report? Are any of these misstatements critical to the prosecution's case or were reasons for filing the case?
Evaluate using the "prior consistent statement" hearsay exception at trial to admit prior post-incident recanting statements by the complaining witness.
Assess issues related to the application of California Code of Civil Procedure 1219 relating to domestic violence complaining witnesses.
Any issues relating to the possible invocation of the Fifth Amendment?
Consider subpoenaing cell phone records of complaining witness (or other witnesses) for further investigation of persons who might have received calls or texts about the details of the incident.
Was there a domestic violence restraining order (DVRO) hearing in which one or both parties testified or submitted documents to the court under penalty of perjury?
Does the prosecution intend to use any expert witnesses? What is the basis or foundation for their expertise or testimony? Otherwise, will the arresting officer attempt to give inadmissible expert testimony at trial?
Consider retaining a defense expert witness.
Any other issues affecting witness credibility/perception -- such as drug/alcohol impairment, mental health issues, etc.?
As with all cases, you need to consult an attorney regarding the specific facts, circumstances, and the law affecting your particular matter.
The above issues are not a full or complete list of possible issues in DV cases and is intended to provide a general overview of some issues that can be raised in an initial consultation with a possible attorney or with your attorney after he or she is retained by you.