| Read Time: 2 minutes | Criminal Defense

Domestic violence cases often hinge on the alleged victim testifying. If he or she doesn’t, then the state usually has no case to bring against you.

No matter what the state says, it really can’t compel someone to testify. Many alleged victims go missing as the court date approaches, which leaves the prosecutor with very little evidence to present to a jury. If this is your situation, you should carefully analyze how the prosecutor might respond.

If There is Other Evidence of Battery, a Prosecutor Might Go Ahead

In some cases, there might be witnesses to the abuse. No law states that a victim has to testify to a crime. (If this were the law, no one could be convicted of murder). Instead, the state can use other evidence, such as eyewitness testimony or video evidence. In these cases, the evidence might be unambiguous that you committed the offense.

Questions often arise when a prosecutor has a 911 tape with the victim talking about alleged abuse. For example, your wife might call 911 and tell the dispatcher that you punched her. But what happens if your wife doesn’t show up to court to testify? In that situation, you might be able to get the audio tape excluded from evidence.

Before you can gauge what the prosecutor will do, you need to know what other evidence the state has. This is a good reason to hire an Orlando criminal defense attorney, who can discover everything the state intends to introduce at trial.

If There is No Other Evidence, a Prosecutor Might Drop the Charges

The state has the burden of proving every element of a crime beyond a reasonable doubt. This is a high standard. In Florida, to convict you of battery, the state must prove either:

  • You actually and intentionally struck or made contact with another person against their will, or
  • You intentionally caused bodily harm to another person

The element of intent is important. You might have accidentally touched someone, but that is not enough. For this reason, introducing pictures of someone’s injuries probably is insufficient to sustain a battery conviction. After all, the pictures show someone was harmed; they do not show whether the harm was intentional.

This issue was central to a 2007 case, Baker v. State. There, the state submitted pictures of bite marks and a 911 tape in which the alleged victim told the dispatcher her husband bit her.

However, as the appellate court noted, the state failed to prove that the contact was intentional and that the victim did not consent to it. For this reason, they entered a judgment of acquittal for the defendant.

Your prosecutor will face a similar quandary if the victim does not show up to testify against you. If the state lacks sufficient evidence, you can’t be convicted.

Aggressive Criminal Defense in Orlando

Domestic violence charges are serious and warrant a serious response, even if you are confident the alleged victim will not show up to court. At Moses & Rooth, we have years of experience practicing criminal defense, and we will do everything possible to help you reach a favorable resolution.

For more information, please contact us today.

Author Photo

Jay R. Rooth

Jay is an experienced and dedicated Orlando criminal defense attorney. Whether you need help with a DUI or a more serious felony, Jay is ready to fight for you. Not only is Jay highly regarded by his peers, he’s also strongly recommended by his clients. Jay obtained his Law degree from Barry University Law School. Jay is a active member of the Orlando Chamber of Commerce, the Federalist Society, Florida Bar Association, the Orange County Bar Association, the Central Florida Association of Criminal Defense Attorneys, and the National Association of Criminal Defense Attorneys.

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