If you haven’t heard the phrase “no face, no case,” you probably haven’t watched much television. This phrase, as represented in the media, suggests that defendants need only prevent someone from testifying to win their case. Unfortunately for defendants, Hollywood representations of real life are not always accurate. Though the absence of a victim can devastate the prosecution, that is not always the case. Savvy prosecutors know justice may prevail even without a victim.
Proving the Case Without a Victim
Proving the case without a victim requires a 3-step analysis:
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- What facts can you prove without any statements of the victim?
- If you need victim statements, what victim statements can you admit without the victim?
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- Are the statements non-testimonial?
- Are they hearsay? If they are, do they qualify for an exception?
- If cannot admit the statements without the victim, can you use Forfeiture by Wrongdoing to admit them anyway?
First, consider what facts you have to prove the case without your victim. If the victim was the reporting party, then, sure, you may not be able to prove your case. But if someone or something other than the victim witnessed the crime, say a neighbor or a surveillance video, then you might be able to prove the case without the victim testifying at all. Much will depend on the eyewitness’s ability to observe, their credibility, etc. If a video recorded the crime, you will need someone to authenticate the video and identify the people on the video as the victim and the defendant. The most frequent limitation here is that the witness or the video lacks context to understand or interpret what they witnessed. Sometimes, however, the acts themselves are so clearly violent that additional context is unnecessary.
Another frequent limitation of relying exclusively on a witness or a video is that the witness or video may not be able to establish an intimate relationship. Intimate relationships can, however, usually be established through additional investigation, such as property records, children, marriage, or by interviewing roommates, friends, or family members. Further, failing to prove an intimate relationship is not fatal at trial. While it might prevent you from being able to prove the crime was an act of domestic violence to the judge at sentencing, failing to prove the crime was an act of domestic violence does not preclude or prevent the jury from convicting the defendant of the underlying crime. If, for example, a witness walking down the street sees a defendant punch a victim in the face and the victim fall down and hit her head on concrete as a result, the witness’s testimony can probably meet all the elements of Assault in the Third Degree (M1). That alone may be a win if you are dealing with a “no face, no case” situation, even if that witness cannot testify to the victim’s intimate relationship with the abuser.
Second, consider what victim statements you can admit without the victim. Due to a defendant’s 6th Amendment constitutional right to confront witnesses against them, prosecutors cannot admit “testimonial statements” of a witness unless the witness is present at trial and subject to the defendant’s cross-examination.
Crawford v. Washington, 541 U.S. 36, 68 (2004), But not every victim statement is “testimonial.” In
Crawford, the United States Supreme Court expressly declined to define the full breadth of what qualifies as testimonial. It did, however, state that “core” testimonial statements included:
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- ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;
- extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;
- statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; and
- police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at a former trial.
Id. at 51-52.
Later, in
Davis v. Washington, the Supreme Court clarified its standard for what qualifies as a testimonial statement to a police officer, declaring that a statement is testimonial when “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. 813, 822 (2006). In
Davis, the Court held that a domestic violence victim’s statements during her emergency 911 call to police requesting help were not testimonial because her primary purpose in calling 911 and making the statements was to seek immediate help, not to “prove past events potentially relevant to later criminal prosecution.”
Id. at 814. Recently, the Colorado Supreme Court explicitly adopted the
Davis holding for Colorado’s confrontation clause.
Nicholls v. People, 396 P.3d 675, 682 (Colo. 2017).
Based on the caselaw, non-testimonial statements may include:
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- Statements of a victim to a medical professional.
- Statements of a victim to anyone other than authorities, such as friends, family, or a therapist.
- A private written statement of a victim in a diary, journal, or even on social media.
- A statement overheard by a third party.
- Statements contained on a computer, smartphone, or messaging apps.
- Statements from one doctor to another medical professional for purposes of diagnosis of a victim, such as analysis of an x-ray.
For a detailed summary of the relevant caselaw, please view CDAC’s Trial Evidence Manual.
Third, even if a statement qualifies as “non-testimonial,” the statement must be non-hearsay or you must find a hearsay exception. When in doubt, try the residual exception and argue the statement contains sufficient indicia of reliability to admit.
Forth, if you need the victim’s statements but you cannot admit them without the victim testifying, consider forfeiture by wrongdoing. When a defendant intentionally causes the absence of a witness to deprive the prosecutor of evidence, the defendant forfeits his 6th Amendment right to confront that witness and the witness’s statements, testimonial or not, are admissible.
Vasquez v. People, 173 P.3d 1099, 1101, 1105 (Colo. 2007). The rules of evidence, however, still apply and may still prohibit the introduction of the statements for other reasons.
Id. at 1106.
To establish forfeiture by wrongdoing, you must prove by a preponderance of the evidence that:
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- the witness is unavailable;
- the defendant was involved in, or responsible for, procuring the unavailability of the witness; and
- the defendant acted with the intent to deprive the criminal justice system of evidence.
Id. at 1104.
Rule 804 of the Colorado Rules of Evidence defines unavailability as including, but potentially not limited to, situations in which the witness:
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- is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or
- persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
- testifies to a lack of memory of the subject matter of his statement; or
- is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
- is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(3) or (4) his attendance or testimony) by process or other reasonable means.
C.R.E. 804.
Forfeiture by wrongdoing is expressly written into Rule 804:
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
Id.
Filing Motions in Advance of Trial
When your case relies on admitting a victim’s statements, you should file appropriate motions and litigate the issue before trial, preferably long before trial. If the defendant is using “no face, no case” as a strategy, the defendant will likely not accept any plea deals prior to trial. If, however, you believe you can meet all the elements of forfeiture by wrongdoing, file a pre-trial motion as soon as possible. If the judge grants your motion, then the “no face, no case” defense will likely crumble, and the defendant might suddenly be much more amenable to a plea agreement.
Example motions to defeat a “no face, no case” defense strategy (if appropriate):
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- Motion to Admit Non-Testimonial Witness Statements
- State with specificity the statements and associated evidence you wish to admit at trial
- Explain why each statement satisfies Crawford, hearsay, and the C.R.E. 401/403
- Motion for Forfeiture by Wrongdoing
- Explain clearly the evidence meeting the elements of forfeiture by wrongdoing, including your good-faith but unsuccessful efforts to serve the absent witness with a subpoena
- State with specificity the statements and associated evidence you wish to admit at trial as a result of the defendant’s forfeiture by wrongdoing, including the evidence supporting the defendant’s efforts to absent the witness
Be prepared for the court to set a hearing on your Motion for Forfeiture by Wrongdoing. You will need to call a witness to prove, by a preponderance of the evidence, the elements forfeiture by wrongdoing.
Modifying Charges
Depending on the nature of the original charges, you may wish to amend them to account for the additional conduct. For example, if the defendant is charged with Stalking, you may wish to extend the dates of offense of the stalking count to include the wrongdoing that led to the witnesses absence.
When you have evidence that a defendant has attempted to influence the victim, you should consider modify your charges. Consider adding counts for Witness Tampering, Witness Intimidation, or Violation of Protection Orders, whichever fits the circumstances. The defendant’s efforts to absent the witness are not only additional criminal conduct, they further evidence the defendant’s guilt on the original charges.
Finally, if, after you exhaust all options to admit the statements of an absent victim, if you cannot prove the charges and there is very little chance the victim will appear, you should consider not proceeding on the charges you cannot prove without the victim’s testimony. Yes, it is always possible that a victim surprises you and appears in the middle of a trial, but that is very unlikely. Further, you will strain your credibility with the jury if you proceed with offenses that are dismissed by the judge at the conclusion of your case-in-chief. In these circumstances, it is usually best to protect your credibility and proceed on only those charges that you can prove to a jury without the victim’s testimony.
