Recantation

Recantation is a hallmark of domestic violence cases. It involves a victim attempting to “take back” or retract what they said about what their abuser did to them regardless of what they previously said and regardless of the evidence. A victim may insist, for example, that they never told the police their abuser him them—right after listening to a 911 call of themselves telling dispatch exactly that. Victims recant for many reasons, and recantation can take many forms, often along a gradient:

1. 1. 1. Full recantation—Victim now denies that anything happened.
      2. Partial recantation—Victim now denies that some things, usually the worst things, happened.
      3. Minimizing—Victim doesn’t deny that the bad things happened, but tries to protect the offender by justifying the offender’s behavior, often by blaming themselves.
      4. Silence or absence—Sometimes rather than recanting, victims will simply absent themselves from meetings and trials.

When you learn that a victim wants to recant, do not be afraid to schedule a meeting. In fact, schedule the meeting as soon as you can. The earlier you hear and document a victim’s recant, the better.

First, the earlier the recant, the more likely the victim’s recantation does not align with the evidence in the case. Victims often don’t remember key details. Also, in the case of the defendant tampering with the victim, it takes time for the defendant to read and review the evidence in the case, and even longer for the defendant to accurately convey the facts documented in the police reports to the victim. As a result, the victim’s first recant often contains little detail and fails to account for key details documented in police reports. For example, a victim might claim she has scrapes and bruises on her arms because she fell down the stairs, but failed to explain why she also had a black eye and petechiae around her neck.

Second, the sooner you hear a recant, the faster you can follow up. Follow-up may involve obtaining jail calls from the defendant wherein you find the defendant tampering with the victim on a recorded line. Follow-up may also involve further investigation into the victim’s recantation. This investigation could include disproving the victim’s claims by reviewing evidence already in consistence. It could also involve returning to the scene or speaking with friends, family, or other potential witnesses.

Be sure to bring an investigator to this meeting to document the recantation. If you are confident the victim is about to recant, you may wish to record the conversation with the consent of the victim (who is more likely to consent because it means she knows the defendant will see her recanting). This will ensure the victim cannot later change the details or claim the prosecution misheard what the victim said. When the victim takes the stand and tells a story different from their previous recantation, you can show the jury exactly what recantation sounds like and how they can know the recantation is not true.

During the meeting, let the victim recant. Do not confront them about their prior inconsistent statements unless necessary. Ask open-ended questions and get as many details as possible. Ask: “Ok, I’m hearing you say [new version of events]. . . is that correct?” This will lock the victim into certain details that you know are not accurate. Consider asking questions that will help you impeach the victim’s recantation down the road:

1. 1. 1. What do you hope we will do with this information?
      2. Have you spoken with the defendant since the incident (especially if you have jail calls showing the have had contact)?
      3. Do you want to see the defendant go to jail?
      4. Do you love the defendant?

After the meeting, follow up. Try to obtain jail call records to see if the defendant has been contacting the victim. If the defendant has, you may be able to identify the exact moment the defendant convinced the victim to recant. Also, have an investigator speak with any witnesses the victim identifies or look for any evidence that supports or contradicts the victim’s recantation. Failure to follow-up with a victim’s recantation may be punished by a jury at trial when you cannot contradict the victim’s recantation and cannot demonstrate you adequately contemplated and follow-up on the victim’s revised story.