Not all criminal cases have a victim; however, in those that do, the alleged victim plays a critical role in the case.
Whether the individual was allegedly the victim of a robbery, a domestic assault or any other type of crime, the importance of the victim’s cooperation is essentially the same.
So, what happens if the victim recants? The Omaha criminal attorneys at Petersen Law Office explain what typically happens when a victim recants or refuses to cooperate.
The Importance of a Victim
There are several different ways in which criminal offenses can be categorized. One way is to divide crimes into crimes with victims and victimless crimes.
Although an argument can be made that all crimes include a victim in one way or another, some crimes have clear and obviously identifiable victims, such as domestic abuse, robbery, embezzlement, or assault and battery.
In these crimes, the State typically depends on the victim to testify, if need be, at trial because the victim usually plays a role in proving one of the elements of the offense.
For instance, Nebraska Revised Code 28-324 defines the criminal offense of robbery as “A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever.”
One of the elements of the crime of robbery, therefore, is “from the person of another.”
In any criminal prosecution, the State (through the prosecuting attorney) must prove each and every element of the offense beyond a reasonable doubt in order to convict the defendant. For this reason, an alleged victim plays a crucial role in any criminal case.
When the Victim Recants or Refuses to Cooperate
Sometimes, an alleged victim recants his/her statement or refuses to cooperate with the prosecution.
These are not the same thing, though they often have the same impact on the case.
When a victim recants, it means that he/she repudiates or changes the original statement given to the police.
For example, if the alleged victim originally identified the defendant as the perpetrator but now says that the defendant was not the perpetrator, that is an example of recanting.
A victim may also simply refuse to cooperate with the prosecution.
This often occurs in a domestic violence case when the defendant and alleged victim have “made up” and the alleged victim no longer wants the defendant to get in trouble. In this case, the alleged victim refuses to speak to the police or prosecutor at all.
The Prosecutor’s Options
Once it becomes clear that an alleged victim is recanting or refusing to cooperate, the prosecuting attorney must decide how to proceed.
The prosecuting attorney does have the power to subpoena the individual and force him/her to testify at trial; however, that can be a risky option for the State.
Once on the stand, the individual will be placed under oath and informed of the penalties for perjury.
In theory, this should prompt the witness to answer honestly, but there are no guarantees. Moreover, no one but the alleged victim really knows what the truth is. If the individual tells a different story than the story originally given to the police, he/she will appear unreliable at best.
With two versions of the story, a jury will unlikely find that the State has proven the defendant’s guilt beyond a reasonable doubt.
If the alleged victim appears uncooperative, the prosecuting attorney can have him/declared a “hostile witness” which then gives the prosecutor more leeway in questioning the witness; however, there is still no guarantee that an individual will testify as the prosecution needs him/her to in order to secure a conviction.
Given the likely outcome when an alleged victim recants or refuses to cooperate, the State is often forced to dismiss the charges unless the case is strong enough to be won without the alleged victim’s testimony. That only happens if there is sufficient physical evidence and/or eyewitness testimony to overcome the absence of the alleged victim’s testimony.
Contact Petersen Law Office
If you have been charged with a criminal offense in Nebraska, consult with an experienced Omaha criminal attorney as soon as possible to discuss your legal options. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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