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Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges

Published June 2009

Chapter 6. Prosecution Responses

Section  10 — Can cases be successfully prosecuted without the victim?

Despite the fact that most prosecutors see the lack of victim cooperation as the reason why domestic violence prosecutions cannot proceed, both individual-jurisdiction and comparative studies clearly suggest that either lack of victim cooperation is exaggerated or victims are not the key variable in successful prosecution programs.

A study of almost 100 domestic violence trials in San Diego found that uniformly high conviction rates were obtained independent of victim or defendant statements, witness testimony and corroborating evidence. In fact, outcomes were also independent of whether the victim testified for the prosecution or for the defense. [196]

Other comparative studies consistently found that the determination of prosecutors rather than the availability of victims or other evidence accounted for varying rates of prosecution. For example, in the three statewide examinations of tens of thousands of domestic violence prosecutions, researchers documented widely varying rates of prosecution across equivalent counties. In Massachusetts, county prosecution rates ranged from 82 percent to 25 percent. [10] In South Carolina, prosecution rates varied from 69 percent to 22 percent from one prosecution district to another. [21] Similarly, in North Carolina, prosecution rates ranged from 57 percent to 21 percent in specific prosecution districts. [16] Although some of the counties or prosecutorial districts differed in terms of demographics and population density, even among those that did not, prosecution rates varied greatly. In fact, in South Carolina, after the study was published in the newspaper and the state's attorney general ordered prosecutors to prosecute all cases, the statewide dismissal rate dropped by 29 percent the next month. [20]

Studies confirm that jurisdictions with specialized domestic violence prosecution programs generally support the highest rates of successful prosecution. [196] These specialized programs apparently create their own momentum. For example, they either help create or are associated with courts that create expedited domestic violence dockets. As a result of the specialized prosecution in San Diego, processing time for domestic violence cases decreased to 32 days, with almost half of the defendants (46 percent) pleading at the arraignment. Similarly, in Everett, Wash., time to trial was 80 days, and in Omaha, Neb., it was 43 days. Shortened trial times reduce both victim vulnerability to threats and chances of reconciling with the abuser pending trial. In both San Diego and Everett, bails were regularly set at $10,000 per domestic violence charge (with no cash alternative in the latter location). As a result, for defendants unable to raise bail, the incentive is to plead guilty to get out of jail.

In these jurisdictions, researchers found that evidence (eyewitnesses, photos, admissions, excited utterances, medical evidence and physical evidence) was not uniformly the most powerful predictor of prosecutors' decisions to proceed without victims and was not significantly associated with the decision to prosecute at all in Klamath Falls, Ore. [196]

Supporting the contention that prosecutorial determination is a powerful predictor of prosecutorial success, the Ohio court study found that increased time the prosecutor spent with victims while preparing the case was positively associated with successful prosecution, and large prosecution caseloads were negatively associated with successful outcomes. The availability of evidence (911 tapes, photographs, medical records and police testimony) was not associated with the likelihood of a conviction. Researchers did not suggest that only victims with strong cases self-selected to approach prosecutors. [11]

Implications for Prosecutors

Lack of evidence may be more likely to deter prosecutors from going forward than deterring juries from convicting defendants or deterring defendants from pleading guilty. (Research basis: Multiple studies have found prosecutors able to consistently achieve high conviction rates, notwithstanding consistently limited evidence. The analysis of San Diego trials specifically suggests that convictions may be obtained with varying types of evidence, notwithstanding absence of types of other evidence, including that from victims.)

Implications for Prosecutors

Parity should exist between prosecutors and defenders as well as between prosecutors and crimes to be prosecuted. In the Ohio study, where large prosecution caseloads were associated with unsuccessful domestic violence prosecution, the court had 31 public defenders but only 18 prosecutors. (Research basis: Only one study.)