The Complaining Witness is not Going to Sign the Complaint - What Will this Mean?
You may have some sense that the complaining witness in a domestic violence case is required to sign “the complaint” in order to permit the charges to go forward against you. While this may frequently be true, as in most things related to the law, it is a little more complicated than that.
For one thing, if the domestic violence offense is a felony, no signature is required. Potentially testimony before a Grand Jury may be required, but no signature.
In a misdemeanor case in New York, as a general rule, a criminal court complaint must be “corroborated” by a witness who can swear to the truth of the allegations in the complaint. What the witness signs is not actually the complaint itself, but a document that says that the complainant has read the complaint and that everything in it is true.
As a general rule, the Government has 90 days to get these complaints corroborated by the witness. Failure to get that corroboration (signature) within 90 days will result in the matter being dismissed.
EXCEPT...The shifting sands of the law have allowed a procedure where a signature on a different document can be substituted for the signature related to the complaint. Whenever the police respond to a domestic violence incident, they will prepare a document called a Domestic Incident Report (or DIR). This document is prepared right away, often at the scene. The officer prepares a summary of the event, and asks the complaining witness to sign the description of the event. In most cases, the complaining witness will sign this document. If the summary of the event matches the wording of the complaint sufficiently, judges (in Queens at least) will accept this Domestic Incident Report signature as corroboration of the Criminal Court Complaint.
Furthermore, there can be situations in the domestic violence context, in which the prosecution is permitted to prosecute a defendant without the complaining witness’ cooperation at all. If the police officers observe injuries, for example, and the complaining witness made a 911 call in which she makes certain allegations against the defendant, the Courts (in Queens at least) have been willing to permit prosecutions to go forward. Therefore, in such cases, there is no complaining witness at trial who testifies, and there is therefore no complaining witness to cross examine.
In a misdemeanor case in New York, as a general rule, a criminal court complaint must be “corroborated” by a witness who can swear to the truth of the allegations in the complaint. What the witness signs is not actually the complaint itself, but a document that says that the complainant has read the complaint and that everything in it is true.
As a general rule, the Government has 90 days to get these complaints corroborated by the witness. Failure to get that corroboration (signature) within 90 days will result in the matter being dismissed.
EXCEPT...The shifting sands of the law have allowed a procedure where a signature on a different document can be substituted for the signature related to the complaint. Whenever the police respond to a domestic violence incident, they will prepare a document called a Domestic Incident Report (or DIR). This document is prepared right away, often at the scene. The officer prepares a summary of the event, and asks the complaining witness to sign the description of the event. In most cases, the complaining witness will sign this document. If the summary of the event matches the wording of the complaint sufficiently, judges (in Queens at least) will accept this Domestic Incident Report signature as corroboration of the Criminal Court Complaint.
Furthermore, there can be situations in the domestic violence context, in which the prosecution is permitted to prosecute a defendant without the complaining witness’ cooperation at all. If the police officers observe injuries, for example, and the complaining witness made a 911 call in which she makes certain allegations against the defendant, the Courts (in Queens at least) have been willing to permit prosecutions to go forward. Therefore, in such cases, there is no complaining witness at trial who testifies, and there is therefore no complaining witness to cross examine.
In fact, Queens County is a jurisdiction in which the prosecution of those accused of domestic violence without the cooperation of the victim has become a prosecution model for the rest of the country to emulate. Under the management of Scott Kessler, the Queens Domestic Violence Bureau, has, according to the Columbia Law School web site, "earned a national reputation as one of the best in the country based on its high conviction rate and its successful prosecution of thousands of cases without the victim's cooperation." (See profile of Lecturer at Law, Scott Kessler on the Columbia Law School Website)
Thousands of cases have been "successfully" prosecuted in Queens by Mr. Kessler without the cooperation of the complaining witness in the context of domestic violence matters. This is being touted as great victory for justice, and a result that causes Columbia Law School at least to claim that this is a reason that the Queens Domestic Violence Bureau has earned a national reputation as one of the best in the country. And perhaps this is as it should be.
There are some, however, who are concerned about the Government pursuing thousands of cases "successfully" without the cooperation of the person who may well have initiated the charges at the outset. One must wonder at the motivations for the complainants in thousands of cases NOT wanting to cooperate in prosecutions that in theory were undertaken at least in part to help them. One must wonder whether maybe, just maybe, some of the uncooperative complainants were uncooperative because the charges might have been initiated by the complainants under false pretenses. One must wonder whether maybe, just maybe, some of the successful prosecutions of thousands of cases without the victim's cooperation were wrongful.
Even if you are not a lawyer, this concept may make you a little uncomfortable. The idea of the Government trying people and potentially convicting them without the need to put the complaining witness on the stand and or without the ability of the defense to cross examine accusations made to a recording on the 911 system probably raises a couple of red flags in your mind. And the concept that the Government is pursing defendants in criminal cases on a wholesale basis where the complaining witnesses are affirmatively unwilling to cooperate does seem a bit troubling. Of course in the context of domestic violence cases, there will in all likelihood be a percentage of uncooperative complainants who are uncooperative out of a legitimate sense of fear. But "thousands"? For the time being, however, neither our Courts nor our Prosecutors appear to be troubled by this. Perhaps this is all the for the best, but it would seem that within "thousands" of uncooperative complainants there might well be some that just might be uncooperative for reasons other than fear of an abuser.
Even if you are not a lawyer, this concept may make you a little uncomfortable. The idea of the Government trying people and potentially convicting them without the need to put the complaining witness on the stand and or without the ability of the defense to cross examine accusations made to a recording on the 911 system probably raises a couple of red flags in your mind. And the concept that the Government is pursing defendants in criminal cases on a wholesale basis where the complaining witnesses are affirmatively unwilling to cooperate does seem a bit troubling. Of course in the context of domestic violence cases, there will in all likelihood be a percentage of uncooperative complainants who are uncooperative out of a legitimate sense of fear. But "thousands"? For the time being, however, neither our Courts nor our Prosecutors appear to be troubled by this. Perhaps this is all the for the best, but it would seem that within "thousands" of uncooperative complainants there might well be some that just might be uncooperative for reasons other than fear of an abuser.
Therefore, while the premise that the complaining witness is not going to “sign the complaint” suggests that the Government will not be able to make a case, it is not the silver bullet that you may imagine it to be. In fact, not only is it not some sort of silver bullet, Scott Kessler, Queens County Assistant District Attorney and Bureau Chief of the Domestic Violence Bureau, has quite publicly made clear that the cooperation of complaining witnesses in cases where people are accused of domestic violence offenses is only an incidental and often unnecessary component of domestic violence prosecutions in Queens County. Scott Kessler, Queens Assistant District Attorney, can be found explaining his aggressive approach toward domestic violence prosecution, an approach he calls "evidence based prosecution" in the following news articles:
These articles should give the reader a sense of the aggressiveness of prosecutors in cases where domestic violence offenses are charged. Therefore, you should never underestimate the difficulties that you face if you are charged with domestic violence offenses such as assault, harassment, or violation of an order of protection (criminal contempt).
Furthermore, realize that the unwillingness of the complaining witness to sign the complaint does not mean that the case will be dismissed instantly, even in those cases where Mr. Kessler's evidence based prosecution strategies are unavailing. The Government has 90 days to get that signature, and it will use every single day.
That means that the case will exist for 90 in court, and you will need to return periodically over those 90 days while the Court monitors the case to see if the complaint has been signed. During those 90 days, the Government will have the power to keep an Order of Protection against you which will keep you apart from the complaining witness and away from the home for 90 days. The Government is well aware of the leverage this provides in negotiations over how to resolve these matters.
BY: DON MURRAY, Partner in the New York Criminal Defense Law Firm Shalley and Murray