Monday, December 02, 2013


In Florida prosecutors may elect to file charges against a defendant even when the victim does not want to prosecute. This is true because Florida views itself as a victim whenever a crime has been committed. But in a typical criminal case the expectation is that the state of Florida will give great weight to a victim's desire to prosecute or to not prosecute.

Sometimes the weight given to a victim's wishes can be abused by the victim, representatives of the victim or the victim's family when a decision to prosecute is needlessly delayed or retracted. This is a recurring problem in allegations of sexual assault, sexual battery, rape and domestic violence. During the course of the investigation of a defendant the victim will be asked if he or she wants to purse a prosecution, because once an arrest is made and the charges are filed by the state attorney's office the lives of the defendant and victim are forever changed.

In many of these cases there may exist little evidence other than the testimony of the victim. In these cases it's important for prosecutors to take into account the following factors before filing a criminal charge against a defendant:

1. To gauge the willingness of the victim to testify.
2. To verify the honesty of the victim's statements made at the time of the report of the alleged assault. Is the statements consistent within itself? For example, did the victim give correct information about the height, weight and hair of the defendant and if not, why not?
3. To determine if the victim has made any other statements which are inconsistent. 
4. To find if social media or email has information which contradicts the victim's assertions.
5. To compare and contrast any physical evidence such as DNA with any other evidence of unlawful force such as the defendant's skin under the fingernails of the victim.
6. To find any accounts of other witnesses who may have observed the victim's demeanor before or after the alleged assault. Was the victim laughing, crying, yelling, happy or sad?
7. To review the results of any toxicology reports to determine if the victim was impaired. Was the victim under the influence of drugs or alcohol to the extent that the victim could no longer make informed decisions?
8. To establish that the victim has no mercenary nor financial interest in the outcome of the case. For example, in a recent case involving an FSU football player the alleged victim appears to be represented by a personal injury lawyer who police claim placed herself between the police investigation and the victim, which if true is one of the oddest things as a former prosecutor and as a defense lawyer I've ever observed. 

Effective law enforcement officers and prosecutors understand that the emotional and physical trauma suffered by many victims will not be healed with a prosecution. Further, they understand that filing a case if the victim is unreliable will only result in a not guilty verdict and ruined lives for not only the defendant but also for the victim.

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