# What would a court judge do in this situation?



## ironpony (Apr 2, 2018)

Basically for my story, there is a kidnapping case, a cop on patrol spotted a hostage being moved, and managed to rescue the hostage, and arrest one of the kidnappers, while the others got away.  However, the victim doesn't want to testify or get involved, so the prosecution decides to go ahead with the case without her testimony and just rely on the testimony of the police witnesses they have, and hope that will be enough.

So when it hits the preliminary hearing, the prosecution wants to call the officer who first witnessed the kidnapping, who saved the victim, and arrested the one suspect, who is the defendant.  However, the defense objects to this witness, saying that the victim came to him, a few hours ago, and said that he has taken her as a witness, since the prosecution didn't have her on their witness list, and says that the officer tried to blackmail her into testifying against the defendant.  This is why the defense objects to the officer as a witness, cause he tried to blackmail the victim.

Now what would the judge do if this were the case?  Would the judge still allow the officer to go on the stand, since officers are accused of doing bad things all the time, and it doesn't mean that it's true?  Or would the judge let the victim testify first to what happened, before deciding whether or not to put the officer on the stand to hear his side?  Or would the judge stop the preliminary hearing in the courtroom and call everyone to his chambers, including the victim and the officer, in order to figure out what's going on?


----------



## Ralph Rotten (Apr 3, 2018)

Very few states would require the victim to press charges.  That is an old hollywood urban myth.  In modern [statutory] states, defendants are charged by 'the people' as represented by the prosecutor's office.  The complaint does not need to stem from the victim.  The only time a victim's participation would deter a case is if they were the only shred of evidence holding up the case.  But in this case you have quite a bit of other evidence.

Not sure about the officer testifying in a 'preliminary hearing'.  Check the state where this story is happening and determine more on this detail.  To the best of my knowledge they could depose him (take a deposition), but I do not know if the officer would actually sit in a courtroom and testify at that phase of the trial.  The list of witnesses is created during the discovery phase.

As to what to do about the cop allegedly trying to blackmail the defendant, that would put a hold on the whole trial since it DOES effect *all of the evidence* they have (the victim's account, the officer's witness account, and the bad guy they caught ain't talking.) So the judge would prolly halt the proceedings [a continuance] while the police IA department investigated the allegations of blackmail.  In the meantime lawyers on both sides would continue to rack up billable hours.


----------



## ironpony (Apr 3, 2018)

Ralph Rotten said:


> Very few states would require the victim to press charges.  That is an old hollywood urban myth.  In modern [statutory] states, defendants are charged by 'the people' as represented by the prosecutor's office.  The complaint does not need to stem from the victim.  The only time a victim's participation would deter a case is if they were the only shred of evidence holding up the case.  But in this case you have quite a bit of other evidence.
> 
> Not sure about the officer testifying in a 'preliminary hearing'.  Check the state where this story is happening and determine more on this detail.  To the best of my knowledge they could depose him (take a deposition), but I do not know if the officer would actually sit in a courtroom and testify at that phase of the trial.  The list of witnesses is created during the discovery phase.
> 
> As to what to do about the cop allegedly trying to blackmail the defendant, that would put a hold on the whole trial since it DOES effect *all of the evidence* they have (the victim's account, the officer's witness account, and the bad guy they caught ain't talking.) So the judge would prolly halt the proceedings [a continuance] while the police IA department investigated the allegations of blackmail.  In the meantime lawyers on both sides would continue to rack up billable hours.



Okay thanks, but the prosecution is going ahead without the victim in my story.  It's the victim who later joins the defense and says that the prosecution's witness threatened to blackmail her for not testifying.  I was told that at preliminary hearings, they have to determine the evidence to go further, so I thought the officer would testify there.  But if he wouldn't testify at a preliminary hearing, I could change it from a preliminary hearing, to a deposition, if that's better.

In my research though, when I watched the preliminary hearing for the O.J. Simpson case, for example, the defense and prosecution cross examined the officers in the case though.  So I thought that was normal for a preliminary hearing, since it was done in that one.

But as for the complaint stemming from the victim, it's not in my story.  The victim only complains, when she complains of being blackmailed.  She doesn't complain about the actual case in the beginning if that's what you mean?

But basically for my story, I want to be able to get the officer witness, the victim, prosecution, the defense, the judge, and the officer's superiors, all in the same room for a big dramatic moment.  Is there any point in the discovery, where they would all be in the same room?


----------



## DOGGLEBUNNI (Apr 5, 2018)

I just posted a courtroom question, in my case I think I am just going to write the scene first and then ask questions later. Also, I don't want the book to get too bogged down in details, it isn't a procedural, but I don't want it to be totally implausible either.


----------



## ironpony (Apr 6, 2018)

Actually I just found out something about court that I find very interesting.  I was watching the show How To Get Away With Murder, and apparently the defense is allowed to call the prosecution's witnesses, and the prosecution is allowed to call the defenses witnesses.  I thought that only one side could call their own witnesses.  The other side can cross-examine of course, but I thought that the prosecution could only call theirs, and that the defense can only call theirs.

So I might be able to change my courtroom scene around a lot in this case. However, I'm trying to figure out how this works.  If the defense is allowed to call the proseuction's witnesses, why don't they just do that all the time in court?  Then the prosecution can try to discredit the defense's witnesses, before the defense has even had a chance to call and cross them first.  So why doesn't the prosecution do that all the time then as normal practice?


----------



## DOGGLEBUNNI (Apr 7, 2018)

I think this is what they mean by cross-examination is to question the other sides witnesses.


----------



## Bloggsworth (Apr 7, 2018)

As the victim refuses to co-operate he/she has no standing and certainly can't call the cop as a witness as he/she is a witness not the accused. I would suggest that, in America, the DA could force the victim to co-operate by holding him/her in "Protective custody" pending the trial.


----------



## ironpony (Apr 7, 2018)

Okay thanks, but the DA didn't want to use the witness cause she was not cooperating, and felt she would be unreliable on the stand.  It's the DA's call, not the cops, right?  So when she says that the cop tried to blackmail her into testifying, it looks bad for the cop, cause the cop went behind the DA's back, according to what she is saying.


----------



## FireofDarkness (May 9, 2018)

Ralph Rotten said:


> Very few states would require the victim to press charges.  That is an old hollywood urban myth.  In modern [statutory] states, defendants are charged by 'the people' as represented by the prosecutor's office.  The complaint does not need to stem from the victim.  The only time a victim's participation would deter a case is if they were the only shred of evidence holding up the case.  But in this case you have quite a bit of other evidence.
> 
> Not sure about the officer testifying in a 'preliminary hearing'.  Check the state where this story is happening and determine more on this detail.  To the best of my knowledge they could depose him (take a deposition), but I do not know if the officer would actually sit in a courtroom and testify at that phase of the trial.  The list of witnesses is created during the discovery phase.
> 
> As to what to do about the cop allegedly trying to blackmail the defendant, that would put a hold on the whole trial since it DOES effect *all of the evidence* they have (the victim's account, the officer's witness account, and the bad guy they caught ain't talking.) So the judge would prolly halt the proceedings [a continuance] while the police IA department investigated the allegations of blackmail.  In the meantime lawyers on both sides would continue to rack up billable hours.



As a cop in SC, USA:
For this state the victim is not required to testify, but the Officer is. The prelim hearing is simply the judge determining if there was enough evidence to proceed. The defense would not testify or argue at that time. The arguing is reserved for the actual trial. The victim may testify for whoever they want or not at all (btw victims often testify for the suspect in Domestic Violence cases)
If the officer has been blackmailing, it could discredit his testimony, but by the time it has gone to court, they would have had other evidence to prove the case: parent's testimony, any witnesses, surveillance videos from the area/car, statements from questioning (interrogating) the suspect when he was in custody.
However in other states, the Prosecuting & Defense attorneys would often be the only ones at the prelim hearing.


----------



## FireofDarkness (May 9, 2018)

ironpony said:


> Okay thanks, but the DA didn't want to use the witness cause she was not cooperating, and felt she would be unreliable on the stand.  It's the DA's call, not the cops, right?  So when she says that the cop tried to blackmail her into testifying, it looks bad for the cop, cause the cop went behind the DA's back, according to what she is saying.


​Correct, it's up to the DA (*defending the suspected kidnapper). The Prosecuting attorney would be the one to decide if the officer's statement is worth the blackmailing argument. ​But the judge will want some sort of evidence to discredit the officer (also many judges will want the officer's testimony for themselves, & the DA would mostly fight to keep a jury from hearing it, if it went to a jury trial.)


----------



## ironpony (May 9, 2018)

FireofDarkness said:


> ​Correct, it's up to the DA (*defending the suspected kidnapper). The Prosecuting attorney would be the one to decide if the officer's statement is worth the blackmailing argument. ​But the judge will want some sort of evidence to discredit the officer (also many judges will want the officer's testimony for themselves, & the DA would mostly fight to keep a jury from hearing it, if it went to a jury trial.)




Okay thanks.  But wouldn't the judge not take the case to trial cause the officer's statement is now tainted, and therefore, is unreliable, and therefore, there is now not enough to go trial with, once the officer is discredited?  Even if there is no actual evidence that the officer did what he did, the fact that the officer was accused at all by the victim of the crime, will still make the case un-winable for the prosecution, so why go to trial then?

Even if the judge doesn't have any evidence to discredit the officer, the defense attorney will still call the victim to the stand to discredit him verbally, so that would be enough to get the case thrown out for not enough other evidence, without the officer's credibility, wouldn't it?


----------

