It can. When the accuser will not testify, whether their own account still reaches the jury depends on two separate questions: whether their earlier out-of-court statements, such as a 911 call or something said to an officer or a nurse, fit a specific hearsay exception, and whether the Sixth Amendment’s confrontation clause independently blocks them.

For the broader point that a domestic violence prosecution does not depend on the accuser’s cooperation, see the firm’s page on false accusations defenses.

Why an earlier statement is not automatically admissible

The accuser’s out-of-court statements are hearsay when offered to prove what happened, and hearsay is inadmissible except as provided by law (Evidence Code section 1200). Two exceptions fit this situation closely.

A statement that narrates or describes an event the speaker perceived, made spontaneously while still under the stress of excitement the event caused, is not made inadmissible by the hearsay rule (Evidence Code section 1240). Section 1240 has no unavailability requirement, so it can apply whether or not the accuser testifies.

A statement describing the infliction or threat of physical injury on the speaker can be admitted under Evidence Code section 1370, but only if every condition is met: the speaker is unavailable as a witness under section 240; the statement was made at or near the time of the injury or threat, and not more than five years before the case was filed; it was made under circumstances indicating it is trustworthy; it was written, electronically recorded, or made to a physician, nurse, paramedic, or law enforcement official; and the prosecution told the defense about it far enough in advance to prepare.

Refusing to testify is not automatically the same as being unavailable

Evidence Code section 240 defines when a declarant is legally unavailable as a witness, and simply not wanting to testify does not qualify on its own. One listed path is persisting in refusing to testify about the subject matter after being found in contempt for that refusal. Others include being exempt on the ground of privilege, being disqualified, death or an illness or infirmity that prevents testifying, and absence when the court cannot compel attendance or the prosecution could not secure it despite reasonable diligence. The privilege path is narrow here: the privilege not to testify against a spouse does not apply in a criminal case in which one spouse is charged with a crime against the other (Evidence Code section 972(e)).

If the defendant caused the unavailability

If the defendant engaged in, or aided and abetted, wrongdoing that was intended to make the witness unavailable and did so, the hearsay rule does not keep the witness’s statements out when the prosecution offers them against the defendant (Evidence Code section 1390). The prosecution must prove those elements by a preponderance of the evidence at a separate hearing outside the jury’s presence, and the finding cannot rest only on the unconfronted statement itself; it needs independent corroborating evidence. The Supreme Court in Crawford, discussed below, also accepted that forfeiture by wrongdoing extinguishes a confrontation claim. Any contact that looks like an attempt to keep the accuser from testifying can also be a separate crime; see the firm’s page on witness dissuasion.

The separate constitutional layer

Even if a statement fits a hearsay exception, the Sixth Amendment confrontation clause can still block it. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that when a testimonial statement is at issue, the Constitution requires what the common law required: the witness must be unavailable, and the defendant must have had a prior opportunity to cross-examine. The Court said the testimonial category covers, at a minimum, prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations. Fitting a state hearsay exception does not satisfy this separate requirement. The clause places no such limit on earlier statements when the witness appears at trial and can be cross-examined.

What this means for your case

  • Whether a particular statement, such as a 911 call or a statement to a responding officer, comes in without the accuser’s testimony depends on which exception it might fit and whether it is testimonial; there is no single blanket rule.
  • Do not contact the accuser about the case, directly or through anyone else. Beyond the risk of a new charge and of violating any protective order, it can give the prosecution a forfeiture argument under Evidence Code section 1390.
  • Ask your lawyer to identify, statement by statement, what the prosecution intends to offer without live testimony and which exception it relies on.

If the accuser in your case is not expected to testify, the Law Offices of David S. Chesley can walk through which statements the prosecution may be able to use. Call (800) 755-5174 to talk through the evidence in your case.