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Can a Court Ignore an Alleged Victim’s Testimony? A Classic He-Said-She-Said Battle.

question-mark-231x300Are our courts just paying lip service to alleged victims?

As of January 8th of this year, we Floridians enacted Marsy’s Law, which requires our court system to keep alleged victims informed.  It gives a voice to victims.

But sometimes, nobody listens.

And that’s the case we have today.  An alleged victim that was utterly ignored by the prosecutor, by the judge, by the jury, and eventually–even the appellate judges ignored her.

In the recent case of Daniels v. State, Daniels was convicted of aggravated assault with a firearm. 45 Fla. L. Weekly D 1380 (Fla. 1st DCA 2020).  The facts brought out at the trial were pretty similar to many, “he said, she said” cases.

We’ve seen this movie a thousand times.  A couple gets into a heated argument.  Things were said in the heat of the moment that, upon sober reflection, may have not been entirely accurate.  Later, nobody believes the alleged victim lied the first time, they think she is lying the second time.

Where does the truth lie?  Well, we don’t have to decide that.  This is about proof beyond every single reasonable doubt.  If the alleged victim claims she lied–that should constitute instant reasonable doubt.  Case closed.

And that’s sort of what happened in Daniels.  At trial, the alleged victim testified that she was still in a relationship with Daniels. Initially, she told the police that Daniels punched her, threatened to shoot, and kill her, and at one point while they were in the car together, he took the gun out and shot it several times through a window.

At trial, the girlfriend told the jury something different than she told the police.  Basically, she “denied that Daniels had hit her and stated that she did not remember whether he shot a gun.” id. at 2.  

The most important thing she said was that “she was never in fear from having a gun pointed at her.” id. 

To understand why this statement is super important, let’s review the definition of an assault, found in Florida Statute 784.011.  An assault is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”

Now, the plain language of this criminal act requires that the other person be “in fear.”   Therefore, after the judge heard the alleged victim state she wasn’t in fear, the defense attorney moved to dismiss the case.  Legally, the judge should have thrown out the aggravated assault, not even letting the jury decide the accusation because the assault required “fear” that was never there.

But the judge ignored what the alleged victim said at trial.  So much for Marsy’s Law.

The prosecutor ignored what their witness said.  So much for Marsy’s Law.

It seems like Marsy’s Law only applies when it can be used to convict someone.  As the Church Lady would say, “Hooooowwwww Convenient.”

Daniels appealed his conviction, reasoning that the judge made a mistake by not dismissing the charge after hearing that the victim was never in fear–as required by the statute.  Here’s how the question was posed in the concurring opinion:

This all leads to the question of what happens when the victim testifies that she was not fearful during an alleged criminal episode, as occurred here. . . . in a criminal case, which has broader societal concerns and purposes, can the victim’s testimony that she lacked subjective fear be disregarded and replaced with an objective standard of whether a reasonable person would have been fearful, even if she was not? That’s what happens when a victim does not testify, so why shouldn’t it apply here where she does?” id. at 10-11.

It bears repeating that at Daniels’ trial, there was sworn testimony that this assault didn’t happen.  The girlfriend took the stand, she raised her right hand and said it didn’t happen.  We don’t need to get into the age-old disputes about why people lie–or even why evil exists at all.  Whole books have been written on this, whole philosophy departments are devoted to this, and entire sects of atheism are dedicated to the problem of evil as an argument against the existence of any sort of a creator.  The bottom line is, this can go deep.  Lucky for us, we don’t have to go there.  A woman claims now that she lied to the police, and the trial in Daniels allowed her to come clean.

Has this appellate court gone too far by ignoring the testimony of the alleged victim?

When an alleged victim gains the courage to admit that something didn’t happen–shouldn’t the judge call a halt to the whole charade and dismiss the case?  Must a victim’s admission to lying always be seen as a way of protecting the defendant, rather than the truth?

Here’s how the appellate court twisted things:

Where a victim has a motive to disclaim or diminish her fear, perhaps to protect a defendant, it becomes justifiable to allow a jury to determine the truth, which may be that the victim’s testimony is unreasonable or unbelievable under the circumstances. Just as a jury may reject a victim’s testimony that she was fearful, finding it not well-founded under the circumstances, a jury may also reject a victim’s testimony that she wasn’t fearful, finding that a reasonable person would have had a well-founded fear under the circumstances.” id. at 14-15.

Here’s the thing.  The appellate court made the wrong decision.  The assault statute requires that a victim be put in fear, and just because a court doesn’t like a victim’s testimony shouldn’t be an excuse to stray from the plain language of the law.  Hopefully, this decision will be overturned.  We cannot make a habit of ignoring the testimony of an alleged victim just because they feel a reasonable person may have felt differently.  If we want to make it a crime for a reasonable person to be in fear, let’s have the legislature rewrite the statute.