Since the addition of the Crime Victim's Rights Amendment to the Missouri Constitution in , a judge also has the express power, both in felonies and misdemeanors, to deny bond entirely or to set it extremely high in any case where the alleged suspect poses a danger to a crime victim or the community.
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The courts now have tremendous power to protect alleged victims when they choose to use it. The alleged victim also has the right to be notified when the abuser is being released from jail. The Missouri legislature has taken steps in the last decade to strengthen domestic abuse laws. In , lawmakers enacted new domestic assault crimes, ranging from misdemeanors to felonies in an effort to reduce domestic violence. The biggest change has been the creation of the crime of domestic assault in the second degree, a class C felony offense, for incidents involving allegations of physical injury, deadly weapons, dangerous instruments or choking which if committed by a stranger upon a stranger would often be classified as a misdemeanor.
In some cases, a prosecutor may choose to stick with traditional assault charges, since the new crimes all require proof that a social relationship of a romantic or intimate nature existed between the alleged victim and the alleged abuser as an additional element of the crime. Domestic violence victims frequently become reluctant or even hostile witnesses for the prosecution.
Although there are often legitimate reasons for an alleged victim to refuse to cooperate or to refuse to testify, the prosecutor will often assume the main reason is fear of retaliation by the suspected abuser. As such, additional efforts may be made by the prosecutor to force the witness to appear and testify, or to obtain additional evidence for admission at trial in place of the alleged victim's testimony. Missouri is one of a few states that have not amended its spousal privilege statute to provide an exception for domestic violence victims.
In Missouri, a battered wife may choose whether or not she will testify about her alleged husband's abuse. The prosecutor cannot require her to testify. However, in these circumstances, a prosecutor can often bring in the alleged victim's "hearsay" statements, such as voice recordings, as a method of presenting the alleged victim's original complaint to a jury.
Some victims will refuse to testify by invoking their Fifth Amendment right against self-incrimination. The misconception by most witnesses is that one can "Take the Fifth" when one simply does not want to testify for any reason. However, the alleged victim can only plead the Fifth when their testimony will tend to incriminate them, for example, for their own criminal involvement in the incident, or for filing a false complaint.
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Even in these circumstances, the prosecutor may attempt to compel the victim's testimony by granting prosecutorial immunity. If a witness cannot successfully invoke the spousal or Fifth Amendment privilege, they may be ordered by the trial court to answer the prosecutor's questions. If the witness refuses to answer the questions provided by the prosecutor, the witness may then be found in contempt of court. This could possibly include jail time and fines. Contempt of court charges may also be filed against an alleged victim who deliberately dishonors a subpoena.
Therefore, an alleged victim who chooses not to cooperate in the prosecution of an alleged abuser may become the target of punishment by the legal system. Such witnesses may want to retain their own attorney to assist them in such matters. When a witness fails to show up for court when subpoenaed, the witness may not only face contempt of court charges, but may also be the subject of body attachment to assure his or her presence in court.
This usually only happens in rare circumstances. It is generally the over-all goal of the prosecutor to protect alleged victims, not jail them. However, when a witness decides not to cooperate with the prosecutor by not appearing in court, a prosecutor may decide the case warrants more drastic actions.
Defense lawyers face many ethical issues in domestic violence cases. The attorney has a duty to represent the client zealously within the bounds of the law and to fight for a dismissal or acquittal. Ethical issues can arise when the alleged victim asks the alleged abuser's attorney for advice about his or her testimony.
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The lawyer cannot ethically tell the alleged victim to lie about his or her testimony or tell the victim to assert the Fifth Amendment right when the facts of the situation do not call for it. The best course of action for a defense attorney is to encourage the reluctant victim to secure his or her own attorney for the hearing. In a situation where the alleged victim has changed his or her story from domestic violence to an incidental accident victim now says he or she tripped and fell causing the injuries , the prosecutor may call other witnesses to testify to the original statements the alleged victim told to others.
By statute, these prior inconsistent statements are usually admissible as substantive evidence to show the alleged victim's actual statements to police or family members after the incident occurred. Prosecutors may use an excited utterance to salvage an otherwise unsuccessful case when a witness has become unavailable by asserting spousal or Fifth Amendment privileges.
An excited utterance must have been made under the immediate and uncontrolled domination of the senses under such circumstances so as to indicate trustworthiness. The proximity between the event and the statement need not be simultaneous so long as the statement is provoked by the excitement of the event without premeditation. True domestic violence and assault cases necessarily invoke a startling event often rendering the excited utterance exception applicable. Excited utterance statements can be made to police officers, friends, family members, and neighbors and then identified in court.
When a prosecutor has an uncooperative victim of domestic violence, the prosecutor may still make the case with testimony from a medical professional who treated the victim for his or her injuries resulting from the dispute. Statements made to a medical professional who provided treatment are an established exception to the hearsay rule. The prosecutor may obtain the relevant medical records by a signed release from the victim or by investigative subpoena.
The defense can try to keep the statements to medical personnel out of evidence by persuading the trial court that the details of the assault were irrelevant to the treatment of the injuries.
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Prior testimony under oath is admissible when an alleged victim later becomes unavailable due to assertion of a testimonial privilege. A prosecutor who is concerned that a witness may become uncooperative may consider using a court reporter to make a record of any testimony during the early stages of the prosecution, such as bond hearings or preliminary hearings.
A prosecutor can then refer back to the prior testimony to keep the testimony consistent. The residual exception to the rule against the admission of hearsay can be argued by prosecutors in cases where no other exceptions appear to apply. Cases from other jurisdictions have held that statements made by domestic violence victims to police officers or family members shortly after the abuse are admissible under the residual hearsay exception when the victim later refuses to testify. In some cases, the exception has also been used to admit a victim's statements to an attorney about the defendant's abuse to that person, a victim's statements in a petition for an ex parte order of protection, and a victim's statements to close friends or relatives about the threats and beatings inflicted upon them by defendant.
While an expert may not "vouch' for the truthfulness of a particular witness, the modern trend allows domestic violence experts to point out that certain behavior is not uncommon for domestic abuse victims.
Some of these behaviors include: failure to leave a violent relationship, a delay in reporting an assault, or a recantation or refusal to testify that might seem bizarre and peculiar to a jury absent expert testimony. Although Missouri is not completely committed to allowing expert testimony on battered women during the prosecution of domestic assault cases, the use of expert testimony has expanded in child abuse prosecutions and regarding defendants claiming self-defense in battered spouse syndrome cases.
Evidence of previous or other crimes is often used in domestic violence cases. Evidence that the defendant has physically abused this particular victim in the past is usually admissible to prove the "animus" of the defendant towards the victim. The test used is whether the probative value of the preceding abuse outweighs the judicial effect. In many cases it has been held admissible, particularly when the defendant has claimed accident or self-defense. However, when the defendant confesses to the crime, the prejudicial effect of showing instances of prior abuse can outweigh its probative value.
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The Lautenberg Amendment to the Gun Control Act of made it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a firearm. A suspended imposition of sentence under Missouri law would probably not count as a conviction and therefore would not bar subsequent weapons possession.
The Lautenberg Amendment also makes it a federal crime for a person subject to a domestic violence protective order to possess a firearm. Missouri's prosecution of domestic violence cases has continuously evolved over the past few years.
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The penalties are more potent and the evidentiary rules have been refined to make the conviction of an alleged abuser easier to obtain. The attorneys at Holder Susan Slusher, LLC are experienced in reviewing and challenging allegations of domestic assault. A person may not fraudulently misrepresent an animal as a service animal or service animal in training to a person or entity that operates a public place. The individual with visual, hearing, or other physical disabilities, or dog trainer in the act of training a guide, signal, or service dog shall not be required to pay any additional charges for his or her guide, signal, or service dog.
Any person who without just cause purposely kills or injures any service animal described in this section or any search and rescue dog is guilty of a Class D felony. Any person who kills or injures any service animal described in this section or any search and rescue dog shall make restitution to the owner of the animal.
The driver of a vehicle approaching a visually handicapped or hearing impaired person who is using guide or hearing ear dog shall take all reasonable precautions to avoid injury to the visually handicapped, hearing impaired, or other physically handicapped pedestrian. An individual shall not misrepresent an animal to be a service animal or service animal-in-training to a person or entity that operates a public accommodation.
West's Ann. These persons shall ensure the dog is on a leash and tagged as a guide dog, signal dog, or service dog by an identification tag issued by the county clerk, animal control department, or other agency, as authorized by Chapter 3. Every individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose, in any of the places specified in Section A violation of the right under the Americans with Disabilities Act of also constitutes a violation of this section, and nothing in this section shall be construed to limit the access of any person in violation of that act.
Unlawful to permit any dog to injure or kill any service dog while the service dog is in discharge of its duties. Upon conviction, the defendant shall make restitution, including veterinary bills and replacement costs. Upon conviction, a defendant must make restitution to the person with a disability who has custody or ownership of the dog for any veterinary bills and replacement costs of the dog if it is disabled or killed.
For a license, person must sign affidavit stating dog is trained assistance dog. Upon the death or retirement of an assistance dog, the owner or person in possession of the assistance dog identification tag shall immediately return the tag to the animal control department that issued the tag.
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