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Trial without the victim. What will happen?

Miami, FL |

This is a burglary charge after the victim made exaggerated statements when pissed off saying that the aggressor pushed him. The prosecutor so far has been very hard to deal with so if she was to set this for trial, what would come out of it? Does the victim need to testify by law? what if he doesn't care or want to anymore. Is this an easy win or will it be dropped or reduced?

the plea bargain was garbage so far. The prosecutor won't call the victim to confirm but my PI already did that for her. Also, there was no break in. But there was Intoxication and confusion.

Attorney Answers 4


  1. There is no law that says anyone in particular must testify at trial, including the victim.

    The state of Florida is the complainant in a criminal trial. In theory, the victim is everyone in the state, society at large. Often in domestic battery prosecutions, where victims often change their minds about testifying, the state proceeds without them, basing their case on the evidence and statements taken at the time of the incident. If a victim gives written statement and or otherwise contributes to the report, and the prosecution proceeds, the state can subpoena the victim and compel them to testify, using their prior statements to impeach them if necessary.

    Having said that, prosecuting a burglary without a victim is harder than having a victim. Most trials are decided on mostly or even purely circumstantial evidence. Juries, as the finder of fact, are told two competing narratives, are given the law, and go decide which side has prevailed. If a person is caught in a residence not belonging to them by police, is arrested there, makes admissions or leaves evidence of forced entry, has property on them they do not own, etc., the victim's testimony will likely not be required. Still, it would be nice to have if you are the state attorney. Particularly if the issue revolves around an encounter (the shoving) that only the victim can testify to. However, the base charge of burglary, entering with intent to commit a felony therein, may still go forward without that element. You may go to trial on the burglary with assault but have simple burglary as a lesser included offense on the jury form. If the state cannot prove the whole enchilada, the jury can still find for the lesser included and call it a day.

    Sometimes it is necessary to push the prosecutor to the brink of trial to get a better offer, often to the point of picking a jury. And sometimes it is better to make a reasonable counteroffer or accept the offer you already have. Only your lawyer can advise you adequately on that and in the end it is your decision alone. Good luck.


  2. Unless there are other witnesses besides the accuser, the State would be unable to win the case. However, the State could try to browbeat the accuser into appearing even if the accuser does not want to cooperate.


  3. There is no law that says that the victim has to testify. When I was a prosecutor, particularly on domestic violence cases, the victim would not appear. However, I was still able to proceed to jury trial and introduce other evidence, for example, 911 calls, photographs, officer's observations. By the way, I did not win any of those cases. My impression is if the victim doesn't show, then the jury is asking itself, "Well, if the victim doesn't care, then why should we care?"

    Ultimately, don't overlook the fact that the prosecutor could be calling your bluff and seeing how far you are willing to go, but for the State to prevail on a burglary case without the victim is very, very difficult. I would certainly ask for the judge to dismiss this case due to the fact that the State has no good faith basis to proceed. Also, at the end of the State's case (if you do go to jury trial), ask the judge for "judgment of acquittal." Again, I trust your attorney knows about these options. Again, the prosecutor may be trying to see "which side blinks first", and holding out.

    Good luck.


  4. My first concern is that with a charge like you have described, the accused should have representation and his lawyer should already have the answer to your question. As a former Miami prosecutor, I dealt with issues like this frequently, as our fair city has its fair share of domestic cases and other cases with victims that recant frequently. Unlike on television courtroom dramas where you hear about victims not "pressing charges," reality is that the victim does not have to cooperate for a criminal case to hold water. Initially, the victim can be compelled to appear by subpoena (court order). Alternatively, if the victim becomes unavailable, there are some instances when previous testimony/statements can be admitted. Finally, there is caselaw that allows for certain burglary cases to survive dismissal if the surrounding circumstances can be proven to a certain threshold regarding consent.

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