The case is in San Mateo County. My boyfriend has been in custody since November. The pretrial was finally set for February 29th but the alleged victim did not show up because he is "out of the country". My boyfriend was falsely accused to begin with and at this point we are tired of lingering in limbo behind this case.
Was he told to appear for pre-trial? Did the DA tell the victim not to appear? Did the judge continue the matter or was a show cause hearing set for the victim for not responding to a subpoena to appear?
Hopefully you will have this matter re-scheduled as soon as the victim becomes available. Alternatively, your defense attorney could have proceeded on other evidence to show that it was more likely than not that the boyfriend should not be bound over for trial. The decision to wait or go forward with the hearing was up to your defense attorney.
If the hearing is predominantly an idenity matter, it may have helped to continue it.
Rely on the strategy of your criminal defense attorney.
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The answer to your question depends on many factors. First of all, victims generally do not appear at pretrial conferences. They are typically required to appear at evidentiary hearings (i.e., prelims or trials). So, in most cases, the fact that the victim was not present at the pretrial is not unusual and does not mean that the case would be dismissed.
Has there already been a prelim? If so, did the alleged victim testify at the prelim? If yes, then it is possible for the prosecution to proceed with trial based on the victim's prelim testimony (unavailable witness). If the victim has never come to court, they may still be able to proceed if they have other witnesses to support their case.
Your boyfriend should talk to his attorney about what the victim's absence means for his case.
Pretrial or Preliminary Hearing? Regardless, the victim is not required at either. The only hearing where the victim would be relevant is the jury trial.
Mr. Feasel is a former Deputy DA in the SF Bay Area with over 10 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney/client relationship. If you would like to hire Mr. Feasel to further investigate your situation, feel free to contact him thru this site.
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