A BIG CHANGE IN FAMILY VIOLENCE CASES

  
On January 1, 2013, the Georgia evidence code will be substantially changed. Most of these changes are probably not that interesting to the general public. The changes will simply mirror the federal rules of evidence.

However, one change will have a major impact on the way that prosecutors handle family violence cases. HB 711 was signed by Governor Deal during the summer. This new law will allow prosecutors to compel alleged victims of family violence to testify against their spouse if their spouse is accused of a family violence offense. It also protects the communications between alleged victims of family violence and sexual abuse and the agencies that assist them.

Currently, it can be very challenging for prosecutors to obtain convictions against spouses accused of family violence. This is because under current law (at least for the next 3 months) a spouse has a general privilege where that person cannot be compelled to testify against the other spouse in a criminal prosecution. The only exception to this current law is when the case involves a child victim.

The current law was based on the public policy idea that the State of Georgia needs to encourage family and spousal harmony. The current law also benefits those who are concerned with privacy issues as it relates to their families.

However, the current law is a major headache for prosecutors. The problem that they face today is that oftentimes, the alleged victim will not want to cooperate at the time of trial. Though there can be a variety of reasons for this, it is usually because the alleged victim has been threatened by the accused, has reconciled with the accused, or lied to the police at the time of arrest.

Once spouses exercise their privilege to refuse to testify, prosecutors are left without the main witness in the case. Unless there are other witnesses to the alleged crimes, the State will have very little, if any, admissible evidence to use to convict the accused.

The new law will allow prosecutors to force the alleged victim to take the stand against their spouse. If the alleged victim is uncooperative, remains silent, or chooses to lie on the stand, then prosecutors can use previously made statements to impeach their testimony.

Based on my experience, this new law will significantly increase the number of family violence convictions. You would be surprised by the number of cases that have to be dismissed because of an uncooperative alleged victim.

I also have mixed feelings about the new law. I hope that the law will assist more in the administration of justice rather than further traumatize victims of family violence.

However, I recognize why prosecutors have wanted this change for so many years. In effect, the law seems to attempt to not only protect victims from abusive spouses, but to attempt to protect victims from themselves.