“I am originally from Canandaigua but moved to Lockport, right outside of Buffalo, with my husband a few months ago. Last week, my husband, while he was in Buffalo, was charged with aggravated robbery. BUT the victim isn’t returning calls from the Erie County District Attorneys Office. The victim is basically not cooperating at all. Could my husband be convicted even if the victim doesn’t cooperate?”


Long story short, it is certainly possible that even without the victim’s cooperation, your husband could be found guilty. However, it largely depends on what evidence the prosecutor has linking the accused to the alleged crime. It is also important to know if the evidence is direct or circumstantial. Clearly, if the prosecutor has sufficient evidence to prove beyond a reasonable doubt the accused committed the crime, then the victim’s cooperation will not be necessary.


However, even if the victim refuses to cooperate, this does not mean the prosecutor will accept this refusal as the end of the matter. The prosecutor may subpoena the victim to appear in court. In such a case, law enforcement must personally serve the subpoena to the witness, who is the victim in this hypothetical case. Once subpoenaed, the witness is essentially on call to appear when requested. It is also possible that the witness could be brought in to testify immediately upon service.  The timing depends on what the subpoena requests.

Assuming the victim is properly subpoenaed and properly served, if she does not show, the judge will issue a “capias” which is the equivalent of a warrant. Once issued, the capias provides law enforcement the authority to pick the victim up, bring her in to court, and force her to make bond to insure her appearance, or order jail if she doesn’t show up after receiving the subpoena.

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After all of this, and if the victim is still refusing to testify, the witness could be declared unavailable, which triggers the relevant hearsay exceptions. It is entirely possible that the prosecutor could find an exception which allows the testimony of the officer or to whomever else she told about the robbery. As an aside, it is also possible that the Confrontation Clause could be triggered as well. In the end, the only conclusion this analysis may demonstrate is that the law is extremely complicated. Notwithstanding that point, the answer really does depend on the specific facts in your case.

In the end, speaking on a very general level without the benefit of the facts, it probably does not hurt your case if the victim does not cooperate. However, just to show how important little facts are, if the victim refuses to cooperate and if she spoke to a police officer, so long as her statements were not “testimonial” (which is another blog topic by itself), then, as noted above, the  statements come in under a hearsay exception. So, if the victim would make a poor witness, it is entirely possible that, by not cooperating, she allows a police officer to testify in her place, which could end up being pretty damaging evidence against your husband.

If you or a loved one has a question and need an answer from a Criminal Defense Attorney in Buffalo email Andrew Tabashneck, Esq. at Andrew@tabashnecklaw.com or contact a Criminal Defense Attorney in Buffalo, Ny.

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