Written By Anna Gabriella Ceruti L’27
What is No-Drop Prosecution?
No-drop prosecution in domestic violence cases is a policy that limits prosecutorial discretion to drop domestic violence charges once they have been filed, thereby requiring prosecutors to pursue cases even when victims refuse to testify or recant their claims.[1] In terms of discretion, the policy is quite limiting, as prosecutors cannot simply drop charges due to a lack of evidence or an uncooperative victim.[2] In another respect, no-drop policies are quite expansive in the amount of power prosecutors have over the decision to charge, which is important because once charges are filed, the victim cannot withdraw her claim under any circumstance.[3] The prosecutor, as opposed to the victim, becomes the party and retains authority over the case; and the filing of charges is when no-drop policies take full effect.[4] Moreover, there are opposing forces at work that both afford and strip prosecutors of the power to control the fate of domestic violence cases.
As one might expect, victimless prosecution presents an onerous evidentiary hurdle: Because many domestic violence cases involve hostile witnesses and lack physical evidence (particularly when attempting to prove psychological abuse), it is far more difficult for prosecutors to meet their burden of proof.[5] Consequently, prosecutors are forced to rely on other, arguably weaker forms of evidence besides witness testimony, which may be less capable of directly illustrating the “whole story” of abuse to the jury and face a slew of their own evidentiary setbacks.[6] In practice, this often takes the form of the victim’s out-of-court statements that meet one of the hearsay exceptions, such as excited utterances, present sense impressions, or statements offered for the purpose of seeking medical treatment.[7]
Many prosecutors see little value in stretching resources in pursuit of cases where the likelihood of success is slim.[8] Many also find fault with the compulsory relationship no-drop fosters between prosecutors and victims, contending that victims are stripped of their autonomy when forced to testify against their abusers; or that, even when victims’ testimony is not obtained through coercive means, prosecutors risk endangering them should their abusers seek to retaliate.[9]
These aspects of no-drop prosecution call into question its very existence. What is the benefit to a domestic violence policy with such a high evidentiary burden, and what incentivizes prosecutors to take on these challenges? While the answer is manifold, the fundamental principle of no-drop prosecution– and what drives prosecutors to carry on with victimless cases– is the state’s commitment to the welfare of its citizens.[10] That is to say, the evidentiary challenges that emerge from no-drop prosecution actually highlight the policy’s fundamental mission.[11] To the extent that the law allows, the state will do everything in its power to ensure that abusers are not absolved of culpability merely because they can manipulate their victims out of testifying.[12] In implementing this approach, the state can effectively communicate the idea that domestic violence is a serious crime and that abusers’ efforts to silence their victims will not prevail over the state’s will to have their crimes met against the force of justice.[13]
Hard No-Drop vs Soft No-Drop Policies
While a no-drop policy is rigid by definition, there is no single, one-size-fits-all method of application prosecutors must follow.[14] Any no-drop policy will require prosecutors to proceed with a case of domestic violence, even if doing so is at odds with victims’ wishes; but prosecutors have discretion in how to deal with uncooperative victims.[15] No-drop policies exist on a spectrum.[16] Some may reflect the strictest adherence to its definition, while others may soften no-drop by allowing for greater prosecutorial discretion in whether charges should be dropped.[17]
A hard no-drop policy is one that applies no-drop in the most literal sense, offering prosecutors little to no discretion in dismissing cases of domestic violence in the face of victim non-participation.[18] Jurisdictions with hard no-drop policies are unyielding to victims’ reluctance to comply with prosecutors’ requests, at times presenting them with the threat of arrest should they fail to appear in court.[19] These jurisdictions defend legal compulsion on the grounds that a wholehearted dedication to the mission of no-drop requires doing what is necessary to secure victim participation.[20] An additional basis for compulsion is the policy’s significant deterrence value. If abusers are made aware that they face the threat of prosecution regardless of their victims’ wishes, they will be less likely to commit domestic violence crimes.[21]
Soft no-drop policies differ from hard no-drop policies in that they use incentives, rather than coercion, to encourage victim participation.[22] Under this approach, prosecutors recognize that forcing victims to testify against their will may exacerbate the harm being done to them (i.e. retaliation) and adjust their responses to victims’ request to recant accordingly.[23] Moreover, soft no-drop policies attempt to balance the retributive value of vigorously prosecuting domestic violence crimes with a respect for victims’ autonomy and a recognition of their safety.[24]
Evidence-Based Prosecution: The Essential Tool in Executing No-Drop Policies
Evidence-based prosecution is especially strategic in domestic violence cases because it allows prosecutors to secure convictions without victims’ direct cooperation.[25] The kind of evidence most probative of abuse will vary depending on the specific facts of the case, but prosecutors commonly rely on photographs, cell phone records, medical records, police reports, and the testimony of third-party witnesses.[26] By using victims’ out-of-court statements and other evidence that do not require their testimony, prosecutors can still meet their burden of proof to convict abusers in a way that does not force victims to endure the pain of reliving their traumatic experiences.[27] Thus, the outcome of the case is not wholly dependent on victims themselves, but rather on an assemblage of other evidence that, when considered in light of all the circumstances, allow the jury to get a more precise idea of the cruelty to which they were subjected.[28]
Under an evidence-based approach, no-drop policies further prosecutors’ goals of safeguarding victims from further abuse by shifting the focus away from them and instead to the state.[29] That is, the state, rather than the victim, is the one demanding justice throughout the life of the case.[30] In situations of abuse, victims are left in an especially fragile, lonesome state of mind; and that combined with the pressure to cooperate with law enforcement and prosecutors only adds to the already immense weight of shame, guilt, and trauma.[31] Prosecutors are in the unique position of being able to leverage the law in a way that removes victims from a perpetual cycle of abuse. To prevent victims from becoming casualties of their own circumstances, prosecutors must employ alternative means that can effect a positive outcome in removing victims from such conditions without requiring their direct cooperation.[32]
The benefit of evidence-based prosecution, moreover, is that it strips abusers of their ability to manipulate their way out of being held accountable.[33] Victims, who would otherwise be dissuaded from pursuing their own cases, are afforded the equal protection they rightfully deserve.[34] Not only does this help to relieve victims from the immense pressure of testifying against their abusers, it also communicates a strong message to those who contemplate inflicting violence upon their partners: A domestic violence crime committed against another citizen is a crime against the state, and prosecutors, as the state’s representatives, have an official duty to the people to pursue such crimes.[35]
The Crawford Doctrine: An Evidentiary Roadblock to No-Drop Prosecution
One of the most significant barriers to no-drop prosecution emerged from Crawford v. Washington, a 2004 case in which the Supreme Court created a new, stricter standard for the Sixth Amendment’s Confrontation Clause.[36] Under the Crawford doctrine, a victim witness’s testimonial statements (i.e. statements of which the declarant has personal knowledge) are inadmissible at trial if the witness is unavailable for cross-examination, and the defendant had no prior opportunity to cross-examine the witness.[37] The Crawford doctrine is well-intended, as it aims to uphold defendants’ Sixth Amendment right to confront and cross-examine opposing party witnesses; where the witness is unavailable for cross-examination, the Sixth Amendment requires that evidence of the witness’s out-of-court statement be excluded.[38] This poses a challenge for prosecutors: If victims refuse to testify or be cross-examined, how do prosecutors leverage evidence-based prosecution without violating defendants’ Sixth Amendment rights?[39]
Because the Court designated cross-examination as a “bedrock procedural guarantee,” Crawford was largely seen as the demise of evidence-based prosecution.[40] Time and time again, prosecutors were forced to contend with vacated convictions due to the evidentiary burden prescribed by Crawford.[41] Unavailable witnesses who suffered unspeakable violence at the hands of their abusers lost the opportunity to have their claims heard due to their out-of-court statements being disproportionately testimonial, which composed the bulk of the evidence to be used at trial.[42]
The Crawford doctrine has caused prosecutors to respond in ways that are at odds with the spirit of no-drop policies. It took very little time following the decision for large amounts of domestic violence cases, that would have otherwise presented little evidentiary problems, to be lost or dismissed.[43] The year following the Crawford decision, prosecutors reported that they dismissed more domestic violence cases compared to years prior.[44] Few prosecutors saw the value of investing vast amounts of time and resources into cases where the victim’s absence curtailed the likelihood of securing a guilty plea or conviction.[45] Offices across the nation reflect this sentiment.[46] One study from 2004, for example, examined 64 prosecutors’ offices in California, Oregon, and Washington and found that “76 percent of the offices were more likely to dismiss domestic violence charges when the victim was unavailable or refused to cooperate.”[47] In Dallas, Texas, judges have responded to the evidentiary issues created by Crawford by dismissing up to a dozen cases per day.[48] These specific examples, while limited, reflect a much broader, more pessimistic outlook on victimless prosecution ever since the Crawford rule took effect.
Conclusion: Why No-Drop is the Favorable Approach in Light of Its Limitations
No-drop policies handle the immensely difficult task of having to correct the injustice done to victims in the face of their nonparticipation and significant evidentiary problems. For this reason, the law has yet to develop the ideal formula for prosecuting domestic violence crimes.[49] In light of the policy’s benefits and challenges, however, having a soft no-drop policy appears to be the best way of satisfying prosecutors’ goal of protecting victims while also allowing for some degree of discretion to dismiss charges under appropriate circumstances.[50]
Since no-drop policies have started to be implemented on a wider scale, a surprising number of jurisdictions are now reporting more convictions in cases lacking victims’ participation than those where victims did in fact participate.[51] Considering the high dismissal rate prior to the widespread adoption of no-drop policies, this fact suggests that no-drop policies are an effective strategy for convicting abusers who have frightened their victims out of cooperating with prosecutors.[52]
The arguments against no-drop policies are not without merit, but it must also be recognized that in choosing to drop a case, prosecutors knowingly return victims to an environment with an established pattern of abuse.[53] To do away with cases where abuse is evident would be a failure to uphold the state’s duty to take every measure within its power to promote public safety. Far too many victims of domestic violence have been failed by policies supposedly implemented to protect their interests, and we cannot regress into a society where the “battles occurring within our nation’s homes” are left unfettered.[54] Thus, the retributive value of no-drop policies substantially outweighs the evidentiary challenges that arise in victimless prosecution of domestic violence cases; and implementing this approach does not preclude prosecutors from affording victims some degree of agency in the process should they choose not to testify.
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Soraya Joslin, Attorney at Law, Does Texas Have a No-Drop Policy in Domestic Violence Cases? (Nov. 25, 2024), https://www.joslinlawfirm.com/
[1] See Claire M. Renzetti & Jeffrey L. Edleson, No-Drop Prosecution, 2 SAGE Publ’n, Inc. 484 (1984).
[2] See id.
[3] See Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 Fordham L. Rev. 853, 858 (1994).
[4] See id. at 858.
[5] See id. at 862.
[6] Id.
[7] Id.
[8] See id. at 857.
[9] See id.
[10] See Renzetti, et al., supra note 1, at 484.
[11] See id.
[12] See id.
[13] See id.
[14] Id.
[15] Id.
[16] Id.; see also Nancy Simpson, Benefits and Drawbacks of No-Drop Policies and Evidence-Based Prosecution, 26 Rich. Pub. Int. L. Rev. 141, 145 (2023).
[17] Id. at 145.
[18] Id.
[19] Id.
[20] See Renzetti, et al., supra note 1, at 484.
[21] See id.
[22] Id.
[23] Id.
[24] Id.
[25] See Simpson, supra note 13, at 147-48.
[26] Id. at 147.
[27] Id. at 147-48.
[28] See Lawrence Busching, Rethinking Strategies for Prosecution of Domestic Violence in the Wake of Crawford, 71 Brook. L. Rev. 391, 395.
[29] See Kalyani Robbins, No-Drop Prosecution of Domestic Violence: Just Good Policy, or Equal Protection Mandate?, 52 Stan. L. Rev. 205 (1999), available at: https://ecollections.law.fiu.edu/faculty_publications/262.
[30] See Renzetti, et al., supra note 1, at 484.
[31] Id.
[32] See Simpson, supra note 13, at 145.
[33] See Renzetti, et al., supra note 1, at 484.
[34] See Robbins, supra note 29, at 227.
[35] See Renzetti, et al., supra note 1, at 484.
[36] See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
[37] See id. at 55, 68.
[38] See id. at 61; see also Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 775, (2005).
[39] See Crawford v. Washington, 541 U.S. 36 at 68.
[40] See id. at 42; see also Busching, supra note 24, at 396.
[41] See Lininger, supra note 30, at 748-49.
[42] See id. at 749; see also People v. Kilday, 123 Cal. App. 4th 406, 20 Cal. Rptr. 3d 161 (2004); see also Corona v. Florida, 124 S. Ct. 1658 (Mar. 22, 2004).
[43] See Lininger, supra note 30, at 749.
[44] See id. at 772.
[45] See id.
[46] See id.
[47] Id. (noting that this survey was conducted by researchers at the University of Oregon School of Law between October 22, 2004, and January 31, 2005).
[48] See id. at 772-73.
[49] See generally Busching, supra note 24, at 400.
[50] See Robbins, supra note 29, at 216.
[51] Id.
[52] See Kim D. Akinyanju, Factors that Influence Domestic Violence Convictions in “No Drop Policy” Trials (2006) (MA thesis, Old Dominion University) (on file with the ODU Digital Commons).
[53] See Robbins, supra note 29, at 216.
[54] Busching, supra note 24, at 392.