Many CDV defendants rely upon their partner or another witness not coming to court to testify against them. They beleive that because the other person has expressed a disinterest in coming to court or testifying that there is no chance they could be convicted of domestic violence. In our South Carolina CDV defense practice we see where this strategy has failed over and over, resuling in people convicted of false and unfair CDV allegations.
One of the main reasons why this strategy fails is because the professional prosecutor doesn't simply give up on the case. Many CDV cases have uncooperative witnesses. Because of that the police, prosecutors and judges are used to employing legal strategies to allow them to continue with the case.
If a witnesses has been subpoened to court, and they fail to appear, the case may be continued and a bench warrant issued for the witnesses arrest. It doesn't matter if the witness is the alleged victim of a CDV or not. The judge has the authority to order them arrested and held until the trial can be rescheduled. Municipal and Magistrate Courts can only issued subpoenas to witnesses in their county. Out of county subpoenas are legally not binding, but many judges don't know this and will issue bench warrants regardless. General Sessions subpoenas are valid anywhere in South Carolina.
Prosecutors, just like defendants, are allowed to ask courts to continue their case. Continuances are requested, and granted, for a variety of reasons. Sometimes the prosecutor is scheduled to be in another court at the same time. Sometimes a police officer is sick. Cases are scheduled during vacations. Or they may need additional time to try to locate a witness.
When all else fails a proecutor can also try to establish guilt in a CDV case through means other than eyewitness testimony. Anything that the defendant has said (or the police just say was said) can be used against them. So if the police officer testifies that the defendant confessed, or at least gave some type of incriminating statement, that could be enough to result in a conviction. 911 tapes can also be used to try to establish guilt.
An experienced, professional CDV prosecutor has a lot of tools at their disposal to assist them in obtaining convictions. The role of a defense attorney is to anticipate the techniques that the prosecutor will employ, and to come up with the appropriate defense strategy. For example to head off the prosecution attempting to ambush the defense with an alleged confession, we file motions with the court well in advance of trial requiring the prosecutor to turn over any such statements to us. This gives us an opportunity to challenge their admissibility before court, and prevents police officers from being able to simply make up the case as they go along the day of trial.