Hi. Im being charged with domestic violence and my lawyer suggested a bench trial because if she doesn't show up it will get dismissed due to my right to question my accuser, but their is another witness, my neighbor, who told police she seen me grab her arm but not hit her. I actually was the one to call police and was holding her so she wouldn't keep hitting me- so self defense- I thought. Anyways if the victim doesn't show up but the witness does, can I still file a motion to dismiss because of not questioning my accuser?
1 Answer from Attorneys
Requesting a bench trial versus a jury trial has nothing to do with a case getting dismissed due to the complainant not showing up in court. There must be another reason why your lawyer requested a bench trial - either due to the facts of your case and, based on your lawyer's experience, you have a better chance without a jury of being found not guilty. Or, your lawyer may simply want to keep the trial shorter without having a jury. A bench trial also requires less preparation time.
The Judge, or jury, considers all of the evidence that is introduced in the case when determining innocence or guilt. Because there are other witnesses and evidence to substantiate the charges against you, you stand a lesser chance of having the case dismissed, should the complainant not attend. The Judge could also adjourn the trial, depending on why the complainant did not show up. You should always make a motion to dismiss, and a motion for directed verdict at the close of the prosecution's proof, in the event that they have not established their case, whether or not the complainant shows up and testifies. Any prior testimony that you did not have a chance to challenge, will not be admissible if the complainant is not present.
You do have a constitutional right to confront and cross-examine all witnesses that testify against you, along with other constitutional rights, such as a jury trial. Did the complainaint testify at all in this case, such as at a preliminary exam? Again, if she does not appear at trial, then any testimony or statements she gave, and that you did not have a chance to challenge, are not admissible for purposes of establishing guilt. However, the charge would not automatically be dismissed, depending on the other evidence against you, assuming other witnesses appear and testify.