Legal Question in Criminal Law in South Dakota

1st Degree Rape

A friend of mine has been charged with 1st degree rape and is awaiting his preliminary trial. The person who brought up these charges has left the state with no forwarding information. There was never any physical evidence only testimony that was presented to a grand jury. What happens now with his case that there is no victim to testify? Does he not have the right to question the victim and if she cannot be found how long can they hold him? What are his rights or options now?


Asked on 11/29/07, 4:51 pm

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Re: 1st Degree Rape

Criminal defendants have the right to cross-examine witnesses against them at trial, but they don't have the right to decide who those witnesses will be. There is no rule that says victims must testify at trial; if there were, it would be impossible to prosecute murderers, and people who commit lesser crimes would have an incentive to kill their victims in order to insulate themselves from prosecution.

It may be possible for the prosecution to prove its case with evidence other than the complaining witness's testimony. Under the rules of evidence, it may be possible for some people with whom she discussed the alleged rape to testify about what she told them (such statements are generally hearsay the rule that bars most hearsay has many exceptions, and some of these exceptions may apply in your friend's case).

It sounds like your friend does not have a lawyer yet. If that is the case, he should get one ASAP. The court will appoint one for him if he can't afford to hire one privately. If he tries to defend himself, he will almost surely damage his case.

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Answered on 11/30/07, 7:52 pm


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