When The Complaining Witness Refuses To Testify In A Domestic Violence Case

by Jamison Koehler on August 11, 2010

A couple of weeks ago, I described a number of myths about the U.S. criminal justice system. One popular misconception I did not address was the question of who actually prosecutes a criminal case. You often hear people say that they don’t want to press charges. What they don’t understand is that, unlike in a civil case, it is the government that presses the charges. The victim has become a simple witness in the government’s case against the defendant.

Defense attorneys are often approached by a victim in a domestic violence case who claims to have no interest in pursuing the case. Either the incident that brought the criminal charges didn’t actually happen:  “I was just mad” at the defendant and “wanted to teach him a lesson.”  Or the “victim” and the defendant have since reconciled.  We are back together again.  I don’t want to see my husband/boyfriend/baby’s father hauled off to prison for some stupid thing.

What would happen, they often ask, if I simply failed to show up for court?

The first question I always ask is whether or not the person has told the prosecutor this and, if so, exactly what the person said and how the prosecutor responded.  This could potentially bring up Brady issues; that is, the obligation of the government to turn over exculpatory information to the defendant’s attorney.

My second question is what really did happen. Depending on the circumstances, I might also call in a third party to bear witness to what the person has to say.  Or I might ask them to put it in writing.

I then deliver some version of the spiel I was taught as a public defender:  A subpoena is a court order. If you disobey the subpoena, the court could issue a warrant for your arrest.  I am an officer of the court.  I cannot advise you to ignore the subpoena.  You should contact the prosecutor.

If pressed, I will concede that, depending on the facts of the case, it could be difficult for the government to make its case against the defendant without the complaining witness’ testimony and that the chances of the court actually issuing the warrant, at least in most jurisdictions, is very small. But, again, I cannot advise you to ignore the subpoena.  That would have to be your decision.

Norm Pattis recently took up this issue in the context of a sexual assault case.  Writes Pattis:  “Connecticut’s constitution gives alleged victims of crimes certain rights. Among these are the right to be heard before the court accepts a plea bargain, the right to be heard at sentencing and the right to be treated with fairness and respect.  Surprisingly, the constitution does not give to victims the most fundamental right of all: the right to stop a prosecution they do not want to take place.”

Clearly, it can be difficult for a prosecutor to determine whether the complaining witness’ recantation is legitimate.  It could be that the witness did in fact concoct or exaggerate a story in the heat of passion.  It could also be that the witness is being pressured or threatened not to testify or that the witness has simply reconsidered the benefits of having the defendant sent off to prison.

In either event, the calling of a reluctant witness to the stand makes for some pretty uncomfortable testimony and puts the witness into an untenable position.  If the alleged incident did in fact occur, the witness can lie on the witness stand and be impeached with any conflicting statements she made previously that incriminated the defendant.  She has just subjected herself to criminal charges for perjury, an offense punishable in D.C. by up to 10 years of imprisonment.  Or she can tell the truth and become the unwilling tool in the government’s case against the defendant and watch as he is taken in handcuffs off to jail.

Conversely, if the incident did not occur or was exaggerated, she can tell the truth on the stand and be impeached with previous statements that she either fabricated or exaggerated.  She has now admitted to making a false statement to a law enforcement officer, a criminal offense punishable in D.C. by up to 180 days in jail.

All three options stink.

As Pattis says, there is something wrong when “victims can object to punishment, address the court about a defendant, be advised about the proceeding and more or less be treated well” but “don’t have the right to tell the court that the prosecution ought not to take place at all.”  Pattis writes this in the context of a sexual assault case.  It is no less true with respect to domestic violence.

I understand it is a little bit disingenuous of me, as a criminal defense lawyer, to suddenly profess concern for the complaining witness. At the same time, whatever my bias may be in approaching the issue, I can’t help thinking that, yes, we do want to protect people in domestic violence cases from abusive spouses and boyfriends/girlfriends but we shouldn’t do this at the cost of victimizing the very people who have sought out the protection of the law in the first place.

{ 14 comments… read them below or add one }

Windypundit August 11, 2010 at 1:48 pm

I realize the law is never as simple as us layman hope it will be, but it seems to my raised-on-TV knowledge of law that in the case where the complaining witness lied in her original complaint to the police, she committed a crime which could be revealed if she testifies, which is a problem for her. You obviously have a conflict, but could you refer her to another lawyer to advise her? And if you were that lawyer, wouldn’t you advise her to take the Fifth, since truthful testimony would incriminate her?

jamison August 11, 2010 at 7:08 pm

Interesting question, Windy. Are you sure you are not a lawyer?

The defense lawyer’s duty is to the defendant. It strikes me it should fall on the prosecutor to sort through since the prosecutor is the one calling the witness to the stand. And, yes, if I were HER lawyer, I would certainly advise her to take the Fifth.

Gina April 27, 2011 at 10:05 am

My question is this..what is the best way to do it, so as not to get the perpetrator in trouble when we have reconciled? He pushed me, I was very drunk, and after the fact, began to piece things together, and realized this. I also told them (I thought it was true at the time), that he pushed in the door, yet I remembered later, I was the one who did so. However, he did in fact push me, as I stated on the piece of paper the cop gave me. Is this considered a false police report?

jamison April 27, 2011 at 10:35 am

It is not a false police report if at the time you made the statement you believed what you said was true.

As soon as you realize that something you said may be untrue, you need to notify the prosecutor of that fact. The prosecutor then has a duty to pass that information along to the defendant’s attorney. To make sure that the system works the way it is supposed to, you should also notify defense counsel directly.

Please note that this is my informal legal advice. It should not substitute for the more formal legal advice you might need from someone who is actually familiar with the facts of your case.

Rick Horowitz May 31, 2012 at 12:21 pm

California has rules about this — which the prosecution and courts fight, as usual, every step of the way, because when victims find out about the rules, there are less prosecutions.

When I have a DV case, I explain to the victim that I cannot give her advice, due to the probable conflict of interest. I do, however, hand the victim a copy of the rules and suggest that if he-or-she (yes, sometimes the DV victim is male!) has any questions, he-or-she may want to go talk to another attorney about it.

For their part, the DAs will try to hide the rule from the victims. Where the victims find out, the DAs will try to make them testify anyway, or trick them into getting up on the stand and saying “I don’t recall,” or “I lied,” or anything else which will allow them to then simply dismiss the witness and call a police officer to testify instead.

Frankly, I think there should be a rule against allowing an officer to testify, even for impeachment. There is no possible way to adequately cross-examine, since the officer is not a percipient witness. To me, this should make the use of the officer’s testimony in place of the victim’s testimony a violation of Crawford.

fire091 February 9, 2013 at 12:46 am

If the primary witness dont show up for court but the arresting officers do can the case still be thrown out of court?

abcxya April 19, 2013 at 4:13 pm

what could be the outcome of the trial in below scenario:
victim calls cop when defendant was not there.
victim says to cop that defendant abused her many times in the past and most recent more than a week ago. shows minor marks also.
later victim disappear.
there is no other witness.
in this situation, what could be the outcome of the trial?

if victim doesn’t show up and there is no other witness

Anonymous June 1, 2013 at 4:54 pm

Great post. I am dealing with many of these issues as well.
.

kumar June 27, 2013 at 6:04 pm

can someone throw some light on abcxya’s April 19 post

where victim calls cop when defendant was not there.ictim says to cop that defendant abused her many times in the past and most recent more than a week ago. shows minor marks also. later victim disappear. there is no other witness. One of my friend in california is facing same situation ?

stephanie March 2, 2014 at 4:34 pm

Hello I have a question. If a boy lied about his age and said he was 18 and come to find out he was 15 turning 16 the next month. And you where 24 at the time. The boys parents and the boy doesn’t want to press charges since he lied about his age. If he dont testify can they still charge the girl?

Roxy August 15, 2014 at 11:27 pm

Hey I have a question.. if im part of a robbery case and I agree to testify on behalf of the state. So I wouldn’t be charged with the case. So if I testify against the other two defendants at a jury trial can the state charge me with the case if I testified for them. This is in the state of oklahoma

BeKura October 13, 2014 at 7:17 am

You can only plea the 5th if your testimony will incriminate you. If you are a witness you are not eligible for this unless you lied in your report and are scared of the backlash of that and then you can ask for immunity and once they give it you can tell them whatever you like because you are free from prosecution. I DO NOT LIKE CROOKED PROSECUTORS!

Felicia October 20, 2014 at 12:14 am

Can a rape accuser and her family refuse to talk to defense investigator

Jamison Koehler October 20, 2014 at 5:03 am

Yes.

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