I have represented many defendants accused of domestic violence and sexual assault crimes such as child molestation and rape. The consequences my clients have faced because of such accusations are serious and life altering. Prosecutors are often out for blood and unwilling to be reasonable in plea negotiations even when an alleged victim admits he or she lied about what happened. For that reason, many of these cases are forced to trial rather than settled by way of plea-bargaining. At trial, the alleged victim or complaining witness is often forced to testify; even against their will.
What prosecutors don’t want you to know is that a person who claimed to the authorities to be a victim of domestic violence or a sex offense can, in fact, refuse to testify against the accused. And, with limited exception, anything the accused told the police in an interview or in a written statement, cannot be used against the accused at trial. In many of these cases, the only way to successfully prosecute the defendant is if the complaining witness testifies. If there is no testimony from the person who is claiming domestic violence or sexual abuse, and there is no other admissible evidence against the defendant, the case usually has to be dismissed.
California Code of Civil Procedure (CCP) 1219 (b) provides:
(b) Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.
CCP 1219 prevents Judges from sentencing a person to jail for refusing to testify. If such a witness is punished for refusing to testify, they would be punished by contempt of court. Punishment might consist of community service and/or a fine.
It is important to know that if a person refuses to testify in a domestic abuse or sexual assault case, they will likely be subpoenaed and forced to go to court and take they stand. Such a witness should be careful to not say ANYTHING when they take the stand in court, other than something such as: “I will not testify” or “I am refusing to testify.” Judges will try to pressure the witness to give some testimony and may even start asking questions such as, “Why won’t you testify?” If a witness responds, their response could be devastating to the defendant. For example, if such a witness answers, “I am not testifying because I lied and nothing happened,” that statement alone will open the door to allow the prosecutor to admit into evidence anything that witness may have said previously to police or someone else if those earlier statements contradict what the witness now says, i.e., “nothing happened.” Any such earlier statements will then be introduced into evidence through the testimony of the police officer or other relevant witness.
Because of the complexities of the law in this area, and the unique facts of each case, it is advisable to seek competent counsel by an experienced criminal defense lawyer before any witness refuses to testify in a criminal case.
what happen when the victim was never issued a subpoena but was called over the phone by a state representative and threatened to come to court or they would come to her job and arrest her?
In California, it is illegal to call someone and threaten them with arrest if they do not come to court when they are not lawfully served a subpoena.
A subpoena is valid/lawful if (1) personally served, ie, given to the person directly (in person, not via mail), or (2) if the person received a subpoena in the mail and then called the serving party AND promised to appear in court as per the terms of the subpoena. But, the later form of service has it’s problems because the calling party may or may not be the person who is named on the subpoena. Therefore, the serving party would have to prove that the person who called to “verify” receipt of the subpoena and who “agreed” to appear was, in fact, the person whose name is on the subpoena.
A person ordered to appear in court as a witness has a right to counsel. Sometimes witnesses hire an attorney (called witness counsel) because they are being bullied by the party who served them, they do not want to testify, or they just need assistance through the criminal court process. Witness counsel can be a private criminal defense attorney or a public defender if certain circumstances exist such as being indigent.
Disclaimer:
This above answer is provided for general information only and is based on California law and procedure. Because each case is unique, legal analysis by a qualified attorney in your jurisdiction is necessary for accurate advice. This answer does not create an attorney-client relationship.
What happens if a accuser/plaintiff is subpoena to show, but had a family issue and left state and not known when they will return due to the nature of the family issue
A warrant could be issued for failure to appear on a lawful subpoena, regardless of the circumstances. I recommend contacting the party who served the accuser/plaintiff to make arrangements in advance, if possible, to avoid having a warrant issued. Sometimes agreements can be made or a warrant can be “held” by a Judge allow the party to appear at a later date.
Disclaimer:
This above answer is provided for general information only and is based on California law and procedure. Each case is unique. For reliable advise, you must seek a thorough analysis by a qualified attorney in your jurisdiction. This answer does not create an attorney-client relationship.
My boyfriend is in jail due to a dv situation against me. He is a non violent person but is bipolar and hadn’t been taking meds due to insurance issues. How can I get the court to place him for psychiatric help instead of jail time which will not be beneficial for anyone ? In Ma.
California offers many options for people accused of crimes who have mental health issues. There are mental health diversion programs – such s the very recent PC 1001.36, and mental health courts that work closely with people accused of crimes whose crimes are the result of the mental illness. The goal of these programs is treatment rather than jail. But getting the right kind of help requires the assistance of an experienced and skilled criminal defense attorney who will aggressively advocate based on the needs the accused. Unfortunately, without aggressive advocacy, people with mental health issues often spend years in jail without proper treatment and the problem only gets worse.
Disclaimer:
This above answer is provided for general information only and is based on California law and procedure. Each case is unique. For reliable advice, you must seek a thorough analysis by a qualified attorney in your jurisdiction. This answer does not create an attorney-client relationship.
When you file a recant statement with the police and there were pictures taken will those still be able to be used as evidence?