When I prepare for a preliminary hearing or trial on a domestic violence or sex crime case, I am often asked, “What happens if [complaining witness] does not want to testify?” The answer might surprise you.

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.

This blog is written by Los Angeles criminal attorney Debra S. White and is based on California law and procedure. Nothing in this blog is intended as legal advice. For a free initial confidential consultation with Ms. White, please call: 1-818-609-1800 or 1-310-909-8638.