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 you’re the mother of two victims of sexual assault and don’t want them to testify and want to drop the charges?
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.
I got a subpoena to testify. What rights do I have when i take the stand? I do not want to testify at all.
What will the victim be charged with if they do not testify
Hi. I refused to testify in court against my husband on dec 27th 2018. I was being bullied , threatened and intimidated by DA, PD,, judge to testify or I was going to jail. I was subpoenaed I attended but I refused to answer . Judge belittled and threatened me with jail, gave me 72 hrs of community service for house of ruth my husband is facing 8 years. They are now FORCING me to appear in every court date he has not waived time so every week I have to show up and be on their time while missing work, paying for daycare etc..can they do this?
What happens if the victim is a minor, and the guardian doesn’t want the child to testify…
The Penal Code is marked as “Civil” does that only apply in civil cases or criminal cases as well? Is it recommended to bring an attorney with you if you are planning on refusing to tesitfy in a criminal domestic violence case?
What will happen to the victim (child 14 yrs) and mother if the victim does not want to go to court anymore to testfy because she lied
If your a victim of domestic violence but they charged him with aggravated assault with weapon no intent (pocket knife)
But they want you to talk to state attorneys but didn’t get a letter to go
But want to go to drop the charges do I have a right not to speak about the incident since I never made a statement with cop they only have the cops statement where he lied
Do I have to talk to them if I dont want to there was no injuries no statement by me on paper only what I told cop but he lied I don’t want to talk to them about it cause then they will try to use it against him