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If the Witness Refuses to Testify, Are the Charges Dropped?

A common question that prosecutors are asked is if a case will be dismissed if the victim decides not to testify against the alleged abuser. The answer to this question depends on the state and the particular circumstances involved in the case.

There are many reasons why a prosecutor may decide to move forward with a case even when a witness does not want to testify, says that he or she will show up in court or is otherwise uncooperative. Some reasons include:

Testimony Is on the Record

Even if the witness does not show up in court or is unavailable at the time of trial, the prosecutor may not require the witness’ testimony if there is already testimony on the record such as because there was a preliminary hearing in which the witness is examined. The test that many states use if the witness is unavailable if testimony can be re-used is whether the defendant cross-examined the witness. One tactic that some defense counsel may use is not to cross-examine the witness at preliminary hearing, knowing that the witness may later re-establish a relationship with the defendant or otherwise not to accuse someone he or she loves of the crime.

In order for a prosecutor to use prior testimony, however, the witness must be considered legally unavailable. This is defined under state or federal law, depending on the court that is handling the case. However, to be legally unavailable, the witness may be outside of the jurisdictional limit, physically or mentally disabled, unable to be found or have invoked a privilege that prevents the prosecution from forcing the witness to testify. Additionally, the prosecution must usually make a good faith effort in order to secure the victim’s testimony. If the defendant caused the witness not to be available, the victim’s statements may be able to be admitted.

If the prosecution does want to submit the victim’s testimony, he or she has the testimony from the preliminary trial read during the trial. If the defendant is facing a misdemeanor offense, there is often no preliminary hearing so this reasoning may not be present in these situations.

Victim Emergency Recording

The prosecutor may not need the victim’s testimony if he or she made a 911 call that was recorded and this recording can be made available for trial. Such a call may provide an immediate report of what resulted in criminal charges, such as declaring that the defendant was hitting the victim, threatened the victim or otherwise caused harm to the victim. While this is not sworn testimony, it can provide an explanation of the facts surrounding the case. While out of court statements that are offered to assert the truth of the matter may be hearsay, there are several exceptions. One such exception is an excited utterance.

Other Witness Available

Another reason why a prosecutor may decide to move forward with a case even when the victim does not want to is because another witness can testify about what happened. A neighbor, friend, colleague or other individual may have witnessed the abuse.

Other Evidence Proves Facts

If an eyewitness is not available, the prosecutor may submit other evidence to establish the original facts alleged. The victim may have sought medical treatment and there may be pictures of the abuse. There may be video recordings of what transpired from a passerby or a nearby video camera. There is some controversy about submitting such forms of evidence as some jurisdictions support the argument that these documents are hearsay statements. Other courts have found that there is no statement so they are not hearsay. The issue then becomes finding someone to substantiate what the video or picture is depicting as a matter of establishing a foundation for the evidence.

Protection Orders

Some victims do not testify because they are afraid of the defendant. They may obtain a protection order against the defendant in order to prevent future contact with him or her. While it is not uncommon for a couple to mend their relationship after an act of violence, a defendant subject to a protection order can find himself or herself in legal trouble if he or she defies the instructions regarding the protection order. Additionally, intimidating the witness in order to try to get him or her not to testify can cause additional legal problems and charges to arise.

Legal Assistance

Individuals who are involved in a domestic violence case should not assume that the case stops simply because the victim no longer wants to testify against them. The prosecution may follow through with the charges, making it critical that the defendant seek legal counsel to protect his or her rights.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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