The following is a common situation: A person is charged with domestic violence, and the alleged victim does not appear or does not want to testify. Does that mean the accused person is free to go? No, the legal system is not that simple.
Domestic violence charges are some of the hardest offenses to prosecute. Often, the evidence is scarce. The evidence that does exist presents itself in the form of differing testimonies from the defendant and the alleged victim. The defendant and the alleged victim often give conflicting statements. Prosecutors usually pin the theory of their entire case on the testimony of victims. Victims do not like testifying against their abusers; therefore, they often resist testifying.
When a witness or alleged victim refuses to testify, or even refuses to show up to court after receiving court orders, they could be found to be in contempt of court. In California, a charge of contempt of court has different consequences. These consequences will depend on whether the person is the alleged victim of domestic violence or a third-party witness.
What Happens If a Witness Refuses to Testify?
If the witness is the alleged victim, California Civil Code Section 1219 comes into play. If the contempt of court consists of refusing to testify in relation to being a victim of sexual assault or domestic violence, then a court is not allowed to imprison or confine an alleged victim. The law says that an alleged victim does not have to testify. Domestic violence is one of the rare instances when a judge cannot penalize a person for refusing to testify in court with a contempt charge.
A non-victim witness, however, would be subject to a contempt of court charge. Usually, this entails one night in jail, but it can be up to six months depending on what led to the charge.
Can I Be Found Guilty If the Accuser Does Not Testify?
Yes, you can still be convicted of domestic violence if the accuser does not testify. Even if the accuser wants to drop the charges, prosecutors can continue to press charges.
If the prosecutor observes physical evidence of abuse, such as bruised skin or broken bones, the prosecutor can use this as admissible circumstantial evidence. If the alleged victim called 911, the taped call and subsequent conversations with the police can be used as evidence against you. While the tape might be dismissed as hearsay, there are exceptions to hearsay rules.
In domestic violence cases, the most common exception to the hearsay rule is what is known as the excited utterance. An excited utterance is a statement made by a witness during a stressful moment, like a 911 call. Even if such a statement is recanted, it will be presented to the court as accepted under California law. District Attorneys can use 911 tapes to pursue a domestic violence conviction, even if the victim or witness cannot or will not testify.
What Should I Do If I Am Charged with Domestic Violence in California?
Never make contact with your accuser. Do not attempt to contact your accuser through friends, phone, letter, email, text, social media, or any kind of messaging service. Obey every condition of your release if the judge grants you bond. Stay as far away from the alleged victim as possible.
Write down as much information about the incident as you can remember. Include witness names and contact information. If the incident was a continuation of an argument or a problem with the victim, print all text messages, emails, and other written communication between you and the victim.
It is illegal to ask or influence a person not to testify against you. There are many other rules to follow when you are facing serious criminal charges. Most importantly, you need an experienced, local California attorney to help you defend yourself.
Contact the Skilled Defense Attorneys at Dod Law, APC to Help Defend Yourself against Domestic Violence Accusations in San Diego
Domestic violence cases are nuanced and present challenges that are not seen in other criminal cases. To have a fair chance at success in court, you need competent and knowledgeable representation by a San Diego criminal lawyer.
With a domestic violence defense lawyer on your side, there is hope that you can preserve your reputation and avoid penalties. Talk to Attorney Dod, of Dod Law, APC, to learn what steps you should take after a domestic violence accusation is made against you. You can call (619) 814-5110 or complete our contact form to schedule a free consultation.