Last Updated on September 19, 2024
Many cases, particularly those involving domestic violence and sexual assault, come down to the alleged victim’s word versus the word of the accuser. Because these charges depend on the accuser’s testimony, courts have to balance the risks of further traumatizing the victim with the rights of the defendant to face their accuser in court and question their version of the events. While a victim can be forced to testify, prosecutors typically try to avoid this whenever they have enough evidence to prove the case without the testimony, especially in rape and domestic violence cases. What happens if an accuser or material witness refuses to testify or doesn’t show up in court depends on the specifics of the case in question. The charges may be dropped if there is insufficient evidence to support the allegations without them.
What Happens if a Victim Doesn’t Show Up For Trial?
Victims are usually only required to appear in court if they are required to testify. If the prosecution has sufficient evidence, such as forensic evidence or other witnesses, and does not require their testimony, the victim can often skip the trial or appear and watch without testifying. If the defendant confessed to the crime, that might be all the evidence the District Attorney needs to proceed with the charges.
On the other hand, when the victim’s story is considered crucial evidence in the case, they are considered a “material witness.” In these situations, the court may issue a subpoena demanding the victim appear and testify. If the victim fails to appear, they can be arrested and brought to court for violating the subpoena. If they refuse to testify or answer questions once at the trial, this is considered direct contempt of court as it is done in front of a judge. Victims of most crimes who refuse to testify after being told they have to do so in court can either be fined or jailed. However, victims of some particularly traumatizing crimes cannot be jailed.
Does a Victim of Rape or Domestic Violence Have to Testify in Court?
Victims of sex crimes and domestic violence are considered particularly vulnerable after their traumatic experience and are legally protected from being jailed for refusing to testify. However, domestic violence and sexual assault victims still have to appear in court if called to do so, and a victim can be fined for each day they refuse to testify. Though they will not be jailed if they refuse to take the stand, they will be counseled before the court attempts to fine them.
If a rape or domestic violence victim appears at trial and then attempts to deny what happened and does not testify to the statements they made at the time of the incident, the prosecutor can impeach them with these statements.
What Happens if a Witness Refuses to Testify?
Courts are typically more sympathetic when a crime victim refuses to testify than when a witness refuses to do so. If a witness refuses to appear in court or provide their testimony when subpoenaed, they will likely be charged with contempt of court.
While fines are the most common punishment for witnesses who do not want to take the stand, they can also be charged with criminal contempt of court, which carries a sentence of up to one year in jail in California.
What Statements Can be Used in Court?
Generally, statements made by the victim while not under oath are considered hearsay and inadmissible in court. However, calls to 9-11 are often ruled admissible by judges and may provide enough evidence for the prosecution to move forward with their case. Similarly, if the police arrived at the scene shortly after the crime, statements the victim made to the police will also be admissible. Statements made at a preliminary hearing may also stand in for victim testimony in a trial, particularly if the defense cross-examined the victim. Declarations or written affidavits are considered inadmissible because they are hearsay, except for dying declarations made when the individual knew they would die before the trial.
At trial, live testimony, meaning the individual is present in person, is required, with a few exceptions. A witness who will not be available for medical or compelling reasons can be conditionally examined before trial by video, allowing for cross-examination by a criminal lawyer.
Will the Prosecution Drop the Charges Without Victim Testimony?
If a victim or witness cannot be found to be subpoenaed for trial or does not appear, the prosecution may drop the case if there is insufficient evidence without their testimony. However, if the victim shows up for a trial, the prosecution may at least be subject to impeachment by their previous statements.
Ultimately, whether or not to drop the case will depend on the evidence and the prosecutor and judge trying the case. Some prosecutors and judges are more likely to drop cases than others. Similarly, some judges are more likely to allow 9-11 calls and statements to officers to be admitted as evidence than others. It can be beneficial to have a criminal defense attorney familiar with the key players in North County courts so your strategy can be based on what the District Attorney and judge may decide.
If the only evidence against you is the victim’s testimony and the victim refuses to testify though, the case is almost certain to be dropped no matter who is handling it.
Anyone accused of a crime should seek the counsel of a criminal lawyer to discuss their specific circumstances. Schedule a free consultation with Peter M. Liss by calling (760) 643-4050.
