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Does a Victim of Domestic Violence Have to Testify?

Posted on July 14, 2021 in Domestic Violence

It is relatively common for those who accuse others of domestic violence to recant their allegations later, when they have reconciled with the alleged perpetrator or realized the gravity of the accusation. What many people do not realize is that once an accusation of domestic violence has gone to the police, it will not matter if the victim recants or does not wish to press charges; the county can proceed with a domestic violence charge regardless. However, if the victim refuses to testify, this can make for a much weaker case against the defendant.

What If the Victim Refuses to Testify?

Most domestic violence criminal cases rely on the person who accused the defendant to testify. If the alleged victim refuses to testify, the state typically will not be able to file charges. This is because the victim’s testimony is often the strongest form of evidence in a domestic violence case – especially if no one else was present at the time of the alleged crime.

However, if the prosecution still believes it has enough evidence to support a case against the defendant, it has the legal authority to bring charges even without testimony from the victim. Other evidence may include the victim’s 911 call, medical records, and testimony from friends and family.

If the prosecution does proceed with criminal charges, the victim still has the right to refuse to testify. This can weaken the prosecution’s case, as the prosecutor may only be left with circumstantial evidence. The prosecutor can subpoena the victim to force him or her to testify in certain cases. This is often not desirable, however, as the victim may be too scared, intimidated or hostile to provide strong evidence.

What Is Spousal Privilege?

A prosecutor cannot subpoena the victim of domestic violence to testify if spousal or marital privilege applies. Spousal privilege is the legal right of a spouse within a marriage to refuse to testify against his or her husband or wife. In a domestic violence case involving a married couple, spousal privilege means that a victim can refuse to testify and not be compelled to change his or her mind.

Many states, however, have listed domestic violence as an exception to the rule of spousal privilege. When one spouse is being tried for an alleged crime against the other, it may be possible for the prosecutor to subpoena a victim to testify against the alleged persecutor despite spousal privilege. Whether or not this exception applies will depend on the specific facts of the case.

It is also possible for a spouse to waive the marital privilege on his or her own. Spousal privilege does not prohibit one spouse from testifying against the other. If so desired, one spouse can waive their privilege and decide to testify against the other in a domestic violence case. Note, also, that spousal privilege does not apply if a couple is no longer married at the time of the trial.

When to Consult With an Attorney

If you are involved in any type of domestic violence case in Arizona, it is critical to consult with a Phoenix domestic violence lawyer as soon as possible. These cases are complex and can involve many nuanced laws and statutes. A criminal defense attorney can carefully review the case against you and inform you of your legal rights and options. Then, your attorney can advise you on what to do moving forward, such as what evidence to begin gathering and how to deal with an arrest.

When it comes to issues related to victim testimony, both during pretrial depositions and a criminal trial, your lawyer can explain how witness testimony might affect your case. If the prosecution decides to press charges without the cooperation of the alleged victim, your lawyer can use this to undermine the prosecutor’s case against you. To learn more about your specific domestic violence criminal case, contact an attorney in Phoenix to request a free consultation.