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Victim Refusing to Testify in a Domestic Violence Case

Posted by Ronald D. Hedding | Jul 11, 2024

Many victims of domestic violence victims in Los Angeles just want to drop charges and have the case dismissed. Notably, however, it's a common myth that a victim can make this decision.

Many domestic violence cases are prosecuted without the victim's cooperation, including when the victim refuses to testify. The district attorney can still obtain a conviction without the victim's testimony.

In California, domestic violence means physically harming or injuring another person, stalking, threatening, or damaging their property. The most common domestic violence charge is related to California Penal Code 273.5, which involves a corporal injury to someone who is or used to be an intimate partner of the defendant.

Charges under PC 273.5 are considered wobblers but are often filed as felonies. Other standard DV charges include child abuse, domestic battery, and elderly abuse, which can also be charged as a misdemeanor or a felony.

If convicted of felony domestic violence, you could face up to four years in state prison and a fine of up to $10,000, highlighting the severity of the charges. Along with possible jail time, you might have to complete a one-year batterer's treatment program and have a restraining order put against you by the judge.

When Are Domestic Violence Defendants Arrested?

After a call to 911 or an allegation of domestic violence, the victim might want the charges dismissed due to a misunderstanding, an accusation made out of anger, or other reasons.

However, California law says this is not possible. California Penal Code 836(d) PC says that when a police officer is called to a domestic violence situation, they can do the following.

"A police officer may arrest the suspect without a warrant where both of the following circumstances apply:

(1) The peace officer has probable cause to believe that the person arrested has committed the assault or battery, whether or not it has been committed.

(2) The peace officer makes the arrest as soon as probable cause arises to believe that the person arrested has committed the assault or battery, whether or not it has been committed."

Police officers responding to domestic violence calls typically act cautiously and make an arrest. Still, when an arrest is made, the decision about pressing charges is the responsibility of the Los Angeles District Attorney's office. Police officers never file any criminal charges against anyone, ever. The DA's office will usually file charges based on the following information.

  • Evidence of violence in a police report.
  • Level of injuries, if any.
  • Prior convictions.
  • Prior allegations of domestic violence.
  • Any attempts by the victim to file restraining orders.
  • Victim and witness statements.
  • Defendant's statements, including a confession.
  • Medical records.

If a case reaches a preliminary hearing and the alleged victim makes a statement, that statement might be admissible even if it is recanted later.

Notably, without witness testimony, the DA may only have circumstantial evidence of a crime, but that will not always prevent them from pursuing a conviction. Even with the burden of proof on their side, they often still pursue strict penalties for a domestic violence accusation.

What if the Victim Doesn't Want to Testify?

Suppose the alleged victim doesn't want to testify in a domestic violence case. Then, California Civil Code Section 1219 might come into play, which says the following.

Victim Refusing to Testify in a Domestic Violence Case
You can still be prosecuted for domestic violence when your accuser refuses to testify.

"(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. Before finding a victim of a domestic violence crime in contempt as described in this section, the court may refer the victim for consultation with a domestic violence counselor."

Simply put, this California law says the alleged victim of a domestic violence charge does not have to testify in the case. Sometimes, a judge will hold a person in contempt and punish them for refusing to testify.

Domestic violence cases are one of the few exemptions to this rule, meaning a victim can refuse to testify without facing contempt of court charges. However, they may still face minor fees or community service if they refuse a subpoena.

Can You Still Be Found Guilty If The Accuser Doesn't Testify?

Yes. In California, it's the district attorney filing charges against you in a domestic violence case and not the victim. So, what the victim wants regarding dropping charges does not always affect the legal process. Consider the following:

  • If the victim refuses to testify in a domestic violence case and there are no other witnesses, there's a good chance the charges will get lowered or dismissed.
  • California has a tough stance on domestic violence cases, so you should not be shocked if the DA still prosecutes the crime by using other circumstantial evidence to prosecute your case.

For example, suppose an alleged victim calls 911 during an emotional argument. In that case, the DA's office can use the tape as evidence against you.

While your defense might attempt to dismiss the tape as hearsay, there are exceptions to this defense. In domestic violence cases, the most common exception is "excited utterance," referring to when a witness makes a statement during a stressful moment, such as during a 911 call.

Even if recanted, these statements can be taken as truthful under California law. Thus, a DA could use a 911 tape to pursue a domestic violence conviction.

Simply put, the district attorney knows that victims may retract statements or refuse to testify for various reasons, including fear, coercion, or a change of heart. They are trained to build cases that do not solely rely on the victim's cooperation.

DV Victim Refusal to Testify - Quick Facts

  • Being accused of domestic violence in Los is a serious matter that can result in arrest, detention, and restraining orders even before charges are filed.
  • You can still be prosecuted if your accuser decides not to testify against you.
  • Domestic violence typically includes actions that cause physical harm, injury, stalking, threats, or property damage.
  • Victims can seek a restraining order for protection, which is a stay-away order prohibiting contact with the alleged victim.
  • It's common for victims to want to drop charges and end the case.
  • It's a myth that DV victims have the legal authority to drop a case.
  • The state, represented by the prosecutor, brings charges of domestic violence against the defendant, not an alleged victim.
  • A criminal case aims to punish the offender and protect the public.
  • The legal process doesn't automatically end when alleged victims do not want to pursue a criminal case against their alleged abuser.
  • Even without the victim's cooperation, many domestic violence cases will still be prosecuted by the district attorney.
  • A DV conviction can still occur even if the victim chooses not to testify.
  • California has a "no-drop" policy for domestic violence cases, meaning the DA can continue even if the victim expresses a desire to drop charges.
  • The "no drop" policy demonstrates the state's commitment to comprehensively addressing and mitigating domestic violence.

What Evidence Can Be Used?

Prosecutors and police can use a variety of evidence to establish a case of domestic violence other than just the victim's testimony, such as physical evidence, witness statements, 911 calls, police reports, text messages, emails, and prior incidents. Here is a list of potential corroborative evidence in domestic violence prosecutions:

  • Recordings of emergency 911 calls can capture real-time accounts of the incident, often reflecting the distress of the situation.
  • Pictures of injuries, medical reports, and any physical property damage.
  • Detailed reports from first responding officers, including their observations and statements made by the victim at the scene.
  • Statements from neighbors, friends, or family members who witnessed the incident or its aftermath.
  • Written or electronic communication between both parties, especially if there are admissions of guilt or threats.
  • Any evidence of past domestic violence incidents can strengthen the prosecution's case.

What are the Common Defenses?

While the DA could still decide to charge you with domestic violence independently of the accuser's testimony, it's more challenging to prove their case without it.

Common Defenses Against Domestic Violence

A California criminal defense lawyer can use it on your behalf to obtain the best possible outcome. Some of the common defense strategies include challenging the evidence or accuser's credibility, self-defense, and false allegations.

Perhaps we can question the credibility, accuracy, and relevance of the evidence presented by the prosecution that will force the DA to reduce or drop the domestic violence case.

Perhaps we can prove that any actions taken in self-defense can negate allegations of domestic violence. Maybe we can show that the allegations are false or exaggerated, undermining the prosecution's case.

We could discredit the accuser by questioning their character or motivations, which could significantly weaken the DA's case when they have changed their mind about testifying. Contact our criminal defense law firm for additional information. We can prepare the best domestic violence defenses to give you the chance of a favorable outcome. The Hedding Law Firm is based in Los Angeles, CA.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.