April 16, 2018 By Paul Wallin

What Happens When a Witness Doesn’t Want to Testify in a Corporal Injury on a Spouse Case? (PC 243(e)(1) and PC 273.5)

Often, domestic violence cases have no witnesses other than the alleged victim and the defendant. There might be little or no physical evidence that the prosecution can use to prove that the defendant is guilty of the crime. In these cases, the alleged victim’s testimony is the most important piece of evidence.

So, what happens when the alleged victim of the crime refuses to testify in a case involving corporal injury on a spouse or cohabitant?

Can the Victim Drop Corporal Injury Charges?

Sometimes, the alleged victim in a corporal injury on a spouse or cohabitant case realizes the harsh penalties the defendant is facing and changes his or her mind regarding whether he or she wishes to testify against the accused in a Penal Code Section 273.5 case. Often, the alleged victim believes that if he or she refuses to testify, that means the charges must be dismissed.

The truth is that only the prosecuting agency can dismiss a case of corporal injury on a spouse or cohabitant. The district attorney will look at the evidence in the case and decide whether to file or dismiss PC 273.5 charges. Once charges have been filed, it will likely take some change in the evidence to convince the prosecutor to drop the case.

If the alleged victim’s testimony is the key piece of evidence in a corporal injury on a spouse case, the alleged victim could choose to recant his or her statements that had been previously made to the police. However, doing so could result in the alleged victim facing criminal charges for lying to a police officer under PC 118.

An alleged victim can “recant” or change his or her report to the police if, in truth, he or she did not tell the truth when initially speaking to the police. In many cases, however, the alleged victim may have misspoke or have been under the influence of alcohol or drugs at the time of the initial report. Changing your statement to the police does not always mean that you were lying when you gave your initial statement.

The best thing the alleged victim could do is speak to an experienced domestic violence attorney before recanting his or her statement.

Domestic Violence Victims Can Refuse to Testify

The alleged victim must appear in court if he or she is personally served with a lawful subpoena. However, he or she can make the prosecutor’s job very difficult by refusing to testify in court. Under California Code of Civil Procedure 1219(b), the alleged victim cannot be put in jail for refusing to provide testimony in a domestic violence case.

If a lawful subpoena is not properly served on the alleged victim, he or she does not have to appear to testify. The prosecution will likely not be able to use any of the alleged victim’s statements made to law enforcement before the trial. This is because the defendant has a Sixth Amendment right to confront all witnesses against him or her, and the Supreme Court has ruled that testimonial statements of witnesses absent from trial can be admitted only when the witness is unavailable and the defendant has had the opportunity to cross-examine the witness.

Speak to an Experienced Lawyer for Corporal Injury on a Spouse Charges Today

If you or someone you love is facing domestic violence charges, you should not hesitate to contact an experienced lawyer for corporal injury on a spouse charges. At Wallin & Klarich, our skilled and knowledgeable domestic violence attorneys have been successfully defending clients accused of corporal injury on a spouse for more than 40 years. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, there is an experienced Wallin & Klarich domestic violence attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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