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This question is somewhat difficult and you should consult an Attorney immediately if faced with this situation.  As a Criminal Defense Attorney with more than 13 years of experience I know how difficult this situation is. 

The question posed above is again difficult and sometimes complex.  I often get phone calls regarding this question.

First, again if faced with this question you should contact an Attorney immediately.

An Attorney can help you navigate the questions and situations and sceneriors you will face.

If you do not want the case prosecuted you can have an Attorney draft a letter stating as such.   This does not guarantee that the case will be dropped. Often people believe they are in charge of the District Attorneys decision to press charges.  Many times I have had clients exclaim, I don't want to press charges.  However, the District Attorney and the District Attorney alone makes final decisions about these decisions not citzens. 

However, if you make it plain to the District attorney that you do not want to testify, or will not testify the prosecution will have to make the choice of whether they have evidence outside of the victims statement sufficient to obtain a  guilty verdict.

If the victim was always needed then nobody would ever be found guilty of Murder, because obviously the deceased cannot testify. 

The 911 call

independant witnesses

Your prior taped statements in some cases,

The photographs of the injury and any emegency statements can all be brought in to prove the charge of domestic violence. 

Oftentimes in domestic violence cases either Felony or Misdameanor this type of evidence is not available.  Therefore, the testimony of the victim is critical.

VICTIM IS ONLY WITNESS TO THE DOMESTIC VIOLENCE INCIDENT.

Sometimes the there is none of the above referenced evidence.  In these type of cases the victims statement is vital to the prosecution.  It should be noted that if you as the victm testified at the preliminary hearing and then decide to stop cooperating the preliminary hearing testimony may under certain circumstances be used in court.

WHAT IF I AM SUBPOENAD TO COURT

If your are subpoenad to court you must comply with the subpoena to court.  You again, you should show up to court with an Attorney if you are concerned about your legal rights or do not want to testify. 

WHAT HAPPENS IF I REFUSE TO TESTIFY

If you refuse to testify after being properly subpoenad to testify you could be held in contempt of court.  However, in the state of california domestic violence and certain other victms cannot be jailed for contempt of court for refusing to tesity against there abuser.   However again as stated above you can and possibly will be jailed for failing to comply with a subpoena.  These two issues are many times confused even by inexperienced counsel.  You should not follow the advice of an Attorney that is telling you to merely not show up to court if you are subpoenad this is not correct legally and could land you in jail.

SO WHAT IS THE RESULT IF I AM HELD IN CONTEMPT FOR NOT TESTIFYING IN COURT

Again, in the state of california you will not be jailed; however, there could be consequences to being held in contempt of court.  First, there could be a record of the contempt order and hearing in court are open to the public this means that your employer, and prospective employers may find out about this contempt order.   

If your are a peace officer or law enforcement officer this could affect your employment. However, I have never heard of this happening.  I have had a client that was a medical doctor and had employment problems because of her contempt order it seems her employer thought her behavior was not in compliance with what they wanted the public to see and she was not offered a position in part due to her dysfunctional lifestyle that they believed would inevitably spill into her work life.  This is the only time I have heard of this happening.  And there could have been other factors at play in that employers decision. 

DO NOT COMMIT PERJURY

It is never ok to commit perjury.  Lying on the stand is not ok under any circumstances.  Even if an Attorney tells you to do this.  If you are going to testify in court because you don't want to be held in contempt tell the truth and let accept the outcome.  You should never trust the advice of an Attorney that tells you to lie or tells you what to say on the stand. 

Besides if you get on the stand and tell a different story than the one you told originally you will be impeached with your prior testimony and you will be opening yourself up to perjury charges and possibly jail, if your new story is a lie.  The jurors will see past your lie.

WHAT IS IMPEACHMENT

Impeachment in this context means your prior statement can be brought in.  The prior statement is not hearsay as it is an inconsistant statement and not hearsay.  You will be asked about that prior statement and then the police officer or person you gave the prior statement to will be called as a witness and you will be impeached. 

WHAT IF MY FIRST STATEMENT WAS NOT TRUE

If your first statement was not true or your husband or wife was defending himself when the abuse allegedly occurred, then you must get counsel immidiately you may have your own charges to worry about and have a legitimate 5th amendment right not to testify.

WHAT IS A FIFTH AMENDMENT RIGHT NOT TO TESTIFY

You cannot be held in contempt for simply exercising your 5th amendment right not to testify.  If you believe your first statement was either not true or somehow implicates yoou in a criminal act such as assualt you may refuse to testify.  You cannot be held in contempt for excercising your constitutional right under the 5th amendment. 

The Judge will hold a hearing to see if you have a legitimate right under the fifth amendment.

WHAT IS IMMUNITY AGREEMENT

The prosecution sometimes will offer immunity from prosecution in these types of situations.  If you are given immunity from prosecution you may be ordered to testify.

If you have any questions about this sometimes complicated area don't hesitate to call I have helped many hundreds of people in the same or simiiari circumstances.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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