What if I Refuse to Testify in a Domestic Violence Case?

August 22, 2018 by Michael Poole in California  Criminal Defense  
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CA Code of Civil Procedure § 1219(b)

What if I Refuse to Testify in a Domestic Violence Case? Despite technically falling under the umbrella of “civil procedure”, California’s Code of Civil Procedure § 1219 actually relates to criminal law and its proceedings as well. This section deals with the issue of contempt, which comes up in both civil and criminal cases. What we will be looking at here specifically is the issue of contempt for the omission to perform an act.

To that effect, CCP § 1219(a) states:

If the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment.

What this means is that in court proceedings, if the judge has ordered an individual to perform an act, and the act is one that that individual is capable of performing, the judge can hold that person in contempt if they do not perform. A scenario where this often arises involves giving testimony. If an individual has been subpoenaed to testify and they refuse, the judge will likely hold the person in contempt, which can result in myriad penalties, including, specifically, fines and even jail time in more extreme cases.

CCP § 1219(b): What is Exception to the Refuse to Testify in a Domestic Violence Case Rule

However, as with most things, there are exceptions to this rule. The one which will be discussed here involves specifically criminal cases dealing with either domestic violence or sexual assault. CCP § 1219(b) states, “Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.” Now, the language used here is quite specific for a reason. If the victim of an incident of domestic violence (Corporal Injury to Spouse, PC 273.5) or sexual assault (Sexual Assault; Sexual Battery, PC 243.4)
does in fact refuse to testify, they can still be found in contempt. However, if they are found as such, they will not face the harshest penalties for such contempt, namely imprisonment or other confinement. This leaves far less harsh penalties that can still be levied against the uncooperative witness, namely community service or a fine.

In addition, before the judge finds a victim of a domestic violence crime or sexual assault in contempt, it is within the court’s discretion to refer the victim for consultation with a domestic violence counselor. In the event of such a referral, any and all communications between the victim and the counselor due to the referral are to remain confidential under §1037.2 of the California Evidence Code.

What if I Refuse to Testify in a Domestic Violence Case and How This Plays Out in Reality?

Cases involving accusations of domestic violence or sexual assault are often the most emotionally fraught in all of criminal law. Given the intimate and violent nature of these crimes, emotions are often running high on all sides, as well as in the mind of the public. But, it is important to keep in mind that the consequences for those accused of such crimes are extremely serious, and in our system of justice, guilt has to be proved. Because of the optics involved in such cases, prosecutors are usually less willing to offer agreeable plea deals and can be overzealous in their desire to push for the most stringent of penalties. Sometimes, this also causes them to insist that an alleged victim testify, even when they have expressed a desire to not take the stand. This is why CCP § 1219(b) is so significant. Before, if a victim of a domestic violence or sexual assault refused to testify against their spouse or whoever was the accused, the victim faced potential incarceration as a penalty for their contempt. Although rare, this underlying threat was sufficient to coerce an otherwise unwilling witness to testify.

But now, much to the chagrin of overzealous prosecutions throughout California, a person who claimed to be a victim of domestic violence or a sexual assault can refuse to testify against the accused. If there is no testimony from the alleged victim, this can often lead to the case being dismissed, but this is not a guarantee. Due to the rules of evidence, the prosecution can still use the alleged victim’s statements if they are considered “excitable utterances”. Generally, this will exclude all but comments made during the actual event itself to law enforcement, often times during an emergency 9-1-1 call. Anything that falls outside the “excitable utterance” category will be deemed hearsay evidence, and will not be admissible. However, sometimes these statements still provide enough damning evidence even without the testimony of the alleged victim.

Another way to enter statements made by a victim who refuses to take the stand can occur after they are subpoenaed. Even if an alleged victim refuses to testify, they will still most likely have to take the stand. If the alleged victim makes comments other than stating that they will not testify, such as stating that they are withdrawing what they said previously or that they were lying before, this will allow the prosecutor to bring into evidence all previous statements made by the alleged victim that is contradictory to these new statements. All of these previous statements can still be admissible through other witness testimony.

Therefore, even a refusal to testify on the part of the alleged victim still does not lead to a guaranteed dismissal of the case. However, the protections offered to alleged victims through CCP § 1219(b) can be beneficial to defeating a case of domestic violence or sexual assault.

We’re Here to Help

If you or a loved one is accused of domestic violence or sexual assault in the Southern California area, we invite you to contact us immediately for a free case review.

Our experienced and assiduous Los Angeles Domestic Violence Attorneys will be sure to fight until the end to achieve the desired results.

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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.

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