Can the state prosecute on a domestic assault charge without subpoenaing the victim?

UPDATED: Dec 5, 2011

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Can the state prosecute on a domestic assault charge without subpoenaing the victim?

Spouse has 3 prior domestic charges and just finished his probation sentence on his 3rd one last year and now has his 4th one pending. Was offered a year probation on pre-trial date and refused offer. Wants to take it to trial, only defense he has is his on word. Says that if I’m not there in court then he won’t be prosecuted and it’ll be thrown out. Trial is in 2 weeks and I haven’t been served to go to trial.

Asked on December 5, 2011 under Criminal Law, Iowa


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The case may be prosecuted without your appearance. While the state's case would be stronger with your testimony, if there is other strong evidence to support the charge, the case can still go forward. However, an experienced criminal defense attorney may be able to use the fact that you do not want to cooperate to obtain a favorable result for your husband.

However, you should also be aware that if you are subpoenaed to testify at trial, you must appear or risk being found in contempt of court. You can't just not show. A subpoena is a direct order from a court. If you ignore it a warrant for FTA (failure to appear) can be issued for your arrest and you can face fines and/or jail time.

While some victims try to refuse to testify by invoking the Fifth Amendment (i.e. the right against self-incrimination), this right can't be invoked simply because the witness does not want to testify. This right only applies if their own testimony would cause them to incriminate themselves. A witness who refuses to testify can also be held in contempt of court and arrested and jailed and/or fined. Further, in domestic violence cases, some spouse's think that they can invoke "spousal privilege"; that is the right of one spouse not to have to give testimony against the other spouse. However, the majority of states have amended their spousal privilege statute to carve out an exception for domestic violence victims. In other words, in such cases one spouse can be made to testify against the other spouse.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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