If the state took over a domestic violence case but the victim doesn’t show, will the case get thrown out?
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If the state took over a domestic violence case but the victim doesn’t show, will the case get thrown out?
My daughter is facing domestic violence and assault charges for a drunken fight that ended with her putting her hands on her boyfriend; she is now in jail. He isn’t pressing charges but admitted in his statement that she hit him. He is being summonsed as a witness. She is 21. If he doesn’t show up, will the case be thrown out and could he be held in contempt?
Asked on July 31, 2018 under Criminal Law, Michigan
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
1) If he doesn't show up, the case *may* be dismissed; it depends on a) do they have other evidence (e.g. other witnesses; her statements; texts or emails from her or social media postings admitting the act; physical evidence of his injuries) so that his testimony is less important or necessary; and b) how serious were his injuries--the less serious they are, the more likely the case is to be dismissed. The prosecution does not have to dismiss; they can reschedule and subpoeana him to appear; or they could proceed without him, if they do have other evidence.; or they may choose to dismiss It is up to the prosecutor's discretion, and they factor in the need for his testimony and the severity of the crime in deciding what to do. All we can that is that they *might* dismss the case--but they don't have.
2) If he was subpoenaed and did not appear, he can be held in contempt; if he was not subpoenaed, however, he did not violate any legal process or order and so cannot be punished. That's why they often, if the first appearance by the witness was voluntary and he fails to show, reschedule ("adjourn") and subpoena the witnesse's appearance, so then they have power over him.
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