Previously, if a victim of a Domestic Violence case refused to testify against their spouse they could be arrested, held in contempt and incarcerated. Although this almost never happen the threat of it was enough to cause spouses who might not otherwise have testified to testify.
Then the California legislature passed California Civil Procedure (CCP) Section 1219(b). That law prohibited arresting or incarcerating victims of Domestic Violence or Sex Crimes for refusing to testify. Although the law does not prohibit the victims being held in contempt, it would appear the only punishment not prohibited is a fine.
As such, a spouse can refuse to testify against a Defendant charged with Domestic Violence and then take the stand and refuse to testify and only face a fine. [A spouse electing not to testify may want to consult with their own lawyer].
However, this does not mean the case is automatically dismissed. The Prosecution can still introduce statements of the victim that are deemed “excitable utterances” that incriminate the Defendant. Usually these statements are only admitted when the victim is describing what is happening to them to the authorities in an effort to get their assistance. These statements often occur during the “911 call” as the victim is frantically asking for help. However, outside of the victim (or another witness) describing an emergency situation as it is happening, these statements are hearsay and not admissible if the victim or witness has refused to testify or is unavailable. (See Washington v. Davis, 547 US 813 (2006), Crawford v. Washington 541 U.S. 36 (2004), Sixth Amendment, US Constitution)
In addition to CCP 1219(b) the holdings in Washington v. Davis, Supra, and Crawford v. Washington, Supra, have firmly established the right of a Defendant to be able to confront his accuser in court and ask questions of them pertinent to their accusations. Previously, especially in Domestic Violence cases in California, many statements of the victim could be introduced against the Defendant without the victim having to appear in court and be confronted by the Defendant. As such, the standard for admitting statements in court without the speaker being subject to cross-examination is now very high which benefits the Defendant. Also, while Domestic Violence cases have been notoriously difficult for the prosecution to pursue, these recent developments in the law have made them even more difficult to pursue to the benefit of the Defense. Call Mr. Will Bruzzo today to discuss your Domestic Violence case (714) 547 4636.
Criminal Law Updates by the Law Offices of William W. Bruzzo.