Domestic Violence in the Tri-County area - Getting the Victim to Show up in Court

December 11, 2009

In my last post, entitled "Domestic Violence in the Metro-Detroit area - Someone is Going to Jail," we confirmed the general belief that when the Police are called to the scene of a Domestic Dispute, someone is almost always going to go to Jail. In this article, we'll look at another question I am often asked in my role as a Criminal Defense Lawyer. That question is usually along the lines of "What happens if the alleged Victim doesn't show up to Court?"

Most often, when the Police arrive after a Domestic Violence call, they take several witness statements. The most important of those is usually the Victim's statement. More often than not, the Police will ask the alleged Victim to write down what happened. Other times, there might be an independent witness who was present at the scene. They'll be asked to write out a statement detailing what they witnessed, as well. Sometimes the person ultimately arrested will be asked to write out a statement, or answer some Police questions. Alcohol is often, although not always a factor when these situations develop. Whatever the circumstances, the person being blamed would be well advised to remember their Right to remain Silent...in other words, to keep their mouth shut.

WitnessStand2.jpgWhen one of these cases winds up in Court, as I pointed out in a previous article, there is essentially zero chance that the Prosecutor will just "drop" the charges. Assuming the person arrested has no prior Domestic Violence convictions, and also assuming that the case is not the kind that can be won at trial, there is almost always the possibility of working out a Plea Deal that will still keep the whole case off the person's Record.

Sometimes, though, there is a question about whether or not the alleged Victim will show up in Court. To put it bluntly, I have been asked any number of times by the person facing the charge something like "What happens if she doesn't show up to Court?"

And the answer is that, in the long run, and if there are no other independent witnesses, the case will most likely be dismissed.

In saying that, though, we leave out a whole bunch of factors that make the likelihood of the alleged Victim not showing up relatively remote. The first Proceeding after an Arraignment on a Domestic Violence charge is called a Pre-Trial. It is at this stage that the Defense Lawyer and the Prosecutor meet to determine if a resolution to the case can be had without going to Trial. This is when, in most cases, that deal to keep the whole thing off a person's record is worked out. The Defendant must attend the Pre-Trial. If they don't, then a Bench Warrant is issued for their arrest.

The alleged Victim, however, is usually just sent a Notice to Appear, or, in some cases, may have been mailed a Subpoena. Because merely mailing a Subpoena to someone does not guarantee it's delivery, only the act of having a person personally served with a Subpoena actually brings them under the Court's powers. In other words, once a person has been personally served with a Subpoena, they are required to appear in Court, or else face Contempt of Court Charges.

If the alleged Victim does not show up at the Pre-Trial, then one of the problems is that the Prosecutor cannot speak with them and get their permission to work out the "No Record" deal with the Defense Lawyer. In addition, most Defense Lawyers know that if an alleged Victim is unwilling to show up after they've received a Notice to Appear, there is at least a decent chance that they may not be around to be served with a Subpoena. Thus, the usual result of a Pre-Trial where the alleged Victim does not show up to Court is that the case is set for a Trial.

As a matter of course, most cases set for Trial require that the Police go out, find, and personally serve the alleged Victim (and any other witnesses, for that matter) with a Subpoena. This means that unless the alleged Victim has moved, or otherwise is "out of town," the Police will go knocking on their door to serve them. If the alleged victim is personally served with the Subpoena, their failure to show up in Court will result in their getting in serious trouble. They cannot ignore a Subpoena, and if they do, the mater will never go away.

If the Police are not successful in serving the Subpoena, however, the alleged Victim (or other witness) is not under the Court's order to appear.

So what happens if the alleged Victim doesn't show up in Court? There are several "steps" we must take to get to a final answer.

Usually, if the Police are not successful in serving the alleged Victim, the Prosecutor will ask the Court to grant 1 adjournment in order to try again. Depending on the circumstances, the Court may, or may not go along with that request. Of course, at this point the Defense Lawyer is practically jumping up and down, next to the Client, asking the Court to just dismiss the Case, but the final decision is the Judge's alone.

In those cases where the alleged Victim was personally served with a Subpoena, and still does not show up, the Defense Lawyer will argue that they have demonstrated no desire to pursue the matter, and that the case should be dismissed. Again, the decision is the Judge's alone, but most Judges are unwilling to waste too much time with a case nobody wants to go forward. Typically, the Judge will dismiss the case against the Defendant, and advise him or her that the case can be brought again, or "re-authorized" at a later date. The Judge will, most of the time, find the alleged Victim (or other necessary witness) who ignored a Subpoena in Contempt of Court, and will decide what sentence to impose upon them once they are found.

Thus, the answer to our question is one of degrees. If the alleged Victim doesn't show up for the Pre-Trial, the case is usually set for Trial. If the alleged Victim does not show up for Trial, then the case may be dismissed, or one last adjournment granted at the Prosecutor's request (and, of course, over the Defense Lawyer's objections).

In pretty much every case, if the Victim doesn't show up for the adjourned Trial date, then the case will be dismissed.

Most people, though, are unwilling to just "blow off" a Court Subpoena. Once the alleged Victim shows up in Court, they meet with the Prosecutor. In most cases, the alleged Victim will have written a statement. If they try to deny the incident despite having written a statement describing it, then they face charges of Filing a False Police Report, which is a Misdemeanor punishable by up to 93 days in Jail, plus Fines and Costs. Very few cases are dismissed if the Victim, particularly one who wrote out a statement, shows up, even if they were all in favor of dismissing the charge when they came to Court.

Therefore, "banking" on an alleged Victim's not showing up to Court can prove disappointing as the main Defense tactic. Despite that, a good Lawyer will take the necessary steps, if it appears that the alleged Victim may not show up, to try and hold open the possibility of still working out that "No Record" deal, even at the 11th hour.