The decision to drop charges or to not press charges is not up to the person who makes the charges. According to California law, an act of domestic violence is a crime against the state, not just a crime against the victim. The prosecutor is the only decision maker when it comes to filing criminal charges. The victim does not have any control whatsoever about whether or not to press charges. Once the police are called for a domestic violence situation, someone will go to jail and will be charged with a crime. Often the first person to call the police will be considered the “victim” and other partner will be considered the “abuser.”

Sometimes your partner will mistakenly believe that he or she can help you by simply not cooperating with the prosecutor, or by not showing up in court to testify. This is not the case. If your partner does not testify, the court will typically order him or her to testify. Your partner cannot refuse to testify. Please understand that he or she MUST testify. If he or she refuses to testify, your partner can be sentenced to jail. Your partner does not have a 5th Amendment constitutional right to remain silent to protect you. Your partner cannot choose whether or not to testify against you.

Even without your partner’s participation, most city attorney and district attorney offices will prosecute a case against you. Lack of cooperation can be even more damaging to your case than your partner’s testimony. In fact, statements made to 911 operators or police during emergencies can be used in court even if those who made the statements do not testify at trial. This evidence can be particularly harmful because statements to the police or 911 are typically made in the heat of the moment. The reporting party may have been upset and may have been screaming or crying. If your partner does not participate in your trial, he or she will not be able to explain the statements. The jury will only hear the emotional statements made immediately before or at the time of the arrest.

Additionally, if your partner attempts to refuse to testify, the court will question him or her in your presence, in open court, to make sure that there has been no coercion or intimidation to convince him or her not to testify. Intimidating your partner not to testify will do no good. Victim intimidation and criminal threats are separate crimes; and, as explained, your partner’s testimony in court may actually be more helpful to your case than the statements made at the time of the arrest.

Finally, a recantation by the complaining witness can be particularly harmful for the purposes of expert testimony. If your intimate partner later recants his or her story, the prosecutor will likely bring in an expert to testify against you. The prosecution will attempt to use this expert’s testimony to prove that you abused your partner so severely and for so long that he or she is now afraid to tell the truth. Obviously, this expert testimony will likely be more harmful than the testimony of your intimate partner, and it can completely ruin your case.

An attorney can help you and your partner sort through the events surrounding the arrest and may be able to help you both articulate exactly what happened. An understanding attorney can help you both through this difficult time in your lives.