Domestic Violence Trials: When the Victim Refuses to Testify

By , Contributing Author | Updated by Rebecca Pirius, Attorney

It's not uncommon for a victim of domestic violence to recant their story or refuse to testify against the abuser. But does that mean the criminal case is over? Not necessarily. Unlike what we see on TV, the victim doesn't decide whether to press charges. The prosecutor makes that decision. And the prosecutor can prosecute the case even if the victim refuses to testify—the question that must be answered is whether they should.

What Happens When Domestic Violence Victims Refuse to Testify?

The prosecutor can file charges against the alleged abuser even if the victim recants or refuses to testify. In certain cases, the prosecutor could decide to subpoena the victim and compel them to testify—but having a terrified or hostile victim on the stand isn't always the best approach. And if the victim is a spouse, the prosecutor might not be able to compel their testimony due to spousal privilege. If the prosecutor can't rely on having the victim's testimony, they must decide if enough other evidence exists to prove the case beyond a reasonable doubt.

Does Other Evidence Exist?

The prosecutor's decision of whether to proceed with the prosecution will often depend on the strength of other evidence in the case. Such evidence might include photographs of the spouse's injuries, such as bruises, scratches, or black eyes. Even if the victim won't testify, police officers and medical professionals may testify as to any injuries they observed on the spouse. In some states, witnesses may testify to statements made by the spouse to police, medical providers, and others.

Does the Defendant Have Past Convictions?

A prosecutor will also consider the defendant's criminal record when deciding whether to continue with a domestic violence prosecution. The defendant's past becomes particularly relevant when the prior convictions are for domestic violence crimes, especially when the prosecutor believes that evidence of these past crimes can be brought to the jury's attention (whether the past convictions will be admissible at trial depends on state law and the prosecutor's approach to proving the case).

The Prosecutor's Challenge

The prosecutor may choose not to proceed with the case if convicting the defendant appears unlikely without the victim's testimony.

Only circumstantial evidence. In some cases, the absence of this testimony leaves the prosecutor with an entirely circumstantial case; that is, although the remaining evidence (such as a police officer's testimony about observing scratches and bruises on the spouse) is consistent with domestic violence, other explanations exist that do not involve the commission of domestic violence (such as a bad fall).

Take the Fifth. Because the defendant has the right not to testify at trial, the prosecutor might have no way to disprove reasonable alternative explanations that do not involve the defendant committing a crime. Under these circumstances, a defendant is legally entitled to the judge declaring the defendant not guilty without the jury even getting the opportunity to decide the verdict.

Plea options. Even where the prosecutor decides not to dismiss the case, the defendant might receive a more favorable plea offer (such as reducing the charge in exchange for the defendant's guilty plea) than the prosecutor would offer if the victim was willing to testify at trial.

Talk to a Lawyer

If you have domestic violence charges pending against you, talk to a criminal defense lawyer. Your lawyer can help assess the strength of the case, give advice, and defend your rights.

If you're a victim of domestic abuse, contact a lawyer or a victim's advocate to understand how the criminal process works and whether you could be required to testify. For more information, check out Nolo's Resources for Victims of Crime.

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