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.
Domestic violence victims can, and often do, refuse to testify. In certain cases, the prosecutor could decide to subpoena the victim and compel (force) 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.
The prosecutor can still file charges against the alleged abuser even if the victim recants or refuses to testify. 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.
Even without the victim's testimony, the prosecutor might have sufficient evidence to move forward, including physical evidence, witness statements, recordings, and digital evidence.
Physical evidence. Physical evidence of domestic abuse might include photographs of the victim's injuries, such as bruises, scratches, or black eyes, taken after the incident. Police called to the scene might also obtain physical evidence from the crime scene, such as a weapon, broken furniture, torn clothing, or punch holes in a wall.
Witness testimony. Police officers and medical professionals may testify as to any injuries they observed on the victim. If someone witnessed the abuse (say a neighbor), that person can also testify as to what they saw (or, in some cases, heard). In some states, witnesses may testify to statements made by the victim to police, medical providers, and others.
Recordings. In some cases, a recording of a 911 call may be admissible. Video recordings showing the incident might also be available from an elevator, apartment lobby, or outside a building.
Digital evidence. Defendants might also leave an electronic trail of evidence, such as threatening text messages or voicemails sent to the victim. A person's whereabouts can also be determined by reviewing GPS tracking devices in cell phones and cars.
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 the state law and the prosecutor's approach to proving the case).
The prosecutor may choose not to proceed with the case if convicting the defendant appears unlikely without the victim's testimony.
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).
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.
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.