Domestic Violence Trials: When the Victim Refuses to Testify

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 the prosecutor should.

Can a Domestic Violence Victim Refuse to Testify?

Yes, a domestic violence victim can refuse to testify in a criminal case against their abuser. But the prosecutor could decide to subpoena the victim and compel (force) them to testify. Prosecutors won't always do this though, as having a terrified or hostile victim on the stand isn't always the best approach.

Will the Victim Go to Jail for Refusing to Testify?

It can happen. If the victim refuses to testify after being subpoenaed, the judge can hold the victim in contempt. A common penalty for contempt is being incarcerated until the person agrees to obey the subpoena and testify. Not all judges will do this in domestic violence cases. And a prosecutor might decide not to subpoena a victim if contempt and jail time are a likely result.

California law prohibits a judge from placing a domestic violence victim in jail for contempt. But no other state appears to have this prohibition in law. (Cal. Civ. Proc. Code § 1219 (2026).)

Can't the Domestic Violence Victim Claim Spousal Privilege?

Not always. Many states have created exceptions to the spousal privilege when one spouse is being tried for committing a crime against the other—such as in domestic violence cases. When this exception to the privilege exists, the prosecutor may compel the spouse to testify against the other. The victim's refusal can result in contempt charges, as discussed above.

(Ariz. Rev. Stat. § 13-4062; Fla. Stat. § 90.504 (2026).)

Can a Domestic Violence Case Go Forward Without the Victim?

Yes, 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 whether enough other evidence exists to prove the case beyond a reasonable doubt.

How Do Prosecutors Prove Domestic Violence Without Victim Testimony?

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.

Other Considerations for the Prosecutor in Domestic Violence Cases

The prosecutor will consider several factors to decide whether to pursue or drop the domestic violence charges in situations where the victim won't testify.

Past Convictions

A defendant’s criminal record is an important consideration 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).

Only Circumstantial Evidence

In some cases, the absence of this testimony leaves the prosecutor with an entirely circumstantial case. Say a police officer's testimony about observing scratches and bruises on the spouse is consistent with domestic violence, but other explanations exist that don't involve the commission of domestic violence (such as a bad fall). In this instance, the prosecutor might not be able to convince a jury to convict.

Defendant Can 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 don't 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.

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.