QUESTION
As a domestic violence victim, do I have to go to court and testify? If so, could I plead the fifth?
Asked on Oct 14th, 2012 on Criminal Law - California
More details to this question:
I am going to drop charges but the state will pick them up. I don't want to go forward with anything reason being that we were back together in less than a week. Will I go to jail for perjury?
11 ANSWERS
Dennis P. Mikko
The decision to bring and/or continue criminal charges is solely within the discretion of the prosecutor and not the victim. The prosecutor can subpoena the victim to testify at trial. The victim would have to testify truthfully or face possible perjury charges which are a felony. In order to take advantage of your 5th Amendment right against self incrimination, your testimony would have to implicate you in criminal activity. You cannot use the 5th Amendment just because the testimony you are asked to give is unconfortable for you.
Answered on Oct 18th, 2012 at 6:11 AM
1) No you cannot take the 5th, which can only be exercised to avoid saying something that can implicate you criminally. If you simply don't want to go forward, that is not good cause to take the 5th. 2) Yes you can go to jail for perjury, which is a crime. 3) You being back together happens all the time. Prosecutors are trained to deal with and cross-examine victims who have reconciled with the defendant. Getting back together will do absolutely nothing to stop the prosecution.
Answered on Oct 16th, 2012 at 5:21 PM
3 Awards
contact the defendants attorney - they can help telling the DA or the police will just result in them trying to convince you otherwise and possibly a worse outcome for you if the protection order was not removed by the court, then defendant is not allowed to have any contact with you - if the DA or police find out there has been contact, then defendant will go to jail and get new charges if the DA mails the subpoena to you, rather than personally serving you, then you do not have to go to court (unless you signed it and sent it back) if you did anything to cause the DV, you might need to assert the fifth - why, bc by telling the truth, you would be admitting to committing a crime (not perjury, but maybe harassment or assault) I have represented many victims of DV, helping them get the outcome they want. There are ways, but it does not involve asking the DA or just to drop the charges. That does not work.
Answered on Oct 16th, 2012 at 5:20 PM
Criminal Defense Attorney serving McKinleyville, CA
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Law Office M. C. Bruce
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If you are subpoenaed by the DA you are ordered by the court to show up to court. If you are put on the stand, the only way you can legally take the fifth is if your testimony will somehow incriminate you. If you filed a false report,, your testimony could incriminate you, so the fifth is available. What will happen then, though, is that the DA will be able to call the cop who took your statement because you are "unavailable." The best course of action is to call the DA and tell them you do not want anything to happen to your mate. Chances are, a disposition can be worked out where he does not have to go to jail.
Answered on Oct 16th, 2012 at 5:19 PM
Criminal Law Attorney serving Worcester, MA
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Gregory Casale, Attorney at Law
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You are right to question this strategy. The 5th Amendment is about self-incrimination. It comes into play when you have culpability in the matter and where your truthful testimony could cause you to be charged. You do not want to lie or recant your story as both could be legal violations that could cause you to be charged for either perjury or filing a false police report. You don't want to trade places with the current defendant. Your bf/husband/partner should have an attorney representing him. That lawyer should be able to advise you on how to best assist him without hurting yourself.
Answered on Oct 16th, 2012 at 5:18 PM
Michael Paul Vollandt
Yes have to go to court if you are under subpoena. Also, you can invoke your 5th Amendments rights if you want to. The defense attorney knows what you can and can not do so get in his ear.
Answered on Oct 16th, 2012 at 12:23 PM
Thomas Edward Gates
You could be punished for perjury. Depending upon the evidence from the incident, the prosecutor may already have enough to convict the defendant. Thus, you cooperation may not matter.
Answered on Oct 16th, 2012 at 12:23 PM
2 Awards
You can refuse to testify. You cannot be charged with perjury for refusing to testify. The State has an interest in protecting victims of domestic violence, such as yourself. I urge you to seek counseling to address the DV, and your reaction to it. You should NOT put up with such abusive behavior. Honestly, I'd cooperate with the State. Your significant other cannot be allowed to continue this kind of conduct. A plea agreement can be reached that will protect you in the future, and address his inappropriate behavior. If he doesn't like that tough. He needs to learn that DV is not acceptable under any circumstances. If he cannot, they you should leave him.
Answered on Oct 16th, 2012 at 10:52 AM
Criminal Defense Attorney serving Lincolnwood, IL
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Fagan, Fagan & Davis
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Perjury would only result from giving false testimony under oath. As to whether you have to go to court to testify, that's something you should discuss with an attorney. There are many questions an attorney can consider - Is there a subpoena? Was the subpoena properly served? Is it possible to discuss the situation with the prosecutor? In short, you should seek the advice of an attorney well versed in criminal defense in your area.
Answered on Oct 16th, 2012 at 10:51 AM
Criminal Defense Attorney serving Deltona, FL
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R. Jason de Groot, P.A.
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You must go to court and testify, if you do not, he can still be convicted, the opposite of what you want, and you can be jailed for contempt too. The state attorney may not wish to prosecute if their main witness wants to drop the case, but that is up to the state attorney, not you. Stay in touch with the victim advocate and let your feeling be well known.
Answered on Oct 16th, 2012 at 10:51 AM
Criminal Defense Attorney serving Orange, CA
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Law Office of Joe Dane
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Perjury is false testimony under oath - not what we are talking about here unless you take the standard willfully lie. You have rights, potentially up to not being forced to testify, but you'll need your own lawyer to assert those rights.
Answered on Oct 16th, 2012 at 10:49 AM