As a Michigan Domestic Violence Attorney, I get asked many of the same questions daily by both clients facing Michigan Domestic Violence charges and their Complaining Witnesses alike (often incorrectly called “victims” by Prosecutors, even at the Pretrial stage, despite the fact that an accused is presumed innocent). One of the most common (if not the most common) Domestic Violence questions I receive usually sounds something like this: “I’ve heard that if the victim doesn’t show-up for our Court date, then my Domestic Violence charge will get dismissed. Is this true?” Well, it’s going to take just a little bit of explaining by a Michigan Domestic Violence Attorney, so read on. Because our lazy vernacular often bestows the title “Victim” upon the Complaining Witness, I have used that term interchangeably with the correct term “Complaining Witness.”
The short answer is: it depends. Your Domestic Violence Attorney may get your charge dismissed, but a Dismissal may not be exactly what you think it is. Whether or not your Domestic Violence charge will be dismissed when the victim does not appear for Court depends on: 1) what type of Court hearing is at issue; and 2) whether or not the victim was Subpoenaed to appear for that hearing. I will explain even further below.
As any good Domestic Violence Attorney should have already explained to you as their client, under the Michigan Crime Victim Rights Act, the Victim (Complaining Witness) in a Domestic Violence case has the right to be notified of and to appear at all Court hearings in the case, such as your Arraignment on the charge of Domestic Violence, Pretrial Conferences, Bond Hearings, Motion Hearings, Final Settlement Conferences, Trials, and Sentencings.
In-fact, the Complaining Witness even has a right to have his or her input heard before any plea deals are made in a Domestic Violence case (that is not to say their wishes will be followed, despite the fact that many Domestic Violence Victims believe that they are in control of whether the Domestic Violence charges are dismissed or whether they stand – more on this in another article). Your Domestic Violence Attorney needs to be skilled at dealing with the Victim – although your Bond likely states that you have a No Contact provision with the alleged Victim, your Domestic Violence Attorney can do a lot for you by how they deal with and speak to that person.
But here’s the bottom-line, unless the alleged Victim is actually served with a Subpoena to appear at any of the above-listed hearings other than a Trial, there is no requirement that they be there (only a right to be there if they so choose). Usually, the only time in a Domestic Violence case that an alleged Victim is Subpoenaed to appear is for Trial. Thus, just because the alleged Victim didn’t show up for the Pretrial Conference is not grounds for your Domestic Violence Attorney to ask for a dismissal of the charges. However, sometimes Prosecutors do Subpoena the alleged Victims to pretrial proceedings for various purposes. If they fail to appear, your Domestic Violence Lawyer can move to dismiss the charges, but it likely will not be granted, as a Pretrial is only an opportunity to settle the case. In these situations, Dismissals of Domestic Violence charges are usually only granted upon Stipulation. Call us, we know how to get this done when and where it is possible.
But a Trial is different; Trial is your opportunity to test the Prosecution’s evidence to see if they have enough to prove your guilt Beyond a Reasonable Doubt. Under the 6th Amendment to the U.S. Constitution, you have the right to see, hear, and cross-examine all witnesses against you, so if the alleged Victim (the “Complaining Witness”) was Subpoenaed but not present, either the Trial must be adjourned at the Prosecutor’s request, or the Court must grant your Domestic Violence Attorney‘s Motion to Dismiss. However, the dismissal will likely be Without Prejudice, meaning you could end-up facing the Domestic Violence charge again when the Prosecutors locate the alleged Victim again.
A person Subpoenaed to Court who fails to appear may have a Bench Warrant issued for their arrest, and may end up facing their own Criminal Contempt Charge! In the end, though, Lawyers who try to get the alleged Victim not to appear in Court are putting their law licenses and their client’s futures in jeopardy – it’s just not a worthwhile defense tactic in a Domestic Violence case. A good Michigan Domestic Violence Attorney will have plenty of completely ethical and powerfully effective defense strategies that he can tailor to your case.
Listen, if you are facing a Michigan Domestic Violence charge and you’re still reading this, then the real question you should be asking yourself is “why haven’t I called The Law Office of Brian J. Prain, PLLC, the Michigan Domestic Violence Attorney yet? The call is free and confidential (you can e-mail us, too), the sit-down consultation is free, and the worst thing that can happen is you will gain useful knowledge. Even if you already have a Court Appointed Attorney, call the Michigan Domestic Violence Attorney now!