If the Victim Fails to Appear- Will My Case Be Dismissed?

undefinedIf the Victim Fails to Appear - Defense Attorney Brian J. Prain Discusses if Your Case Will be Dismissed...

What if the victim fails to appear? - can be top-of-mind thinking and an engulfing question when you find yourself faced with an Assault charge of any kind.  "If the victim fails to appear, will my case be dismissed?"  The bottom-line answer is "perhaps". But this can be a more involved  issue than you may think.

When you find yourself facing a Domestic Violence or other Assault charge, and if the victim fails to appear, it is not always the result of being an intimidated or guilt-ridden female any more... the reasons can be widely varied.  Domestic Violence and Assault Defense Attorney, Brian J. Prain, discusses the elements of "how"and "if" your case will be dismissed.

Question #1   If the victim fails to appear in court - what type of hearing have they missed?  Often, the complainant will be Subpoenaed by the Prosecuting Attorney to appear at a less significant hearing, for example, a Pretrial Conference.   If the victim fails to appear, in this instance, they are primarily missing their opportunity to consult with the Prosecutor to see how they would like to see the case resolved under the Michigan Crime Victim's Rights, Act.  In this case, if the victim fails to appear at a Pretrial Conference, it is highly unlikely that your case will be dismissed.  In fact, hardly any cases are ever dismissed under this circumstance.  And if any Defense Attorney tells you otherwise, they should be viewed with caution.

Question #2  How does it effect my case  if the victim fails to appear  on the scheduled Trial Date?   Now we are looking at a potentially different scenario.  If the victim fails to appear, despite a Subpoena summoning them, many Judges will readily grant the Defense Attorney's motion to dismiss the charges against you.   However, if the victim fails to appear it is also not uncommon for the Prosecutor to ask for an adjournment (postponement) to give them time to locate the victim, and granting them the opportunity to still try the case, at a later date.

Prosecutor's have also been known to state, under their own initiative, that the victim has failed to appear and they are unable to proceed with the case. In this case, the Court will likely dismiss the Michigan Assault charges against you Without Prejudice - meaning, the prosecution could bring charges again at a later date -  if they are so inclined.

Question #3  What if the victim fails to appear - and they are deemed by the court to be legally unavailable?  In certain Domestic Violence cases, if the victim fails to appear, and the Prosecutor has filed a Notice of Intent under MCL 768.27c, the Supreme Court says they may be able to continue the prosecutors case against you, without benefit of the victim's testimony, even though this is in violation of the defendant's 6th Amendment Right to confront his accuser.  In this case, if the victim fails to appear, and the strict legal requirements governing the Notice of Intent under MCL 768.27c have been met, a bad Judge who doesn't know the law may allow the Trial to continue.

Is your Criminal Defense Counsel ready to meet these legal challenges?  Call Brian J. Prain of Prain Law, PLLC directly at (248) 731-4543.  More comfortable with confidential email?  Send us a message online by filling out our Custom Contact Form, below.  Each additional minute you wait, the strength of your defense can diminish.

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