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How can I avoid having to testify against my husband in a spousal battery case in California?

Los Angeles, CA |

My husband was charged with misdemeanor spousal battery. I have received a subpoena, I do not want to testify, we are going through a divorce and starting to try and resolve things somewhat amicably. I have severe anxiety and am having panic attacks about having to testify. What are my options? I thought a wife could not be forced to testifying against her husband?

What is the likelihood of it being resolved outside of court if we are only a few days away?

If I contact the prosecutors office can I request to not testify or that they agree to reduce or drop the charges in exchange for him doing counseling and/or anger management?

Attorney Answers 4

  1. As Nike used to say, "Just Say No." No one can force you to testify against your husband in a spousal battery case. The California Code of Civil Procedure, section 1219, subsection (b), states,

    " court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime."

    In the area where I practice in central California, there is a difference of opinion among some attorneys as to whether this means you can ignore a subpoena. The prosecutor will try to force, coerce, threaten, cajole, or otherwise convince you to testify against your husband. The prosecutor will state that if you ignore the subpoena, you can be held in contempt and locked up for that reason, even if you can't be locked up because you won't testify.

    For that reason, many attorneys will say that a person should obey the subpoena and go to court, but refuse to testify. If you wish to refuse to testify, you must actually REFUSE to testify. You cannot get up there and testify that "nothing happened." If you do that, the prosecutor will put up any police officers he can find who will say "she told me that he hit her when I went to the house," or something along those lines. It's called "impeachment."

    However, if you don't say anything, there is nothing to impeach. Therefore, the best bet is that NO MATTER WHAT QUESTION you are asked, you just sit there without talking after you say that you are not going to testify.

    If you do not WANT to testify, do not allow the judge to tell you that you "have to" testify. Any judge that says that to a victim of domestic violence in a domestic violence case will be stating a falsehood. If you do not WANT to testify, do not allow the prosecutor to badger you into testifying. There is nothing he can do to you. If EITHER of them tell you they are going to punish you for refusing to testify, you should ask for a lawyer. (You may wish to consult with an attorney about the possibility of accompanying you to the hearing to protect your rights.)

    The important thing to remember is that no one can make you testify, but IF YOU DO TESTIFY, you are required to tell the truth.

    That's why the best approach is to not say anything at all.

    The full text of Code of Civil Procedure 1219 is attached as a link to this answer.


    This answer is based upon the minimal information contained within your question. There may be other information which could modify or negate the answer I have given. For particularized legal advice, you're always best advised to consult with an attorney personally, so that the relevant "back and forth" can allow for obtaining all information necessary to a complete answer.

  2. You do not have to testify. If you were served with a subpoena you must appear-but you do not have to answer any questions. I would suggest you have an attorney with you. Do not contact the prosecutor's office and say anything to them.

  3. This is some what complicated. You can avoid testifyng. If that is your desire, you will need the assistance of counsel to guide you through the process.

    The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

  4. If you are actually served with a subpoena (not in the mail), then you must appear in court. You can request appointed counsel from the court or hire your own and discuss 5th Amendment issues. Contrary to what a couple of the answers have suggested, you can't just get on the witness stand and refuse to answer without any consequences. It's true that you can't be jailed, but you can be fined and end up with a misdemeanor contempt of court conviction on your record.

    If you are opposed to testifying, you should ignore all mailed subpoenas. If anyone from the District Attorney's office contacts you, tell them that you are not going to cooperate with the prosecution in any way. If they personally serve you with a subpoena, hire an attorney or call the public defender's office. Discuss with them whether you have any 5th Amendment issues that would legally entitle you to refuse to testify. If you will not be pleading the 5th, then as a last resort, you can refuse to testify and risk the fines and contempt of court conviction.

    It's very common for victims of domestic violence to refuse to testify. It's also very common for the same couple to find themselves in the same situation again in the near future. The severity tends to escalate. Each time, there is a cycle that repeats itself: a violent act, a period of remorse and best behavior, and then a slow downward slide until the next violent outburst. The victim also goes through a cycle of forgiveness, denial, and even enabling. I'm not saying this is necessarily your situation. I'm just pointing out that it's all too common and it doesn't just go away by itself, so help may be needed. Good luck to you.