Legal Question in Criminal Law in Michigan

Re: domestic assault

This situation develops quite often in domestic cases, and I have defended many similar to your situation. First of all, you will be subpoenaed because you are probably the complaining witness (that means you reported the incident in the first place). Secondly, unless the prosecution has an independent eyewitness, you are the only witness that can testify against your husband outside of the arresting officer (who did not witness a thing other than maybe some injuries to you if that even happened). In some cases I have had the complaining witness hire his/her own counsel and assert the 5th Amendment when called to testify. In other cases, the complaining witness has told the prosecutor that he/she would not testify against the spouse and, thus, the prosecution had no case and had to dismiss. Feel free to call my office to discuss further. Nancy L. Moore, 19500 Victor Parkway, Suite 290, Livonia, MI 48152, 734-591-3737.

Re: domestic assault

I'm going to reply with a prosecutor's perspective.

As the first response said, this is not an uncommon situation. We see a lot of complainants on domestic violence cases request that charges be dismissed. But the job (and authority) of the prosecutor is to represent the community's interest in these cases, not to simply do what the victims want. For sure, the victim's wishes and desires are considered and weighed by prosecutors, but if we did only what the victims wanted, then we would be abdicating our responsibilities ... and giving power to defendants to pressure wives or girlfriends into requesting dismissals ... and that act may be a continuation of an abusive partner's control and dominance over a victim. In many cases, we cannot tell whether the victim has been pressured by the defendant (or the defendant's family or friends) to request the dismissal, so we take the cautious approach.

I am deeply troubled at the suggestion underlying the initial response that a disgruntled victim should "take the 5th" as a means to an end. I do not read the "Question" as saying that the assault did NOT occur, or that the complaining victim filed a false police report --- rather, she said that her husband "was not violent" and she "did not want to pursue the matter". Sounds like "second-thoughts", not "the crime didn't occur"!

You should also be aware that, in the face of tactics similar to that suggested in the first reply, prosecutors have become more creative in court, and have successfully used the victim's first police reports (for example, recordings of calls to 911) as evidence of the crime ... not just the testimony of the reluctant victim. The defense cries, "Hearsay, your Honor!" But many courts see these reports as exceptions to that rule because they are reliable excited utterances. Prosecutors back up this evidence with witnesses who explain the cycle of violence in many DV cases and why many complainants recant or become uncooperative so the jury understands why the victim's new-found reluctance or about-face may not be the Truth.

So, it's not going to be as simple as "taking the 5th". I encourage you to work WITH your prosecutor, and not look at it as an adversarial relationship. We want what you want: your continued safety, and no repeated acts of violence!

Re: domestic assault

I may be missing something in your narrative. If your husband has already been to pre-trial and you have informed the prosecution that you don't want to pursue this, MCL 769.4a allows an acceptable result for most people unless your husband has a violent history or is an immigrant. Ordinarily, these matters don't go to trial.

I practice regularly in the Warren District Court and I may have a solution for you if you can give me some further details.

Call me anytime @ 248-680-1133