Can a Victim Refuse to Testify in a Michigan Domestic Violence Case?

Generally, no. A person who has been subpoenaed in a Michigan criminal case can be ordered to testify about any matter that is not privileged, and a witness who refuses after being ordered may be held in contempt of court.^[1] Being married to the accused does not change that where one spouse is charged with a wrong against the other, because the spousal privilege does not apply in a case that grows out of a personal wrong or injury done by one spouse to the other.^[2]

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7: call 1-800-799-SAFE (7233) or text START to 88788.^[9] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[10][11]

This page explains what the law is. It does not suggest ways around a subpoena or an order to testify. A witness with questions about his or her own legal position can ask the prosecutor's victim-witness staff, an advocate, or an attorney of his or her own.

Who decides whether a witness testifies?

Not the witness, and not the accused. In Michigan the prosecutor alone has the authority to decide whether to prosecute.^[12] The Court of Appeals has said that crime victims have not been given authority to determine whether a prosecution "should go forward or be dismissed."^[13] A victim does have the right to be consulted: before finalizing any negotiation that may result in a dismissal, plea or sentence bargain, or pretrial diversion, the prosecutor has to offer the victim the opportunity to give his or her views.^[14][15] That is a right to be heard, and it is explained in crime victims' rights in Michigan.

What a subpoena requires

A subpoena is an order to come to court. If a person fails to comply with a properly served subpoena, the court where the case is pending may treat the failure as contempt.^[16] What happens when a witness does not come at all is covered in When the victim does not come to court. This page is about the next step: the witness is present and does not want to answer.

What happens if a witness refuses to answer questions?

Under MCR 2.506(E)(2), if a person refuses to be sworn or to testify regarding a matter that is not privileged after being ordered to do so by the court, the refusal may be considered a contempt of court.^[1] Michigan's contempt statute covers the same ground: it reaches a subpoenaed witness who refuses to be sworn or, when sworn, to answer any legal and proper question.^[17]

Consequence	What the law provides
Contempt of court	Except as otherwise provided by law, a fine of not more than $7,500, jail of not more than 93 days (subject to the next row), or both, in the court's discretion.[4]
Contempt for an act still within the person's power	Where the commitment is for not doing something the person can still do, the 93-day limit does not apply; the jail term ends when the person does it or no longer has the power to do it.[4]
Criminal charge under MCL 750.483a	Withholding or refusing to produce testimony after the court has ordered it following a hearing is a misdemeanor punishable by up to 1 year or a fine of up to $1,000, or both.[18]
Effect on the evidence	The witness is "unavailable" under MRE 804(a)(2), which can open the door to earlier testimony.[5]

Two cautions about that table. First, the court rule says "may," so whether to hold a reluctant witness in contempt is a decision for the judge in each case.^[1] Second, the sources reviewed for this library contain no reported case applying MCL 750.483a(1)(a) to a complaining witness in a domestic violence prosecution; the table states what the text of the statute says and nothing more.^[18]

The spousal privilege and its exception

Michigan's spousal privilege statute says that in a criminal prosecution a husband may not be examined as a witness for or against his wife without his consent, or a wife for or against her husband without her consent.^[19] Subsection (3) of the same statute removes the privilege "in a cause of action that grows out of a personal wrong or injury done by one to the other."^[20]

A charge that one spouse assaulted the other fits that exception. In People v Szabo, the Court of Appeals explained that the effect is not to hand the privilege to the other spouse; rather, no spousal privilege exists at all, and the victim-spouse may be compelled to testify against the defendant-spouse.^[3] The exception also reaches a charge involving a third person where that crime grew out of the defendant's assault on the spouse.^[21]

The separate privilege for confidential communications between spouses during the marriage is subject to the same exceptions.^[22] Both privileges are explained in full in Spousal privilege in Michigan domestic violence cases.

Privileges that do remain

The contempt rule applies only to matters that are "not privileged."^[1] The Rules of Evidence likewise recognize that a witness may be exempted from testifying by a privilege.^[23] Privileges that come up in domestic violence cases include:

• Domestic violence counselor. A confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent, except as provided in the child protection law.^[24]
• Physician and patient. Except as otherwise provided by law, a physician may not disclose information acquired in attending a patient if it was necessary to treat the patient, and only the patient may waive that privilege.^[25][26]

Self-incrimination is not covered here. The contempt rule reaches only matters that are "not privileged."^[1] This page does not explain the privilege against self-incrimination: the sources reviewed for this library do not include a verified Michigan source on how a witness asserts it or what the court does next. A witness who believes truthful testimony could expose him or her to criminal liability can speak with an attorney of his or her own before the court date.

Material witness bonds

Under MCL 767.35, when it appears that a person is a material witness in a pending criminal case and there is a danger of losing the testimony, the court has the witness brought before it and gives the witness an opportunity to be heard. The court may then require a recognizance with a surety, in an amount it sets, for the witness's appearance; a witness who does not provide it is committed to jail until he or she does or is discharged by court order.^[27] Nothing in the sources reviewed indicates how often courts use this statute for complaining witnesses in domestic cases.

If someone is pressuring the witness

A witness's reluctance is sometimes the result of pressure. Michigan law treats that pressure as a crime in its own right. A person may not, by threat or intimidation, discourage or attempt to discourage anyone from testifying, or encourage or attempt to encourage anyone to withhold testimony or testify falsely.^[7] Offering or promising anything of value for those purposes is also prohibited.^[28] A violation is a felony punishable by up to 4 years or a fine of up to $5,000, or both, with higher maximums where threats to kill or injure are involved.^[8]

The statute applies regardless of whether the witness has been subpoenaed, if the person knows or has reason to know the other person could be a witness.^[29] Threatening a complaining witness in a criminal case may also be punished as contempt of court.^[30] A witness who is threatened can tell the prosecutor, who may move to revoke the defendant's bond on credible evidence of threats or intimidation.^[31] See witness tampering and pressuring a victim not to testify and, for defendants, violating a no-contact order.

Protections for a witness who does testify

• The court must provide a waiting area separate from the defendant, the defendant's relatives and defense witnesses if one is available and practical, or other safeguards to minimize contact.^[32]
• Under MRE 611(a) the court must exercise reasonable control over the questioning of witnesses to protect them from harassment or undue embarrassment.^[33]
• An employer who disciplines or discharges a victim for answering a subpoena commits a misdemeanor.^[34]
• A person with limited English proficiency is entitled to a court-appointed interpreter if those services are necessary to meaningfully participate.^[35]

One common assumption is wrong: the statutory right to have a support person sit with a witness during testimony is limited to an alleged victim of an offense listed in MCL 600.2163a who is under 16, is 16 or older with a developmental disability, or is a vulnerable adult.^[36][37] What the day looks like in practice is described in what to expect as a witness.

What people get wrong

"A spouse can never be made to testify." The privilege does not apply in a case that grows out of a personal wrong or injury done by one spouse to the other, and where that exception applies the victim-spouse may be compelled to testify.^[2][3]

"If I refuse, the case is over." A refusal despite a court order makes the witness unavailable; it does not make the earlier statements disappear.^[5] Testimony from a preliminary examination can be used at trial if the witness is unavailable and was subject to cross-examination when it was given, and the prosecutor may seek to admit other earlier statements as well.^[6][38]

"I can just say something different on the stand." Testimony is given under oath, and a knowingly false statement under oath in a court proceeding is perjury.^[39] That subject has its own page: Recanting: when the accuser changes the story.