Can the Victim Drop Domestic Violence Charges in Michigan?

No. In Michigan, the person named as the victim cannot drop domestic violence charges. The prosecutor alone has the authority to decide whether to prosecute, and the Court of Appeals has held that crime victims have not been given authority to determine whether a prosecution goes forward or is dismissed.^[1][2]

The complaining witness is not powerless, though. This page explains who controls the case, what the witness is entitled to say and to whom, and how a case can continue when the witness does not want it to.

If you are being pressured or threatened to get a case dropped, or you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and available 24/7 at 1-800-799-SAFE (7233), or text START to 88788.^[8]

Why the complaining witness cannot drop the case

A criminal case is brought in the name of the People, not in the name of the person who was harmed. The Domestic Violence Benchbook's advisory committee advises judges to emphasize that the proceedings are between the defendant and the People, not between the defendant and his or her intimate partner.^[9]

The leading Michigan case is People v Williams. A trial court dismissed domestic assault charges after the defendant's girlfriend did not appear to testify. The Court of Appeals reversed. It said that "the prosecutor alone possesses the authority to determine whether to prosecute the accused," and that "nowhere in the laws of this state have crime victims been given authority to determine whether the [Penal C]ode has been violated or whether the prosecution of a crime should go forward or be dismissed."^[1][2]

A judge's power to end a case over the prosecutor's objection is also limited. In People v Morrow, a trial court dismissed a prosecution on its own after the sole complaining witness recanted her preliminary examination testimony. The Court of Appeals held the trial court exceeded its authority, because the prosecutor's decision to proceed was not unconstitutional, illegal, or ultra vires (beyond the prosecutor's legal power).^[10]

The prosecutor's own power to end a filed case has a condition too. Under MCL 767.29, a prosecuting attorney may not enter a nolle prosequi (a formal decision to drop the charge), or discontinue or abandon the charge, without stating the reasons on the record and without the leave of the court.^[11] So a dismissal after charging involves both the prosecutor and the judge, and before finalizing a negotiation that may result in a dismissal the prosecutor must offer the victim the opportunity to give his or her views.^[11][4]

The process does not depend on the witness from the start

Several steps before any court date go ahead without the complaining witness's agreement:

• Police policy must say that the arrest decision should not be based solely on the consent of the victim to any subsequent prosecution.^[12]
• The police agency must file its domestic violence report with the prosecuting attorney within 48 hours after the incident is reported.^[13]
• A magistrate may not refuse a domestic assault complaint on the ground that it is signed on information and belief by someone other than the victim.^[14]

In other words, the phrase "pressing charges" does not describe how a Michigan case starts. The path from report to charge is explained in Who decides whether charges are filed?

What the complaining witness can do

Michigan law gives crime victims a voice, not a veto. Domestic assault is a "serious misdemeanor" under the Crime Victim's Rights Act, so these rights apply in misdemeanor domestic cases as well as felonies.^[15]

Right	What the law says
To be consulted before a plea deal, dismissal or diversion	In a serious misdemeanor case, if the defendant has not already pleaded guilty or no contest at arraignment, the prosecutor must offer the victim the opportunity to consult about dismissal, plea or sentence negotiations and pretrial diversion before finalizing any such negotiation.[4] The same duty applies in felony cases.[3]
To confer before trial	On the victim's request, the prosecutor must confer with the victim before trial.[16]
To speak at sentencing	The victim has the right to appear and make an oral impact statement at sentencing.[17]
To be told what to do if threatened	The prosecutor must give the victim written notice of suggested procedures to follow if the victim is threatened or intimidated.[18]

The practical way to use these rights is to speak with the prosecutor's office or its victim advocate. The address and telephone number of the prosecuting attorney are part of the written information police must provide within 24 hours of first contact.^[19] A step-by-step guide is in If you want the charges dropped, and the full list of rights is in Crime victim rights in Michigan domestic violence cases.

Some people give the prosecutor a signed statement saying they do not want the case to go forward. A statement like that tells the prosecutor what the witness wants. It does not close the case, because the decision remains the prosecutor's.^[1]

What about the no-contact order?

A no-contact bond condition is a separate matter from the charge, and it is the court's order to change. A release decision can be modified by the court on the motion of a party or on the court's own initiative, on finding a substantial reason.^[20] The proceedings are between the defendant and the People, so the rule gives the protected person no motion of his or her own to file.^[9][20] The benchbook's advisory committee also advises courts not to ask the complaining witness to approve or agree to release conditions, because doing so may endanger the witness.^[9] See How to modify or lift a no-contact order and When the protected person wants contact.

What if the witness will not testify?

Witnesses are brought to court by subpoena. If a person fails to comply with a properly served subpoena, the court may treat the failure as contempt of court.^[5] A witness who refuses to be sworn or to testify about a matter that is not privileged, after being ordered to do so, may also be held in contempt.^[21] Where there is a danger of losing a material witness's testimony, a trial court may, after a hearing, require the witness to post a bond.^[22]

Marriage does not usually change this. 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, and the Court of Appeals has held that the victim-spouse may then be compelled to testify.^[23][24] Details are in Can a victim refuse to testify? and Spousal privilege.

An employer who threatens to or does discharge or discipline a victim because the victim is subpoenaed or asked by the prosecutor to testify commits a misdemeanor.^[25]

How a case goes forward without the witness's cooperation

The Domestic Violence Benchbook notes that the complaining witness in a domestic violence case is sometimes unavailable to testify, and that the prosecutor may then seek to admit the witness's earlier testimony or other statements as evidence.^[6] Common sources of proof include:

• Statements to police. MCL 768.27c allows certain statements made to a law enforcement officer at or near the time of an injury or threat to be admitted in a domestic violence case, and it contains no requirement that the complainant be unavailable.^[26][7]
• The 911 call. The U.S. Supreme Court held in Davis v Washington that a complainant's statements to a 911 operator describing events as they were happening in an ongoing emergency were not "testimonial."^[27]
• Earlier sworn testimony. A witness who refuses to testify despite a court order is "unavailable" under the Rules of Evidence.^[28] A prior inconsistent statement given under penalty of perjury at a hearing can be used as proof of the facts when the witness testifies and is cross-examined.^[29]

There are limits. A testimonial statement from a witness who does not testify can be used against a defendant only if the witness is unavailable and the defendant had a prior opportunity to cross-examine.^[30] An unsworn earlier statement that conflicts with a witness's testimony generally goes only to credibility unless a hearsay exception applies.^[31] These rules are explained in When the victim does not come to court and Hearsay and the Confrontation Clause.

Changing a statement

Testimony has to be truthful, whatever was said earlier. Two offenses turn on knowing falsehood. Perjury requires a false statement made under oath in a court proceeding by a person who knew it was false.^[32] Making a false report of a crime to police requires proof that the report was false, that the person knew it was false, and that it was made intentionally.^[33] See Recanting: when the accuser changes the story.

A defendant who pressures a witness to change a statement or stay away from court creates a separate problem. Threatening a complaining witness in a criminal case may be punished as contempt of court, and the benchbook flags witness tampering under MCL 750.122 as a possible crime.^[34] Credible evidence of threats or intimidation against the victim is also a ground for the prosecutor to ask that bond be revoked.^[35] See Witness tampering and pressuring a victim not to testify.

What people get wrong

"She is dropping the charges, so the case is over." The complaining witness has no authority to end the case; the decision whether to prosecute is the prosecutor's, and dropping a filed charge also needs the court's leave.^[1][2][11]

"If the victim does not show up, the judge has to dismiss." In Williams, the dismissal that followed a witness's non-appearance was reversed on appeal.^[2][36]

"The prosecutor never has to talk to the victim." The prosecutor must offer the victim an opportunity to consult before finalizing a dismissal, plea or diversion.^[4]

"Michigan has a no-drop statute." The sources behind this guide contain no statute creating one; MCL 776.21 concerns polygraphs in criminal sexual conduct cases.^[37] How a prosecutor's office responds to a request to dismiss is within the prosecutor's discretion.^[1]