If You Want the Charges Dropped: A Guide for the Complaining Witness in Michigan

If you are in danger right now, call 911. To talk through your situation with an advocate at any hour, the National Domestic Violence Hotline is 1-800-799-7233 (text START to 88788), and Michigan's VOICES4 Hotline is 855-864-2374 by call or text.^[9][10][11] Local agencies are listed in Where to get help.

If you are the complaining witness in a Michigan domestic violence case and you want the charges dropped, you cannot dismiss the case yourself. In criminal cases the prosecutor alone has the authority to decide whether to prosecute.^[1] What you can do is tell the prosecutor's office what you want and why, use your rights to be consulted and heard, and get confidential support while you work out what is safe for you.

This page is written for the person named as the victim in the charge. It does not assume anything about what happened or about your reasons.

Why it is not your decision

The complaining witness is a witness in a criminal case, not the party who brings it. In People v Williams, the Court of Appeals held that a trial judge erred by dismissing domestic assault charges after the complaining witness did not testify, explaining 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."^[2]

Once a charge has been filed, the prosecutor's own decision to drop it is not the last step either. Under MCL 767.29, a prosecuting attorney may not discontinue or abandon a filed charge without stating the reasons on the record and without the leave of the court.^[12]

The same idea runs through the earlier stages. The police policies that Michigan law requires say that an officer's decision whether to arrest should not be based solely on whether the victim consents to a later prosecution.^[13] And the police agency must file its domestic violence report with the prosecuting attorney within 48 hours after the incident is reported, whether or not anyone was arrested.^[14] So "pressing charges" is not something the witness does or undoes. How the charging decision is made is covered in Who decides to file charges and Can the victim drop the charges?

What you can do

1. Tell the prosecutor's office what you want. In a serious misdemeanor case, which includes domestic assault, the prosecutor's written notice names a person to contact for further information.^[15][16] In many offices that person is called a victim advocate or victim-witness coordinator; titles vary by county. Say plainly what you are asking for and why.
2. Ask to confer with the prosecutor. On the victim's request, the prosecuting attorney must confer with the victim before trial.^[3] Before finalizing any negotiation that may result in a dismissal, a plea or sentence bargain, or pretrial diversion, the prosecutor must offer the victim the opportunity to give the victim's views, including views about dismissal. That duty applies in felony cases and, where the defendant did not already plead guilty or no contest at arraignment, in serious misdemeanor cases such as domestic assault.^[17][18]
3. Ask about outcomes other than dismissal. One example is a deferral under MCL 769.4a, in which the court, after a guilty plea or a finding of guilt, may hold off entering a judgment of guilt and place the person on probation; it needs the consent of the accused and of the prosecuting attorney "in consultation with the victim."^[19] See the 769.4a deferral explained and Possible outcomes of a domestic violence case.
4. Treat the no-contact order as a separate question. A no-contact condition is set by a judge or magistrate as a condition of the defendant's release, and a defendant who violates a release condition is subject to arrest without a warrant.^[20] Wanting the case to end and wanting contact to be allowed are two different requests. See When the protected person wants contact and How to modify or lift a no-contact order.
5. Speak at sentencing if there is a conviction. The victim has the right to make an oral impact statement at sentencing.^[21] The notice about that right must say that an impact statement may include the victim's recommendation for an appropriate sentence.^[22] See Victim impact statements.
6. Talk to someone who works only for you. The prosecutor's staff work for the prosecutor's office, and the defense lawyer represents the defendant. A community advocate or a lawyer of your own can help you think through what you want before you say it to either side.

The prosecutor will weigh what you say along with the rest of the evidence and the office's own judgment. Being consulted is a right; having the final say is not.^[2]

Talking to an advocate first

An advocate at a domestic violence agency does not decide anything for you. 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 the child protection law provides.^[8] The statute defines a counselor as a person employed by or volunteering at a sexual assault or domestic violence crisis center.^[23]

People want a case to end for many reasons: fear of what happens next, lost income, housing, children, or a belief that the situation is under control. An advocate can talk through each of those. Michigan's VOICES4 Hotline can connect callers directly to local domestic violence programs.^[10]

What you cannot do

• End the case yourself. No statement or request from a witness dismisses a prosecution; that decision belongs to the prosecutor.^[1]
• Ignore a subpoena without consequence. If a person fails to comply with a properly served subpoena, the court may consider it a contempt of court.^[4] Under MCL 600.1715, punishment for contempt may be a fine of not more than $7,500, imprisonment, or both. Imprisonment may not exceed 93 days, except where the person is committed for failing to perform an act or duty that is still within the person's power to perform; in that case the imprisonment ends when the person performs the act or no longer has the power to perform it.^[24]
• Decline to answer after the judge orders it. A witness who refuses to be sworn or to testify about a matter that is not privileged, after being ordered to do so by the court, may be held in contempt.^[25] A separate statute makes it a misdemeanor, punishable by imprisonment for up to 1 year or a fine of up to $1,000, to withhold testimony after the court has ordered it produced following a hearing; it does not apply to conduct permitted by statute or other lawful privilege.^[26]
• Rely on being married to the defendant. 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 a victim-spouse may be compelled to testify.^[27][28] See Spousal privilege.

Staying away also may not stop the case. The Court of Appeals has noted that even when the complaining witness did not appear, the prosecutor arguably had a basis to proceed by showing that the witness was unavailable under the Rules of Evidence.^[29] Testimony given at a preliminary examination can be used at trial if the witness is unavailable and was subject to cross-examination.^[30] And MCL 768.27c is a hearsay exception for a statement that narrates, describes or explains the infliction or threat of physical injury on the person who made it.^[31] These rules are explained in When the victim does not come to court. If a subpoena date is a problem, the step to take is a phone call to the prosecutor's office before the hearing.

If you are thinking about changing what you said

This guide does not tell anyone what to say. The law asks one thing of a witness, which is truthful testimony under oath. What follows is a neutral description of the rules that apply.

• Testimony in court. Perjury in a court proceeding requires proof that the person was legally required to take an oath in a court proceeding, took it, made a false statement under that oath, and knew the statement was false when making it.^[32] It is a felony punishable by imprisonment for not more than 15 years when committed in a case other than the trial of a capital crime.^[33]
• Reports to police. Intentionally making a false report of a crime to a peace officer, police agency or 9-1-1 operator, knowing the report is false, is a misdemeanor punishable by up to 93 days or a fine of up to $500 if the report is of a misdemeanor, and a felony punishable by up to 4 years or a fine of up to $2,000 if the report is of a felony.^[34]
• The earlier statement stays in the case. Any party, including the party that called a witness, may attack the witness's credibility.^[35] An earlier unsworn statement that conflicts with the testimony can be used to judge credibility, and a prior inconsistent statement given under penalty of perjury at a trial, hearing or other proceeding is not hearsay when the witness testifies and is cross-examined about it.^[36][37]
• Experts may be called. Michigan's Supreme Court has said that expert testimony may be relevant and helpful to explain a complainant's actions, including recanting allegations of abuse.^[38]

If you believe something in the police report is inaccurate or incomplete, the place to raise it is the prosecutor's office, and it is reasonable to speak with a lawyer of your own before you do. The subject is covered in Recanting: when the accuser changes the story and False report of domestic violence.

If someone is asking you to drop it

Michigan's witness tampering statute applies to any person, including a defendant, a relative or a friend. It prohibits using threat or intimidation to discourage a person from attending or testifying at an official proceeding, to influence testimony, or to encourage a person to avoid legal process, withhold testimony or testify falsely.^[6] It also prohibits giving, offering or promising anything of value for those purposes, and willfully interfering with a witness's ability to attend or testify.^[5][39] The statute applies even if no subpoena has been served and no proceeding is pending.^[40]

A violation is a felony punishable by up to 4 years in prison or a fine of up to $5,000, and by up to 15 years or $25,000 if it involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[7] A similar law covers threats, intimidation or offers of value meant to influence what a person tells a police officer who is investigating a crime.^[41]

If you are being pressured, tell the prosecutor's office. The written notice the prosecutor sends is supposed to include suggested procedures for a victim who is threatened or intimidated.^[15] On credible evidence of acts or threats of physical violence or intimidation by the defendant, or at the defendant's direction, against the victim or the victim's immediate family, the prosecutor may ask the court to revoke the defendant's bond.^[42] More detail is in Witness tampering and pressuring a victim not to testify.

If your reason is safety, money or housing

A case that goes forward can strain a household. Some resources exist for exactly that:

• Michigan's Crime Victim Compensation program may help pay out-of-pocket medical expenses, lost earnings, counseling and other expenses for people harmed as the direct result of a crime, and a person may apply as soon as the crime occurs without waiting for the court case.^[43][44]
• Legal Aid of Western Michigan provides free legal services to eligible clients in a 17-county service area, and its listed family law cases include "Divorce for survivors of domestic violence."^[45][46]
• Rights at home and at work are covered in Housing rights for victims and Workplace and financial protections.

What people get wrong

• "I filed the charges, so I can withdraw them." The prosecutor alone decides whether to prosecute, and a filed charge is discontinued only with the court's leave.^[1][12]
• "If I do not show up, they have to dismiss." A subpoena can be enforced through contempt, and the prosecutor may be able to proceed with other evidence.^[4][29]
• "Telling the prosecutor I want it dropped will get me in trouble." Stating your wishes is what the right to confer is for.^[3]
• "The defendant can talk me out of it as long as nobody is threatened." The tampering statute also covers offering or promising anything of value to discourage testimony.^[5] Where a no-contact condition is in place, a defendant who violates it is subject to arrest without a warrant.^[20]