Recanting a Domestic Violence Statement in Michigan: What Happens When the Account Changes

When a complaining witness in a Michigan domestic violence case changes or withdraws an earlier account, the case does not end by itself. The decision to continue belongs to the prosecutor, and the Court of Appeals has held that a trial court exceeded its authority by dismissing a prosecution on its own motion after the sole complaining witness recanted.^[1][2] What changes is the evidence: the earlier statement may or may not be usable, and the jury may hear both versions.

If you are in danger, or someone is pressuring you about what to say, call 911 or reach an advocate. The National Domestic Violence Hotline is free, confidential and open 24/7: call 1-800-799-SAFE (7233) or text START to 88788.^[10] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[11][12]

People change their accounts for many reasons, and this page does not assume which version is true. It explains what the law does with each version, the risks to a witness, and the risks to anyone who tries to influence a witness.

Does the case continue after a recantation?

It can. In People v Morrow, the complaining witness recanted the testimony she had given at the preliminary examination and the trial judge dismissed the case. The Court of Appeals held that a court may override a prosecutor's charging decisions only when they are unconstitutional, illegal or beyond the prosecutor's authority, and that deciding to proceed after a recantation was none of those.^[2]

The prosecution still has to prove the charge beyond a reasonable doubt, and the defendant is presumed innocent.^[13] Whether a case goes forward is the prosecutor's decision.^[1] For the related question of asking a prosecutor to dismiss, see Can the victim drop domestic violence charges? and If you want the charges dropped.

What happens to the original statement?

Michigan's Rules of Evidence let any party, including the party that called a witness, attack that witness's credibility.^[14] So a prosecutor may confront a complaining witness with what he or she said before. How far the earlier statement can go depends on how it was made.

Earlier statement	How it can be used after the witness gives a different account
Unsworn statement, such as what was said to an officer or a friend	To judge the witness's credibility. It cannot be admitted to prove the truth of what was said unless a recognized hearsay exception applies.[3]
Testimony given under penalty of perjury at a trial, hearing or other proceeding	As substantive evidence, if the witness testifies and is subject to cross-examination about it, under MRE 801(d)(1)(A).[4]
Statement to a law enforcement officer about an injury or threat	As substantive evidence under MCL 768.27c if all five statutory conditions are met; the statute does not require the witness to be unavailable.[15][16]
Excited utterance	As substantive evidence under the hearsay exception in MRE 803(2) for statements made under the stress of a startling event.[17]
Written statement the witness now says he or she cannot recall	May be read into evidence as a recorded recollection under MRE 803(5) if it was made or adopted when the matter was fresh.[18]

Jurors are told how to treat the difference. Under the model instruction, they may consider an earlier inconsistent statement to help decide how believable the witness's testimony was, and if the earlier statement was made under oath, they may also consider it as evidence of the truth of what was said.^[19]

Limits on using the first statement

Before other evidence of a prior inconsistent statement comes in, the witness has to be given an opportunity to explain or deny it, and the other side has to be given an opportunity to examine the witness about it, unless justice requires otherwise.^[20] The Michigan Supreme Court has also limited impeachment as a back door: a prior inconsistent statement should not be admitted when its substance goes to the central issue of the case and there is no other testimony from that witness for which credibility matters.^[21]

MCL 768.27c has its own limits. The statement has to have been made at or near the time of the injury or threat, under circumstances indicating trustworthiness, and to a law enforcement officer.^[15] In weighing trustworthiness a court may consider whether the person had a bias or motive to fabricate and whether the statement is corroborated.^[22] The prosecutor has to disclose the evidence at least 15 days before trial unless the court allows otherwise for good cause.^[23] Details are in statements to police under MCL 768.27c and hearsay and the Confrontation Clause.

Expert testimony about recantation

In People v Christel, the Michigan Supreme Court said that expert testimony about the behavior of people who have been abused by a partner is relevant and helpful when needed to explain a complainant's actions, such as attempts to hide or minimize abuse, delays in reporting, or recanting allegations.^[24]

The limits are firm. The expert cannot give an opinion that the complainant was battered, cannot testify that the defendant was a batterer or is guilty, and cannot comment on whether the complainant was being truthful.^[25] In Christel itself, admitting the testimony was error because the complainant in that case had not hidden abuse, delayed reporting or recanted.^[26] Any expert also has to satisfy MRE 702.^[27] See expert witnesses in domestic violence cases.

What are the legal risks to a witness?

The law attaches consequences to knowingly false statements, in either direction. It does not attach them to the act of changing an account as such.

Perjury

Perjury in a court proceeding under MCL 750.422 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 it was made.^[5] It is a felony; in a case other than the trial of a capital crime the maximum is 15 years in prison.^[6]

A separate section reaches sworn statements outside the courtroom. A person of whom an oath is required by law who willfully swears falsely is guilty of perjury, a felony punishable by up to 15 years, and the same applies to a person who willfully makes a false declaration in a record that the person signs under penalty of perjury.^[28] That matters for affidavits and other signed, sworn papers.

False report of a crime

Making a false report of a crime under MCL 750.411a requires proof that the person reported to police that a crime was committed, that the report was false as to the fact that the crime was committed or its details, that the person knew it was false, and that the person made the report intentionally.^[29] A false report of a misdemeanor is a misdemeanor punishable by up to 93 days or a fine of up to $500, or both; a false report of a felony is a felony punishable by up to 4 years or a fine of up to $2,000, or both.^[29] More is in false report of domestic violence.

What this means in practice

Both offenses turn on a statement the person knew to be false when it was made, not on the fact that two accounts differ.^[5][29] A witness who has questions about his or her own position can ask to speak with an attorney of his or her own before testifying or signing anything. The prosecutor and the defense attorney each represent a side in the case, not the witness.

What are the legal risks to a defendant or anyone else who pressures a witness?

Michigan's witness tampering statute, MCL 750.122, covers three kinds of conduct:^[7][8][30]

• Giving, offering or promising anything of value to influence testimony, or to encourage a person to avoid legal process, withhold testimony or testify falsely.^[7]
• Using threat or intimidation to influence or attempt to influence testimony, or to encourage or attempt to encourage a person to withhold testimony or testify falsely.^[8]
• Willfully impeding, interfering with or obstructing a witness's ability to attend, testify or provide information, or attempting to.^[30]

A violation is a felony punishable by up to 4 years or a fine of up to $5,000, or both. The maximum rises to 15 years or $25,000 if the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[9] The statute applies whether or not a proceeding is pending or the person has been subpoenaed, if the actor knows or has reason to know the person could be a witness.^[31] Retaliating against someone for having been a witness is a felony punishable by up to 10 years.^[32]

A related statute, MCL 750.483a, prohibits offering anything of value, or threatening or intimidating any person, to influence a person's statement to a police officer conducting a lawful investigation of a crime; a violation is a misdemeanor punishable by up to 1 year or a fine of up to $1,000, or both, and a felony punishable by up to 10 years if it involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[33]

MCL 750.122 provides an affirmative defense to its bribery and intimidation provisions, which the defendant has the burden of proving by a preponderance of the evidence: that the conduct was solely lawful and the sole intention was to encourage the other person to testify or provide evidence truthfully. Those provisions also do not apply to the lawful conduct of an attorney performing his or her duties.^[34]

Other consequences for a defendant

A defendant's own threat against a witness is generally admissible at trial as conduct that can show consciousness of guilt.^[35] If the defendant's wrongdoing was intended to and did make the witness unavailable, the witness's out-of-court statements may be admitted against the defendant under the forfeiture rule.^[36][37] On credible evidence of threats or intimidation, the prosecutor may move to revoke bond.^[38] A benchbook advisory committee tip, which is recommended practice and not law, suggests judges emphasize that the case is between the defendant and the People.^[39] See witness tampering and pressuring a victim not to testify and no-contact orders explained.

What people get wrong

"If the witness takes it back, there is no case." The prosecutor may proceed, and the earlier statement may be usable under the rules described above.^[2][4][15]

"The statement to the officer proves the case even if the witness denies it at trial." An unsworn prior inconsistent statement cannot be admitted to prove the truth of what was said unless a recognized hearsay exception applies; MCL 768.27c is one such exception, with its own conditions.^[3][40]

"Signing an affidavit of non-prosecution ends it." No Michigan law gives a crime victim authority to decide whether a prosecution goes forward or is dismissed.^[41] A false declaration in a paper that a person signs and gives under penalty of perjury is covered by the perjury statute.^[28]

Related pages: Can a victim refuse to testify?, When the victim does not come to court, and false accusations of domestic violence.