When the Complaining Witness Does Not Come to Court in a Michigan Domestic Violence Case

A Michigan domestic violence case does not end automatically when the complaining witness is not in the courtroom. The prosecutor alone decides whether to prosecute, and the Court of Appeals has held that a judge erred by dismissing domestic assault charges because the complainant would not testify.^[2][3] What happens next depends on two things: how the court enforces its subpoena, and whether the prosecution has other admissible evidence.

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.^[12] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[13][14]

This page explains the law for everyone involved. It is not a guide to avoiding court. A subpoena is a court order, and the sections below set out what the law says can follow when one is not obeyed.

What happens when a subpoenaed witness does not appear?

Under MCR 2.506(E)(1), if a person fails to comply with a properly served subpoena, the court in which the case is pending may treat the failure as contempt of court.^[1] The contempt statute lists the same conduct: a person who has been subpoenaed as a witness in any Michigan court and refuses or neglects to obey the subpoena, to attend, or to be sworn can be punished for contempt.^[15]

Except as otherwise provided by law, the ceiling for contempt is a fine of not more than $7,500, jail of not more than 93 days, or both, in the court's discretion.^[16] The rule says the failure "may" be considered contempt, so the response is up to the judge.^[1] How a particular court handles a first missed date varies, and nothing in the rule sets a fixed sequence of steps.

Material witness bonds

A separate statute, MCL 767.35, applies 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 in, gives the witness an opportunity to be heard, and may then require a recognizance with a surety in an amount the court sets. A witness who does not provide it is committed to jail until he or she does or the court orders a discharge.^[17] The sources reviewed for this library do not say how often this statute is used with complaining witnesses in domestic cases, and it should not be assumed to be routine.

Protection at work

An employer or an employer's agent who threatens, disciplines or discharges a victim because the victim is subpoenaed or asked by the prosecutor to attend court to testify commits a misdemeanor punishable by up to 90 days in jail or a fine of up to $500, or both.^[18]

Does the judge dismiss the case?

Not on that ground alone. In People v Williams, the Court of Appeals wrote 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."^[3] The same opinion observed that, despite the complainant's failure to appear on the trial date, the prosecutor "arguably had a viable basis to proceed" by showing that she was an unavailable witness under the Rules of Evidence.^[19]

That does not mean every case continues. A prosecutor who has no other admissible evidence may decide not to go forward, and that decision belongs to the prosecutor.^[2] The related question of whether a complainant can end a case is covered in Can the victim drop domestic violence charges?

What evidence can be used without the witness?

The Michigan Judicial Institute's benchbook notes that in domestic violence cases the complaining witness is sometimes unavailable to testify, and that the prosecutor may then seek to admit the witness's earlier testimony or other statements as substantive evidence.^[4] The main routes are these.

Type of evidence	What the law says
Statement to a police officer	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 making it, if five statutory conditions are met.[5][20] The statute does not require that the person be unavailable.[21]
911 call	Statements to a 911 operator describing events as they were happening in an ongoing emergency were held non-testimonial in Davis v Washington.[22]
Excited utterance	A statement relating to a startling event, made while the speaker was still under the stress of excitement it caused, is an exception to the hearsay rule under MRE 803(2).[23]
Earlier sworn testimony	Testimony from the preliminary examination can be used at trial if the witness is unavailable and was subject to cross-examination when it was given.[24]
Statements kept out by wrongdoing	Under MRE 804(b)(6), a statement may be offered against a party that wrongfully caused or encouraged the witness's unavailability and intended that result.[25]

Photographs and hospital records are separate kinds of evidence with their own admission rules.^[7][8] Each of these has its own page: statements to police under MCL 768.27c, 911 calls as evidence, photographs and medical records, and the overview in evidence used in Michigan domestic violence cases.

A prosecutor who intends to use MCL 768.27c must disclose the evidence to the defense not less than 15 days before the scheduled trial date, unless the court allows a later time for good cause.^[26]

Testimony preserved early in a felony case

In a felony case, on the prosecutor's request the preliminary examination begins immediately at the time set for the probable cause conference for the sole purpose of taking and preserving the testimony of a victim who is present.^[27] Because that testimony is given under oath and subject to cross-examination, it is the kind of former testimony that can be used later if the witness becomes unavailable.^[24] The hearing itself is explained in the preliminary examination.

What limits protect the defendant?

Fitting a hearsay exception is only the first step. Under Crawford v Washington, a testimonial statement from a witness who does not testify may be used against a criminal defendant only if the witness is unavailable and the defendant had a prior opportunity for cross-examination.^[9] Michigan courts have said that out-of-court statements are not exempt from confrontation merely because they fall within a hearsay exception.^[28]

Whether a statement to police is testimonial turns on its purpose. Statements made so that police can meet an ongoing emergency are non-testimonial; statements made when there is no ongoing emergency, where the primary purpose is to establish past events for a later prosecution, are testimonial.^[29] In Hammon v Indiana, decided together with Davis, statements a complainant gave police at the scene after the incident was over were testimonial.^[30] In People v Walker, where the complainant did not appear for trial, the Michigan Court of Appeals held that the content of the 911 call was non-testimonial and properly admitted, but treated her statement written down by a neighbor and her statements to police at the scene as comparable to those in Hammon.^[31]

In a criminal case, a witness who is simply absent counts as "unavailable" under the Rules of Evidence only if the side offering the statement shows due diligence in trying to bring the witness to court.^[32] The full analysis is in hearsay and the Confrontation Clause.

When the absence is caused by pressure or fear

The U.S. Supreme Court has acknowledged that domestic violence is "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial," while holding that the confrontation right still stands.^[33] The law answers that problem in three ways.

• Forfeiture by wrongdoing. The prosecution must show by a preponderance of the evidence that the defendant engaged in or encouraged wrongdoing, that the wrongdoing was intended to procure the witness's unavailability, and that it did.^[34] If the statement comes in on that basis, the defendant's confrontation right is treated as waived.^[35]
• Criminal charges. MCL 750.122 prohibits discouraging or attempting to discourage a person from attending or testifying at an official proceeding by threat or intimidation, and it applies whether or not the person has been subpoenaed.^[10][36] A violation is a felony punishable by up to 4 years or a fine of up to $5,000, or both; the maximum is 15 years or $25,000, or both, 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.^[11]
• Bond. 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 move to revoke the defendant's bond.^[37]

The prosecutor is also required to give the victim written notice of suggested procedures to follow if the victim is threatened or intimidated.^[38] More detail is in witness tampering and pressuring a victim not to testify.

If you are the witness and are worried about coming to court

The Crime Victim's Rights Act contains protections meant for this situation. The court must provide a waiting area separate from the defendant, the defendant's relatives and defense witnesses if one is available and practical, and other safeguards if not.^[39] On request, the prosecutor must confer with the victim before trial.^[40] Where the victim reasonably fears violence or intimidation, the prosecutor may ask that the victim not be made to state an address or place of employment in court.^[41]

The practical step is to call the prosecutor's office or its victim-witness staff as soon as a subpoena arrives, and to say plainly what the concern is: safety, transportation, child care, work, or not wanting the case to go forward. An advocate at one of the hotlines above can also talk through options. See what to expect as a witness, crime victims' rights in Michigan and if you want the charges dropped.

What people get wrong

"No victim, no case." MCL 768.27c has no unavailability requirement, a 911 call can be non-testimonial, and preliminary examination testimony can be used at trial when the witness is unavailable and was subject to cross-examination.^[21][22][24]

"Anything said to the police comes in." A statement offered under MCL 768.27c has to meet five statutory conditions, including that it was made at or near the time of the injury or threat and under circumstances that indicate trustworthiness.^[20] A testimonial statement made at the scene after the emergency has ended still faces the confrontation analysis.^[30]

"A subpoena is a request." Failure to comply may be treated as contempt.^[1] Related questions about being required to answer once in court are covered in Can a victim refuse to testify?, and changing an earlier account is covered in Recanting: when the accuser changes the story.