A common question our office often hears is whether the prosecutor will dismiss or drop the case if the victim refuses to testify at trial or even refuses to appear at trial. Indeed, there are cases where this has occurred, but such cases are actually rather rare.
It is important to note from the outset that this article excludes application to probation violation hearings, which have different rules concerning unavailable witnesses. People v. Stanphill (2009) 170 Cal.App.4th 61.
There are several reasons that the prosecutor may continue to prosecute a case when the victim refuses to testify or refuses to appear at trial.
First, the victim may have already testified, for example at a preliminary hearing where defense counsel cross-examined her (or him) and the victim is now legally unavailable. Crawford v. Washington (2004) 541 U.S. 36. Such a situation will not be present in a misdemeanor case, however, as there is no preliminary hearing in a misdemeanor matter. In a felony case, however, this may occur and when it does, the prosecution can read the victim’s testimony at trial from the preliminary hearing transcript.
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