If charged with domestic violence in Michigan, you have the option of going to trial. Trial should be the last option if a deal cannot be worked out ahead of time or the prosecutor refuses to dismiss despite you believing you are incident of the offense charged.
Assuming we set the case for trial, a jury trial means 6 members of the community hearing testimony and deciding guilt or not guilty. A bench trial is the judge hearing the facts of the case and deciding the same question. Each has their advantages and disadvantages depending upon why we're setting it for trial.
If the goal is to set the case for trial because we believe the alleged victim will not show up, and the prosecutor will not pursue the material witness warrant, we may opt for a bench trial which is quicker and less strain on the court resources - it will also be cheaper for my client. If we know the alleged victim will show, and not be helpful for the case, and we believe we did nothing wrong, we may want 6 members of the community hearing the facts and finding reasonable doubt.
There's many ways to beat a domestic violence charge at trial in Michigan, but the best way to win at trial is to not go to trial or for a jury or witness to be sworn in. Here's an example of how that would happen.
My client is charged with domestic violence in Michigan, and we're exploring all pretrial options for resolution. Although the 769.4A is on the table, it would mean my client going on probation for 12 to 18 months and being one slip-up away from going to jail. While this avoids the criminal charge, you still need to earn it over those months. The client tells me that his or her spouse does not want to testify and would prefer that the whole case goes away. The prosecutor will not just dismiss charges because that is not the public position they want to take on domestic violence, but there is an avenue to getting that same result.
In certain courts with certain prosecutors, I would talk to my client about setting their case for a bench trial vs a jury trial. The idea is that we don't pick a jury, drain court resources when we know that the victim/witness will not show. We set it for a bench trial and skip the time consuming process of a jury with the idea that the prosecutor will not pursue a material witness warrant and have the victim/witness arrested and forced onto the witness stand.
I have a pretty good idea of what courts this would work and with what prosecutors and judges. The key here, my client, his/her family/friends or anyone associated with them cannot tell the victim/witness to not comply with a subpoena - this is witness tampering and a felony. I tell all of my clients that the other party can pursue whatever means they want in terms of the case and they are free to appear or not appear. They can hire a lawyer of their own or not hire a lawyer; they can face contempt of court for not complying or not face any contempt, it's their thing, my only interest is in my client, not the other person.
Will my wife be forced to testify against me in a Michigan Domestic Violence Trial? Will she be arrested if she doesn't go? Material Witness Warrant
In Michigan, there is no law that allows a spouse to avoid testifying in a criminal proceeding where they are the alleged victim. If this spousal privilege existed, it would be difficult to prosecute domestic violence cases if the "victim" wanted to protect his/her spouse and tank the prosecution's case. This privilege does apply in other areas of the law, even criminal cases, but not when the other spouse is an alleged victim of the other spouse.
That being said, the prosecutor will subpoena witnesses for a trial in domestic violence, and the star witness will be that spouse victim. The "victim" may not want to testify, and have even asked the prosecutor to dismiss charges and they were told that is not going t happen. If subpoenaed, the spouse victim will be ordered to appear in court for the trial, failure to appear is contempt of court and the spouse victim could face major consequences.
The more important question is whether a prosecutor and judge are willing to consider enforcing that, and taking the steps to take the spouse into custody against their will - this is called a material witness warrant in Michigan. The law says the following:
When it appears to a court of record that a person is a material witness in a criminal case pending in a court in the county and that there is a danger of the loss of testimony of the witness unless the witness furnishes bail or is committed if he or she fails to furnish bail, the court shall require the witness to be brought before the court. After giving the witness an opportunity to be heard, if it appears that the witness is a material witness and that there is a danger of the loss of his or her testimony unless the witness furnishes bail or is committed, the court may require the witness to enter into a recognizance with a surety in an amount determined by the court for the appearance of the witness at an examination or trial. If the witness fails to recognize, he or she shall be committed to jail by the court, until he or she does recognize or is discharged by order of the court.
I've had judges threaten to issue this warrant in domestic violence cases where the victim either indicated they would not show, or did not appear after the subpoena was served. I've also had judges and prosecutor say frankly that they were not willing to go arrest and harass a "victim" of domestic violence, and if they did not show, then that was their choice, and the case would essentially be dismissed.
I've handled DV cases both as a prosecutor and as a defense lawyer all around the State of Michigan; I have a good idea on the courts that pursue these warrants and force victims into court, and the courts that will not pursue this. It makes all the difference when deciding whether or not to set a case for trial, or pursue a resolution with the prosecutor prior to trial.
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