Colorado Criminal Domestic Violence Law – The Recanting or Reluctant Witness – Can I Refuse To Testify?
It is important for those working in the criminal justice system to distinguish between victims who are reluctant to testify, and those who refuse to testify. The majority of victims who are initially reluctant to testify sometimes can be compelled to do so under certain conditions.
The victim in a domestic Violence allegation may refuse to testify. What happens then?
Reasons for reluctance or refusal include:
The victim may actually fear, in true domestic violence cases, that the perpetrator will follow through with threats of retaliation for the victim’s efforts to leave or seek help from the justice system.
The victim may also have originally made the allegatons falsely and is using the criminal justice system for the wrong reasons and is now trying to do the right thing.
Also true victims may be under a great deal of pressure from family, including children, not to testify against the abuser, and may also be feeling guilt and shame and blame him or herself for the situation.
The Witnesses Refusal to Testify or Appear
C.R.C.P. 107 – The Procedural Rule in District court
C.R.C.P. 407 – The Procedural Rule in County Couirt
Failure to appear on a subpoena may be punishable by an indirect civil contempt proceeding. Procedures for contempt are set forth in the court rules.
Contempt – Motion for Contempt Citation:
The motion must be supported by an affidavit that indirect contempt has been committed.
The Court may then issue a citation to the person to appear and show cause why the person should not be punished.
The citation must include the date, time, and place for the show cause hearing.
The citation and a copy of the motion, affidavit and order shall be served directly on the person at least 20 days before the hearing.
As a practical matter, this means the date set by the Court must be far enough out to allow that service to occur at least 20 days before the hearing.
Warrant for arrest:
If the person fails to appear and the Court has been provided with proof of service, the Court may issue a warrant for the person¡|s arrest to the sheriff. The warrant must set a date, time and place for the person to appear in court and shall state the amount and kind of bond required.
At the first appearance, the person shall be advised of the following rights:
Right to be represented by an attorney,
If indigent and a jail sentence is contemplated, the court will appoint counsel
Maximum jail sentence shall not exceed 6 months unless the person had been advised of the right to a jury trial,
Right to plead either guilty or not guilty to the charges,
Presumption of innocence,
Right to require proof of the charge beyond a reasonable doubt,
Right to present witnesses and evidence,
Right to cross-examine all adverse witnesses,
Right to have subpoenas issued to compel attendance of witnesses trial,
Right to remain silent,
Right to testify at trial, and
Right to appeal any adverse decision.
The Court may impose a fine or imprisonment or both if the court expressly finds the person¡|s conduct was offensive to the authority and dignity of the court.
The person shall have the right to make a statement in mitigation prior to imposition of sentence.
U.S. CONST. amend. V 9 5th Amendment Right to Remain Silent.
The 5th Amendment Right to Remain Silent
C.R.S. Section13-90-118, Cases – People v. Russom, 107 P.2d 986 (Colo. App. 2004). People v. Merrill, 816 P.2d 958 (Colo. App. 1991).
Even where a witness has a Fifth Amendment right regarding self-incrimination, they may still be compelled to testify if granted use immunity by the prosecution.
If granted immunity under C.R.S. 13-90-118, a witness may not refuse to comply with order to testify.
If immunity is granted, no testimony may be used against the witness in any criminal case, except prosecution for perjury or false statements.
The authority to grant immunity lies solely with the prosecution.
A court does not have the authority to grant immunity to any witness.
The prosecution may request a use immunity order when in his or her judgment, the testimony or other information from the individual may be necessary to the public interest and such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination
Being Charged With the Crime of False Reporting
If the alleged victim of a crime of domestic violence recants and admits that he or she lied in the first instance – that person can be arrested and charged with the Colorado crime of false reporting. It is strongly urged that the alleged victim seek the services of an independant lawyer who can advise and/or represent he or she in this circumstance as to the correct course of action.
Here is the Crime of False Reporting in Colorado:
The Colorado Crime of False reporting 18-8-111.
(1) A person commits false reporting to authorities, if:
(a) He knowingly causes a false alarm of fire or other emergency to be transmitted to or within an official or volunteer fire department, ambulance service, or any other government agency which deals with emergencies involving danger to life or property; or
(b) He makes a report or knowingly causes the transmission of a report to law enforcement authorities of a crime or other incident within their official concern when he knows that it did not occur; or
(c) He or she makes a report or knowingly causes the transmission of a report to law enforcement authorities pretending to furnish information relating to an offense or other incident within their official concern when he or she knows that he or she has no such information or knows that the information is false; or
(d) He or she knowingly provides false identifying information to law enforcement authorities.
(2) False reporting to authorities is a class 3 misdemeanor.
(3) For purposes of this section, “identifying information” means a person’s name, address, birth date, social security number, or driver’s license or Colorado identification number.
False reporting to authorities is a class 3 misdemeanor. 18-8-111 (2)