If an alleged victim doesn’t want to pursue or testify, can the state force them to?
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If an alleged victim doesn’t want to pursue or testify, can the state force them to?
The alleged victim in a home invasion case doesn’t want to pursue the case nor does this person want to testify. The case was dismissed by a judge 13 months after the date of alleged incident due to the fact alleged victim and
all witness for the prosecution could not even be subpoenaed. The judge would not even allow a 30 continueance. The prosecution then refilled the charges 2 days later. The alleged victim has repeatedly made it known that they do not want to pursue. The alleged victim has ongoing criminal cases
himself and has been told by the prosecution that they will slam him on his pending cases if he won’t testify. Is any of this legal or ethical?
Asked on February 21, 2018 under Criminal Law, Illinois
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
1) Prosecutors have discretion on whether to pursue someone and, if so, how hard to pursue them (e.g. what charges to press; what penalties to seek). You can see this when the prosecutor offers to drop charges or allow a favorable plea if someone cooperates as a witness. So yes, the procesutor can threaten to go after someone to the full extent of the law if they won't cooperate.
2) The prosecutor could also subpoena them to testify, and they could be jailed for not complying. The *only* times you can legally refuse to testify (and you must do this on the witness stand--i.e. show up and do it in court) is that you can refuse to testify if your testimony would incriminate you of a crime (i.e. you would "take the Fifth") or if you refuse to testify against a spouse (the "spousal privilege").
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