An accusation made during an argument does not always remain the same once the police leave and everyone has had time to process what happened. A person who initially accused a spouse, partner, former partner, or family member of domestic violence may later say the incident did not happen as first reported. The person may deny being attacked, say an injury was accidental, dispute something written in the police report, or refuse to cooperate with prosecutors.
When an alleged domestic violence victim recants their statements in California, however, the criminal case does not automatically disappear. The prosecution may continue without the complaining witness's support. Whether it can prove the charge is a different question. A recantation may create serious evidentiary problems for the prosecution, but prosecutors can sometimes rely on earlier statements, 911 recordings, photographs, police observations, digital communications, or other evidence.
Once law enforcement and prosecutors become involved, the complaining witness no longer controls the criminal prosecution. Under California Penal Code § 684, a criminal action is prosecuted in the name of the People of the State of California. The criminal case therefore belongs to the state rather than the person who made the accusation.
The complaining witness can tell the prosecutor that they no longer support the case. They may explain that their original statement was inaccurate or that they do not want the defendant prosecuted. Prosecutors can consider that information when deciding how to proceed.
The complaining witness cannot simply tell the court to “drop the charges,” though. This distinction becomes especially important in domestic violence prosecutions. A prosecutor may believe the original statement was accurate and that the later recantation is unreliable. The prosecutor may suspect the witness changed the story because the couple reconciled, because of financial or family concerns, or because someone pressured the witness, even if the victim may take back their testimony.
Those are prosecution theories that may evolve based on whether the victim chooses to recant their statements. They do not establish that the original accusation was true. The defense can challenge both versions of the events and the assumptions prosecutors make about why the story changed.
Recanting generally means withdrawing, contradicting, or substantially changing an earlier statement.
There is no single form a recantation must take. A complaining witness might:
These situations raise different evidentiary issues. A witness who testifies at trial and contradicts an earlier statement presents a different legal question from a witness who refuses to testify at all.
Likewise, a statement made during a 911 call may be treated differently from an interview conducted by police after an incident has ended. That is why the fact that someone “recanted” does not by itself answer whether the prosecution can continue.
California's hearsay rules generally restrict the use of statements made outside court when offered to prove the truth of what they say. Evidence Code § 1200 sets out the general hearsay rule, and there are numerous exceptions.
One that can become especially important after a recantation is Evidence Code § 1235. It provides that a witness's prior inconsistent statement is not excluded by the hearsay rule when the requirements of Evidence Code § 770 are satisfied.
Suppose a complaining witness testifies and gives a statement to the police that conflicts with an earlier statement. The prosecution may attempt to introduce that earlier statement as a prior inconsistent statement.
This is more significant than merely using the statement to suggest that the witness is unreliable. California law may allow a qualifying prior inconsistent statement to be considered as evidence of the truth of what was originally said.
The defense can still challenge the statement. Questions may include how it was obtained, whether the witness actually made the statement attributed to them, whether the statement was recorded accurately, what questions police asked, whether the statement was complete, and whether surrounding evidence supports or contradicts it.
Another California hearsay exception applies to certain spontaneous statements. Under Evidence Code § 1240, a statement describing an event may qualify for admission when it was made spontaneously while the speaker remained under the stress of excitement caused by what the person perceived.
Prosecutors may rely on this rule when attempting to introduce statements made during or shortly after an alleged domestic violence incident. Timing alone does not decide the issue. The court must examine whether the statutory requirements are met.
For the defense, that may require a close look at the circumstances surrounding the statement. A recorded 911 call, body-camera footage, dispatch records, witness accounts, and the sequence of events can provide context that is missing from a police report.
A statement that sounds persuasive when summarized in a report may appear very different when the actual recording is reviewed.
Every case deserves
a strong defense
Potentially, but the answer depends on both California evidence law and the defendant's constitutional right to confront witnesses. The Sixth Amendment limits the prosecution's ability to use certain out-of-court statements against a defendant who has no opportunity to cross-examine the person who made them.
In Crawford v. Washington, the U.S. Supreme Court held that testimonial statements from an absent witness generally cannot be admitted against a criminal defendant unless the witness is unavailable and the defendant previously had an opportunity for cross-examination.
The Court later addressed 911 calls and domestic violence investigations in Davis v. Washington.
Davis distinguishes statements aimed at helping police respond to an ongoing emergency from statements whose primary purpose is establishing past events for a later criminal prosecution. That distinction can affect whether a statement is considered testimonial.
As a result, there is no rule that says every 911 statement is admissible simply because it was recorded. There is also no rule that every statement to police becomes inadmissible when the witness refuses to testify. The circumstances surrounding each statement have to be examined.
A complaining witness may receive a subpoena even after telling prosecutors that they do not want to participate. California provides a specific protection for domestic violence complaining witnesses who refuse to testify. Under Code of Civil Procedure § 1219(b), a court cannot imprison, confine, or place a domestic violence victim in custody for contempt when the contempt consists of refusing to testify about the alleged domestic violence crime.
That does not mean the witness controls whether the prosecution continues. California law also recognizes circumstances in which a witness can be considered legally unavailable. Evidence Code § 240, for example, includes a witness who persists in refusing to testify after being found in contempt.
The prosecution may then attempt to introduce prior statements through a hearsay exception. Whether those statements are actually admissible depends on the applicable evidentiary rules and constitutional restrictions, particularly in the context of criminal charges. For statements involving physical injury or threats of physical injury, prosecutors may also examine Evidence Code § 1370.
That statute creates a hearsay exception for certain statements made by an unavailable witness, but it imposes several requirements concerning timing, trustworthiness, the form of the statement, and notice to the opposing party. Even when a statutory hearsay exception appears to apply, the Sixth Amendment can create a separate barrier to testimonial evidence in a domestic violence case.
A prosecutor does not necessarily need the complaining witness to take the stand if other admissible evidence is sufficient to prove the charge beyond a reasonable doubt.
Depending on what police collected, that evidence may include:
The existence of evidence does not establish what happened. Each item still has to be evaluated for admissibility. For example, a photograph may document an injury without establishing who caused it. A text message may appear damaging when isolated from the rest of the conversation. A body-camera recording may contradict portions of a written police report. A defense investigation looks beyond the prosecution's summary of the evidence.
A recantation can substantially change how a domestic violence prosecution is evaluated. The effect depends on why the account changed and what other evidence exists. The defense may compare the original accusation with later statements and examine discrepancies involving:
A significant contradiction may weaken the prosecution's ability to establish guilt beyond a reasonable doubt. The defense may also provide prosecutors with information that was not available when police made the arrest.
In some cases, evidentiary problems identified before formal filing or during pretrial proceedings may influence charging decisions, negotiations, or the prosecution's belief that it can prove the case. A recantation is therefore important evidence, but it should be evaluated as part of the entire record rather than treated as an automatic dismissal.
A later statement that the original report was false requires careful handling. California Penal Code § 148.5 makes it a misdemeanor to knowingly make a false report to specified law enforcement personnel that a felony or misdemeanor was committed. That does not mean every person who corrects, changes, or withdraws an accusation committed a crime. The statute requires a knowingly false report.
Similarly, Penal Code § 118 concerns knowingly false material statements made under oath or under penalty of perjury. A simple contradiction between two statements does not by itself establish perjury.
A defendant should not attempt to coach the complaining witness about how to explain a recantation. The safest approach is to allow defense counsel to address the evidentiary consequences without creating another issue for prosecutors to investigate.
This is one of the most dangerous mistakes a defendant can make after a domestic violence arrest. A defendant may know that the complaining witness wants to withdraw the accusation. The witness may even initiate contact and ask how to fix the situation.
That does not mean the defendant should discuss testimony, police statements, or how the person should respond to prosecutors. California Penal Code § 136.1 prohibits specified attempts to prevent or dissuade a witness or victim from reporting a crime, assisting a prosecution, attending proceedings, or giving testimony.
A separate problem exists when the court has issued a criminal protective order. Penal Code § 136.2 permits courts to impose no-contact and other protective conditions in criminal cases. Willful violation of qualifying court orders may also result in prosecution under Penal Code § 166.
The complaining witness cannot privately cancel a court order. Even if that person calls, texts, visits, or says contact is acceptable, the defendant remains responsible for obeying the order unless the court changes it. Trying to resolve the accusation directly can turn one criminal case into several.
When a complaining witness changes an account, the defense should determine what changed, why it changed, and how the new account compares with the physical and digital evidence.
That can include obtaining 911 recordings, body-camera footage, photographs, dispatch information, text messages, medical records, surveillance recordings, and prior witness statements. A lawyer can also examine which statements prosecutors may try to admit and whether the hearsay rules or Confrontation Clause provide grounds to keep them out.
The goal is not simply to announce that the witness recanted; the law firm must also consider the implications for pursuing the case. The stronger approach is to show how the changed account affects the prosecution's ability to prove each element of the charge beyond a reasonable doubt.
A recantation can weaken a domestic violence prosecution, but it does not automatically end the case. Prosecutors may continue to pursue charges and attempt to prove them through the original statement or other evidence. At the same time, California evidence law and the Constitution place limits on what the government may present when the complaining witness changes the story or refuses to testify.
William S. Kroger Criminal Defense Attorney at Law represents people accused of domestic violence and related offenses throughout Los Angeles. Our defense team can review the original accusation, subsequent statements, recordings, protective orders, and other evidence to determine how a recantation affects the prosecution's case. Contact our office by calling 323-655-5700 or by scheduling a confidential consultation using our online form.
Don't face
the prosecutor alone
"*" indicates required fields
