Ellensburg, WA asked in Criminal Law, Family Law and Domestic Violence for Washington

Q: What are the consequences for telling a judge that a DV report they called in didn’t really happen?

The state is trying to prosecute a DV4 case, what are the possible consequences if the reporter recants and tells the judge it didn’t really happen?

1 Lawyer Answer
Greg Freeze
Greg Freeze
  • Port Townsend, WA
  • Licensed in Washington

A: Let's start with, this isn't the judge's first rodeo. Credibility of the recantation will be at issue.

Next, you're question needs to be put in the context of where you are with regard to trial and sentencing.

If you are pretrial, the goal would seem to be to cause the prosecution to withdraw the case. I've seen cases go forward with the police officer's testimony as to what the victim reported, using an exception to the hearsay rule. The criminal case is from "we the people" versus the defendant. That's why it goes forward. There may be other witnesses. Yet, I've also see cases merely threaten to go forward, probably with the hopes of getting a plea on a property crime rather than a person crime. But, if you're pretrial, there is a lot of posturing. But, it is a rare recantation that is believed by the prosecution. It's just not believed. It's understood, but not believed. But, that's how prosecutors are wired.

If you have been sentence and are seeking a new trial on a motion, then this quote is relevant. "If the recantation is not credible, then it is not material, and an essential factor that would support a new trial is missing." State v. Ieng, 87 Wn. App. 873, 875, 942 P.2d 1091, 1092 (1997). On a DV4, it's unlikely that a defendant would even consider an attempt at a second bite at the apple.

If you are the victim, and you are going to recant and minimize, your better question is whether the judge will hold you in contempt or bring charges against you the victim. I would find this unlikely. Generally, judges are careful to call a victim-witness "not credible" rather than lying. The judge is well aware of battered woman's syndrome or its analog for men. Part of the syndrome involves denial, forgiveness, codependency, and a whole host of other things that could be brought into the trial using an expert witness. I find the expert witness unlikely to be used in a DV4. Bringing in an expert witness is expensive, so one finds this weapon associated with the high-stakes felony cases.

But as victim, the fear of getting charged with making a false report, or some other such crime, typically causes the victim to "minimize" along with recanting partially with regards to certain most-damning statements. Paradoxically, or logically, this fear of reprisal by the judge has a side effect--the judge sees through the recanting and minimizing.

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