Recommendations in Dealing with Warrants Amid Domestic Violence Cases

Contributing Author: Tracy M. Prior, San Diego County Chief Deputy District Attorney, San Diego (CA)

Photo credit: RomoloTavani / iStock

Simply put, discouraging warrants to compel domestic violence victims to court is the best practice for providing the best trauma-informed treatment of victims. Even further, prosecutorial agencies should adopt protocols and policies that address the compulsion of victims to court and think through the scenario that may happen when warrants are issued for domestic violence victims. Prosecutor offices are strongly encouraged to require approval from the elected District Attorney or a high supervisory level employee prior to requesting a warrant for a domestic violence victim.

There are many things prosecutors can do short of asking that a warrant be issued for a domestic violence victim’s failure to appear:

• Work proactively with staff or advocates to educate the victim about the court process and calm any fears. Staff members, paralegals, and advocates can be trained to educate domestic violence victims that once they come to court, they can tell their “side of the story” and that all they are required to do is tell the truth.
• Educate victims that the subpoena is an order of the court, and it is not the victim’s fault or choice to be subpoenaed to court. Lessening the pressure on victims can sometimes make them feel better about appearing.
• Find the criminal justice partner that developed the best rapport with the victim (e.g., the police officer, the nurse) and enlist their help to make a phone call or text to the victim.
• Enlist community advocates to discuss with victims that they only need to come to court and tell the truth. Remind victims they will be surrounded with services and support, including an advocate, court accompaniment, or perhaps even an escort to and from their next destination.
• Prosecutors can remind victims that when they are on the witness stand, the prosecutor will ask a litany of questions that show the accused it is not the victim’s fault they are present in court. Questions can include:

“Did you want to be here today?”

”Isn’t it true you love [the accused?] and still want to live with [the accused?]”

”The only reason you are here today is because you got a court order to be here, correct?”

”You want [the accused] to know you still love him/her, correct.”

”And you didn’t even report this abuse to the police correct?”

Will you tell the truth here today even though you don’t want to be here?”

• Ask to trail the case for a couple hours until you have enough time to personally connect with the victim.
• Ask to trail until the afternoon or the next day so your staff with whom the victim built rapport with can re-initiate contact with the victim.
• Keep the court informed about all the attempts your staff is making to get victim into court.
• Dismiss and re-file the case pursuant to state statues allowing as such in Domestic Violence cases when applicable.
• Request that the court have a hearing to determine whether the victim’s continued refusal to testify can be deemed “unavailability” pursuant to the evidence code, and then admit the preliminary hearing transcript should state statues allow it.
• Request a warrant (as a last resort) to “be held” but not issued and then work to connect with the victim in a trauma-informed way. Often, the existence of a non-issued warrant combined with a compassionate explanation of the importance of coming to court to tell the truth will encourage victims to appear.

In the end, domestic violence cases must stand independent of victims. If we require the victim’s testimony in order to prove the case, perhaps we should not have issued, charged, or filed it. This is the essence of evidence-based prosecution that is continually reinforced as best practices nationwide.

Specially trained prosecutors know to build their case around a victim, not further burden a victim by compelling them to court. Survivors of domestic violence already have the weight of the world on their shoulders — we owe it to them to use every tool possible to best balance their protection with the advancement of our case.

The National Domestic Violence Prosecution Best Practices Guide is a living document highlighting current best practices in the prosecution of domestic violence. This guide was revised by NDAA’s Women Prosecutors Section on June 23, 2020.

This is part two of a two-part blog series during Domestic Violence Awareness Month. In case you missed it, check out part one here.