Yes, the victim can testify for the defendant.
The victim can be called in the prosecutor’s case-in-chief as well as in the defense case-in-chief.
In the article that follows, we’ll explain.
Can a Victim Testify For The Defendant? (EXPLAINED)
The contents of this web page are for informational purposes only, and nothing you read is intended to be legal advice. Please review our disclaimer about law/legal-related information on this website before taking action based upon anything you read or see.
Introduction To Victim’s Rights
Victim’s have rights guaranteed to them that the government and the defense have to follow.
These rights are granted by statute, and may vary from state to state (and court to court).
But in general, they include the rights to:
- speak to the court at sentencing
- be consulted in advance about a negotiated plea
- to be notified in advance of important court hearings
- to have personal information redacted from all reports provided to the defendant
- to have in person support at hearings
- to refuse to speak to the defense attorney or investigator
The victim also has the rights guaranteed as a citizen under the constitution (state and country).
These rights set by statute do not include any provisions giving the victim the power to decide which side she will or will not testify for once she has been subpoenaed by one side or the other.
Testifying For The Defense
The victim has the right to avoid a conversation with the defense attorney and the defense team.
But he doesn’t have to avoid those conversations.
He is free to talk with the attorney and the defense team if he wants to.
In fact, it is fairly common for victims to be sympathetic to the defendant and to want the best possible outcome for the defendant.
Obviously this isn’t the best possible set up for the prosecutor who is trying to secure a conviction, but sometimes charges are filed naming a victim who does not want the case to proceed.
In these situations, the victim might happily and voluntarily testify for the defense even without the need for a subpoena.
Can The District Attorney Stop The Victim From Testifying For The Defendant?
The prosecutor can attempt to stop the defendant from calling the victim as a witness, or to stop the victim from offering specific topics of testimony.
However, with isolated exceptions, the objection would need to be more than “hey, that’s my witness” or “that’s the victim, you can’t do that.”
Instead, the objection would need to be something like:
- the evidence is not relevant
- the testimony is improper impeachment
- the evidence is collateral
- the evidence is improper character evidence that is not admissible
- lack of foundation (like the victim does not have first hand knowledge
- hearsay without an exception to let the evidence in
If there is a legal basis to exclude the evidence, the district attorney might be able to prevent the victim from testifying.
Can The Victim Talk To The Defendant During The Case?
Be careful about this.
In many cases, a no-contact order is put into place to prevent the defendant from having contact with the victim.
While the order may not specifically restrain the victim (who is not a party to the case), the victim can cause the defendant to violate the order by trying to have contact or encouraging contact with him.
This could result in additional charges against the defendant or even the revocation of the defendant’s release agreement, which could leave him in jail during the pendency of the case towards trial.
Should The Victim Testify For The Defendant?
We cannot answer that question.
There are good reasons why an individual might not want to testify in the case for either side, such as the risk of incriminating himself with his own testimony.
If you think testifying might be harmful to you in your situation, we recommend that you contact a defense lawyer or a lawyer who specializes in victim’s rights to make sure you understand fully what you should to do and need to do in order to protect yourself.
Want to learn more about our justice system?
Browse our free legal library guides for more information.
You might also like: