Are Charges Dropped If a Victim Refuses to Testify in New Jersey?

No. In New Jersey, charges are not automatically dropped when a victim refuses to testify, because the State, not the victim, decides whether a criminal case goes forward. The victim is a witness, not a party, and the prosecutor can subpoena that witness to court. A victim who ignores a subpoena without an adequate excuse can be held in contempt. If the victim still will not testify, the prosecutor may try to prove the case with other evidence, such as 911 calls, body camera video and photos, although the Constitution limits what can be used without the victim on the stand.

Question	Short answer
Who decides if charges are dropped?	The prosecutor, who represents the State of New Jersey. The victim can share an opinion but cannot dismiss the case
Can a victim be forced to testify?	A victim can be subpoenaed. Failing to obey a subpoena without an adequate excuse may be treated as contempt of court (R. 1:9-5)
Can the case go on without the victim?	Sometimes, using other evidence, but testimonial statements generally cannot be used unless the defendant had a chance to cross-examine or caused the victim’s absence
Can a spouse refuse to testify?	Generally yes, but not when the spouse is the alleged victim or the complainant (N.J.S.A. 2A:84A-17)
What if the defendant scared the victim off?	The defendant can lose the right to object, and the victim’s earlier statements may come in (N.J.R.E. 804(b)(9))
Can the defendant ask the victim to drop it?	No. That can be charged as witness tampering, a crime of at least the third degree (N.J.S.A. 2C:28-5)

What Happens If a Victim Refuses to Testify?

Every New Jersey criminal case is brought in the name of the State, and the prosecutor represents the State, not the victim. Victims do not have their own lawyer in the criminal case.

So a victim asking to drop the charges does not end the case. What happens next usually depends on three things:

• How strong the other evidence is. Video, recordings and documented injuries can sometimes carry the case.
• Whether the victim is subpoenaed. The prosecutor can compel the victim to come to court.
• Whether the prosecutor thinks the case can be proven. If the State cannot prove the charge without the victim, it may move to dismiss or offer a reduced plea.

Victims do have a voice. Under N.J.S.A. 52:4B-36, they can confer with the prosecutor and consult before plea negotiations end, but the law does not limit the prosecutor’s discretion to enter a plea agreement.

Can You Be Forced to Testify in Court?

Yes, in most situations. A prosecutor can serve a subpoena ordering a witness, including the alleged victim, to appear. Under New Jersey Court Rule 1:9-5, failing to obey a subpoena without an adequate excuse may be deemed a contempt of the court that issued it.

A subpoena requires the witness to appear. A victim thinking about recanting or refusing should speak with a lawyer of their own first.

The Fifth Amendment exception

A witness can refuse to answer questions that would incriminate them. New Jersey recognizes this privilege in N.J.R.E. 503 and N.J.S.A. 2A:84A-19, which give every person the right to refuse to disclose matters that would incriminate them or expose them to a penalty. This can come up when both people were fighting. It covers specific incriminating answers, not a general right to skip testifying.

The spousal privilege and its limits

New Jersey’s spousal privilege, N.J.S.A. 2A:84A-17 and N.J.R.E. 501, says the spouse or civil union partner of a criminal defendant generally does not have to testify against the defendant. The privilege does not apply when:

• the spouse or partner consents to testify;
• the defendant is charged with an offense against the spouse or partner;
• the defendant is charged with an offense against a child of either of them, or a child either one stands in the place of a parent to; or
• the spouse or partner is the complainant.

So a married victim of domestic violence generally cannot use the spousal privilege to avoid testifying about the assault on them.

Why a Prosecutor May Proceed With the Case Anyway

Instead of relying on the victim’s testimony, the State may try to prove the case with:

• 911 calls and dispatch recordings;
• police body-worn camera footage;
• photos of injuries or property damage;
• medical records;
• testimony from the responding officers and any other witnesses; and
• texts, voicemails and social media messages. See can text messages be used as evidence in domestic violence cases.

Statements the victim made in the moment can sometimes come in as excited utterances under N.J.R.E. 803(c)(2). That rule covers a statement about a startling event, made under the stress of the event and without a chance to fabricate.

The Confrontation Clause limits what the State can use

Fitting a hearsay exception is not enough. In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court held that testimonial statements of a witness who does not testify at trial are admissible only if the witness is unavailable and the defendant had a prior opportunity to cross-examine.

In Davis v. Washington, 547 U.S. 813 (2006), the Court explained the line. Statements to police are nontestimonial when their primary purpose is to help meet an ongoing emergency, like a 911 caller describing an attack in progress. They are testimonial when the emergency is over and the purpose is to establish past events for a possible prosecution, like a victim’s statement to officers after things have calmed down. So the early part of a 911 call may be usable, while a later written statement often is not unless the victim testifies.

What If the Defendant Caused the Victim Not to Testify?

A defendant cannot benefit from keeping a witness away. Under N.J.R.E. 804(b)(9), the forfeiture by wrongdoing rule, a statement may be used against a party who engaged, directly or indirectly, in wrongdoing that was intended to, and did, make the witness unavailable.

The New Jersey Supreme Court set the framework for this rule in State v. Byrd, 198 N.J. 319 (2009), and the rule took effect in 2011. At a pretrial hearing outside the jury’s presence, the State must prove by a preponderance of the evidence that the defendant’s wrongdoing was intended to, and did, make the witness unavailable. Under Byrd, the judge must also find the statement reliable.

That is one reason a defendant should never contact the alleged victim about the case. Under N.J.S.A. 2C:28-5, it is a crime to knowingly engage in conduct that a reasonable person would believe would cause a witness to withhold testimony or stay away from a proceeding they were summoned to. It is a third-degree crime. It becomes a second-degree crime if the person uses or threatens force, and a first-degree crime if force or threats are used in a case involving certain serious violent crimes listed in N.J.S.A. 2C:43-7.2. Released defendants are also commonly ordered to avoid all contact with the alleged victim under Rule 3:26-2.

Does the Victim of Domestic Violence Have to Testify?

Often, yes, if subpoenaed. A domestic violence victim cannot simply drop criminal charges. Often the victim never signed the complaint. Under N.J.S.A. 2C:25-21, police must arrest and sign a criminal complaint when they find probable cause of domestic violence and the victim shows signs of injury, a warrant is in effect, a protective order the person was served with was violated, or a weapon was involved. For more, see our domestic violence FAQs and our domestic violence defense page.

Dropping a restraining order is a separate case

A restraining order is a civil matter in the Family Part. The plaintiff can ask a Family Part judge, in person, to dismiss it. But dismissing the order does not resolve the criminal charges, which proceed separately. See how long it takes to drop a restraining order in NJ and our New Jersey restraining orders page.

Do Charges Get Dropped If the Victim Does Not Show Up?

Sometimes, especially in municipal court, where many disorderly persons cases depend almost entirely on one complaining witness. The municipal prosecutor handles the case for the State. Under Rule 7:8-5, if a complaint is not moved on the trial date, the judge may set a new date and notify the complaining witness. If it is still not moved, the judge may dismiss it.

A single missed date does not guarantee a dismissal, and the prosecutor may ask for an adjournment or a subpoena. Defense counsel should be ready to object to inadmissible hearsay and to seek dismissal when the State cannot proceed.

Frequently Asked Questions

Can a victim refuse to testify in court in New Jersey?

A victim can be subpoenaed, and ignoring a subpoena without an adequate excuse may be treated as contempt of court. A spouse may have a privilege, but not when the spouse is the alleged victim.

Can a victim drop charges in NJ?

No. Only the prosecutor can dismiss a criminal charge. The victim can tell the prosecutor what they want, and that view may matter, but the State makes the final decision.

Will the case be dismissed if the victim does not come to court?

Not automatically. The judge may adjourn, the State may subpoena the victim or use other evidence, and the case may be dismissed if the State cannot proceed.

Can a 911 call be used if the victim does not testify?

Sometimes. Statements made to get help during an ongoing emergency are generally nontestimonial and may be admitted, while statements made later to describe past events usually cannot be used unless the victim testifies or the defendant caused the victim to stay away.

Can I contact the victim to ask them not to testify?

No. Asking or pressuring a witness to stay away or withhold testimony can be charged as witness tampering under N.J.S.A. 2C:28-5, and contact may also violate a no-contact condition or restraining order.

Talk to a New Jersey Lawyer About a Case Where the Victim Will Not Testify

William Proetta Criminal Law has over 15 years of criminal trial experience in courts across New Jersey. We review what evidence the State has without the victim, challenge hearsay and Confrontation Clause problems, and push for a dismissal when the State cannot prove its case. Call (201) 793-8018 for a free, confidential review, 24/7, or contact us online. Se habla español.