When the person named as the victim in a partner or family member assault (PFMA) case takes back what they said, or does not want to testify, the case does not end on its own. The prosecutor can subpoena the witness and can try to prove the charge with earlier statements and other evidence. Whether the State is allowed to use those earlier statements is governed by the hearsay rules and by the constitutional right to confront witnesses. This page is part of our Montana Domestic Violence Guide.
A Recantation Is Evidence, Not a Dismissal
As we explain in can the victim drop the charges, only the prosecutor and the court can dismiss a case. A recantation is a new statement that conflicts with an earlier one. The prosecutor will weigh both, along with everything else in the file. This page does not assume which statement is the true one. That is the question a judge or jury would decide.
Subpoenas and the Reluctant Witness
After charges are filed, either side can ask the clerk to issue a subpoena commanding a person to appear and give testimony (MCA § 46-15-101(1)). The subpoena stays in effect until judgment or dismissal unless the court quashes it (MCA § 46-15-101(4)). Disobedience to a subpoena, or a refusal to be sworn or to answer as a witness, may be punished as a contempt by the court (MCA § 26-2-104).
Being married to the defendant usually does not change this in a domestic case. See spousal privilege in domestic cases.
If the Witness Testifies and Changes the Account
Hearsay is an out-of-court statement offered to prove the truth of what it asserts (Mont. R. Evid. 801(c)). Montana's rules carve out a prior statement by a witness who testifies at trial, is subject to cross-examination about the statement, and gives testimony inconsistent with it (Mont. R. Evid. 801(d)(1)(A)). That statement "is not hearsay."
In practice, this means that if the witness says at trial that nothing happened, the prosecutor may be able to put the earlier statement in front of the jury. The defense can cross-examine about both versions, and about the circumstances in which each was given.
If the Witness Does Not Testify: Confrontation
The Sixth Amendment gives an accused person the right to be confronted with the witnesses against them. Montana's Constitution states the right as meeting "the witnesses against him face to face" (Mont. Const. art. II, § 24). Three United States Supreme Court decisions shape how that right works when a witness is absent.
| Case | What the Court held |
|---|---|
| Crawford v. Washington, 541 U.S. 36 (2004) | A testimonial statement of a witness who does not appear at trial is barred unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. Statements taken in police interrogations are testimonial. |
| Davis v. Washington, 547 U.S. 813 (2006) | Statements made to meet an ongoing emergency, such as much of a 911 call, are not testimonial. Statements given to police after the emergency has ended, to establish past events, are testimonial. |
| Giles v. California, 554 U.S. 353 (2008) | A defendant forfeits the confrontation right by wrongdoing only when the conduct was intended to prevent the witness from testifying. |
Davis decided two domestic cases together. In one, a woman's answers to a 911 operator while the incident was happening were held to be nontestimonial. In the other, a wife's account to officers who had arrived, separated the couple, and were asking what had happened was held to be testimonial, because there was no emergency in progress. The line between the two depends on the primary purpose of the questioning, viewed objectively.
A statement that clears the Confrontation Clause still has to satisfy the hearsay rules. Prosecutors commonly rely on exceptions such as the excited utterance (Mont. R. Evid. 803(2)) and statements made for medical diagnosis or treatment (Mont. R. Evid. 803(4)). Our pages on the 911 call as evidence and body cameras, photos, and medical records look at those more closely.
Forfeiture by Wrongdoing
The confrontation right can be lost. In Davis the Court said that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. Giles v. California narrowed that: forfeiture applies only where the defendant engaged in conduct designed to prevent the witness from testifying.
For someone facing a PFMA charge, the practical lesson is simple. Any attempt to persuade, pressure, or arrange for the other person not to testify can hand the State the very statements the Constitution would otherwise keep out. It can also bring a new felony charge for tampering with a witness (MCA § 45-7-206) and a charge for violating the no contact order.
What This Means for the Defense
These rules are applied statement by statement. A defense lawyer will look at each one the State plans to use: who it was made to, when, for what purpose, and whether the person who made it will be on the stand. Objections of this kind are usually raised before trial, so they need to be identified early (MCA § 46-13-101).
Your part is narrower. Follow the no contact order exactly, do not discuss testimony with the other person or with anyone who might pass a message along, and leave all communication about the case to your lawyer. If you are the person who made the original report and you have questions about testifying, a victim advocate or your own lawyer can help. Anyone in danger should call 911. The National Domestic Violence Hotline is 1-800-799-7233.
This page explains Montana and federal law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.