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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 25455
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I filed charges against my ex-husband because my 10 year old

Customer Question

I filed charges against my ex-husband because my 10 year old son and 13 year old daughter told me he made them watch pornography and then my daughter stated he had touched her inappropriatly, however I talk to the kids recently and told them to walk me through everything that had happen and things did not happen the way they told me at the beginning. The children did not understand what some words meant like they walked into the room while my ex had the door shut while he was watching it on the computer however he told them to leave and explained to them what they saw. I told the prosecutor what the children had told me know since we have not talked about it for the past nine months however they do not believe us. I do not want to put the children through trial and neither myself. I am thankful that we finally sat down and talked about it clarifying things even though they advised me against it because know they seem happier and more confident. I believe them and I want to be done with this. We have been subponeaed for trial what can I do as a mother?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  LawTalk replied 7 years ago.

Good afternoon,

I'm very sorry to hear of your dilemma.

Unfortunately, if you and your children have been subpoenaed to testify at trial you will have little choice but to appear at the trial. If you disobey the subpoena, the court could find you in contempt and jail you. If that were to happen, it is unlikely that the children would be given over to their father. They would likely be placed in foster care for the time being.

While you can retain a local attorney to try and protect the children from having to testify, it is unlikely that it would be very effective.

I'm afraid that now that the trial is going forward you will have no choice but to cooperate with the prosecution's subpoenas.

I wish you and your children well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,


Customer: replied 7 years ago.
The prosecution is considering a plea with my ex because I told them I could not go through this anymore and I wanted it over with for my family's sake however, you are telling me that basically there is nothing we can do but show up at trial? I still would have to make the children go through getting on the witness stand if it makes it to trial?
Expert:  Zoey_ JD replied 7 years ago.

The previous expert was correct. It is against the law to ignore a judicial subpoena. You can do it, but the court has the power to order the police to pick you up and haul you into court to explain yourself and face contempt charges.

They would not put you and/or the children on the stand without hearing what your testimony would be and without some preparation. This would be all the more important with regard to your children, particularly the 10 year old who is young enough so that he would not be automatically presumed to be a competent witness.

If what you have said above and what you have said the children will say is the truth, the prosecutor will not want to put you on the stand and have you testify in support of your husband because they can't make out their case that way with you. And since you were the complainant, the state cannot make out their case without you either. So the prosecutor has probably warned you that if you are making this all up now and forcing your children to lie for you, that you could be charged with perjury and is saying a number of things designed to scare you into going back to your original story. They do not want to dismiss this case if they think that something may have really happened. So they are pressing you hard, and also pushing a plea at your husband.

Unfortunately, these are things that the prosecutor has the legal right to do. That doesn't mean, however, that you should take the stand and lie if you learned the truth late and believe that nothing went on. You should immediately seek out and retain a local criminal attorney and follow his instructions. He can perhaps call the prosecutor and try to work something out. If he can't and he tells you that you must honor the subpoena, he can be present to make an argument to the judge on behalf of you and your children.


If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Edited by FranL on 11/2/2009 at 9:01 PM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 25455
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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