Unfair Tactics Used in Domestic Violence Prosecution

California Prosecutors Take DV Cases Seriously

A domestic violence charge is a serious criminal offense. It includes issuing abuse or threats to anyone close to the defendant. These include spouses, former or current cohabitants, children, and family members. Domestic violence charges are either a misdemeanor or a felony offense.

What Are the Penalties for a Domestic Violence Charge?

Aside from the social ramifications like losing job opportunities and stigma from the community, the legal penalties vary but might include;

1. PC 273.5(a) – Corporal Injury in Domestic Relations

Under PC 273.5(a), the prosecutors will try the case as a felony charge that is punishable with up to 4 years in state prison, one year in county jail, and/or a fine of up to $6000. This particular charge applies if;

• If the victim is the offender’s spouse or former spouse
• If the victim and the offender live together
• The victim is the mother or father of the offender’s child

2. PC 243(E)(1) – Spousal Battery

Under PC 243(e)(1), the defendant is punished with a misdemeanor offense. They are liable to imprisonment in county jail for up to one year and/or paying a fine of up to $2000, if they are found guilty.

Which do Attorneys use the Possible Defenses?

After evaluating the police report, the defense attorney formulates the best possible defense which might include;

• The defendant claims they did not do it. In such a case, the defense attorney will gather evidence to establish that the client is not guilty or establish a credible alibi.
• The victim could have lied and fabricated the whole story. In such a case, the attorney seeks to show the inconsistencies between the victim’s and the defendant’s narrative.
• Also, the lawyer can establish that the whole scenario was an accident. In such a case, the lawyer will investigate what happened to corroborate the defendant’s story.
• The defendant can claim that they acted in self-defense. For example, suppose the defendant claims they were only trying to defend themselves or their kids. In that case, the attorney will check for defensive injuries to try and establish why the victim could have used violence against the defendant.
• In some cases, the domestic violence charge cannot be proven beyond a reasonable doubt. Therefore, if the victim, in this case, does not want to testify, the defense attorney will find out how the prosecution has built its case.

Common Tactics Used by Prosecution That Might Be Unfair

If neighbors overhear an escalated fight and call the police, charges might be filed whether the victim decides. Prosecutors usually use a variety of tactics that are at times deemed biased. These might include;

• Even if the victim recants and doesn’t press charges, the state will still attempt to prosecute the accused.
• The prosecutors will argue that the defendant must be lying. Since domestic violence charges include a “he said/she said” scene, it is complex to establish the truth. In such a case, the prosecution will try to undermine the defendant’s credibility and paint them to the jury as liars.
• The prosecution paints the victim as always right. In cases where the victim is consistent with their narrative, the state might argue that it is an implication of telling the truth. In such a case, if the defendant wavers from their story, whether they are telling the truth or not, they might be painted as the aggressor.
• Since jurors usually have preconceived notions of seeing the defendant as guilty, the prosecutors will exploit this by trying to paint the defendant as a person with a history of violence. Thus, the prosecution might use prior acts regardless of any rationality to the said cycle of violence.
• The state can suppress any prior acts of violence, especially if the defendant decides to argue that they acted in self-defense. If the victim were the aggressor toward the defendant, the prosecution would suppress such evidence to paint the victim as solely the victim.
• Defendants with a criminal record give the prosecution ammunition to argue that since the defendant is guilty of prior crimes, it must mean that, in this case, they are also guilty.
• Lastly, in cases where the defendant calls the victim while in custody and talks about the case, the prosecutor might file for witness intimidation. In such cases, they might try to strong-arm defendants into taking a plea bargain even though the defense might have a weak case.

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Yuliya Kelmansky is an Expert Attorney who has over 15 years of practice defending a variety of cases.