Prosecution Tactics in Domestic Violence Cases

Domestic violence is an intensely complicated charge. If neighbors overhear you and your partner in the midst of an escalated fight, the police may be called, and charges may be filed whether or not the alleged victim wants charges filed. The prosecutor assigned to your case usually has the power to determine if your case should be dismissed.

Prosecutors will use a variety of tactics in domestic violence cases. Recognizing these biased approaches is a significant key to defending your freedom. We understand the difficult situations our clients face, and work aggressively and with skill, thoroughness and compassion to protect your rights and your future.

Read below to learn more about common prosecution tactics:

  1. The defendant must be lying.

Prosecutors will argue that you have an incentive to lie to avoid conviction. Because domestic violence cases often involve complex “he said/she said” scenarios, prosecutors will go after your credibility as a defendant. Jurors, ordinarily, wonder if defendants are lying to protect themselves. Recognizing this, prosecutors will try to play on juror biases and assumptions that your side of the story is a lie. Essentially, the argument goes as such: “because you have a stake in the outcome of the trial, you must be lying.”  We have ways to counter this bogus assumption and interrupt the DA's appeal to the prejudices and passions of the public.  We bring these issues home to the jurors, reminding them that they, themselves, could be in such a situation, that false accusations are painfully common and in fact turn things around and show how their witnesses are the ones that are lacking credibility.

  1. The alleged victim is always right.

When alleged victims change and recant their stories, it's construed as evidence of their victimhood. Or, alleged victims stick to their stories, and the state will argue that their consistency implies that they are telling the truth. Prosecutors will work to make it seem as if anything a victim says confirms his or her status as a victim, painting you as the perpetrator and the aggressor.

This can be countered.  The key is to analyze your case with a fine tooth comb.  We work on pointing out each and every inconsistency, or outright lie. We carefully investigate the victim's background – this is absolutely essential!  Many attorneys don't employ investigation as essential to the defense of a defendant in a domestic violence case. That is a very big mistake in many cases.  It is essential to employ an intelligent and resourceful investigator – and we use only the best.

  1. Cycle of Violence

Prosecutors will work to convince the jury that you have a history of committing violent acts against your partner, even if there is no evidence of such violence. Jurors often have preconceived notions of a defendant's guilt, which prosecutors will exploit by citing prior incidents of violence, regardless of whether or not violence actually occurred or whether there is a rational explanation regarding the alleged “prior bad act.”

It is essential for the attorney to attack this attempt to bring in extraneous and prejudicial evidence.  There are methods to counter this.  Detailed investigation and analysis of the relationship history is often essential to protecting the accused and making sure they are not the victim of false accusations or biased prosecutors.

  1. The state suppresses prior acts of violence.

If you try to argue that you acted in self-defense against your partner, the prosecutor will request that the judge suppress evidence of the alleged victim's prior violent acts against you. This is because it will be alleged to be impermissible character evidence concerning the alleged victim. The judge may try to exclude this evidence if he or she believes that the witness is solely the victim, not the perpetrator, of violent acts.  Self-defense is one of the primary affirmative defenses to domestic violence charges; thus, it is crucial for the defense attorney to aggressively advocate for you and assert your self-defense argument to the jury, not to mention the court as well - at all stages of a case.

  1. Your criminal record must mean you're also guilty in this case.

If you have been convicted of a felony in the past, the prosecution team will attempt to inform the jury of your past wrongdoing, to convince them of your current culpability. The prosecutor is typically not allowed to argue that your past conviction also makes it more likely that you are guilty in this case. However, you can't unring a bell. If the prosecutor “accidentally” lets slip that you have been convicted of a felony or crime of moral turpitude or violence in the past (especially where the attorney has previously obtained an order from the court instructing the prosecutor not to do this), the judge may instruct the jury to ignore the evidence they just heard, or perhaps strike it and even grant a stay of the trial or hearing. It becomes very difficult for the jury to maintain an impartial perspective of your guilt or innocence after this occurs.

It is essential for the defense attorney to take proper legal action, file any motions with the court and aggressively pursue a possible disqualification of the prosecutor for such misconduct, not to mention a mistrial if in the middle of a jury trial.

  1. The Trap of Phone Calls

All your phone calls are recorded when you're in custody. If you call a victim or witness, and talk to them about your case, the prosecutor may file witness intimidation, also known as “dissuading a witness,” charges. The prosecutor may then try to pressure you into a plea deal, agreeing to drop the witness intimidation charge as part of your deal.  This absolutely must be resisted in most all cases. Additionally, it is essential that the accused not speak on the phone about the case.  These recordings can end up being powerful evidence.  So DON'T talk on the phone about your case – that could be the difference between going to jail and not going to jail.  

Prosecutors will also work to ‘protect' the alleged victim by preventing contact between you and that person. Their real goal is to prevent the possibility of reconciliation, or even more so recantation of the alleged victim's story. This could result in the dismissal of their case which has been brought before the court by the district attorney. They may have put a “no contact order” in place. Contacting your partner will be considered a violation of this order, which the prosecutor will use to coerce you into a plea deal.  It is essential that the attorney resist these allegations at all cost.  There are a number of ways in California to avoid this no contact order.

  1. The Felony-Misdemeanor Flip Flop

Sometimes, while the alleged act should be charged as a misdemeanor, a prosecutor may over-charge you with a felony. They do this to coerce you into a plea deal where they will ‘reduce' your charges to a misdemeanor. Often, defendants accept a plea deal for fear of being convicted of something much worse, even if the prosecutor's case against you is incredibly weak.  Again, this must be resisted at all cost.  The defense attorney must use their expertise and employ their experience to show the DA and the court why you should not and CANNOT succumb to these unfair practices.  There are code sections that many attorneys are not aware of that can shield the client in this situation.  For example, See Code of Civil Procedure section 1219.

Are you the subject of a domestic violence investigation? Could you be a potential defendant? Protect your rights and your freedom. Contact criminal defense attorney Seth P. Chazin online or call immediately at 1-800-242-1514 to start planning your defense strategy.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 30 years experience.

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