Why am I Being Prosecuted for Domestic Violence when my Significant Other Wants the Case Dropped?

            It is common for people arrested for domestic violence face unjust prosecution. Frequently, after a person is arrested for domestic violence, the accuser will change his or her story, or will ask the police/prosecutor to drop the charges. The accuser will often say, “When I called the police, I only wanted them to calm my significant other down. I did not think they would be arrested. If I knew that would happen, I never would have called 911.” On the other hand, the accuser may not have even called the police. If someone else calls 911, the accuser may make allegations to the police when they show up at the scene. Later, the accuser may wish to change his or her statement or drop the charges altogether. According to a May 2019 New York Times op-ed, upwards of 70% of domestic violence victims recant. In these situations, the prosecutor will often ignore the accuser's request and will proceed with charges anyway.

The term “domestic violence” covers a number of different crimes in California. For many different reasons, police officers and prosecutors take aggressive positions on most domestic violence allegations. If someone calls 911 alleging domestic violence (or something close to domestic violence), the police will almost certainly arrest at least one of the parties involved. This is true even if the accuser changes his or her story from the time of the 911 call to the time the police show up. In these cases, once someone has been arrested, prosecutors will almost always file charges in court.

            In domestic violence cases where the accuser recants, prosecutors primarily rely on two different legal tools to proceed with the prosecution: (1) subpoena power and (2) the 911 call (or other statements made to the police). There may also be other evidence such as photographs, medical records, and statements from other eyewitnesses.  The prosecutor will also rely on our client's statements to the police; so, please don't answer police questions. Read more about why you should not speak with the police.

            A prosecutor can force domestic violence accusers to appear in court against their wishes by issuing a subpoena to the accuser. A subpoena is an order from the court to appear for a hearing. If a person defies a subpoena, the judge can issue a warrant that allows the police to arrest the person who has been subpoenaed. Although a person generally cannot be compelled to testify against his or her spouse, California Evidence Code Section 972 explicitly states that this privilege does not extend to domestic violence cases. Therefore, if the prosecutor serves a subpoena on the accuser, the accuser will be required to come to court.  There are, however, protections for domestic violence victims who do not want to testify.  These issues will be covered in a separate post.

            Of course, a reluctant witness will frequently be a poor witness for the prosecution. Therefore, when an accuser changes his or her story on the witness stand, the prosecutor will instead rely on the 911 call or on any statements made to the police. If a witness testifies to something different than what he or she has previously said to the police (including in a 911 call), the prior statements can be admitted into evidence in order to impeach the witness. Essentially, any statement made to the police can be admitted into evidence when the witness changes his or her story in order to prove that the witness is not telling the truth.

            Likewise, if the accuser is not subpoenaed (or if the prosecutor is not able to successfully serve a subpoena on the accuser), the prosecutor can, in some rare circumstances, rely on the 911 call. Although the Sixth Amendment to the United States Constitution gives every defendant the right to confront his or her accusers, the United States Supreme Court has determined that this does not necessarily apply to 911 calls. Therefore, some allegations made on a 911 call might be used against you, even if the accuser does not show up to court.

            Although law enforcement takes aggressive positions on domestic violence cases, these cases can be exceedingly difficult for the prosecutor. It can take a lot of effort to locate and subpoena the accuser. Even if the accuser is subpoenaed, the prosecutor usually has no idea how credible the accuser will be to the jury. Also, most domestic violence allegations are “he said, she said” situations. Further, domestic violence cases also frequently involve self-defense issues.

            Because these cases are many issues involved in domestic violence cases, having a strong criminal defense attorney on your side is imperative. If the prosecutor knows that you have a skilled and forceful attorney in your corner, the prosecutor is less likely to push forward to trial. We have handled hundreds of domestic violence cases, and we understand the nuances these cases bring. We are often able to get DV cases dismissed and then have our client's record sealed so that no evidence of the arrest remains on their record.

            If you believe you have been unfairly charged with domestic violence, call us for a free consultation. We will fight to clear your name.