How Can a Parent of a Child Victim Drop Charges

Prosecutors demand to make decisions regarding how to file or continue with a case based on the evidence.

Below is a listing of 5 reasons Aizman Law Firm has seen prosecutors drop domestic violence or domestic battery cases.

By clicking on the links below you lot tin skip to the section your about interested in reading.

1. Bereft Evidence

At that place are three categories of domestic violence:

Simple domestic violence
Aggravated domestic violence
Corporal injury to a spouse or former cohabitant

A major reason for dropping any criminal case is the insufficiency of the evidence.

When appellate courts review an issue regarding sufficiency of the show, the standard is if the trier-of-fact upon viewing the evidence in the low-cal most favorable to the prosecution would conclude that no rational fact-finder would have found the defendant guilty beyond a reasonable doubt.¹.Separator with Text

Domestic Battery

Successfully prosecuting a defendant for domestic violence means that the prosecutor must prove each chemical element of the criminal offence past the standard of beyond a reasonable doubt.

The elements of domestic battery are:

You willfully touched another person
The touching was harmful or offensive
The person whom you touched is a current or one-time intimate partner

Domestic Violence

If the charge is for inflicting a battery on a former spouse, the other parent, or a former cohabitant and the strength applied resulted in a traumatic status (any wound or injury regardless of severity), then at that place are boosted elements:

The traumatic status was the natural and likely upshot of the injury
The injury was a straight and substantial cistron in causing the condition

For an aggravated domestic violence accuse, the intimate partner must have suffered a serious bodily injury.

No Willfulness

A prosecutor might experience that the element of "willfulness" is missing.

What Is Willfulness?

Willfulness is "…simply a purpose or willingness to commit the human action… there is a defense for persons who commit the act through misfortune or by accident when it appears there was no evil design, intention or culpable negligence."ⁱⁱ.

For case, if you accidentally touched someone or knocked a coffee cup or glass out of your girlfriend'due south hand considering you were swinging your arms to emphasize what you were maxim, there is no evidence of willfulness to commit the human action.

No Harmful or Offensive Touching

For simple domestic battery, the touching need non take caused a visible injury or hurting; only that information technology was offensive.

If you intentionally touch on someone without their consent, it is potentially an offensive act. Under the police force, "the least touching may constitute bombardment; force confronting a person is enough and demand not be violent or severe and does not need to get out a mark. It is enough if the victim's feelings are injured by the act."³.

A "touching" for purposes of a battery charge can include spitting in someone's face or touching someone through his or her wearable. Knocking an object out of someone'southward hand is an offensive touching since the object was connected to your body unless it was adventitious.

The touching must also accept been offensive and not playful or accidental. If you hugged your ex-fiance without her consent or put your arm around an ex-girlfriend, your act is likely bereft to rise to the level of offensiveness or harmfulness to constitute a battery for domestic violence purposes.

Traumatic Condition was Not a Natural and Probable Result of the Injury

There may be a lack of evidence regarding how the traumatic injury was acquired. If yous pushed someone down a flight of stairs and the person suffered a broken leg, then the injury was a natural and probable upshot of pushing the person down a stairwell even if yous did not intend the victim to break his or her leg.

But if you pushed the person who and then became enraged, stepped back and fell down the stairs and broke a leg, then the inevitable traumatic status suffered past the victim was not the likely consequence of your having pushed him or her.^four.

The Victim Is Not Apparent

A prosecutor may also experience the show of a domestic bombardment is insufficient because the victim'south credibility is suspect⁵.

For example, the victim may have a history of the following:

Mental illness
Making fake accusations in the by, or
having a motive to fabricate the incident because the parties are embroiled in contentious custody or property distribution battle.

This might convince a prosecutor that there is bereft show to convict the accused and to decline to file the charges.

Lack of Serious Bodily Injury

A serious bodily injury commonly means that the victim suffered an injury necessitating medical handling or serious impairment of a physical condition.

Information technology is also protracted loss or damage of whatsoever function of a bodily fellow member or organ.

Examples Include:

Broken limb
Black eye or
A laceration or cutting requiring stitches
Disfigurement
Concussion.⁶.

Fifty-fifty if the injury required medical attention, that is not sufficient by itself to exist considered a serious bodily injury.

If a physician testifies that the injuries were non serious, or that the victim was exaggerating the symptoms, and then this could convince the prosecutor to at to the lowest degree file less serious charges relating to the incident.

2. Inconsistent Statements

A prosecutor will review any statements made by the accused and victim.

In some cases, a victim will make a verbal statement that is noted past police followed past a written one that will contain inconsistencies that an experienced defence attorney will exploit to challenge the veracity and credibility of the victim.

Witness Statement

In some cases, a witness' argument about the ferocity of the attack may exist inconsistent with his or her actual concrete condition that shows little or no injuries.

Additionally, a alter in a witness' story introduces elements of unreliability, poor memory, or outright lying that a defense force attorney will certainly point out.^vii.

Victim Testimony

If there is a preliminary hearing, the victim's testimony, if different at all from a written argument or from what a police officeholder previously testified to, could exist seized upon past the defence force attorney to claiming the existence of probable crusade. Even if a courtroom finds probable cause at the hearing, a prosecutor may doubt that a jury would find the victim credible.

Inconsistencies may be in these areas:

Why the victim was struck
The victim's human relationship with the defendant
Time the incident occurred
Number of alcoholic drinks consumed
Whether drugs were used
On what part of the body the victim was struck
Alterations or inconsistencies within the victim's statement or in subsequent statements while beingness questioned by law

An exaggeration by the victim would besides be seized upon by a defense attorney.

Farther, if even one attribute of a victim's argument is inconsistent with a subsequent statement, then all of the victim'southward allegations could be suspect.

Finally, an inconsistent statement, if material, can atomic number 82 the trier-of-fact to find in that location is reasonable doubt. Evidence of a prior inconsistent statement should exist used to evaluate a witness' credibility^viii.

Prosecutors are well aware of how dissentious inconsistent statements are and may be hesitant to proceed prosecution in the face of conflicting accounts of what occurred or how the victim's injuries were sustained if whatsoever.

iii. Lack of Visible Injuries

The lack of visible injuries does not necessarily mean that a domestic battery did not occur and is not required in club for a defendant to exist charged with domestic battery.

All the prosecutor needs in lodge to charge you is evidence of a harmful or offensive touching. This includes pushing or shoving someone, spitting in their face up, or intentionally touching them in a rude or violent manner or through clothing.

If at that place is a visible injury, the defendant may be charged with a felony, specially if the victim has a broken bone.

Corroborating Evidence

Nevertheless, the lack of visible injuries may give some prosecutors pause in deciding whether farther prosecution is worthwhile.

In making this conclusion, a prosecutor will want to examine the circumstances surrounding the declared incident and see if at that place is any corroborating evidence.

iv. Lack of Independent Witnesses

In many domestic violence and battery cases, there are no independent witnesses to the incident.

Does This Rule Out Prosecution?

This does non rule out a prosecution since an abort tin can be fabricated based solely on the victim's allegations or on evidence at the scene of a struggle or a visible injury on the victim.

The lack of an independent witness or third political party is not fatal to the prosecution.

A prosecutor may have evidence of the following:

New and visible injury to the victim,
Statements by the parties
Signs of a fight or struggle at the crime scene.

But if there is trivial or no evidence of an injury or fight coupled with conflicting statements, and the defendant has no tape of domestic violence, a prosecutor may choose to not pursue prosecution without an independent witness.

5. Compelling Pass up Asking Letter Written Past Attorney

Someday after the accused has been arrested or has been charged with domestic battery, the defence force chaser can submit a letter to the prosecutor.

The letter tin can outline the reasons why the evidence is bereft to prosecute the defendant or that there is considerable reasonable doubt that either a battery occurred or that the defendant committed it.

Your Defense force Attorney Tin can Point Out the Post-obit Obstacles To A Successful Prosecution:

Lack of visible injuries on the victim
Accused has no prior domestic violence convictions⁹.
Reasonableness of the defendant's statement to constabulary at the scene
Inconsistencies or unreasonable assertions in the victim's statement or statements
History of mental illness by the victim
Motivation by the victim to allege domestic violence by the defendant
Victim's lack of credibility–testify of drug use and alcohol
Lack of corroborating evidence of violence at the scene
No third party to approve allegations of violence or battery
Victim's reluctance or refusal to testify against the defendant

People 5. Johnson (1980) 26 Cal.3d 557; People v. Woods (1991) 226 Cal.App.3d 1043; People v. Guardado (1995) 40 Cal.App.4th 757, 761 [↩]
People v. Lara(1996) 44 Cal.App.4th 102,109 [↩]
People v. Myers (1998) 61 Cal.App.fourth 328; People 5. Rocha (1971) iii Cal.3d 893, 899-900 [↩]
People v. Gonzales(1999) 74 Cal.App.4th 382 [↩]
People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [↩]
People v. Burroughs (1984) 35 Cal.3d 824,831 [↩]
People 5. Murillo (1996) 47 Cal.App.fourth 1104, 1107 [↩]
Murillo,47 Cal.App.4th 1104, 1107 [↩]
People v. Wheeler (1992) four Cal.fourth 284 [↩]
Our domestic violence lawyers practice law in the following California jurisdictions. Santa Clarita Valley, Antelope Valley, San Fernando Valley, San Gabriel Valley, Southern California, Los Angeles Canton, Santa Monica, Hollywood, Glendale, Sherman Oaks, Encino, Studio Urban center, Burbank, Van Nuys, Chatsworth, San Fernando, Santa Clarita, Valencia, Palmdale, Lancaster, Pasadena, Alhambra, Malibu, Ventura County, Santa Barbara County, Orange County, San Bernadino County [↩]

Ms. Aizman is the founding attorney at Aizman Law Firm, an award winning criminal defence force attorney & erstwhile prosecutor for the urban center of Los Angeles. She regularly appears on CNN, Fox News, HLN & CBS News to provide legal insight on various legal topics. She is a proud fellow member of the California Attorneys For Criminal Justice, California DUI Lawyers Association & the National College of DUI Defense

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