5 Reasons a Prosecutor Might Drop Charges in a Domestic Violence or Domestic Battery Case

This Article Explains The Evidentiary Reasons A Prosecutor May Drop Charges

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

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

1. Insufficient Evidence

There are 3 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 evidence, the standard is if the trier-of-fact upon viewing the evidence in the light most favorable to the prosecution would conclude that no rational fact-finder would have found the defendant guilty beyond a reasonable doubt.1.

Domestic Battery

Successfully prosecuting a defendant for domestic violence means that the prosecutor must prove each element of the offense by 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 former 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 force applied resulted in a traumatic condition (any wound or injury regardless of severity), then there are additional elements:

  • The traumatic condition was the natural and probable consequence of the injury
  • The injury was a direct and substantial factor in causing the condition

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

No Willfulness

A prosecutor might feel that the element of “willfulness” is missing.

What Is Willfulness?

Willfulness is “…simply a purpose or willingness to commit the act… 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.”2.

For instance,  if you accidentally touched someone or knocked a coffee cup or glass out of your girlfriend’s hand because you were swinging your arms to emphasize what you were saying, there is no evidence of willfulness to commit the act.

No Harmful or Offensive Touching

For simple domestic battery, the touching need not have caused a visible injury or pain; only that it was offensive.

If you intentionally touch someone without their consent, it is potentially an offensive act. Under the law, “the least touching may constitute battery; force against a person is enough and need not be violent or severe and does not need to leave 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 clothing. Knocking an object out of someone’s hand is an offensive touching since the object was connected to your body unless it was accidental.

The touching must also have 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 insufficient 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 Consequence of the Injury

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

But if you pushed the person who then became enraged, stepped back and fell down the stairs and broke a leg, then the inevitable traumatic condition suffered by the victim was not the probable consequence of your having pushed him or her.4.

The Victim Is Not Credible

A prosecutor may also feel the evidence of a domestic battery is insufficient because the victim’s credibility is suspect5.

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

  • Mental illness
  • Making false accusations in the past, 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 insufficient evidence to convict the defendant and to decline to file the charges.

Lack of Serious Bodily Injury

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

It is also protracted loss or impairment of any function of a bodily member or organ.

Examples Include:

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

Even if the injury required medical attention, that is not sufficient by itself to be considered a serious bodily injury.

If a physician testifies that the injuries were not serious, or that the victim was exaggerating the symptoms, then this could convince the prosecutor to at least file less serious charges relating to the incident.

2. Inconsistent Statements

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

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

Witness Statement

In some cases, a witness’ statement about the ferocity of the attack may be inconsistent with his or her actual physical condition that shows little or no injuries.

Additionally, a change in a witness’ story introduces elements of unreliability, poor memory, or outright lying that a defense attorney will certainly point out.7.

Victim Testimony

If there is a preliminary hearing, the victim’s testimony, if different at all from a written statement or from what a police officer previously testified to, could be seized upon by the defense attorney to challenge the existence of probable cause. Even if a court finds probable cause at the hearing, a prosecutor may doubt that a jury would find the victim credible.

Inconsistencies may exist in these areas:

  • Why the victim was struck
  • The victim’s 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 being questioned by police

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


If the victim claims the defendant severely beat him or her just minutes before police arrived but he/she only has a small red mark on his/her cheek and no swelling or bruising or other apparent injuries, a defense attorney could argue that the victim was likely not telling the truth about the event.

Further, if even one aspect of a victim’s statement is inconsistent with a subsequent statement, then all of the victim’s allegations could be suspect.

Finally, an inconsistent statement, if material, can lead the trier-of-fact to find there is reasonable doubt. Evidence of a prior inconsistent statement should be used to evaluate a witness’ credibility8.

Prosecutors are well aware of how damaging inconsistent statements are and may be hesitant to continue prosecution in the face of conflicting accounts of what occurred or how the victim’s injuries were sustained if any.

3. 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 order for a defendant to be charged with domestic battery.

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

If there is a visible injury, the defendant may be charged with a felony, especially if the victim has a broken bone.

Corroborating Evidence

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

In making this determination, a prosecutor will want to examine the circumstances surrounding the alleged incident and see if there is any corroborating evidence.

4. 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 not rule out a prosecution since an arrest can be made 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 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 little or no evidence of an injury or fight coupled with conflicting statements, and the defendant has no record of domestic violence, a prosecutor may choose to not pursue prosecution without an independent witness.

5. Compelling Reject Request Letter Written By Attorney

Anytime after the defendant has been arrested or has been charged with domestic battery, the defense attorney can submit a letter to the prosecutor.

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

Your Defense Attorney Can Point out the Following Obstacles to a Successful Prosecution:

  • Lack of visible injuries on the victim
  • Defendant has no prior domestic violence convictions9.
  • Reasonableness of the defendant’s statement to police 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–evidence of drug use and alcohol
  • Lack of corroborating evidence of violence at the scene
  • No third party to corroborate allegations of violence or battery
  • Victim’s reluctance or refusal to testify against the defendant

In other words, if there are reasonable alternatives where one does not involve the defendant having committed domestic violence, then the prosecutor may be unwilling to file charges relating to the incident.

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case with former Los Angeles Prosecutor Diana Aizman please10 contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Get Legal help

Request A Free Consultation 818-351-9555 


  1. People v. 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 []
  2. People v. Lara (1996) 44 Cal.App.4th 102,109 []
  3. People v. Myers (1998) 61 Cal.App.4th 328; People v. Rocha (1971) 3 Cal.3d 893, 899-900 []
  4. People v. Gonzales (1999) 74 Cal.App.4th 382 []
  5. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 []
  6. People v. Burroughs (1984) 35 Cal.3d 824,831 []
  7. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 []
  8. Murillo, 47 Cal.App.4th 1104, 1107 []
  9. People v. Wheeler (1992) 4 Cal.4th 284 []
  10. 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 County, Santa Monica, Hollywood, Glendale, Sherman Oaks, Encino, Studio City, Burbank, Van Nuys, Chatsworth, San Fernando, Santa Clarita, Valencia, Palmdale, Lancaster, Pasadena, Alhambra, Malibu, Ventura County, Santa Barbara County, Orange County, San Bernadino County []


This is Joyce Toye do I have to testify against my friend for domestic violence.

Rebecca Lynn Jess

My husband was arrested for domestic battery but all he had done was push me the DA hasn’t decided weather or not to pursue the charges. Could the charges be dropped if I refuse to cooperate

If you are the only witness and you refuse to cooperate, the prosecutor is going to have a steep uphill battle in trying to prove the allegations. There may be other facts and factors that are admissible which are helpful to the prosecution, however without your cooperation, it is definitely more challenging.

If you receive a subpoena, you are required by law to go to court per the court order. Whether or not you are required to testify depends on your role in the case.

Khalyiah Indigo Diamond Voice

I have the worst memory loss I dont even remember talking to police of any incidents . they called planning to come subpena me and i rubber banded my department of mental health records bcause I don’t plan letting them over stress me no
Especially not the hottest day of the year .how do i handle this professionally so my innocent friend can Come home .
.z almost a year ago i got subpoenad and I told his lawyer and mine that i hallucinate and that i thought it was a dream . please help

If I filed a report a week after the incident, file to dismiss, and not show up to court can the case be dropped?

It depends on a variety of factors. I recommend that you hire a victim advocacy attorney or that the accused hires an experienced criminal defense attorney to assist you through the process.

Your friend should hire an experienced criminal defense attorney to assist through the process. All of the facts you mentioned in your post are relevant and can be useful in the defense of the charges.

My Bf and I got into a fight last night… he slashed my tires, I didn’t call the police a witness did (they only saw tires being slashed).However, I made a recorded statement under oath, I can admit I was intoxicated and couldn’t even remember the order of events or how everything exactly happened. After coming through and hearing some of the report, I see how the issue was exaggerated.During the taping I asked the cop did i have to prosecute in order to get my property fixed she said yes. But since then he’s gotten it fixed and I need to recant my statement because i clearly wasn’t in the right state of mind. Now that i am and i can actually remember the events i need to recant my statement. i don’t see how they could even interview me in that state of shock and being as intoxicated as i was. Is there a way i can do this without threatening my freedom?

Yes, there may be a way to modify your statement to reflect your current recollection of the events. You should contact an attorney in the county in which this happened to discuss your rights as a victim and your role in the criminal prosecution.

UPDATE I was able to recant my statement after several calls and finally a surprise visit to the station. Now I just have to deal with the SA office. If you have any advice for that it would be wonderful lol.
Thank you!

This is a very good article. I have been going through a nasty divorce. I have tried to do everything amicable but she has cost me a fortune in legal fees over false accusations. I have been surrounded by the cops multiple times in my home. I was arrested for felony stalking. She filed an injunction against me. It feels like most lawyers today take on as many clients as they can, wait for the deal and do very little work to fight a case. Very difficult finding a truly aggressive lawyer willing to do this kind of work. So I took it on my own and really I know my story better than anyone else. My wife broke into my accounts, deleted incriminating evidence, viewed client/attorney privilege information, followed me, harrassed me, broke into my house so many times, alienated my child, etc. I put together a book of 39 exhibits. 540 pages of information and pictures. Her injunction was denied and the judge made the comment that she must make a judgement based on whether or not she felt my wife was ever a victim of domestic violence and then said I cannot come to that conclusion. Now I asked for the transcripts and audio recording because in the injunction hearing she lied 22 times. I will cross reference those and highlight the judges comments and demand next the SA dismiss my criminal case with prejudice. It felt like a losing battle. Very disgusting how easily it is for someone to make such a claim and then the system views them as the victim while you are the actual victim being more victimized. Having cameras up, backing up data, and organizing the data like I did so easily can be found and pulled out to discount each false accusation is how I defeated the injunction. It is never too late to start. I started after my arrest just a couple months ago after a year has passed. I am reading this article now because next step is to get the criminal case dismissed…. The statistics of false allegations just to get upper hand in divorce is really upsetting, and no one in the system is doing the right thing to correct the problem.

My boyfriend and I got into a domestic violence issue and I called the police but I was tipsy and he had cause bruises to my face only but I didn’t want tut o press charges but the detective issue a warrant for him without my permission , how can go about dropping the charges so he want face any time , I don’t want to press charges against him but the detective already issue a warrant…help me please

I need some advice asap I n my boyfriend were partying one night we separated after we got to the bar I got in a bad fight which my nose was broke n i was pulled by 2 females ok well i some how thank god i made it home from this fight barely could see out of my eyes my cousin was here at my house he was tryna help me from bleeding n i was just trying to find my boyfriend he said he was in our bedroom but i could see him because of my eyes closing i walked off leaving my house ended up at my neighbor’s she called the cops ambulance n I just remember waking up in hospital scared afraid I asked if my bf or mother called for me the nurse asked whom did this idk she must have thought I meant my fr n getting home from there the investigator didn’t even let me speak clearly I tried to tell him my truth n he just assumed I meant and said my bf I never meant to get him n trouble I’ve been embarrassed assumed n lost without him but I haven’t paid much mind to the victim’s attorney I wrote a letter to my boyfriend’s attorney stating this what I told u what do I do now

I suggest contacting an attorney that practices in the county in which this happened. They can best advise you as to how to proceed in this matter. There are a lot of factors here and depending on the details in the police report, the advice of counsel may change.

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