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 []

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