Prior Bad Acts of Domestic Violence – California Evidence Code 1109
In any prosecution in Los Angeles County where someone is charged with a domestic violence offense, such as domestic battery, a lot of times I will see prosecutors not only turn over the discovery related to that offense, which includes police reports, arrest reports, any evidence they have or video evidence.
They'll also turn over what is referred to in the criminal defense community related to the defense of domestic violence cases — 1109 evidence. California Evidence Code Section 1109 has to do with prior bad acts related to uncharged domestic violence of a defendant in a particular criminal case.
The prosecutors are turning this over to let the defense know they tend to use this evidence if the case goes to trial. They will try to use it, and they're going to file a Motion to present that evidence.
The defense can certainly file a Motion to block that evidence from coming in. Still, as you might guess, prior incidents of domestic violence in a new domestic violence case can cause a real problem for the defense.
Why? Because now the jury is tempted to say, well, the guy did it the last time; he must have done it this time, especially if those prior acts of domestic violence have to do with the same alleged victim. Then, that evidence is even more powerful for the prosecution.
Defense Motion to Exclude Prejudicial Evidence in Domestic Violence Cases
So, how do you get evidence of a particular defendant's prior acts in a domestic violence case? You must file a motion with the court, arguing that evidence is too prejudicial rather than prohibitive.
This really damages the defendant, and it really doesn't have much relevance to it. The damaging part is not that the defendant committed a bad act before, but now he's committed a new one.
It has to have some other bad element to it — maybe a weapon was used in the prior case, for example, and in the current case, the defendant just used their hand. So, having that weapon come across to the jury will make the defendant look bad and put him or her in a very bad position.
Another way to block 1109 evidence in a criminal case is to argue that it is remote. In other words, if it's over ten years old, Judges will not let it in.
But, even if it's not more than ten years old if it's still old, you could argue that it happened a long time ago and doesn't have much meaning today, and therefore, it should not be let in against the particular defendant.
What this 1109 evidence is meant to do for purposes of the prosecution is to poison the jury against the defendant, make the defendant look bad, and put the defendant in a position where he or she is found guilty simply because they've got a bad record versus the fact that they're guilty of the crime.
A lot of times, I see in weak cases for the prosecution where there's no injury to the alleged victim, there's contradicting statements, there's lies, there's alcohol, a lot of times I see the prosecutors trying to get that 1109 evidence in to bridge the gap so they can get the conviction in a domestic violence criminal case in Los Angeles.
So, if you're in a position or you're concerned about 1109 evidence being used against you, obviously you're going to want to get a powerful domestic violence attorney to file a Motion — one that's had these types of cases before and knows how to deal with them — knows how to block the evidence and if some evidence does come in, knows how to defend it — knows how to challenge it and knows how to make an argument that it's not the same as the current case.
The bottom line is that even if the prosecutors can get 1109 evidence in a criminal case, they still have to prove the open case beyond a reasonable doubt.
So, even though they dirtied the defendant and made the defendant look bad, if they're in a position where they have a weak case and haven't proved it beyond a reasonable doubt, the jury must find the defendant not guilty.
