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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 include 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 basically has to doPrior Bad Acts of Domestic Violence - California Evidence Code 1109 with prior bad acts related to uncharged domestic violence of a defendant in a particular criminal case.

Prosecutor Using Evidence of Uncharged Domestic Violence Incidents

The reason the prosecutors are turning this over is because they’re letting the defense know they tend to use this evidence if the case goes to trial and they will try to use it.  They’re going to file a Motion to present that evidence.

The defense can certainly file a Motion to block tat evidence from coming in, but 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 t 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 evidence of prior acts of a particular defendant in a domestic violence case out?  You have to file a motion with the court basically arguing that that evidence is way too prejudicial than prohibitive.

Meaning, it really damages the defendant and it really doesn’t have much relevance to it.  Now, the damaging part is not gonna be the fact that the defendant committed a bad act before and now he’s committed a new bad act.

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 his or her hand.  So, having that weapon come across to the jury is really going to make the defendant look bad and put him or her in a very bad position.

Another thing that you could use to block 1109 evidence in a criminal case is to argue that it is remote.  In other words, if it’s more than 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 happened a long time ago, 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 actually 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.

Retain a Los Angeles Domestic Violence Attorney

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 Los Angeles domestic violence attorney to file a Motion — one that’s had these type 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, even if the prosecutors can get in 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 up, even though they make the defendant look bad, if they’re in a position where they have a weak case and they haven’t proved it beyond a reasonable doubt, then the jury must find the defendant not guilty. Contact the Hedding Law Firm to review your case.

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Ronald D. Hedding, ESQ.

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