This is an interesting question because a lot of times people will say, my significant other is not going to press charges against me and is not going to cooperate with the police, so it should be dismissed. So, I don't really need an attorney. Of course, that could not be further from the truth.
Prosecutors File Domestic Violence Charges
The prosecutors are the ones that press domestic violence charges and file charges, not the victim. The victim is a victim, and a lot of times from the prosecutor's perspective, victims sometimes need help as far as pressing their rights and protecting themselves, especially in domestic violence cases.
So, the fact that the victim is not going to cooperate with them is not going to be the “end-all,” “be-all” for the prosecutors. They still are likely going to prosecute the case if they can prove the case.
See CALCRIM 841 Jury Instructions – Simple Battery: Against Spouse, Cohabitant, or Fellow Parent and CALCRIM 840 Jury Instructions – Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition.
Domestic Violence Evidence
So, the question becomes, how do they prove the case? The answer to that is, they're going to have to put on evidence. They will call police officers to testify to what they saw when the came to the scene.
They will contact the alleged victim and try to ask them questions, and if the alleged victim tells a different story — which happens a lot — than what they originally told the police then they will confront the alleged victim and say, didn't you say this at the time?
They will show the alleged victim photographs if there's injuries, and ask how did you get these injuries? They will play the 9-1-1 tape if the alleged victim called 9-1-1, and say you called 9-1-1, look what you said here.
Then lastly — now the newest weapon that the prosecutors have — is a lot of times the police, the LAPD, the Los Angeles Police Department — they have bodycams.
So, they're coming to the scene and they have their bodycams turned on so the alleged victim will make a statement incriminating the defendant and a lot of times the defendant will make a statement incriminating themselves.
So, they will play those bodycam tapes to show the jury what happened. They just don't want to say. They don't want the person to get in trouble, and of course, the prosecutors will make the argument that just because somebody doesn't want to get in trouble doesn't mean that it is appropriate for the case to be dismissed and it doesn't mean that it's appropriate for the jury to find the person not guilty.
If they committed a crime — if they injured or battered their spouse — and we've shown the proof, then the prosecutors will say that you should obviously convict this person.
Statements from Victim, Police and Witnesses
So, they proved domestic violence cases by calling witnesses and making arguments, and just because all of a sudden the participants involved have decided they don't want anybody prosecuted or the don't want to be prosecuted if you're the defendant, that doesn't decide things for the prosecutor.
So, proof in a jury trial, that's really what you have to be thinking about and that's how we focus on cases when we evaluate them and I sit down and talk to the clients. I'm looking at what is it going to take at the jury trial level for the prosecutors to prove the case, and obviously, what is it going to take for the defense to defend the case?
The prosecutors have the burden. They're just going to start calling witnesses. They'll call the alleged victim. They'll call the police. They'll call any other witnesses that might have seen what happened and they're going to get the story out there even if the alleged victim tries to change her story and say, the person's innocent.
I made the whole thing up. They'll then bring the police in to say, hey, when we came out there the person was crying. They had an injury to their face, their hands, whatever, and they told us a different story. Then they'll just push it over to the defense and say, what are you going to do about it?
A lot of times, if they can get the story out there, then the defendant is doing to have to take the witness stand and explain his or her version of events, and now we're in a position where the prosecutor gets to cross-examine him and now everybody gets to talk.
All of the evidence is out and finally the jury will decide whether or not the prosecutors, who have the burden, have proved their case beyond a reasonable doubt.
So, that's what you do when you evaluate a case. You look at what evidence they're going to be able to put on. You see what evidence you can put on and then you see if there is a good probability before you press your rights and take the case to trial.