Jennifer Horwitz Law
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Top Reasons Domestic Violence Cases Get Dismissed

If you have been charged with a domestic violence offense, the best outcome you can hope for is a dismissal of your case by the prosecuting attorney’s office that filed charges.  A dismissal is different than a finding of not guilty in that a case is dismissed, either because the prosecutor’s office decides not to pursue charges or a court can dismiss a case in response to a motion filed by the defense.  A not guilty finding is returned by a jury after trial.  A dismissal by the prosecutor’s office is the best outcome for a domestic violence case because the prosecution is terminated without the defense having to prepare for and proceed to trial.

The Alleged Victim Becomes Uncooperative with the Prosecution

Often the reason domestic violence cases are dismissed is that the alleged victim stops cooperating with the prosecutor who is trying to prove the case.  A defendant charged with a domestic violence offense usually is ordered at the outset of the case to have no contact with the alleged victim.  The accused person should not do anything to influence the alleged victim (such as tell them what to say or encourage them not to testify).  Contacting the alleged victim for such a purpose is a violation of the no contact order (if one is in place) and can also constitute the crime of witness tampering, which is a felony.  However, if the alleged victim on their own declines to participate in interviews or show up for court dates, this may be a reason the prosecutor cannot prove their case.

It is important to note that this is not true in every case in which the alleged victim does not cooperate.  The viability of the case depends on the other evidence at the prosecutor’s disposal, such as the recording of the 911 call, photos and the testimony of other witnesses.

The Alleged Victim Has a 5th Amendment Privilege

Sometimes an alleged victim seeks the advice of their own counsel because the incident was a mutual fight, rather than a one-way assault.  Under such circumstances, the alleged victim may become unavailable to the prosecution as a witness because he or she has a right to remain silent and not to incriminate him or herself with respect to his or her own potential criminal conduct.  This often, but not always, undermines the prosecution of the case.  The attorney for the accused person must analyze what other evidence is available to the prosecution aside from the testimony of the alleged victim.  The prosecution may also be able to get around the issue of the alleged victim asserting their 5th Amendment privilege by giving the alleged victim a grant of immunity from prosecution.  Once the prosecutor promises not to prosecute the alleged victim for their potential criminal liability, there is no longer a 5th Amendment claim on the part of the alleged victim.

Defense Counsel Is Able to Convince The Prosecutor the Wrong Person Was Charged

It is more common than you may think that the prosecutor files charges against the victim, instead of the person who actually committed the assault.  This can happen for a variety of reasons.  Sometimes the victim in the case is actually a man and the person committing the assault is a woman and the police mistakenly arrest the man, assuming that the man is never the victim.  Other reasons the wrong person may get arrested is that the actual victim may be intoxicated, under the influence of medication or afraid to speak with the police and the police may misperceive that the person who sounds more clear or who is more willing to speak with the police is actually the person who was assaulted.  Sometimes the person who committed the assault has more experience with the criminal justice system and knows how to persuade police that they are the victim and not the perpetrator.  Sometimes both parties have injuries and the police are not sure who was the primary aggressor in the fight and arrest the person who was simply defending him or herself.  If you have been charged but you were actually the victim of the domestic violence assault, you need a capable attorney to represent you.  That attorney can gather information from you, investigate the person who actually committed the assault and put together information designed to convince the prosecutor that the wrong person has been charged.  I have successfully convinced the prosecutor several times that they charged the wrong person and the charges against my client have been dismissed.

The Allegation Was Fabricated Or Mistakenly Reported

All it takes is an allegation that someone committed an assault to get the ball rolling on a criminal prosecution.  The report that someone committed an assault is evidence.  If the report of an assault is fabricated, there likely will not be visible injuries on the alleged victim or another witness who can corroborate that the assault took place (unless that witness is lying to corroborate the report).  More allegations of assault are fabricated than you may think.  People call the police and report an assault because they are angry, they just want to put an end to an argument, or they have some other issue at stake, such as in a divorce or child custody battle.  I have had cases where my client was involved in a verbal argument with their partner and a witness mistakenly believed they witnessed an assault and called the police.  In situations where the allegation is fabricated, it takes an experienced defense attorney, working with an investigator to try to pull together information to persuade a prosecutor that no assault actually took place.


DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.