Posted by Liza Burke | Mar 15, 2019 | 0 comments

DV arrests, incomplete evidence and rush filed domestic violence charges.

The unfortunate thing about DV arrests is that they happen with little  police investigation. The prosecutor files charges with only the information from the police.  Arrest and charging decisions are made by police and prosecutors daily, quickly and without all of the evidence. This is not good.

But charges filed without all the evidence, might have a greater chance of getting dismissed.

The prosecutor has the power to dismiss cases.

The prosecutor dismisses cases, not the alleged victim.  There is a common misunderstanding in domestic violence charges that the victim can drop the charges.  This is not accurate. Because it's not the victim who presses the charge, the victim does not get to drop the charge.

The prosecutor will dismiss a criminal charge if they do not believe the it can be proven in trial. They will do this over the alleged victim's objection.

By the same token, even if the victim wants the case dismissed, the prosecutor might still keep the charge. If the prosecutor believes the evidence proves a crime, the prosecutor will often refuse to dismiss the charge.

Criminal cases get dismissed based on the total picture of the evidence.

The prosecutor's decision to drop a criminal charge is based on the evidence.

Evidence comes in many forms: witnesses, audio or video recordings, text messages, photographs, records, social media, etc.

Some pieces of evidence are more persuasive than other evidence.   A video of an event is more persuasive than human memory.  A neutral bystander's testimony is more persuasive than the angry wife accuser.  A photo is more persuasive than a verbal description.

There are individual pieces of evidence and then there is the total picture created by all of the evidence.  The total picture is what matters.

What the total picture is can vary from one person to the next.  It is subjective. Some evidence might be more convincing than others.  People have different views of what is persuasive and how things fall together in their mind.

Bias might play a role. A defense attorney, her client or a supportive family member may believe that the overall evidence is very weak.  A prosecutor may see that same evidence and truly believe that it is strong.

When the prosecutor firmly believes the evidence, viewed as a whole, will not convince a jury, the prosecutor will drop the charges.  

Gathering all the evidence and creating the total picture.

Almost never is a criminal charge filed with ALL of the evidence considered. The accused might have evidence not available to others.  Sometimes the police don't think of everything. Or the police decide they have enough evidence.

To get a prosecutor to dismiss a case, the total evidence should raise doubts in the prosecutor's mind that a crime occurred.  Almost all prosecutors are willing to look at new evidence. Although some are more skeptical than others.

In domestic violence cases and criminal cases, the heart of the case is based on what someone said happened.  Creating a total picture of persuasive evidence involves attacking the credibility of the witness.

Ways to cast doubt on a person's word:

  • Their senses were impaired in some way (e.g., intoxication)
  • They couldn't see or hear what they claimed
  • They are biased
  • They have improper motivation
  • They stand to gain
  • They are a dishonest person
  • They have told multiple stories, that are inconsistent
  • Their story is implausible
  • They lied
  • Circumstances caused them to be honestly mistaken
  • Contradictory evidence

All of this evidence can help alter the total picture of the case. The evidence can be more favorable to the defendant than what it looked like when charges were filed.


Bottom line:

  • If there is convincing evidence that the witness is wrong or lying and
  • If the case can only be proven with that witness, and
  • If the prosecutor believes the case cannot be proven, then
  • The case may be dismissed.

The prosecutor has to believe that the evidence casting doubt on the witness is strong and that the case cannot be proven without that witness.

A prosecutor will not pursue a case that they believe cannot be proven.  But do not assume that they will reach this conclusion on their own or easily.  The prosecutor will not automatically re-review all the evidence or think to look for more evidence.  That is the defense attorney's job.

It is up to the defense attorney to gather the important evidence and convince the prosecutor that the case should be dismissed.

I am an attorney, but I'm not your attorney and this post does not create an attorney-client relationship. This article is legal information and should not be seen as legal advice. Every case and case strategy is different.  You should consult with an attorney to determine the applicability of this information to your situation.

About the Author

Liza Burke
Liza Burke

Liza Burkes 20+ years of knowledge and experience are garnered from hundreds of prior clients and cases. Ms. Burke has represented individuals from all walks of life and all types of social, cultural and financial backgrounds. She has been the Seattle defense attorney or advocate for professiona...


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