May 22, 2015 By Paul Wallin

He Said, She Said: The Difficulty of Evidence in Domestic Violence Cases

If you ask a prosecutor to list the most difficult cases in his or her career, the chances are pretty good that at least one of those cases will have been in the area of domestic violence. These cases are often very difficult to prove, largely because the kind of evidence that is present in other cases is usually lacking when the case centers on people who live together.

Difficulty of prosecuting a domestic violence case.
Domestic violence cases are often very difficult to prosecute.

Most domestic violence cases happen in the privacy of a home. Usually, there are no other witnesses, and the only people who know what really happened will give different versions of the same event. More often than not, a domestic violence case pits the word of the alleged victim against that of the defendant, and a jury is asked to figure out which side is telling a version of the story that is closer to the actual truth.

With those kind of difficult parameters as a backdrop to this discussion, let’s take a look at some of the evidence the prosecution will try to use against you if you are charged with a domestic violence offense.

Physical Evidence

The prosecution will try to admit as much physical evidence against you as possible. The reason for this is that juries find objective facts easier to believe than people who may have biases that color their testimony. Evidence such as photographs of the alleged victim’s injury, or of destroyed or damaged property can be very powerful evidence for the prosecution in a domestic violence case.

However, an experienced criminal defense attorney can provide alternative explanations for this type of physical evidence. Physical evidence may be trustworthy, but it is still open to interpretation. Your attorney’s skill in presenting a different interpretation can make the difference in your case.


As with any criminal cases, witnesses in domestic violence cases can be the people who actually saw or heard the incident with their own eyes and ears, and, in limited circumstances, people who learned about the events from someone else. In a domestic violence case, there are generally three types of witnesses: bystanders, the alleged victim(s), and the officers who responded to the call for help.


Bystanders are witnesses who observed what happened but were not involved in the events. The rules for these witnesses are essentially the same as they would be in any other criminal case. The police will gather the names and contact information of persons who witnessed the incident. The prosecution or your attorney may use this information to call them to testify at trial by serving them a subpoena, which is a court order to appear and provide testimony at a court proceeding. If subpoenaed, these witnesses must testify or face potential contempt of court charges, which could result in fines and time in custody.

Victim as a Witness

In a domestic violence case, the subpoena rule holds true for all but one witness – the alleged victim of the crime.

Alleged victim in a domestic violence case.
The alleged victim in a domestic violence case still must attend court on the scheduled day.

California Civil Code of Procedure section 1219 gives immunity from confinement or imprisonment to the alleged victim of domestic violence or sexual assault. This means that the alleged victim cannot be compelled by threat of jail to take the stand and speak against you if he or she does not want to do so. Importantly, this does not mean that the alleged victim can ignore the subpoena entirely. He or she must still attend the court proceeding on the scheduled day, and he or she can still be fined for refusing to testify.

Normally, spouses cannot be forced to testify against a spouse who is charged with a crime. California Evidence Code Section 970 states: “Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.” 1 However, in a domestic violence case, where the witness-spouse or the child of the witness-spouse is the victim of the crime, this privilege does not apply. 2

Police Officer as Witness

The officers who responded to the call are key figures in a domestic violence case. The officers will be called to testify as to their own observations concerning physical evidence, such as injuries to the alleged victim and damage to the property where the incident allegedly occurred.

However, an experienced defense attorney can prevent the jury from hearing what is potentially the most damaging testimony that an officer can give: the statements that the victim made to the officer. In 2004, the U.S. Supreme Court ruled in Crawford v. Washington that certain statements given to the police are inadmissible at trial if the person who made those statements is not available to testify at trial, unless the defendant had a prior opportunity to cross-examine that person under oath. The court held that the testimony would otherwise violate the Sixth Amendment, which gives any defendant the right to confront witnesses in a criminal trial.

So, if the person who made the statements to the police did not testify at a preliminary hearing, the court likely will not admit those statements into evidence at your trial.

Under this trial rule, the out-of-court witness is “unavailable” if any of the following are true about the witness:

  • Absent due to physical or mental illness
  • Absent because he or she is not in the jurisdiction (provided that you did not cause their absence)
  • He or she is present, but refuses to testify
  • He or she invokes a privilege that prevents the testimony from being compelled

Call the Domestic Violence Attorneys at Wallin & Klarich

While a domestic violence case is a difficult case for the prosecution to bring, defeating domestic violence charges is still a difficult legal challenge that could drastically alter the course of your life. That is why you should seek the help of a skilled and experienced criminal defense attorney. At Wallin & Klarich, our team of attorneys has been successfully defending clients against domestic violence charges for over 40 years. We work tirelessly and with dedication to help our clients obtain the best possible outcome in their cases. Our knowledgeable attorneys can help you, too.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina, and Victorville, there is a Wallin & Klarich attorney experienced in California’s domestic violence laws near you, no matter where you work or live.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no obligation phone consultation. We will be there when you call.

1. [Cal. Evid. Code section 970.]
2. [See Cal. Evid. Code section 972(e)(1).]

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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