Prior Domestic Violence Reports as Evidence in Trial: The Exception to the Rule against Using Past Allegations to Show Present Guilt

Domestic violence allegations are complex cases for a number of reasons. One of the areas that such cases differ from average criminal cases is that ordinary rules that govern the admission of evidence related to reports, arrests, or convictions suffered by a defendant can be admitted to show that the defendant is guilty of present pending domestic violence charges, termed “propensity evidence” in legal circles.

Evidence Code section 1101 prohibits use of “evidence of a person’s character or a trait of his or her character… when offered to prove his or her conduct on a specified occasion.”  [Cal. Evid. Code § 1101(a)].  Evidence of prior or uncharged misconduct is inadmissible to prove that a defendant has a predisposition or propensity to commit the alleged offense in nearly all circumstances.  [People v. Malone (1988) 47 Cal.3d 1, 17; People v. Alcala (1984) 36 Cal.3d 604, 631].  Furthermore, evidence of prior bad acts cannot be used to prove that a defendant has a particular character trait or acted in conformity with such a trait on any particular occasion in most criminal prosecutions.  [People v. Bergschneider (1989) 211 Cal.App.3d 144, 161-162].

Evidence Code section 1109(a)(1) stands as an exception to the general prohibition against the introduction of character evidence to permit the introduction of prior evidence of uncharged acts of domestic violence in a domestic violence prosecution, to establish a defendant’s propensity to have committed those acts, but there are limitations as to when such evidence may be properly received by a trier of fact. [See Cal. Evid. Code § 1109(a)(1)].  Namely, where the probative value of such evidence would be outweighed by the risk of undue prejudice, waste of time, misleading the jury, or confusion of issues under Evidence Code section 352, such Section 1109 evidence should be excluded. [See Cal. Evid. Code §§ 1109(a)(1), 352].

             “A careful weighing of prejudice against probative value under that section is essential to protect a defendant’s due process right to a fundamentally fair trial”, in the context of the receipt of such propensity evidence under Evidence Code section 1109(a)(1) and related propensity statutes. [People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314, citing People v. Johnson (2000) 77 Cal.App.4th 410, 419; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029; cf. People v. Falsetta (1999) 21 Cal.4th 903, 916-919 (discussing parallel propensity statute, Evidence Code § 1108.)] While there is no specific factors related to Evidence Code section 352 or weighing process that must be completed by a trial court to satisfy admission of propensity evidence under Evidence Code section 1109, (Jennings, supra, 81 Cal.App.4th at 1314), certain factors that may be considered by a trial court in such Section 352 analysis regarding the probative value of uncharged prior conduct to show propensity include:

[I]ts nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as . . . excluding irrelevant though inflammatory details surrounding the offense.

[See Falsetta, supra, 21 Cal.4th at 917].

Courts have also noted that when uncharged prior conduct “resulted in a criminal conviction and a substantial prison term” there is a marked decrease in Section 352 prejudice and confusion considerations because the jury is not  “tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for the uncharged offenses” and because the “attention of the jury” is not “diverted to a determination whether or not defendant had committed the uncharged offenses”. [See id., citing People v. Balcom (1994) 7 Cal.4th 414, 427].

It is obviously extremely damaging to one’s defense to have evidence of prior domestic violence allegations admitted in a present pending case, as the jury is likely to conclude the defendant is likely guilty because he is a  habitual “abuser”, when that conclusion is oftentimes unjustified. Prosecutors can thus use such evidence to make a weak domestic violence case stronger by prejudicing the defendant with allegations from the past that may not have even resulted in a criminal conviction.

If you are charged with domestic violence-related charges it is essential that you have an experienced defense team represent you to defend against the often unfair rules that govern such cases. At Honeychurch & Boyd, our office has successfully defended against such injustice since our founding forty years ago. Call 707-429-3111 today to schedule a free consultation with one of our experienced attorneys to determine how we may be able to assist you in achieving the best possible results for your case.

Domestic Violence