How to Beat a Domestic Violence Charge

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: October 5, 2020 References Approved

If you have been falsely charged with domestic violence, then rest assured that you have defenses to the charge. You can argue that the violence never occurred or that you were actually the victim and acting in self-defense. Defeating a domestic violence charge requires that you hire an experienced attorney and gather evidence that shows your innocence.

Part 1

Part 1 of 3:

Preparing Your Defense

1
Gather evidence from the incident. An effective defense hinges on your ability to present evidence that casts doubt on whether you committed domestic violence on the day in question. This evidence can take many forms, but you will need to gather it soon after the incident.
- If you were falsely accused of hitting someone, then take photographs of your hands as soon as possible. If there are no bruises, swelling, or scratches, then you have some proof that you never struck anyone.^{[1]
  X
  Research source}
- You might want to get evidence that the alleged victim was drunk during the incident. This evidence would reduce that person’s credibility and provides a reason why he or she would lie to police. You should try to gather any evidence that can prove this: drunken text messages, receipts for alcohol purchases, video of the alleged victim.
- If you are arrested, then you will need someone else to gather this information for you. Ask a trusted friend or relative.
2
Find witnesses. A good source of evidence are witnesses. Did someone see the fight between you and your family member? Can this person testify that you were actually the victim of the incident and not the perpetrator? If you can find witnesses, then take down their personal contact information, such as their phone number and email address.
- You also can have them write down a witness statement, explaining what they observed.^{[2]
  X
  Research source} Have the witness sign and date the statement.
Advertisement
3
Hire a lawyer. You need an experienced attorney if you hope to beat a domestic violence charge. You should not speak to the prosecutor or police without an attorney.^{[3]
X
Research source} Pool whatever available resources you can in order to hire a qualified private lawyer.
- You may be offered a public defender or other court-appointed lawyer. These attorneys may not be able to devote sufficient time to your case. For this reason, you need to give serious consideration to hiring your own lawyer.^{[4]
  X
  Research source}
- To find a qualified domestic violence lawyer, you can visit your state’s bar association website, which should run a referral service. Look for attorneys who specialize in domestic violence defense.
4
Pay your bond. In order to get out of jail, you will need to bond out. By doing so, you free up time to meet with your lawyer outside of jail to plan your defense.^{[5]
X
Research source} For information on how to get a bail bond, see Arrange Bail at No Cost.
- You also need to observe the conditions of your release. This is critical. You will receive oral instructions of what you can and cannot do while out on bail. If you are arrested again as you wait for your domestic violence trial, then you reduce the likelihood of getting the charges dismissed.^{[6]
  X
  Research source}
5
Get an affidavit of non-prosecution. If the alleged victim lied to the police, then he or she may feel guilty and want to recant their testimony. Unfortunately, even if the person recants, the state can still go ahead with a prosecution.^{[7]
X
Research source} Nevertheless, by recanting, the likelihood of prosecution decreases.
- In some states, the alleged victim can complete what is called an “affidavit of non-prosecution.” This affidavit conveys to the prosecutor that the alleged victim does not want to participate in the prosecution. Although this affidavit does not guarantee that the prosecutor will drop the case, it nevertheless could be helpful.^{[8]
  X
  Research source}
- You should not personally reach out to the alleged victim to ask about recanting testimony. By contrast, your attorney could. If you think the alleged victim will recant his or her testimony, then you should let your lawyer know.^{[9]
  X
  Research source}
6
Look into a “plea in abeyance.” In some states, you can plead “guilty” or “no contest.” However, the plea is not entered; instead, it is held “in abeyance.” You are then given an opportunity to fulfill certain conditions on probation. These conditions often include community service, anger management classes, or substance abuse counseling. If you successfully satisfy all conditions, then the charges can be dismissed.^{[10]
X
Research source}
- You should talk about this option with your attorney. Although it involves admitting guilt for a crime you didn’t commit, it might be your only chance to avoid getting a domestic violence conviction put on your record.

Part 2

Part 2 of 3:

Preparing for Trial

1
Request exculpatory evidence from the prosecution. You are entitled to any evidence that the prosecutor has that may prove your innocence. This is called “exculpatory” evidence. Your attorney can ask the prosecutor for this evidence or, more formally, file a motion with the court requesting it.^{[11]
X
Research source}
- Pay attention during the trial to any reference to exculpatory evidence. Sometimes prosecutors fail to turn over all helpful information to defendants. For example, a witness might blurt out that the alleged victim told her that you were not at fault on the day at issue. If this witness then subsequently spoke to the police, then you can assume that the witness told the police what the victim said. You should question the prosecutor whether this information came up during a police interview and why it wasn’t disclosed to you.
- If the prosecutor withheld exculpatory evidence, then you need to bring that fact to the judge’s attention.
2
Subpoena witnesses. If you want witnesses to testify on your behalf at trial, then you will need to subpoena them. A subpoena commands a witness to attend the trial. It also informs the witness of the day, time, and location of the trial.
- Generally, you can get subpoenas from the court clerk and have them served on witnesses either using the sheriff or a private process server.
3
Read the rules of evidence. If you represent yourself at trial—which is not recommended—then you will need to read up on your state’s rules of evidence. These rules limit the kinds of evidence that can be used in trials. To find your state’s rules, search the Internet.
- One rule to pay attention to in particular is the rule against “hearsay.” Hearsay is any out-of-court statement used to prove the matter asserted.^{[12]
  X
  Research source} For example, if your son said, “My Dad beats me every week” and a cop repeats this claim in court, then it is hearsay to use that claim as proof that you do, in fact, beat your son every week.
- There are many exceptions to the rule against hearsay, so you can’t get all hearsay statements excluded. Nevertheless, if you find hearsay statements offered in court, you need to stand up and object.

Part 3

Part 3 of 3:

Defending Yourself in Court

1
Dress appropriately. You need to look neat and clean in front of a judge. Choose conservative dress at all times. Although you do not need to wear a suit, you still should look professional.^{[13]
X
Research source}
- Men should wear dress slacks, a button-up dress shirt, and a tie. Also wear dress shoes (not sneakers) with socks.
- Women should also dress conservatively, preferably in a business suit (skirt or pantsuit) or a very conservative dress. No cocktail dresses or anything too revealing.
- Also cover up tattoos (using either clothing or make-up) and remove facial piercings.^{[14]
  X
  Research source}
2
Decide whether to testify. In a criminal prosecution, you have a Constitutional right not to testify. You should talk this over with your attorney. There are many factors to keep in mind when deciding whether or not to testify:
- Can you stay calm during cross-examination? The prosecutor’s goal will be to trip you up and frustrate you so that you explode in anger.^{[15]
  X
  Research source} If you don’t think that you can remain calm, then you might not want to testify.
- Can you stay on script? If you aren’t careful in your testimony, you can open up doors for the prosecutor to begin probing your criminal history and reputation. You should only testify if you are careful when speaking under pressure.
- Can other witnesses testify as to what happened? If other people observed what happened between you and the alleged victim, then you might not need to testify. These witnesses can get all relevant facts in front of the jury instead.^{[16]
  X
  Research source}
3
Present a defense theory. You can generally defend yourself in two ways at trial. You can argue that the state did not prove its case, or you can argue that you really were the victim of the domestic violence. The state always has the burden of proving that you are guilty of domestic violence beyond a reasonable doubt.
- You might argue that the state has not proved its case because the victim is not covered by the law’s protective scheme. For example, most state laws protect spouses and those with whom you are romantically linked or expecting a child. However, you could argue that the victim was only a friend, not a romantic partner. In this case, you can beat the domestic violence charge because the victim is not covered by the statute.^{[17]
  X
  Research source}
- You might also argue that the state did not prove that you engaged in prohibited conduct. For example, the domestic violence statute might prohibit assault, stalking, and harassment. You could argue that calling the victim a couple times and stopping at her apartment does not rise to the level of stalking or harassment.^{[18]
  X
  Research source}
- You can also argue that you used self-defense. For example, if police arrived at your residency and saw you hitting your spouse, you could argue that you had been hit first and you were justified in defending yourself.^{[19]
  X
  Research source}
4
Cross-examine the alleged victim. It will be difficult for the state to convict you if the alleged victim does not testify. If he or she does, then your attorney will be able to engage in cross-examination. During cross-examination, your attorney will try to discredit the alleged victim by pointing out contradictions or holes in their testimony.
5
Appeal, if necessary. If you are convicted at trial, then you can appeal the decision. Talk it over with your attorney to decide if an appeal is right for you.
- To appeal, you will need to fill out a Notice of Appeal form, which you can get from the court clerk.