Austin, TX

The Burden of Proof in DV Cases

The Burden of Proof in DV Cases

The Prosecutor Must Prove the Case, Not You 

An important factor in family violence cases is the burden of proof.  These cases can come down to he-said/she-said, and that is not enough for a conviction.  The State must prove the case beyond a reasonable doubt.  They need more evidence than just a statement from an alleged victim.  If they can corroborate the statement with physical evidence such as injuries, photographs, and medical record, damaged property, or the accused’s own statements, then they may be able to go forward with the case. 

The prosecution is responsible for showing that the accused is guilty beyond a reasonable doubt. This means that they must present evidence that proves the accused committed the crime, and that this evidence is strong enough to convince a jury of their guilt. 


One of the key pieces of evidence in assault family violence cases is the testimony of the alleged victim, also referred to as the complaining witness or “CW”. The victim’s testimony can be used to establish the elements of the crime, such as the use of force or the intent to cause harm.  However, in many cases, the CW does not want to participate in the prosecution process, and may wish for the charges to be dropped. 


Affidavit of Non-Prosecution


Even though the prosecutor always has the final decision about whether to proceed, the CW’s input is given a lot of weight.  If the CW does not want to press charges, they can file an Affidavit of Non-Prosecution.  This is a legal document in which the complaining witness of a crime, in this context of family violence, states that they do not wish to pursue criminal charges against the accused.  This document is often used in cases where the complaining witness decides not to cooperate with the prosecution, or where the complaining witness and the accused have resolved the matter privately and no longer wish to proceed with the criminal case.


An Affidavit of Non-Prosecution can result in reduced or dismissed charges.  The CW can also contact the prosecutor directly by reaching out the a victim’s advocate and making a statement.  A good defense attorney will facilitate communication with the prosecution if the CW wants to drop charges.  I usually recommend to call them directly, because it can take weeks or even months before they call.


The burden of proof is always on the prosecution and not the defense. And even if the prosecution has enough evidence to prove their case, the defense attorney can still argue that the evidence doesn’t prove guilt beyond a reasonable doubt, or that the defendant’s actions were in self-defense.  A good defense attorney will always force the State to show they have enough evidence to prove the case – and if they can’t, charges should be dismissed.


But they aren’t “pressing charges”.  Why am I still being prosecuted?


First off, there is quite a bit of confusion about what “pressing charges” means.  Charges are not brought by the alleged victim (complaining witness, CW).  They are brought by the prosecutor.  In Travis County, felony charges are brought by the District Attorney and misdemeanors by the County Attorney.  They can move forward with or without the help of the complaining witness.  They can even subpoena the CW and force them to testify even when they don’t want to come to court.


However, the input of the CW is taken seriously.  If the prosecutor receives input that they do not want to assist with the prosecution, they may choose to dismiss the case.  This is for two reasons.  First, as with any criminal proceeding, prosecution is easier with the cooperation of witnesses.  Second, the prosecutor’s primary role is to serve the community.  In this case, that means the CW.  If they are communicating that they do not need the prosecutor’s assistance, the prosecutor will take that into account.


Download the free PDF Guide by clicking the image below:

FREE PDF Guide to DV charges in Travis County 2023
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