Yes, they can be. In a criminal case that accuses you of an offense involving domestic violence, California law allows prosecutors to offer evidence that you committed other domestic violence, even if it was never charged or did not lead to a conviction. That evidence is not automatic, though: the judge can exclude it, older incidents face a time limit, and the jury is told exactly how it may be used.

The rule that allows it

Evidence Code section 1109 creates an exception to the general rule against character evidence: when you are accused of an offense involving domestic violence, evidence that you committed other domestic violence is not barred by that rule, as long as the court does not exclude it under Evidence Code section 352. This is often called propensity evidence, because the jury may consider whether the earlier conduct shows you were disposed or inclined to commit domestic violence.

The limits that still apply

The evidence has to survive Evidence Code section 352. The trial court can exclude it if its probative value is substantially outweighed by the probability that admitting it will take undue time or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury.

Timing matters too. Evidence of acts more than 10 years before the charged offense is inadmissible under section 1109 unless the court determines that admitting it is in the interest of justice (Evidence Code section 1109(e)).

The definition matters as well. For section 1109, “domestic violence” has the Penal Code section 13700 meaning, which covers abuse of a spouse, former spouse, cohabitant, former cohabitant, someone you have had a child with, or someone you are dating or engaged to or have dated or been engaged to. For an act no more than five years before the charged offense, the court can also apply the broader Family Code section 6211 definition, which adds a child of a party and other relatives within the second degree, but only after a section 352 hearing that considers any corroboration and how long ago the act occurred (Evidence Code section 1109(d)(3)).

What the jury is told

If the earlier incident is admitted, CALCRIM No. 852A tells jurors they may consider it only if the prosecution has proved by a preponderance of the evidence, meaning more likely than not, that you in fact committed it. That is a different burden from proof beyond a reasonable doubt, and if it is not met, jurors must disregard the evidence entirely. If it is met, jurors may, but are not required to, conclude that you were disposed to commit domestic violence. That conclusion is only one factor to weigh along with all the other evidence, it is not enough by itself to prove you guilty, and the prosecution must still prove the new charge beyond a reasonable doubt.

What this means for your case

  • Tell your lawyer about every earlier incident, charged or not, reported or not, so it can be evaluated before the prosecution raises it.
  • An old, weak, or ambiguous incident is not automatically coming in; the section 352 balancing is a real argument the defense can make.
  • The 10-year rule and the relationship definition both affect whether a specific earlier incident qualifies, so its facts deserve the same attention as the facts of the new charge.
  • The prosecution must disclose this evidence to the defense, including witness statements or a summary of the expected testimony, under the discovery timing rules of Penal Code section 1054.7 (Evidence Code section 1109(b)).

If you are facing a new domestic violence accusation and have an earlier incident in your history, the Law Offices of David S. Chesley can help evaluate whether it is likely to be admitted. Call (800) 755-5174 to discuss your situation.