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Do I need to hire an Attorney for a misdemeanor domestic violence case?

If you have been arrested for a domestic violence charge, chances are your life has been upended in more ways than one. Not only did you have to pay significant bail to get out of jail, most likely you were served a domestic violence restraining order by the judge handling your case at the first court appearance. Everything comes at you at once and there are so many questions to be answered. A question I’m frequently asked by potential clients is, “My wife doesn’t want to press charges against me and wants the whole case dismissed. What can I do?” While in many situations that can be helpful, it is not a “get out of jail free card”. The District Attorney is expecting that the alleged victim (usually a female spouse or girlfriend) does not want to cooperate with the prosecution of the case for obvious reasons: financial support, help with the children etc. As such the District Attorney’s office is not impressed with a “victim” who shows up to court telling them that prosecution is not desired or that they won’t cooperate. The problem with this approach is that the police have already taken statements from both parties and usually those statements can be used in a court of law and only the District Attorney has the discretion to press charges or drop the charges. It is not dictated by the desires of the victim.

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domestic violence

What then can be done? The good news is that there are ways to potentially convince the District Attorney that their case may not be easy for them to prove. Of course, hiring an experienced attorney is the first step. Make sure that you select one who has experience handling domestic violence cases and has litigated some cases through trial. It is my experience that a well-drafted declaration by the “victim” explaining but not contradicting her statements she already gave to the police is a very effective way of negotiating a lesser sentence or a dismissal of the case. In some situations it is the “victim” who escalated the situation that led to a physical confrontation. In other situations, the defendant used reasonable self-defense to ward off an attack by the victim. If this can be shown to the prosecutor it is possible that the case would be dropped. The effectiveness of a declaration is that it is signed under penalty of perjury and as such the D.A. knows that will be the testimony of the witness at trial. It is a very effective tool for the defense if it is prepared properly. Statements made immediately after the incident when tempers are high and there is motivation to exaggerate by both the “victim” and the defendant are not always accurate nor are they always reliable. Police reports don’t testify at trial. They are hearsay and are not evidence. As such, it is important to show a different side to the story when negotiating with the prosecutor, a story that they are not fully aware of by just talking to the police officers and reading the reports. That does not mean that a good strategy is to deny everything in the report but to “massage” the facts and fill in the gaps with important facts that are missing from the police report.

domestic violence

domestic violence

Another useful tool in convincing the District Attorney to take a second look at a domestic violence case and potentially have it reduced or dismissed is to convince them that both parties to the incident have taken steps to make sure it doesn’t happen again. Part of the mission of the D.A.’s office is to protect the community and not just punish the defendant. If we can show that the defendant and the “victim” have enrolled in counseling and/or the “victim” has provided proof of attendance in personal empowerment classes at the very least, the judge will be willing to drop the restraining order and allow the parties to reunite and live under the same roof. In addition, the district attorney will realize that the criminal matter is being taken seriously by the
defendant and that he is amenable to rehabilitation without incarceration. Preemptively signing up for counseling and other self-help meetings goes a long way in establishing rapport with the District Attorney handling the case and makes it much easier to find a way to resolve the case without a trial.
In some rare cases, there is no way to resolve a case through negotiation, and it is then that the experience of a criminal defense attorney is critical. Trial is always a last resort for both sides but sometimes necessary because there is just too much of a gap between the positions of the prosecution and the defense. Other times as a matter of principal the accused wants his or her day in court and has an absolute right to have a jury determine whether or not the charged crime was committed beyond a reasonable doubt. That is a very high standard (the highest legal standard) of proof needed to prove a case to all twelve jurors unanimously. If any one of the jurors is not convinced beyond a reasonable doubt that the crime was committed the result is a mistrial at the worst and a dismissal of all charges in a best case scenario. Strategies used at trial to create reasonable doubt come with years of practicing law and having domestic violence trial experience. Picking the right jurors to listen and hear the facts of a case are critical and the selection of unbiased and reasonable jurors is very important. It is also critical to go over the anticipated testimony of all witnesses for the defense including character witnesses who will testify to the character of the defendant and create a better image of the defendant in the eyes of the jurors. The worst thing that someone faced with a criminal domestic violence charge could do is represent himself and the next worst thing would be to plead guilty at the arraignment and be sentenced by the judge. At a minimum always contact an experienced attorney.

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Richard McGuire
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