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.
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
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.
I do like how you mentioned that a domestic violence case can be a harsh punishment as it can flip your life in more ways than one. That is perfect to learn as I am searching for a pretty good domestic violence attorney to hire for my daughter. Her husband has been abusing her all these time which we wouldn’t have known if she hadn’t escaped his clutches. Hopefully, we can give him the rightful justice he deserves. Thanks.
Thanks for pointing out that a domestic violence attorney will help you determine if steps have been taken to ensure it doesn’t happen again, which, if proven, will likely reduce your charges. My brother was recently charged with misdemeanor domestic violence, but he and his wife have been working through it in counseling. I’ll definitely suggest he hire a domestic violence attorney to see if his charges can be reduced.
It really is important to take the article’s advice and make sure that you hire an attorney that is experienced in domestic violence. After all, domestic violence cases tend to be very complicated and delicate. Because of this, you will want an attorney who has years worth of experience in properly handling these cases.
I find it interesting when you stated that if the victim and the defendant agree to attend counseling, the restrict order could be dismissed. My friend got in fight with his wife, and he is afraid of losing the custody of his daughter. Thanks for pointing out such an important idea in this article.
Hello,
My wife called d police and states that i was holding her neck choking her. However,
I have a BDV misdemeanor charge first time and i have all the scratches and brushes. I have my parents saw the whole incident. She was charging so to stop her i stopping her stretching my arms onto her neck but no pressure. I had see the judge and let me out no bail no restraining. What is my chance? Pls advise
Hello,
Please contact our office (714) 337-9331
Very informative!!! Thanks for sharing this useful information about domestic violence lawyer. Really very helpful…
I like what you said about hiring a professional attorney to help prove your case. My brother has been telling me about some domestic violence accusations that came up against him recently. I’ll share this information with him so that he can look into his options for criminal defense lawyers that can help him with this.
We have a family of five made dad and older son 13 got into a argument that he carried on I came back and put them in the head like for about 5 to 8 seconds maybe I knew it was wrong that go down there and watch way wife walked in the room called the police I went and stood at the front door and waited on low please explained what happened there were no markings no bruises it happened two hours before the police came the police officer asked me if I could go somewhere else for the night I said yes He proceeding into the house and ask the 13 -year-old questions and a middle-age kid 8 questions. As an eight-year-old that’s what he saying he said I put my hands on the 13yo And the officer came out and arrested me without reading me my rights. Now my wife has all three kids living somewhere else outside of their home I would like to have the two younger ones back into their house they have asked to do that they have seen me once in the last week and a half wife is possibly tricking me leading me on and other ways but trying to get the kids and I divorce I am taking anger management classes who is my first offense is it assault on family third degree Incident report 202-001-4731 out of North Little rock
Hello,
Please contact our office (714) 337-9331
I think it’s very important to get an attorney if accused of domestic violence. However how does one just get an attorney. I would doubt they ask a friend for a referral. Maybe the would use google and a legal directory like avvo, justia or your-violent-crime-lawyers.com
No matter how they locate a lawyer they should ask the lawyer some of the following questions;
Tip 1: You will need to interview a perspective Lawyer. The goal is to make sure that they are competent, affordable and will call you back when you have questions. You need to feel comfortable with them. Lawyers that deal with violent crimes are not cheap, but it makes sense to have one represent you in court instead of trying to do it yourself.
Tip 2: Communication. You need to make sure that they will call you back when you leave a message. Good communication is a must. This is a very stressful process as is, the one thing that can really tick you off is when they don’t call you back on a timely basis
Tip 3: Ask for and understand their fee schedule (how much) a Brooklyn lawyer, is going to charge you for their services. Does this need to be paid all at once or over time? Do they take check or credit card.
— Jeff