Domestic Violence – The Defendant’s Survival Guide
Domestic violence charges are handled differently than most other criminal cases because from the very beginning of the charge, not the conviction, it is very likely that your home and children will be taken from you. We’re supposed to have a criminal system where you’re innocent until proven guilty, but as you’ll discover, that’s not the case with domestic violence charges. This survival guide will help explain the system you’re up against and how to get through it.
- Plead not guilty to the charge. The indictment is the first formal appearance in court in a criminal case. At this hearing, you will be formally notified of the criminal charge against you and given the opportunity to plead guilty or not guilty. Plead NO GUILTY! This is obvious in cases where you don’t believe you’ve done anything wrong, but it’s also true in cases where you think you’ve done something wrong. There is no benefit to pleading guilty beforehand, but there may be costs to doing so.
Some inexperienced people mistakenly believe that if they plead guilty at the time of arraignment, they will receive a lighter sentence than if they plead guilty later. This is incorrect. The reverse is much more common; you will likely receive a harsher sentence if you plead guilty early.
If you choose to plead guilty later, the judge will not use the fact that you originally pleaded not guilty against you. By pleading not guilty to the charge, what you’re really saying to the judge is that you want a chance to see what evidence the prosecutor has, and if you think it’s enough to prove your guilt, then you want a chance to negotiate with the prosecutor about better result.
- Contactless advance orders. In most criminal cases, the judge will issue an order ordering the defendant not to do so any kind contact with the alleged victim. In cases of domestic violence, this order can extend to the victim’s home, workplace and children. These orders are issued before there is a finding of guilt and can render the accused homeless. If you work at the same place as your spouse, you may just find yourself out of a job. Whether children were involved in the incident or not, you may be banned from seeing them.
If you are served such an order, DO NOT BREAK IT. Violating a no-contact order is a separate crime. This means that even if the underlying charge is dismissed, you can still only be prosecuted for breaching the order. The better way is to remove the order.
This is what I often see in my practice: Two people are together. Something happens, the police get involved, and the no-contact order gets bumped. People, being people, want to solve the problems they have. At one point, the alleged victim contacted the defendant and said something along the lines of, “Come to us and we’ll sort it out.” The problem, of course, is that the no contact order is still in effect and no contact means NO CONTACT, even if invited by the alleged victim. The two go out to celebrate their rekindled love and someone pulls a slow-and-go at a stop sign (or some other generally minor violation). The next thing the defendant knows, he’s going to jail for violating the no-contact order. Even if the underlying criminal case goes away, he still has a felony domestic violence conviction on his record for violating the order.
- Legal aid. You will need professional help to successfully defend yourself against a domestic violence charge. There are two ways to get this help: hire a private attorney or hire a public defender.
Public Defenders: Public defenders are among the most maligned group of lawyers on the planet. More often than not, their reputation is undeserved. I have met many public defenders who are passionate about what they do as well as extremely skilled. Like any group of people, some are better than others. However, most have a huge number of cases; meaning they cannot spend as much time on a case as a private attorney. If the court appoints you a public defender, you stay with whoever is appointed. You will have no control over who you get. If you decide to go with a public defender and later change your mind, you can always have a private attorney represent you. A judge won’t punish you for it.
Private lawyers. There are two advantages with private attorneys: First, they tend to have small caseloads, so they can devote more time to your matter. Second, you can choose who to hire. This means you should look for someone who communicates well, has a deep understanding of this area of law, and really knows how to listen to you.
- Settings: There will most likely be several options for resolving your criminal case, but they may not become available until your case begins.
Nobody wants to be judged. It’s expensive, stressful and risky. Why, then, do so many lawyers like to talk about litigation? There are two answers: (1) It may be the only way to avoid a criminal conviction; and (2) you may be able to negotiate a better settlement just before trial.
Tactics used at trial, such as self-defense or burden of proof, will depend on the facts specific to your case. This is where an experienced and aggressive trial attorney really comes in handy.
Self defense. In Washington state, you have the right to defend yourself – as long as what you did was reasonable. This means that if someone hurts you, then the law may allow you to return the pain. As long as the jury finds that what you did was reasonable, self-defense is a complete defense to a criminal charge. Also, if a jury finds that you acted in self-defense, then you may be entitled to recover attorneys’ fees and other out-of-pocket expenses you incurred defending yourself.
Burden of proof. This is the most common defense in all of criminal law. Basically, you require the prosecutor to prove his case. Sometimes it’s surprising how often they can’t do that.
Failure of witnesses to appear at trial
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). in Crawford, The United States Supreme Court has held that under the Confrontation Clause of the Sixth
The reality of criminal law is that negotiations do not become most productive before trial. This could mean a day or two before the trial or it could mean the morning of the trial. Setting a case for trial does not always mean that there will be a trial, but it does mean that both the prosecutor and the defendant have an incentive to work toward a negotiated settlement.
Settled Continuance Orders / Pre-Trial Diversion Agreements
These are contracts, nothing more. You enter into an agreement with the prosecutor’s office to do (and not do) certain things, such as entering a domestic violence treatment program and staying out of trouble. If you honor the contract, the case is dismissed.
It is often possible for a domestic violence charge to be passed off as another, less serious charge. The factors involved are: the facts of the present case, the defendant’s criminal history, and the position of the alleged victim. Examples of reduced charges are: disorderly conduct or simple assault without a DV label.
- Only the state can bring criminal charges. With any criminal charge, including domestic violence, only the state can press charges – not the alleged victim in your case. This means that even if the person labeled as a “victim” wants the no-contact order or the whole case to just go away, they don’t have the power to overturn it; only the prosecutor does
- Joint bank accounts. Be aware that some victim advocates advise alleged victims to drain joint bank accounts. This advice puts the defendants in the impossible position of suddenly being homeless because of the no-contact order and penniless.
- Gun rights. A conviction for a crime labeled domestic violence will disqualify you from owning or possessing a firearm for the rest of your life. This is true even in cases where no weapon was used, threatened, mentioned, or even possessed by the defendant.
Because of the nature of domestic violence charges, you need to find an attorney who understands the complexities of these charges and what you can do about them. If you have questions specific to your case, please call me. I do not charge for an initial consultation and can answer many questions over the phone or by email.
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