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Domestic Violence Defense: The Modern Criminal Justice Approach

Posted By admin 2017-05-24 19:55:39

In an era of newfangled statutes, complex appellate holdings, and specialized prosecution units and courtrooms, domestic violence cases have become extremely complex. In California, these cases are prosecuted aggressively and with increasing frequency, even when there are no visible injuries and/or no history of violence between the parties. Unfortunately, misinformation about the realities of domestic violence investigations and prosecutions abounds in our culture, and prevents those accused of this crime from protecting themselves and their rights.

The thinking about domestic violence has changed substantially in recent years. Just a couple of decades ago suspected abuse within an adult relationship or family unit was largely viewed as a private issue. However, in contemporary American society, domestic violence is considered a matter of public concern that is to be dealt with through the use of social service organizations and through criminal prosecution. Several high-profile instances of domestic violence involving celebrities and other public figures, such as Whitney Houston and Ray Rice, and have added to a growing concern over this delicate issue.

Perhaps the most significant change in criminal justice practice, as it relates to domestic violence, is the so called “mandatory arrest policy.” This rule, which is adhered to by many local sheriff’s offices and police departments throughout the country, mandates that when officers respond to a domestic situation, usually a 911 call, and have a reasonable belief that one or more parties has engaged in domestic violence, they must make an arrest.

In California, while LAPD and LASD do not refer to their protocol as a mandatory arrest policy, when an officer is called to a scene for a domestic violence dispute, the responding officer will always attempt to determine who he/she believes to be the “primary aggressor” and then arrest him/her. If it is difficult to decipher who was the primary aggressor (i.e. both parties have injuries and are pointing the finger at the other), both parties may be arrested.

In years past officers would sometimes act as referees and mediators who would simply separate and calm down intimate partners who were engaged in a heated dispute. They might have even offered a boyfriend or girlfriend a ride to their friend’s house to spend the night. However, officers did not always make arrests unless they suspected that a serious risk of harm existed to someone involved with the alleged incident.

There were, unfortunately, a few situations in which officers made repeated responses to a particular couple, without ever making an arrest, and ultimately one of the intimate partners was badly injured or killed. In an attempt to prevent this from happening in the future, and to protect themselves against negligence lawsuits, officers who receive 911 calls related to a domestic dispute, frequently make an arrest of one or both parties. Similarly, prosecutors who are in doubt about what may have really happened, file domestic violence charges most of the time to avoid a situation escalating later and resulting in more violence or death.

Additionally, certain accusatory hearsay is frequently allowed at trial in domestic cases. For example, if a person calls 911 and screams, “Help! My girlfriend won’t stop punching me,” this statement may be introduced to a criminal jury whether or not the accuser ever takes the witness stand, subject to certain evidentiary limitations. This principle obviously runs directly counter to the constitutional notion that a defendant has right to confront his accusers which is enshrined in the Sixth Amendment Confrontation Clause. However, The United States Supreme Court in the case of Davis v. Washington has said that accusatory hearsay statements may be admitted without violating the defendant’s due process rights as long as the exclamations were “non-testimonial.” That is to say: were the statements made under circumstances objectively indicating a purpose to assist law enforcement with an ongoing emergency? or were the statements made under circumstances objectively indicating a purpose to assist with a later criminal prosecution?

A frequent modern day debate in domestic violence cases tends to center around what statements qualify as testimonial and therefore under what circumstances may a case proceed to trial, and statements be admitted, where the accuser refuses to testify or is otherwise unavailable to testify .

State Governments have also enacted some very innovative laws aimed at detecting domestic violence. In Illinois, for example, the state legislator passed a new law for 2017 that requires salon workers to undergo an hour of domestic violence training when obtaining their professional license to practice. The idea is that abused women may show signs of abuse, like bruises and lacerations, when receiving salon services, and that women make intimate disclosures about their relationships to their favorite salon workers.

Prosecution offices around the country are creating specialized units to go after domestic offenders aggressively. In California, there is a family violence unit within both the District Attorney and the City Attorney Offices. The general rule of thumb is that the DA or CA will not dismiss a domestic violence case, once filed, even if the alleged victim no longer wishes to prosecute the case. The principle here is that no matter what the alleged victims want, the state will go forward with the criminal charges. Contrary to popular belief, once domestic violence charges have been filed, the alleged victim cannot “drop the charges.” It is only the state prosecutorial agency who can choose to dismiss the case or to pursue the case.

Moreover, many jurisdictions have created domestic violence courts that deal only with crimes involving intimate partners. In these newfangled courts, the Judge, probation officers, and prosecutors all deal especially with domestic violence offenders. These courts are designed to immediately stop ongoing violence, provide support to victims, and to rehabilitate offenders through intensive counseling services. One of the most startling developments in these courts are strict bond condition orders that require family and household members to stay away from each other and even, at times, stay away from their own homes while their criminal case pends in court.   In California, there are not separate domestic violence courts; however, a criminal protective order is issued in all domestic violence case at the very first court appearance which prohibits the defendant from having contact with the alleged victim.

As one can see, the criminal justice response to suspected domestic violence situations has changed dramatically over the last several years. Law enforcement officers, prosecutors, legislators, and Judges are dealing with allegations of domestic violence far more harshly than in decades past. If you or a loved one have been accused of a domestic violence related crime it is absolutely imperative that you employ the services of a qualified attorney immediately who has experience in navigating these murky waters.

Attorney Karen L. Goldstein has been successfully defending people against domestic violence charges for 14 years.

Call (888) 445-6313 for a free and confidential consultation to speak with an experienced domestic violence lawyer today.


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