Domestic violence charges are treated differently than most other criminal cases because from the beginning of the charge, not the conviction, it is very likely that your home and children will be taken from you. We are supposed to have a criminal justice system where you are innocent until proven guilty, but as you will discover, that is not the case with domestic violence charges. This survival guide will help explain the system you are facing and how to overcome it.
- Do not plead guilty at arraignment. Arraignment is the first formal court appearance in a criminal case. During this hearing, you will be formally notified of the criminal charge against you and given the opportunity to plead guilty or not guilty. DO NOT PLEASE GUILTY! This is obvious in cases where you don’t think you’ve done anything wrong, but it’s also true in cases where you do think you’ve done something wrong. There is no benefit to pleading guilty in advance, but there may be costs to doing so.
Some inexperienced people mistakenly believe that if they plead guilty at arraignment, they will receive a lighter sentence than if they plead guilty later. This is incorrect. The opposite is much more common; you are likely to receive a harsher sentence if you plead guilty up front.
If you decide to plead guilty later, the judge will not use the fact that you initially pleaded not guilty against you. By pleading not guilty at arraignment, 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 bargain with the prosecutor for a better result.
- Pretrial No Contact Orders. In most criminal cases, a judge will issue an order that the defendant not have none contact with the alleged victim. In cases of Domestic Violence, that order can be extended to the victim’s home, workplace and children. These orders are issued before guilt is determined and may render the Defendant homeless. If he works at the same place as his spouse, he may also lose his job. Whether or not the children were involved in the incident, you may be prohibited from seeing them.
If you receive an order like this, DON’T RAPE IT. Violation of a no contact order is a separate offence. That means that even if the underlying charge is dismissed, you can still be prosecuted for just violating the order. The best way is to remove the order.
This is what I often see in my practice: Two people are together. Something happens, the police are involved and a no contact order is imposed. People, being people, want to solve whatever problem they have. At some point, the alleged victim contacts the defendant and says something to the effect of “Come and we’ll figure it all 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 people go out to celebrate their rekindled love and someone ‘slow and go’ at a stop sign (or some other normally insignificant infraction). Next thing the defendant knows, he is going to jail for violating the no contact order. Even if the underlying criminal case goes away, he still has a domestic violence criminal conviction on his record for violating the order.
- Legal Help. 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 have a public defender appointed.
Public Defenders: Public defenders are among the most evil group of lawyers on the planet. Most of the time, his reputation is undeserved. I have met many public defenders who are passionate about what they do and extremely skilled. Like any group of people, some are better than others. Most, however, have a large number of cases; meaning they can’t spend the kind of time on a case that a private attorney can. If the Court assigns you a Public Defender, you will stay with whoever assigns you. You will have no control over which one you get. If you choose to go to a public defender and later change your mind, you can always have a private attorney stand in for you. A judge will not penalize you for doing this.
Private Lawyers. There are two advantages with private attorneys: First, they tend to have fewer cases, so they can spend more time on your matter. Second, you can choose which one to hire. This means that you should look for someone who communicates well, has a deep understanding of this area of the law, and really listens to you.
- Options: Most likely, there are several options to resolve your criminal case, but they may not be available until your case is underway.
Test
Nobody wants to go to trial. It is expensive, stressful and risky. So why do so many lawyers like to talk about trial? 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 immediately before trial.
The tactics used at trial, such as self-defense or burden of proof, will depend on the specific facts of your case. This is where an experienced and aggressive trial attorney really comes in handy.
Self defense. In the state of Washington, you have the right to defend yourself, as long as what you did was reasonable. This means that if someone is hurting you, the law may allow you to hurt them back. As long as a jury finds that what you did was reasonable, self-defense is a full defense to the criminal charge. In addition, if a jury finds that you acted in self-defense, you may be entitled to recover attorney’s fees and other out-of-pocket costs incurred in defending yourself.
Burden of proof. This is by far the most common defense in all of criminal law. Basically, you are asking the District Attorney to prove your case. Sometimes it’s surprising how often they can’t do this.
Witnesses not appearing at trial
Crawfordv. Washington, 541 US 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In crawford, The Supreme Court of the United States held that, under the Confrontation Clause of the Sixth
The reality of criminal law is that negotiations do not become more productive until just before trial. This may mean a day or two before trial or it may mean the morning of 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 out a negotiated settlement.
Stipulated Continuation Orders/Pretrial Diversion Agreements
These are contracts, nothing more. You make an agreement with the District Attorney to do (and not do) certain things, like enter a Domestic Violence Treatment Program and stay out of trouble. If you comply with the contract, the case is dismissed.
reduced charge
It is often possible to refile a domestic violence charge as a different, less serious charge. The factors involved are: the facts of the current case, the criminal history of the accused and the position of the alleged victim. Examples of reduced charges are: Disorderly Conduct or Simple Assault without the DV tag.
- Only the State can bring criminal charges. With any criminal charge, including domestic violence, only the State can bring the charge, not the alleged victim in your case. This means that even if the person labeled “victim” wants the no contact order or the whole case to just go away, he does not have the power to dismiss it; only the prosecutor does it
- Joint bank accounts. Note that some victim advocates are advising alleged victims to empty joint bank accounts. This advice leaves the Defendants in the impossible position of being suddenly homeless due to the no contact order and penniless.
- Gun rights. Conviction of a crime labeled Domestic Violence will forfeit your rights to own or own a firearm for the rest of your life. This is true even in cases where the defendant did not use, threaten, mention, or even possess a weapon.
conclusion
Due to the nature of domestic violence charges, you need to find an attorney who understands the complexity of these charges and what you can do about them. If you have questions specific to your case, please give me a call. I charge no money for an initial consultation and can answer many questions over the phone or via email.
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