Domestic Violence: A Defendant’s Survival Guide

Domestic Violence charges are treated differently than most other criminal cases because from the outset of the charge, not the conviction, it is very likely that you will have your home and your children taken from you.  We are supposed to have a criminal 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’re up against and how to get through it.

1. 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 PLEAD GUILTY!  This is obvious in cases where you do not believe you’ve done anything wrong but is also true in cases where you do think you’ve done something wrong.  There is no benefit in pleading guilty up front but there may be costs in doing so. 

Some inexperienced people mistakenly believe that if they plead guilty at arraignment, they will get a lighter sentence than if they plead guilty later.  This is incorrect.  The reverse is much more common; you will likely get sentenced harder if you plead guilty up front.

If you decide to plead guilty later, the Judge will not use the fact that you pled not guilty initially against you.  By pleading not guilty at Arraignment, what you are really saying to the Judge is that you want a chance to see what evidence the Prosecutor has and if you feel it is sufficient to prove your guilt then you want a chance to negotiate with the Prosecutor for a better outcome.

2. Pre-Trial No Contact Orders.  In most criminal cases, a Judge will issue an order directing the Defendant not have any contact with the alleged victim.  In Domestic Violence cases, that order can be extended to the victim’s home, place of work, and children.  These orders are issued before there is a finding of guilt and can render a Defendant homeless.  If you work at the same place as your spouse then you might just find yourself out of a job too.  Whether or not the children were involved with the incident, you can be prohibited from seeing them.

If you are served with an order like this, DO NOT VIOLATE IT.  Violating a No Contact Order is an independent crime.  That means even if the underlying charge is dismissed, you can still be prosecuted just for violating the order.  The better way is to get the order removed.

Here’s what I often see in my practice:  Two people are together.  Something happens, the police are involved and a No Contact Order slams into place.  People, being people, want to work out whatever problems they have.  At some point, the alleged victim contacts the Defendant and says something to the effect of “Come on over and we’ll work 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 it’s invited by the alleged victim.  The two people go out to celebrate their rekindled love and someone pulls a ‘slow and go’ at a stop sign (or some other normally insignificant violation).  The next thing the Defendant knows, he’s off to jail for violating the No Contact Order.  Even if the underlying criminal case goes away, he’s still got a Domestic Violence criminal conviction on his record for violating the order.

3. Legal Help.  You will need professional help to successfully defend against a Domestic Violence charge.  There are two ways to get this help: hire a private attorney or get a public defender appointed.

Public Defenders:  Public Defenders are among the most maligned group of attorneys on the planet.  More often than not, their reputation is undeserved.  I have met many public defenders that are both passionate about what they do as well as extremely skillful.  Like any group of people, some are better than others.  Most, however, have huge caseloads; which means they cannot spend the kind of time on a case that a private attorney can.  If the Court appoints a Public Defender to you, you are stuck with whomever they assign.  You will have no control over which one you get. If you choose to go with a public defender and later change your mind, you can always have a private attorney substitute in.  A Judge will not penalize you for doing this.

Private Attorneys.  There are two advantages with private attorneys: First, they tend to have lower case loads, so can spend more time on your matter.  Second, you get to choose which one you hire.  This means that you should look for someone that communicates well, has a deep understanding of this area of law and really knows how to listen to you.

4. Options:  There will most likely be several options for resolving your criminal case, but they may not become available until after your case is underway.

Trial

No one wants to go to trial.  It’s expensive, stressful and risky.  Why do so many attorneys like to talk about trial then?  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 prior to trial.

The tactics used at trial, like Self Defense or Burden of Proof, will depend on the facts specific to your case.  This is where an experienced and aggressive trial lawyer really becomes helpful.

Self Defense.  In Washington State , you have the right to defend yourself – so long as what you did was reasonable.  This means that if someone is hurting you then the law may well allow you to hurt them back.  As long as a Jury finds that what you did was reasonable, Self Defense is a complete defense to the criminal charge.  Also, if a Jury finds that you were acting in Self Defense, then you may be entitled to recover attorney’s fees and other out of pocket expenses that you incurred by defending yourself.

Burden of Proof.  This is by far the most common defense in all of criminal law.  Basically, you are requiring the Prosecutor to prove his or her case.  It is sometimes surprising just how often they are unable to do this.

Witnesses failing 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 held that, under the Confrontation Clause of the Sixth Amendment, courts may not admit testimonial statements of an absent witness unless the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine the adverse witness. Crawford, 541 U.S. at 59.  This means that if the Prosecutor is unable to produce his witnesses at trial, their testimony cannot be used against you.

The reality of Criminal Law is that negotiations do not become the most productive until right before trial.  This can mean the day or two before trial or it can 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 incentive to work on a negotiated settlement.

Stipulated Orders of Continuance / Pre-Trial Diversion Agreements

These are contracts, nothing more.  You make an agreement with the Prosecutor’s Office to do (and not do) certain things, like entering 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 get a Domestic Violence charge re-filed as a different, less serious, charge.  The factors involved are: the facts of the current case, the Defendant’s criminal history, and the position of the alleged victim.  Examples of reduced charges are: Disorderly Conduct or Simple Assault without the DV tag.

5. 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 entire case to simply go away, they don’t have the power to dismiss it; only the Prosecutor does.

6. Joint Bank Accounts.  Be aware that some Victims Advocates are advising alleged victims to drain joint bank accounts.  This advice leaves Defendants in the impossible position of becoming suddenly homeless due to the no contact order and penniless. 

7. Gun Rights.  Conviction for a crime labeled Domestic Violence will forfeit your rights to own or possess firearm for the rest of your life.  This is true even in cases where no gun was used, threatened, mentioned or even owned by the defendant.

 Conclusion

Because of the nature of Domestic Violence charges, you need to find an attorney that 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 do not charge money for an initial consultation and I can answer many questions over the phone or via email.