How to Determine the Aggressor in a Domestic Violence Case
This is an interesting question because it's really what the police are doing when they come out to a domestic violence scene. They've been called out. Usually, someone calls 9-1-1, and they'll separate both parties involved in the altercation or argument and then ask them separately what happened.
They'll check to see what injuries anybody has, and then, if it's a situation where both parties are arguing and fighting, they'll determine who the aggressor is. Then, they will typically arrest the person they determine to be the aggressor. See CALCRIM 840—Inflicting injury on a spouse.
Responding Police Officers Reviewing Injuries
A lot of times, if it's a close call, they'll call out their watch commander who is in charge, and that person will have to determine which person is getting arrested. That's the unfortunate thing about domestic violence cases now in Los Angeles.
If the police come out and somebody has been hurt, they're going to arrest somebody. It's just a matter of determining who the person is that they're going to arrest. Most of the time, it's easy because somebody just attacks and punches somebody and hurts them in some way, and they can easily figure it out because that person is the only one with injuries.
Other times, though, different parties have injuries, and the stories are murky, and it's difficult to figure out. So, probably the easiest answer to determine how someone is an aggressor in a domestic violence case is whoever won the fight.
In other words, if somebody used more force, hurt the other person worse, and caused more injuries to that other party, that's usually how the police break the tie if there are any issues as to who the aggressor is.
Police Often Make Incorrect Snap Judgments
But that can also be a defense in a domestic violence case. In other words, if we can show that the police are wrong about who they've determined is the aggressor, then we may have a chance to win the case. Sometimes, the police make a snap judgment on the spot.
Many of these officers are not that sophisticated, don't have college degrees, and are just left to decide based on information thrown at them in the middle of a heated argument when people are injured.
Sometimes, people are drunk, so the officers must come out there and figure things out. They're not lawyers, so often I get to the prosecutors, and I'm like, wait a minute. Look what these guys have done. They've made the wrong decision here.
They didn't ask any questions. They didn't investigate. For example, they just took the wife's word about what happened when the wife's statement didn't make any sense. She's claiming she was punched in the face by my 200-pound client, and she doesn't have one injury on her.
How does that even make any sense? Why don't the police follow up and ask, where did he punch you because we don't see any injury on you? Are you sure you got punched? Don't tell us you got punched if you didn't get punched.
So, I think this is the type of inquiry that is appropriate when they're trying to determine who the aggressor is. Unfortunately, once again, the police don't always take the time to do things the right way, and they end up making a bad decision.
Unfortunately, sometimes criminal defendants suffer for the decision, and it's up to me to correct the record and get the ship moving in the right direction. That's why you hire a criminal defense attorney who will take their time and figure out what actually happened.
What evidence supports the defense's theory of what happened, and how do you best present that evidence to the prosecutor, a judge, and even a jury if necessary?
