Many people believe that if their significant other drops domestic charges against them, the case will disappear and they will not need an attorney. In reality, it is not the person who pressed domestic violence charges that decides whether or not the domestic violence case proceeds; it is the prosecutors who decide this.
While I have had success in getting prosecutors to drop cases at the prefiling stage, this is only possible when certain factors are present. One such factor is an absence of injury to the alleged victim, as this makes it very difficult for the prosecutors to litigate a domestic violence case.
This is particularly true if the alleged victim changes their story and claims that the accused did not commit an act of domestic violence.
Any inconsistency in the alleged victim's statement is a red flag, and often results in a dismissal of the case. However, if someone violently struck another person and there's a visible injury present, then there's a greater than 95 percent chance that the case will be filed; one of the only exceptions is when the defendant has a solid self-defense claim.
Is Self-Defense Ever A Viable Defense In A Domestic Violence Case?
Anyone who is attacked by another person is certainly entitled to defend themselves. The act of self-defense must be reasonable under the circumstances.
For example, if in response to being pushed, a person were to repeatedly kick someone in the head while they were already on the ground, then that would not be considered a reasonable level of self-defense under the circumstances. If a situation is escalating, the best bet is to leave.
Once a person has already been charged with domestic violence, the first step in handling their defense is to consider the surrounding facts as they relate to the domestic violence situation.
We need to determine whether there are any injuries consistent with them having been attacked by the accuser, identify witnesses who can support that the defendant acted in self-defense, and determine whether the defendant told the police from the very beginning that it was self-defense.
Without an immediate claim of self-defense, it will be very difficult to argue this defense in court.
Anyone who has been charged with domestic violence should hire an attorney right away. The attorney will review the entire case and determine whether a self-defense argument makes sense given the circumstances, or the matter should be resolved with a plea bargain.
Will The Jury Automatically Assume My Guilt If I Have A Prior Offense?
Just because you have a prior offense on your record doesn't necessarily mean that you're guilty of a different crime with which you're currently being charged. However, the prosecutors will certainly look at your prior record in deciding whether to file a case against you and during sentencing.
Juries typically do not have access to information regarding prior offenses, since it wouldn't be fair to suggest that just because someone has committed a crime before, they are guilty of a new crime.
With that said, if you have been previously convicted of domestic violence against the same person which you are now charged with assaulting, then the jury may consider that fact.
Should I Speak To My Spouse After Arrested For Domestic Violence?
Judges usually order a full protective order after charges of domestic violence have been brought by an alleged victim. If there's an emergency protective order in place and the defendant contacts the victim, then the defendant will be charged with violating that protective order, which is a criminal charge that will result in an arrest and time in the county jail.
However, if the defendant's attorney can argue to the judge that there shouldn't be a no-contact order and that the parties should be allowed to have peaceful contact with each other, then the defendant could be permitted to contact the alleged victim.
In every case, the best decision is to hire an attorney right away, be entirely truthful about what occurred, and follow the attorney's instructions to the letter.
How Do Police Determine Who The Aggressor Is In A Domestic Violence Scenario?
In order to determine the identity of the aggressor in a domestic violence situation, the police will first consider the surrounding circumstances, including the details of the 911 call. Once they arrive at the scene, they will separate the two parties and gather information from each.
Next, they will examine the injuries sustained by the parties. If one person has a black eye and a bloody nose and the other person is unscathed, then they will conclude that the unscathed party was the aggressor.
They will also look for evidence in the house, and determine whether any witnesses can provide an account of what occurred. In some cases, even after a thorough analysis of the situation, some police officers cannot determine the identity of the aggressor and will need to call their sergeant to the scene to make the decision.
When there has been an allegation of domestic violence and there are injuries, the police have no option but to arrest one or both individuals involved. The determination that is made at this stage in the case is certainly not definitive.
Just because the police officers have chosen to blame one person over the other, does not mean they are correct. Anyone who finds themselves on the receiving end of such a charge should contact an attorney immediately. The attorney will do everything they can to identify evidence that might convince the prosecutors that the police officer's determination was incorrect.
If you have been charged with domestic violence and there is no protective order in place, then you can return home to collect personal effects. However, I would recommended that you do this only in the presence of police officers in order to prevent the possibility of the alleged victim becoming volatile and making false accusations against you.
Hedding Law Firm is a criminal law firm located at 16000 Ventura Blvd #1208 Encino, CA 91436. We are also located at 633 West Fifth Street Los Angeles, CA 90071. Contact us for a free case consultation at (213) 542-0979.