Every day, I am contacted by someone charged with, or recently arrested for domestic violence. Arrests for DV crimes always increase around the holidays, especially Valentine’s Day. Crimes involving domestic violence are one of a handful of select criminal acts that are politically charged and closely followed by advocate groups. As a result, many police departments and prosecuting agencies have specialized bureaus to investigate, charge and prosecute. As an example of DV crimes being prosecuted more substantially, the Maricopa County Attorney’s Office partnered with Scottsdale Healthcare to develop strategies and investigatory methods to improve their ability to prosecute cases involving any allegation of strangulation or restricted airways. Unlike 2011 where 90 percent of strangulation cases were not prosecuted for lack of corroboration, the Maricopa County Attorney’s Office recently announced that 60 percent of strangulation cases are now being prosecuted.
In today’s world, DV crimes must be prosecuted. Prosecutors are barraged by special interest groups who take a very hard-line stance about prosecution. You only need to walk down the halls of any prosecutor’s office, police department or public areas in the courthouse to see posters about domestic violence and the need to report and prosecute those crimes.
Please don’t get me wrong. Crimes involving domestic violence are serious and do demand attention by law enforcement and prosecutors. But, in many cases, the politically-charged issues can lead to over-prosecution or wrongful prosecution. When discussing statistics for DV crimes, it is mandatory that you look at the source of statistics. In many cases, it is an advocacy group pronouncing numbers with no scientific oversight or third-party corroboration. It is interesting to note that the Arizona Coalition Against Domestic Violence presents much information. However, the single link on their resources page to statistics and research has absolutely no information. As a result, it is imperative you understand what a DV crime is, how it’s investigated and prosecuted.
Basic Information About Crimes of Domestic Violence in the Court System
DV is not a crime. Rather, the label domestic violence is an allegation that is used to enhance the sentencing range of a criminal act. The DV allegation applies where a criminal act occurs (name your crime: assault, criminal damage, disorderly conduct, etc.) and
- the relationship between the victim and offender is one of marriage, former marriage or residing in the same household; or,
- the parties have children in common or are currently pregnant by the other person; or,
- the victim is related by blood, but can also include stepchildren; or,
- the relationship between the parties is currently or was previously a romantic or sexual relationship. (A one-night stand might fall within this scope.)
Police must make an arrest. Under Arizona’s law for crimes of domestic violence, ARS §13-3601(B), police must arrest an offender if they find any physical injury or the exhibition or use of a weapon. As a physical injury could be as minor as a red mark. One or both participants are frequently arrested when officers respond to a DV call. Normally, officers try to determine the aggressor, and only arrest that individual. But, in many cases and for many different reasons, officers simply get it wrong and arrest the wrong individual.
If the victim alleges strangulation or having their airway restricted, the case will be submitted automatically to the county for felony consideration.
After a client is arrested and released from jail, where are they going to live? In most DV cases, an arrest is required. The suspect will receive his initial appearance within 24 hours. At their initial appearance, the judge will determine release conditions. In most cases, they will not be permitted to return to the scene of the crime (their residence or workplace). As it is a victim crime, any change to that release condition can only happen if the victim makes their position known to the court. Where possible, they will need to appear at the initial appearance. Otherwise, counsel needs to file expedited motions to modify release.
4 Basic Strategies to Developing a Defense
- Self-Defense: The most common strategy is self-defense. It must be affirmatively alleged. You will need to dig into your client’s relationship, any prior allegations of violence in the relationship, whether reported or not. You will need to try and locate proof of the prior incidents or how the person was the aggressor in the instant offense. I have also been able to use my client’s own medical records to support the fact they received injuries. And, in many cases, we have proven they were the victim, not the aggressor;
- Lack of Proof: If self-defense is not viable, lack of proof is always possible. I have often found the state rarely has any corroboration other than the victim’s statement and the red marks or more serious injuries. It will be necessary to show how the injuries could have been caused by the victim or were old and predated the instant offense.
Although it is rare to interview a victim, you may be able to use a hearing on an order of protection to obtain their testimony. At those hearings, the victim is rarely represented and rarely does a prosecutor or officer appear. The hearing is a prime opportunity to challenge the evidence, the claims and the injuries. In many cases, I have successfully been able to show the victim’s description of the scene or injuries were not physically possible. In many other cases, I can have the victim so exaggerate the incident that the story is subsequently not believable. You may also be able to use social media (Twitter, Facebook, etc.) to discover inconsistent statements made by the victim;
- Deliberately False Allegations: As noted above, you will need to look into your client’s relationships. Is there a motive for the victim to lie? Pending divorce or custody issues always make the allegations ripe for attack. I have often found in these situations that the victim has made similar claims against prior significant others. You will need to contact those individuals and develop evidence to support a defendant’s 404 motion to use prior bad acts against the victim;
- Alibi: I have had luck using my client’s GPS on their phone to show they were not at the location of the alleged crime. Credit card receipts, gas and ATM receipts may show timeframes and show your client was nowhere near the alleged crime scene. With the use of Instagram and Snapchat type programs, you may also be able to establish your client’s physical location at a specific time.
Collateral consequences of a DV conviction could affect one’s immigration status, their gun rights, their security clearance and various professional licenses. DV convictions can affect credit ratings and one’s ability to rent housing. Even if given an option to proceed with diversion in lieu of a conviction, there may be collateral consequences.
Hard work and creatively building a defense strategy will allow you to effectively represent your client. Hopefully this article has provided a glimpse at the issues and strategies you need to consider when representing a client charged with a DV crime. If you have any questions, please don’t hesitate to contact me.