DOMESTIC VIOLENCE

888-888-7803

24 Hours

When facing prosecution for a domestic violence offense, there is a lot at stake. One’s reputation and future relationships become jeopardized. There is also the possibility of prison or jail time. That is why you must hire the most capable lawyer you can find.

This lawyer must understand the anatomy of a domestic violence case and should know how to develop a formidable defense. The best lawyers are always prepared. You should be weary of any attorney that tells you to take a plea bargain or rush to trial without first investigating the case.

It is important to understand that the decision to “press charges” is NOT up to the victim or the judge. Unlike what is portrayed on television, the decision to press charges is only made by the prosecutor. In many counties, especially Broward, it is not uncommon for prosecutors to pursue a case even when the victim wants the charges dropped.

How does the prosecution decide to proceed on my case?

As a rule of thumb, the prosecution considers four main elements when deciding how to proceed on a domestic violence case. They are as follows:

1. How serious was the present offense? What is the charge?
2. Did the victim sustain any injury or property damage? If so, how serious? Is the victim owed any restitution?
3. What does the victim want to see happen with this case? Is the victim in fear? Does the victim want to waive prosecution?
4. Does the defendant have a criminal history? If so, are they crimes of violence? Do they concern the same victim?

As a rule of thumb, the more serious the offense, the less likely the prosecution will agree to drop or lower charges or agree to a more lenient sentence. The same holds true when the victim sustained serious injuries, when the victim is in fear and wants prison, and especially when the defendant has a violent past.

However, if the victim waives prosecution, the case may be dropped by the prosecution or the charges may be lowered. However, this is not guaranteed, especially in situations where there were serious injuries, use of a weapon, or the defendant has an extensive criminal history.

If I don’t want a plea bargain, how do you defend against domestic violence charges?

In order to determine if you have a winnable case, your lawyer needs to conduct a thorough case investigation by deposing the witnesses, especially the victim, by visiting the crime scene, and by evaluating any other relevant information, such as physical evidence and medical records.

When a lawyer investigates the reliability of the victim’s testimony, the following questions must be answered:

• Does the victim have a reason to lie or exaggerate?
• Is the victim motivated by anger, hurt, or jealousy?
• Is infidelity a motivating factor?
• Is the victim accusing you of a crime to gain an advantage in divorce or child custody proceedings?
• Does the victim have a history for dishonesty?
• Does the victim have a criminal history?
• Is the victim an illegal alien seeking temporary protection status by making a false domestic violence claim against you?

The following questions must also be answered:

• Who started the fight?
• Was the victim the real aggressor?
• Does the victim have a reputation or a history for violent behavior?
• Did the defendant act in self-defense?
• Was a weapon used? If so, what type of weapon? How was it used?
• Does the defendant have any defensive injuries?
• Was a weapon recovered by law enforcement? If so, was it dusted for fingerprints? Has it been preserved for defense inspection or use at trial?
• Are there independent witnesses? If so, are they credible?
• Did the independent witnesses see the entire fight or only part of it?
• Are the independent witnesses related in some way to either party? Are they biased for or against one particular party?
• If the charge is aggravated battery due to serious injury, are the victim’s injuries sufficient to enhance the charge?
• Would an independent medical evaluation reveal flaws in the prosecution’s medical evidence?
• Does the victim have a pre-existing injury?
• Did the victim sustain his or her injury from activity that transpired after your arrest?

What happens when there are no independent witnesses?

The most defensible types of cases are called “he said/she said” cases. In these situations, there are no independent witnesses and it is one person’s word against another. When such situations go to trial, juries will make their decision based on who they beleive to be more credible. To make this decision, juries will consider which version of events makes more sense and they will consider which story is more consistent with the other evidence in a case, such as one party’s injuries.

At the end of the day, it is the job of the defense lawyer to challenge the victim’s credibility and flush out any inconsistencies or conflicts in their testimony. To win at trial, a defense lawyer must successfully illustrate any lack of evidence or any conflict in the evidence. This is especially the case when a victim gives conflicting testimony.

When do I decide if I want to go to trial? How do I make that decision?

The decision to go to trial can only be made after your criminal lawyer has completed his or her investigation. Once depositions are completed and all other evidence has been evaluated, only then can a lawyer realistically explain the pros and cons about going to trial in your particular case.

A criminal defendant should not be afraid of going to trial when trial is appropriate. At the same time, one should not rush to trial unprepared. The decision to go to trial is a lot like the decision to have surgery. The lawyer and the client should discuss the good things about the case as well as the bad things. If you have a good defense, your lawyer should not back down. If you have a questionable defense your lawyer should not push you to trial without first weighing the probability of success.

Ultimately, the facts and applicable law of each particular case will govern the decision to proceed to trial or accept a plea negotiation.

888-888-7803

24 Hours