Miami Domestic Violence Defense Lawyer
It used to be that if a victim of domestic violence did not wish to prosecute, the case would simply be dismissed by the prosecutor. That is no longer the case. Changes in the domestic violence laws since the early 1990s have resulted in law enforcement taking a more aggressive stance in the prosecution of these type of cases. Specialized domestic violence divisions are now required within the prosecutor's offices, and victims are encouraged to prosecute. If the victim does not wish to testify, prosecutors may build cases which do not require testimony from the victim in order to proceed with the case. Victims are often encouraged to file injunctions (i.e., a civil order to stay away from the alleged victim and places where alleged victim may frequent) in addition to the stay away order that the first appearance judge will impose in the criminal case. That injunction will require an appearance by the accused while the criminal case is ongoing. All of these issues create dangers for the accused which require the immediate assistance of an attorney.
This is an area of the law that has gone through a complete transformation since the early 1990s. Because of some high profile domestic violence cases which led to some horrific fatal results for the victims from defendants who had previous cases dropped by prosecutors, much well-intentioned focus was placed on revamping the laws, which resulted in domestic violence laws being changed throughout the country. Two of the intended results were to better train prosecutors with special skills for these type of cases and to empower police officers to make decisions at the scene of a domestic disturbance which would protect a potential victim and diffuse an argument from escalating. One of the unintended consequences was a clogging of the dockets with cases which are motivated by victims with an agenda. The result of these law changes is a much more aggressive investigation and prosecution of a domestic violence case.
Because of the heightened scrutiny on these cases, officers now are put in a situation in which it is easier and safer for them to make an arrest rather than not make an arrest. Instead of walking away from a diffused situation, officers often rather make an arrest and not risk potential liability from a situation which may escalate once they leave the scene. The consequence is more arrests.
Officers at the scene are also trained to make observations at the scene which may result in prosecution of the case without the victim. If the victim chooses not to prosecute the case in the future, prosecutors will look to the observations of the officers at the scene to attempt to build circumstantial cases without the need of victim testimony. The consequence of this is that cases that use to be routinely dismissed are now often prosecuted.
Pre-trial Release, Stay Away Orders and Injunctions
The person accused of a crime can usually post a bond with a bondsman without waiting to see a first appearance judge the morning after the arrest. In domestic violence cases, the accused cannot be released without first appearing before a judge, which means that the accused will have to spend the night in jail. One of the conditions of release from jail is a court order to stay away from the alleged victim. If the accused violates the stay away order, the accused will be put back in jail and may not be released until the criminal case is resolved.
Law enforcement provides packets of information to alleged victims informing them of important victim rights. Many victims ultimately become aware of the fact that if the accused has contact with the alleged victim, the accused will be incarcerated again as a result of being in violation of a court order.
Many victims will also file a request for a temporary or permanent injunction in order to seek additional protection from the accused. These are civil proceedings which would take place before a different judge than the one who would preside over the criminal case. The proceedings often take place while the criminal case is ongoing, which means that an accused could be put in a situation where the accused waives the ever important right to remain silent. If an injunction is ordered by the judge, a violation of the order is a new criminal case.
Domestic violence cases are very emotional because of the fact that, often times, the arguments are between spouses or domestic partners. Rational thought often escapes both parties during these turbulent times. An attorney can stabilize the situation and often act as an intermediary between the parties so as resolve the criminal case and avoid any violations of a stay away order or an injunction.
Early intervention by an attorney after the arrest
An attorney can often avoid the charges from being filed by the prosecutor by providing pertinent information to the prosecutor. An accused should look for attorneys with intake experience in these type of cases. These attorneys should have a better grasp of what a prosecutor needs to hear in order to consider a dismissal of the charges.
Defense of these cases
These cases often have 911 tapes, photographs taken at the scene, medical records of treatment and reports from police officers, and emergency medical personnel. An attorney should know to request such evidence. Some of the issues that should be reviewed in these type of cases include:
- Nature of the incident which led to the disturbance.
- Why did law enforcement arrive on the scene.
- What did law enforcement witness at the scene.
- Extent of injuries.
- Who witnessed the disturbance within the neighborhood.
- Are the complaints by the alleged victim at the scene consistent with medical records.
- Are the injuries from a previous condition.
- Motive for fabrication by the alleged victim.
- Tone of 911 call.