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Defense of Family-Violence Cases

To begin, a politically incorrect fact:

There are actual high-danger family-violence cases, but in lots of couples, it's an ordinary part of a relationship to be a little rough with each other. They push each other around for years, and it's only when someone goes too far that the law gets called.

I'm not saying it's okay, but just that that's the way it is. Some couples relate to each other roughly.

When times are tough, it's more likely that the law will get called, because stressed people are more likely to go too far, and stressed people are more likely to feel like their partners have gone too far, and call the police.

So when times are tough generally—when the economy is not doing great, when we are fighting a pandemic, when people are generally stressed out—we get a lot of calls on family-violence cases.

Typically, the person calling the police regrets it soon thereafter. It's usually the complaining witness—what the State would call the "victim"—who's calling to hire us, trying to undo what they have done.

A prosecutor would say that this is part of the cycle of violence, and they wouldn't be wrong, but what they don't realize is that for many couples this cycle of violence is often mutual. There is, more broadly, a cycle in which people repeat their parents' choices, so a person who grew up in violence is more likely to behave violently and to choose a partner who behaves violently.

Our job is not to judge, but to solve the client's immediate problem. (Sometimes we can solve the client's larger problems, to keep him from having to be a client again, but that's secondary.)

The alleged victim calling us wants the case to go away. The client wants the case to go away. Consent is a defense to assault. Simple, right?

Well, not necessarily. The complaining witness who wants to drop charges is, in the State's eyes, just a witness. Her (it's usually a she) wishes are not binding on the State. She may have, before calling us, called the prosecutor and told him that she doesn't want to prosecute. He didn't care. In fact, he made careful notes of everything she said that could be used against the defendant.

She may have signed a generic "affidavit of non-prosecution." He didn't care. She's just a witness, and he can subpoena her to testify at trial.

Meanwhile, the stakes are huge. A misdemeanor family-violence conviction can never be sealed from public view. It excludes the defendant from possessing a firearm. After the first conviction, every allegation is a felony. If the accused is not a citizen, a family-violence conviction can result in deportation.

Family-violence charges can take a special touch to dispose of. To begin with, if you are an alleged victim who doesn't want to prosecute, don't talk to the prosecutor. You can't fix this by yourself. If he has a lawyer, talk to his lawyer first.

If he doesn't have a lawyer, get him one.

And you might want a lawyer for yourself. Not because you are facing criminal liability, necessarily, but because once you have a lawyer, the State simply cannot talk with you, can't get you to accidentally say incriminating things, can't draw words out of you that can be misunderstood.

We represent alleged victims, and we represent people charged with assault, but we won't represent both in the same case. You can hire us to represent him, and we will refer you to a lawyer for yourself, or you can hire us to represent yourself, and we will refer you to a lawyer for him.

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