How to Investigate and Most Importantly, to Defend a Domestic Charge
First, let me address the couple that had a dispute of some sort, the police or deputies were called, and one person was arrested. This often happens due to the “preferred arrest” policy of the “primary aggressor” of the incident. The couple may have been drinking, things escalated, words were exchanged, the house was trashed, and law enforcement responded by a call from someone. Maybe it was a neighbor calling in a disturbance complaint.
The next factor is that the next day, cooler heads prevailed. This couple had years vested in their relationship and suddenly, there’s a No-Contact Order by the court and everything is at stake including financial security and family separation.
This couple ultimately wants to reconcile and to reunite. But how does that happen now?
Here is where a good investigator with soft-skills and good timing can be very useful. The listed victim on the report will be contacted in some manner either by phone, text, or perhaps a cold-call visit. Be sure to discuss with your client (the defendant) first to strategize your approach, and if she/he agrees to speak freely with the investigator, a sworn affidavit requesting that charges be dismissed will be taken.
In the wake of Covid, it has become more acceptable to take sworn-recorded phone statements or even better, start the conversation by phone and if agreeable, do a virtual call via Zoom, Signal, or another video calling format. Zoom has a record button, and it will save it to the cloud or on your computer. It’s a great tool for statements now, and a very powerful one to present on behalf of your client or your attorney’s client.
Often when I cold-call the victim of the Domestic, I bring a blank form titled “Waiver of Prosecution.” I have also heard this called a “Request Not to Prosecute” form, or even just a blank witness statement form could suffice. Having a written form or statement completed by the victim is still a very powerful message to the prosecutor and the court. And since you are there, take a 2-minute audio statement too. Why not do both?
Now keep in mind, this is the type of Domestic charge stemming from a couple wishing to reconcile and to avoid prosecution. This is not the approach for the Domestic Battery type of charge where physical abuse is the issue. Frequently these charges are spawned from words, a slammed door, a broken household item(s), and because law enforcement have these “preferred arrest” policies in place, one was taken into custody.
The last part of this defense strategy is that the defendant agrees to counseling, couples counseling, behavior management, or some other variety of therapy. Before you approach the victim, be sure that this part of the process is a definitive part of the plan. Typically, returning to your client and the attorney of the defendant with a recorded statement, a written Waiver of Prosecution or both will be very useful.
In closing, Domestic arrest cases involving these three pragmatic steps of …
- The couples’ intent to Reunite
- The Waiver of Prosecution or Recorded Statement
- The Proactive Planning for Counseling
…will result in a better outcome and gives the attorney a formula for success.
If you have any questions or concerns, get started by contacting me.