The Criminal Defense Attorneys at the William R. Moore Law Firm in Broward County explain the fundamentals involved in the prosecution of domestic violence cases. Attorney Moore also explains how it is the victim who controls the State’s case. Assistant state attorneys will lead a victim to believe, however, that it’s not as easy as filing a waiver of prosecution.
Typical Scenario that leads to a Domestic Violence Arrest in South Florida
A married couple can be heard shouting at each other by their neighbors on all sides. Over the course of an hour, the intensity of that argument builds resulting in someone calling 911. Police officers separate the two and show great sympathy toward the victim (who will be female in over 95% of all prosecuted cases). Statements are taken from her and her husband is arrested.
What a couples do after they fight?
They make up.
When there's an arrest for domestic violence as a result of a couples fighting a third-party joins the Melee. The government and prosecutors for the government do not stop the fight. Worse off, the sheer tactics and abilities available to and used by this hostile outside threat could have never been imagined.
When a couple walks into our criminal defense firm following an incident involving police we already know the basis of why they have come to see us, what their questions and concerns are and what they need to be made aware of.
In cases where just the accused walks into our office seeking representation for a domestic violence arrest, we know based on experience that there is an overwhelming likelihood that it will ultimately be a case where the alleged victim does not wish to prosecute.
Criminal prosecution of domestic violence offenders may be designed to protect but the fact of the matter is that in many cases the prosecuting of a spouse also:
Divides the two primary parties to a family unit.
Creates financial burden and housing issues.
Removes a financial provider from the family unit.
Leads to the loss of employment and income that is depended upon by the family unit.
Creates an aura of victimizing an individual of whom the state claims to be protecting.
ARREST FOR DOMESTIC VIOLENCE FOLLOWING AN ARGUMENT
Some couples getting heated passionate arguments that sound violent and feel intimidating. These episodes are not fun for the couple and in almost all cases create incredible elevations anxiety. An inability to control emotions can ensue.
We've all had differences with another. Our life experiences have taught us that it is in our nature to cool down after an argument. This is why we forgive. This is why we regret things that we say to others in a fit of anger. We cool off and gain composure.
THE DAY FOLLOWING AN ARREST FOR DOMESTIC VIOLENCE
The day after a spouse has been arrested for domestic violence, their significant other who is also the named victim or complainant has forgiven, forgotten, wants things to go back to normal and will be seeking the following:
Information about how to vacate or remove a no contact order.
How a “no-contact order is different than restraining order.
They will want to be advised as to the effectiveness of filing an appropriate waiver of prosecution or notarized document or affidavit.
They will be unsure or mistaken as to their lack of any authority (or even influence for that matter) to decide whether or not to prosecute criminally.
First off the crime of domestic violence is considered a crime against person (the victim).
The government also steps in however and says but I'm a victim to I'm the real victim. Domestic violence creates all kinds of problems for the government. Forget the victim. Forget society. Sure they're victimized, but it's me the government that is the true victim here.
GOVERNMENT VIEW ON DOMESTIC BATTERY CRIME
Who cares if the victim doesn't want to prosecute. Who cares if the victim would rather work on their marriage and their family environment then seek to have their spouse convicted and incarcerated.
State Attorney’s will still attempt to build a case and prosecute. Most criminal defense attorneys attribute much of this to the overwhelming public outcry following the OJ case.
CRIMINAL PROSECUTORS WHO SEEK TO CONVICT YOUR SPOUSE
This refers to the trial attorneys who handle these domestic violence cases. These attorneys seek to prevent violence from happening in the home.
These prosecutors are reluctant to dismiss cases based on a victims wish not to prosecute because:
Fear of motives or reasons of victim waiving prosecution.
Battered wife syndrome.
Protection against threat of immediate future danger.
Our criminal justice system in Florida desperately wants to be tough on domestic violence offenders. They need convictions to be tough.
And they want to be hard on domestic violence offenders because of:
Incredible cost and time associated with policing
Cost of attempting to competently prosecute failed cases.
FLORIDA’S ATTEMPTS TO MAKE OBTAINING CONVICTIONS FOR DOMESTIC VIOLENCE EASIER
The State of Florida has tried everything it can to increase their likelihood of success in obtaining convictions in domestic violence cases. Most domestic violence cases fail or are weak because of victim witnesses who make it all but impossible for the state to obtain a conviction.
A desire not to prosecute does not make it impossible for an assistant state attorney to prosecute your domestic violence case.
The filing of a waiver of prosecution doesn't sabotage the prosecutor's case.
The first thing that a victim asks of their spouse's criminal defense attorney is how they can go about filing a waiver of prosecution. Where can they file it. Does it need to be notarized. What is it needs to say.
Know this about waivers of prosecution in Florida:
There is a difference between filing a waiver of prosecution and failing to participate in the investigation and prosecution of case.
There is a difference between expressing a desire to have case thrown out to prosecuting attorney and disputing allegations reported by police officers.
There is a difference between requesting that the court to withdraw a no-contact order and noticing all parties (court, prosecution and defense) that your statements were misrepresented by detectives, investigators and/or arresting officers.
If a prosecutor wants to put a defendant in jail or prison, whether it's because of their criminal history, the nature and severity of the current charges or just because they want to make a name for themselves their ability to do so will come down to this.
Their ability to convict will come down to whether or not their victim will appear for trial either voluntarily or involuntarily,
Whether they will testify consistently with what they told police officers on the night of their spouse's arrest. A prosecutor can expect a victim to testify consistently where it's obvious that said victim has manifested a level of integrity or shown an unwillingness to lie when under oath. And overall truthful person who will represent facts honestly even when they don't want to.
A prosecutor can also expect a named victim to testify truthfully where they have exercise dominion and control over them buy in through are criminal statutes (perjury and filing a false police report), contempt of court statutes or subpoenaing power of the court.
If you say something different than what you said the police on the night of your husband's arrest were you filing a false police report? The prosecutor may ask if you were you lying then or are you lying now? Aggressive prosecutors may state that if you lie at trial then you're committing perjury which is a felony.
Prosecutors may state “as you know our office has kept you under revolving and recurring subpoena to appear at trial in two-week intervals since your husband's arrest. Consequently, if you don't show up on the day that this case actually does go to trial, we will send a Broward Sheriff's office deputy to your home or office so that he or she may take you into custody and bring you all the way to the witness stand.”
This may be followed by statements that “you will then face a potential action for contempt of court. People found in contempt of court our often find and sentenced to jail terms.”
My name is William Moore. I am a Domestic Violence Defense Lawyer in Broward County Florida. I've defended hundreds of domestic violence cases over the years and so many of those cases involved the victim calling my office. The states witness who is expected to testify against my client, who also happens to be their spouse are the calls or walks into my office and they want to know how best to avoid participating in the states prosecution.
I've gotten calls from victims where I don't represent the defendant who want independent counsel and they want to know if and how they can single-handedly sabotaged the state's case.
This is the only time that I have to think long and hard about how to answer questions presented by a states witness who doesn't want to be a state witness. Someone who doesn’t want to participate in the process of convicting a spouse or loved one.
I have to think long and hard because I know full well:
Yes you can absolutely sabotage the state attorneys case against your spouse.
Yes you can make it entirely impossible for a prosecutor to obtain a conviction.
Yes in Broward County you can the evade many types of notice (not service) without any ramifications. In Broward County, Florida the preferred method of service in my county for domestic violence cases legally obligates a witness to the same degree that a birthday card would.
Prosecutors who see a shooting star often think to themselves I really hope that my victim comes in and testifies in my case on Monday. I wish they would.
That’s because they mailed the most needed witness in my case a notice of trial that reads threatening but amounts to nothing more then a letter. Not service of process. Not even certified mail but rather a letter that kind of looks like a subpoena. A letter that may not have been opened. Not everyone checks their mail every day.
When a victim is asking you as a criminal defense attorney.
Now remember, I said that as an attorney, I have to think long and hard about how to answer questions posed to me by victims who do not wish to prosecute.
“Hey how do I avoid service of process?” Issues start coming into play with regard to your role in ethical obligations. Your desire to want to be the hotshot lawyer that can keep anyone out of trouble could hinge on obstructing justice by coaching a witness as to how to avoid reach of the prosecuting authority.
Recanting Victim of Domestic Violence & Access to Qualified Legal Counseling
This is the Prosecutions Witness:
If I am the defense attorney of record on a domestic violence case and I call up the victim to that case, I am going to be under some strong suspicion of witness tampering. Action is going to be taken on some level whether it's a licensing authority of the Florida bar prosecution for tampering.
Even when the victim seeks out the criminal lawyer defending their spouse, they are still the witness that prosecutors are using to convict your client.
Conflicts of Interest
Attorney’s Ethical Considerations: If you represent the defendant in a criminal action whereby their spouse was endangered and injured how can you maintain the appearance of propriety in giving them advice. The one person that holds all the cards two convicting your client is asking you for advice. Professional advice, from a lawyer who has their interests alone to look out for. Looking to you as someone that they can trust.
Will you can ethically talk to the named victim in a case in which you are the criminal defense attorney of record. A case where you are professionally bound to protect the accused without regard to any other parties interest to litigation.
I talk to victims all of the time. I offer legal advice to victims who want to help their spouse avoid criminal prosecution. I do it legally and ethically. Potential conflicts of interest are made clear. Intentions are memorialized in writing. The respective roles of all licensed professionals involved in the litigation are explained in great detail as is an explanation of the law and how it is applied specific to a victims rights and obligations.
Counseling of how best to avoid participating in investigation and prosecution of State’s case legally and ethically.
Information about how recant prior sworn statements which have been alleged to have been made to police without perjuring one’s self. Certainly there are circumstances where a victim makes statements to the police that are reported incorrectly due to human error. Police are human. A victim can't be prosecuted for perjury where their story has remained the same and it is the police that got it wrong and taking down what they said on the night of their spouse’s arrest.
How best to avoid service of process compelling attendance at trial.
How do you know that you are under subpoena in the first place? Because if you received a notice of hearing that was sent to you in an envelope as a letter then it's a letter.
The prosecutor will take notice of the fact that a letter sent to your home was not returned as undelivered. They will then refer to the letter that you may or may not have received as “your recently having been served a subpoena to appear in court by their office.”
Waivers of prosecution in Domestic Battery Cases
Now think back, especially if you're dealing with this issue right now. If you're like most victims, your focus was on how to file a waiver of prosecution. Now that we've talked about this a bit, you can see how this is more about bluffing. This is more about how to safely set fire to a paper Dragon.
Why do assistant state attorney's want to appear as powerful as a dragon?
Prosecutors will treat this as a crime against the state. The choice as to whether or not an allegation of domestic violence will be prosecuted is not made by the alleged victim. These decisions rest solely on the prosecutors in that jurisdiction. In serious domestic battery cases, a victim's desire not to prosecute has absolutely no bearing on the state’s moving forward with full force.
Now think about what I'm saying here before you start saying to yourself “hey, I know someone who refused to prosecute and when they didn't show up at trial, the state attorney dropped all of the charges against their spouse.”
Will yes, and in that scenario, the assigned assistant state attorney dropped all charges because the victim entirely removed themselves from the prosecuting of the case. This wasn’t a choice by the prosecutor. They didn’t have a choice without a victim. We will talk about potential ramifications to victims who willfully evade service of process, or break the law in attempting to impede prosecution, or commit perjury (such as in the case where a victim provides a sworn statement to police on the night of their spouse’s arrest and then later comes in and testifies at trial to facts that are completely different. Completely inconsistent sworn testimony in order to protect their spouse. To prevent them from being convicted.
Understand that there are a lot of victims out there who have expressed to prosecutors that they'd rather not have to come into court and testify against their husband or wife. They may have even provided the most artfully drafted signed and notarized waiver of prosecution to them as well. But the state having that witness, that victim under subpoena gives them a type of power over the victim that is reminiscent of the show of force or POWER that they are exercising over the defendant.
“Defendant you're in trouble.”
“Victim, assist us in prosecuting your husband or wife or you'll be a defendant too”
"One of you to is going to jail."
“Oh so when police were called to the scene and you told them that the injuries to your facial area or from your husband, you were lying?”
“So you're admitting to having filed a false police report.”
So you see it's not a decision by the state not to prosecute where a defendant flees the subpoenaing power of the court and is an available to provide evidence needed to make the state's case. They can't go forward. The state can't prosecute a domestic violence case under the circumstances because even under the best facts and circumstances they still wouldn't prove the bare-bones of what is needed.
Now I am not suggesting that anyone do that to avoid assisting the prosecutors. Just stating a fact.
Prosecutors can not convict on statements alone in a vast majority of cases.
If the named victim had been killed, the Florida evidence code would allow for the introduction of prior sworn statements but not when they abscond or try to obstruct the state's case.
Warnings about waivers in domestic violence cases and actions to remove no-contact orders.
Okay now that we've talked about this a little bit more I want you to once again think back to what most victims think is the main avenue or the primary method of stopping a prosecution of their spouse. The empathy emphasis in most cases is incorrectly placed on the filing a waiver prosecution or the physical requesting of the court to lift or do away with a no contact order that was put into effect within 24 hours of your spouse's arrest.
Would you believe that these avenues are not only ineffective in most cases in preventing prosecution but may actually result in the states strengthening or securing their ability to move forward with prosecution.
They may be thinking to yourself what? How can that be? That doesn't make sense?
Let me explain. Let me make sense of this to you.
Immediately after your spouse's arrest, you as the victim contact the assigned state attorney on the case and explained that you want to have the no contact order lifted because you need your husband or wife home, you do not fear them and you will be filing a waiver of prosecution. You further explain to the prosecutor that you do not wish to assist them in the prosecution of their case.
In response, the prosecuting attorney sets a 5 to 10 minute hearing before the presiding domestic violence judge so that you may present yourself to the court and state on the record that you wish to have the no-contact order removed. The prosecutor explained that you can also use this opportunity to put it on the record that you do not wish to prosecute.
The day will finally arrive and you will find yourself before the court and being sworn in. Placed under oath so that you may truthfully express your desire to have your spouse is no-contact order lifted in addition to expressing your desire two have this case dropped. Under oath and sworn to tell the truth to the following unexpected questions that follow by the same prosecutor:
What is your current address and phone number?
Do you plan on changing your residence in the next six months?
What is the name and contact information of your closest friend?
What is the name and contact information of your closest relative other than your spouse?
What is your place of employment?
What is the telephone number to your place of employment?
The aforementioned information will be used by the prosecutor in effecting procedurally correct and valid service. Under these circumstances, the prosecutor will note that absolute legal service will be needed.
The prosecutor would move on to a different line of questions specific to your request to have the no contact order lifted:
Mrs. Victim, you have asked the judge to lift the no contact order issued in this case and in support have stated that you are not in fear of your husband. So is it safe to say that his hitting you on the night in question was an isolated incident? It is also safe to say that you are not in fear of your husband hitting you again correct?
This line of questioning if answered in the affirmative will provide prosecutors with sworn testimony in a court of law and before a judge by the victim. This sworn testimony will affirm that the violent act of hitting had taken place. This testimony will have been recorded most likely through electronic means as is required in all criminal proceedings held in the state of Florida.
Wait! How did that happen?
Look waivers of prosecution are great. They are an important part of this process. Have your affidavit notarized and file it with the court. Send copies to all parties. Notice the court that after reviewing police reports your statements have not accurately been recorded (provided some discrepancy exists).
There are forms that you can download off of this page for you to use as a starting point. If you are listening to this on iTunes visit our website to get the domestic violence victim templates.
If you want to know more about how the prosecution of domestic violence arrests works in Florida, call my office or email me William R. Moore.
You have been listening to State of Arrest
Remember, that you are under no obligation to make the state aware of the fact that you will do anything legally possible to prevent them from proving the case against your significant other.
Have a story to tell us about a recent arrest for domestic battery in South Florida? We would love to hear it.
I am William Moore