New domestic assault laws make arrest easier, dismissal harder
On August 1, 2014, a new law goes into affect which broadens the basis on which a person may be arrested and charged with domestic assault. It now includes provisions for misdemeanor arrest, and expands the time frame to 72 hours. If you are charged with domestic assault, or someone you know has just been arrested for domestic assault, here’s why you need to involve a criminal defense attorney immediately.
The politics of domestic assault continue to ignore the rights of the accused and discourage investigation and common sense. It is often politically incorrect to doubt the words of an accuser, particularly a woman
Sadly, however, we have created a system that does provide incentive to manufacture domestic assault allegations, and for the accuser to stick to their false story. As discussed previously at Minnesota Legal Defense, The system also makes it extremely difficult for the accuser to “drop charges” so to speak. There are a number of attributes which make domestic assault so difficult from the very beginning:
(1) The speed with which various mechanisms move when accusations are made
(2) The immediate isolation of the accused.
(3) The affects on pending or soon to be initiated family law proceedings.
(4) The ability of the accuser to continue to manufacture evidence at trial.
From the moment 911 is called, a very fast process begins, and you’re going to jail.
Law enforcement and prosecuting authorities take domestic assault very seriously, as well they should. According to a 2012 Domestic Violence Report citing to the 2010 Minnesota Crime Victim Survey, as many as 201,814 adults may have experienced domestic violence in 2010. Besides the wrongfulness of this act, the other concern of law enforcement is that perpetrators of domestic violence may go on to harm their victims repeatedly. Abusive relationships have been known to escalate quickly. No officer wants to be the one that did not respond to a 911 call only to find a murder has occurred. For this reason, police respond swiftly to domestic assault calls.
The person that calls 911 often has a distinct advantage in that they will tell the first version of events. At that point, invariably, officers end up subject to a phenomenon known as confirmation bias. When they arrive on scene, they will be looking for evidence which confirms the facts of the initial call. The caller will also often be the first person interviewed at the scene, further securing this bias. From there, they will interview the suspect, and selectively record and put in their reports those portions of the story that confirm the accuser’s version of events. It’s for this reason that it is important to not talk to the police. You may think that you’re helping yourself and that you can prove your innocence, but the officer is most often looking for you to say the magic words that confirm any part of the accuser’s story. Frankly, any confirmation that you touched the accuser may suffice as an “admission”, according to the officer.
Further, it really does not matter what you have to say. Under a recently passed Minnesota law, you will now be arrested on the mere words of a single person accusing you of any act of domestic violence, even as minor as slapping or shoving, if the assault is alleged to have occurred within the past 72 hours. This is done with no arrest warrant whatsoever. You are deprived of liberty with no review of facts from anyone except the arresting agency. If there is any allegation of domestic assault by strangulation, or if you have prior convictions for qualified domestic violence offenses, they can arrest you outside the 72 hour period. This could be weeks, even months later. Yes, the words of a single person constitute probable cause for domestic assault. Also, the officer is required to inform the alleged victim of an incredible number of rights and put them in touch immediately with a victim advocate, often from a local battered women’s shelter or similar organization.
Immediate Isolation and Disadvantage
Again, Pursuant to Minnesota Statute 629.341, the alleged victim is immediately assigned essential power over every aspect of your life. Your accuser can control where you’re allowed to go. They can kick you out of you own home, even if you own it. They can prevent you from seeing your child in common…and make YOU pay for it. All of this happens with the help of law enforcement, and advocates whose sole job is to assist with this paperwork…for free. All the while, the accuser is free to consult further with any witnesses, nail down a story, even possibly manufacture physical evidence. You can now see the contrast: You’re in jail with nobody to help you. Your accuser is on the outside ensuring your continued isolation if and when you are released. It’s for this reason that it is essential you call an experienced domestic assault lawyer immediately. Your accuser has an advocate, and the state has a lawyer. What do you have?
Family Law and Further Legal Liability
In addition to pending criminal charges, as mentioned above, your accuser can control your whereabouts and your living circumstance with an Order for Protection pursuant to Minnnesota Statute 518B.01. This order is effective IMMEDIATELY upon being served to you, which may happen inside a jail within days or even hours. You have no voice, no say whatsoever, unless you file for a hearing challenging the order, and that could be a few days or a week or more. Such orders are admissible as evidence in family law proceedings, and its ongoing existence without a timely challenge and dismissal results in a permanent ban on the ownership of firearms. If you violate this order in any minor way, you will be arrested AGAIN and charged with a NEW CRIME. Alex De Marco has experience handling all aspects of domestic assault and has never lost a motion to dismiss an order for protection.
Trial turns your past, or at least someone’s version of the past, into an open book.
As mentioned, the state has a particular concern for repeat domestic violence offenders. Prosecutors often promote the falsehood that every victim of domestic abuse has been subject to it numerous times without reporting it, due to “battered women’s syndrome”, a condition recognized in the psychological community, but often erroneously assigned to every single alleged victim. Unfortunately, this has translated into turning a domestic assault trial into an absolute circus of past alleged incidents with absolutely no proof whatsoever. Minnesota Rule of Evidence 634.20 allows for the accuser to testify regarding any past act of abuse for its consideration as evidence against you. It does not matter if police were called during these alleged past incidents, or if there are any reports or corroborating evidence at all. The accuser is basically free to to tell whatever stories they want, and all you can do is testify against it. There is a great deal of case law which limits how much “relationship evidence” and what type of incidents may be testified to. It is critical that an attorney make the proper motions before trial to control the evidence, provide predictability to what the jury is going to hear, and form a strategy on that basis.
Trial is the only path to defeating domestic assault
A motion to dismiss domestic assault for lack of probable cause is a near impossibility unless the accuser 100% admits to lying. Preparing to go to trial on a domestic assault case is the best path toward getting it dismissed. The entire method of domestic assault prosecution is designed to give you as few rights as possible, but trial is always your right and your only real leverage. Do not let anyone fool you, including an attorney if you currently have one that you may have misgivings about. If the case is simply “he said, she said”, it’s a great case for trial. You are presumed innocent until proven guilty, and the jury is so instructed. Ultimately, while people can be questioned as to what they said to police, police reports are not evidence. The only evidence the jury considers are statements made from the witness stand, photos, and possible audio recordings. The mere words of an accuser are enough for probable cause, but NOT enough for proof beyond a reasonable doubt. The jury wants evidence. If a jury does not have photos which are consistent with the accuser’s testimony, or if the accuser’s story is uncorroborated by anything, a skilled defense attorney can win that trial with persuasive argument. An attorney also mitigates the evidence that comes in against you, including prior bad acts, through objections at trial. Ultimately, prosecutors know the difficulty of domestic assault trials based upon their experience, and the reputation of the attorney they are facing. Domestic assault is one of the most frequently dismissed charges, not upon motion of defense counsel, but upon motion of the County Attorney when under the pressure of trial. While an alleged victim is ultimately not the one who “presses charges”, the cooperation of this accuser as trial approaches often falters as well. A dismissal of a domestic assault most often occurs on the day of trial, but there is no guarantee of it, so that lawyer needs to be actually prepared for trial. You need to hire a skilled lawyer serving Minneapolis, St. Paul, and surrounding areas, who knows the process of domestic assault from arrest to trial. Ultimately, it is easy for the state to make your life exceedingly difficult on the words of one person, but it is far more difficult to prove to a jury that you actually assaulted anyone.
If you’re facing a charge of domestic assault, no matter how minor or severe, contact Alex De Marco, a criminal defense attorney serving Minneapolis, St. Paul, Lakeville, Burnsville, Eagan, Apple Valley, Savage, Shakopee, Northfield, Woodbury, Farmington, Faribault and surrounding areas.