Most criminal cases do not go to trial. If the facts are against you
the lawyers discuss the facts and make a plea bargain. When the facts
are in your favor often your case will need to be ready for trial
before the D.A. will dismiss it. The D.A.s office is more likely
to go to trial on close domestic violence cases.
If
you plead guilty to make peace with your spouse and get on with
your life your decision will haunt you. A domestic violence conviction
can become a club your partner will use to beat you over the head
with. Even if you lose your job and supporting your children becomes
a problem maintaining your innocence is more important.
Going
to trial is among the worst experiences you can have. Even if a
jury of twelve of your peers does not convict you a trial is an
emotionally and financially draining and your life is put on display.
However, if you do risk trial in a misdemeanor domestic violence
case and lose it is unlikely that the judge who hears your case
will throw the book at you at sentencing. After most judges hear
the evidence in a close case they will have some compassion for
you. Judges threaten to throw the book at defendants if they are
convicted because they want to discourage time-consuming trials.
Some judges will make good on that threat. If you give up your right
not to testify and take the witness stand and the judge thinks you
lied, that would go against you at sentencing.
The
prosecution has to prove that you are guilty beyond a reasonable
doubt, and jurors must unanimously agree on your guilt for every
count youre convicted of. An acquittal by a jury does not
mean you are innocent. It means the district attorney could not
present enough evidence to get a conviction. A defense that comes
up a lot in domestic violence cases is that you were defending yourself,
or that you did not cause the other persons injuries. A more
difficult defense is that the other person is making the whole thing
up. Even when the victim retracts their first statement and says
that they made it up the prosecutor will usually continue to prosecute
the case saying the first statements are the spontaneous and contemporaneous
and therefore truthful. Why would a victim make up a story about
what happened? Even if the victim makes small contradictory statements,
usually only large inconsistencies can damage a victims credibility.
One
unique obstacle to a defendant pleading guilty in a domestic violence
case is that the judge tells the court reporter to go off the record
and makes the defendant admit that they committed an act of violence
against the victim. One reason for this is that domestic violence
batterers treatment programs will not accept a person who will not
admit to having committed an act of violence. Judges sometimes refuse
to allow a defendant to plead guilty if they dont freely admit
to having been violent, when it appears that the defendant is making
the admission just to get out of jail.
Defendants
often ask, if my partner is making this all up, this case shouldnt
have been filed at all because nothing happened, why should the
case be taking so long and costing so much? The hardest cases to
defend are the cases where you actually have a defense. In a surprising
amount of cases a person with a good defense will want to plead
guilty just to get on with their lives and get it over with.
I once had a civil restraining order case where a man did that in
another county (on the bad advice of a lawyer) and his ex-girlfriend
began stalking him afterwards.
Sometimes it is hard for a client to accept that a weak case for
the prosecution is much harder to defend than a strong case. When
the D.A. has a slam-dunk case an attorney makes the best deal possible
by presenting mitigating facts about their client. When the prosecution
has a weak case its a lot of work and it is stressful. All
the good facts of your case have to be supported by as much evidence
as possible. The D.A. may use expert testimony to introduce evidence
of domestic violence patterns. Your own D.V. expert can give you
a test and give an opinion as to whether or not you fit the profile
of a batterer, the test results are confidential unless you choose
to disclose them to the prosecution. Lie detector test results are
not admissible in court and are expensive.
Prosecutors are serious about domestic violence cases, and if they
think they have a chance of a conviction they will go to trial.
Some of the weaker trial cases are handed off to volunteer attorneys
from civil law firms who want to get courtroom experience. The courtroom
is set up to give an advantage to the prosecution, on the theory
that they have the burden of proof. The district attorneys in San
Francisco usually know the facts of their cases and have meaningful
pretrial discussions with defense attorneys.
It
is important that defense attorneys take strong cases to trial.
It takes many hours of work to prepare for trial, and you and your
attorney have to spend lot of time waiting to go out to trial in
an available courtroom, usually on a no time waiver basis, which
increases the chances of getting a dismissal. Remember that ultimately
you are responsible for your own case.
The
consequence of being on probation is a severe restriction of your
personal liberty, and the complaining witness will have successfully
manipulated the system, or have been manipulated by the system,
to get the defendant unfairly convicted. Going to trial in a domestic
violence case is emotionally devastating for a defendant, even if
they are acquitted at the end of it. Getting convicted of something
you didnt do, or for the one time you fought back acting in
self-defense, is worse.
If
you have a serious doubt about how your attorney is preparing your
case for trial bring it up well before the trial date. Go to the
clerks office and add your case to calendar if you have to,
and let your lawyer know about the additional court date. The judge
may decide not to let you change lawyers. You dont have the
right to the lawyer of your choice, only the right to have a competent
lawyer.
Some
clients try to get an advantage by setting their case for trial
on a no time waiver basis, a tactic that puts pressure on the D.A.
to dismiss the weakest cases, but which can also jeopardize your
job when the judge starts to order you to come to court every day.
Trials in misdemeanor cases proceeding on a no time waiver basis
must start within 30 days but in domestic violence cases this right
to a speedy trial is undermined by an exception (Penal Code section
1050(g)) that gives the D.A. another 10 days. Unless the case has
been prepared and the facts are in your favor the right to a speedy
trial is nothing but a right to a speedy conviction.
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