Lately, it seems as if everywhere I turn I am representing a party in a domestic violence matter, whether in relation to or separate from an ongoing divorce matter. With these recent experiences fresh in my mind, I thought I would take the time to blog about the lawyer’s role in representing a defendant in such matters. While it is easy to sympathize with the victim, oftentimes it is the defendant who is falsely accused or caught up in a situation where the victim is trying to get a "leg up" over the other party in the context of a divorce. On of our prior post entited the The Abuse and Misuse of the Domestic Violence Statute, published almost 2 years ago, is perhaps our most commented on post.
Whether the person is the victim or defendant, each passing moment is critical in the compressed time between the filing of the domestic violence complaint and the final hearing to determine whether a temporary restraining order should be converted to a final (permanent) restraining order. I paraphrase one recent client’s opinion as to his wife obtaining a TRO against him – with one call by her to the police, his entire life began crumbling before his eyes as his family and career had been put at risk.
Also, a defendant may be tempted to contact the victim despite existing restraints via several different methods, whether it be directly, through a third person, and the like. It is critical that the client understands the potential ramifications of making such contact, including, but not limited to, an arrest for criminal contempt prior to the final hearing. While it may be necessary to be tough on the client (some obviously more than others) so he knows not to put himself at risk, it is also important for your client to sense that you as his lawyer understand both the legal and human elements to these sensitive matters.
That being the case, what kind of legal representation does a defendant need under these circumstances?
Detailed preparation is key. Obtain all available documents and information from the police department via subpoena, be sure to subpoena your witnesses should they not be willing to appear voluntarily, and procure all available transcripts of proceedings related to the victim obtaining the TRO. Phone records and text messages might also be critical, as well as any recordings, which should be carefully reviewed and utilized at a hearing. For instance, the victim might have had to appear before a judge to obtain or amend a TRO. Should that be the case, there is likely a record of testimony provided by the victim. Comparing that record to the contents of the victim’s TRO, potential statements provided in a police report, and the like, are critical to identifying inconsistencies and issues that may impact upon the victim’s credibility. At the end of the day, a final hearing is often a matter of he said/she said, causing a battle of credibility left to the trial judge to determine.
To that end, preparing your client to defend himself during a final hearing is also important, down to even what clothes he will wear to court, how he should sit, how he should talk, where he should look while testifying, etc. As I said before, credibility is more than key. With regard to having a police officer testify, be sure as to what the officer will testify and understand the Rules of Evidence with regard to authenticating a police report. Tangentially, be sure to show courtesy and respect to the police department and officers, demonstrating an understanding that, while the officer is required to respond to the subpoena and appear in court, it is often an inconvenience that interferes with work and/or days off. I find that an officer who hears that approach from me is more willing to cooperate even with a subpoena.
While this is not an exhaustive approach by any means, one last thing that might seem obvious – know the law. It might seem as if the law is almost secondary in a domestic violence matter, but having a knowledge of the elements of the claims being alleged and the underlying case law not only helps me frame my examination, but my closing summation as well. I typically review the "key" cases before a final hearing, just to refresh my recollection of the notable portions and holdings that the trial court will have to consider.
Whether a final hearing occurs or a matter is dissolved and restraints incorporated into a Consent Order, the most important thing that that I keep in mind is that, no matter what the situation, it is the defendant’s potential livelihood at stake that requires both a legal and human approach to representation.