If you are facing a charge of domestic violence, be rest assured that we have the experience to defend you against these charges. For nearly fifteen years our domestic violence attorney has successfully presented a defense at trial or through negotiations to get the result you need.
What are the defenses to a domestic violence charge in criminal court? Domestic violence cases almost always rely upon the word of the accuser, as there is rarely a witness. The credibility of the accuser is the crucial issue of the case. At the Castillo Law Office, our Oakland domestic violence attorney attacks the credibility of the witness through inconsistent statements and bias.
Bias occurs when the alleged victim gets family court benefits like full custody of children as a result of the accusation, or immigration benefits like residency. In other cases, the use of force may have been justified under self-defense. Finally, the alleged victim may change their story or might not want to testify. Our criminal attorney is familiar with all of the techniques used to aggressively negotiate the case or persuade the jury of your innocence.
After an accusation of domestic violence, the accusing partner almost always requests a civil restraining order and full custody of the children. Unfortunately, the family court does not require the high standard of proof that a criminal court does, and often rubber-stamps any request when there is an allegation of domestic violence.
With a criminal conviction; however, it is virtually impossible to obtain full custody, and any custody time – a few hours a week at most - will likely require a paid observer. Child support and alimony are also negatively affected by a domestic violence conviction. Many people know this and use it to their advantage by making a false report of domestic violence.
At the Castillo Law Office, our attorney gathers all the family law court information to impeach the witness about their motives in making the police report. This can sway the jury to question the truth of the allegation.
Another benefit of making a domestic violence report is immigration. Immigrants are entitled to a U-Visa, which eventually provides lawful permanent residency, if they are the victim of abuse in the United States. The promise of lawful immigration status can be a strong incentive to exaggerate or fabricate a claim. Any time there is a possible immigration benefit, our domestic violence attorney will be sure to question the witness so the jury and the district attorney know that there may be ulterior motives.
Under the California Evidence Code, an attorney is allowed to ask a witness about any potential bias at trial. Therefore, family members who allegedly witnessed an assault may dislike the accused because of previous conduct. The alleged victim may also be unhappy with the partner for something like cheating or flirting with a friend; if the alleged victim was obviously very angry at the defendant, there is a much greater likelihood that the victim lied for revenge.
Self-defense applies in domestic violence cases. The right of self-defense arises when the alleged victim uses any force against the defendant without their consent. CALCRIM 3470 provides that a defendant may use force against a person where he reasonably believes he was in imminent danger of suffering bodily injury or being touched unlawfully, reasonably believes immediate force is necessary to defense against that danger, and uses no more force than necessary to defend against that danger. Self-defense is a complete defense to the use of force.
What if the victim tells the district attorney that he or she does not want to press charges? In California, the state presses charges, so the victim's desires often have little effect on the decision to bring the case into court. However, our Oakland domestic violence attorney is very skilled at using the nuances of an uncooperative witness to gain leverage in negotiations or gain an advantage at trial. Just because the Alameda County District Attorney's Office frequently prosecutes cases against the victim's will, it does not mean that the victim's cooperation will not affect the proceedings to the defendant's benefit when the proceeding is guided by an experienced attorney.
Before the victim and defendant interact; however, it is very important to modify the court's protective order that was given at the time of the charges. Violation of the protection order is a new crime. Therefore, if the victim wishes to regain contact with the defendant, a judge of the Alameda County Superior Court will usually refer the victim to a 6-hour domestic violence class at the request of the criminal defense attorney. Once the class is completed, the court can make a do not harass, annoy, or molest order that allows contact between the two parties.
What if the victim does not show up to trial? If the alleged victim does not show up to trial, and there were no other witnesses to the alleged domestic violence, there is a possibility the case will be dismissed. However, some district attorneys still try to get a conviction using non-hearsay evidence like the 911 call, photos, video, or the defendant's confession to get a conviction. If the district attorney investigator was able to physically serve a subpoena on the witness, the case can be continued while an arrest warrant goes out for the witness.
According to the law, a person cannot be put in jail for refusing to testify about a sex crime or domestic violence crime. There can, however, be a fine, but first the court has to refer the alleged victim to a domestic violence counselor. Our attorney is experienced in dealing with recanting and hesitant witnesses, and knows the best steps to take to avoid harm to the witness and the defendant.
As shown above, there are numerous ways to defend a domestic violence charge. We have years of experience using these defenses at trial and in negotiations with the district attorney. If you would like to speak to us about the facts of your particular case and how our Criminal Lawyer, Ernesto Castillo can provide you an aggressive defense, please contact our office for a free consultation.