Domestic violence defense
DOMESTIC VIOLENCE DEFENSE by Kenneth A. Vercammen, Esq. New Jersey domestic violence laws are very strict. A spouse or girlfriend could call the police and if there are any signs of physical injuries the police must arrest the man. Even without independent witnesses and no physical injuries, police may arrest the man. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. More info at http://www.njlaws.com/restraining_orders_in_domestic_violence_cases.html. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault. Even during the evening, your town Municipal Court or Superior Court can issue a Restraining Order, which is a legally enforceable document. The Temporary Restraining Order (TRO) will prohibit the defendant/abuser from any contact with the victim or entering the residence. Unlike a criminal case where a person is provided with lengthy due process rights, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far-reaching orders. A domestic violence hearing is usually held within only ten (10) days after the filing of an ex parte complaint and temporary restraining order. After a hearing, NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant. Too often lawyers throw up their hands when a client presents a complaint involving domestic violence and related criminal charges. While defense of the complaint may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client’s rights. We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses. Sometimes a family friend can act as a go between for the parties and convince the complaint to dismiss the charges. A DOMESTIC VIOLENCE complainant can be withdrawn or Civil Restraining Order negotiated. However, if a criminal complaint is signed by the police, only the prosecutor can make a motion to dismiss. 1. The In-Office Interview at the Law Office We advise potential clients to bring in a copy of the complaint, all their papers in connection with their case, and any documents they received from the Police or a court. Often we will instruct them to write a confidential narrative for themselves if it is a case that is fact-specific or involves a great deal of detail, to help them remember the facts. Prior to the client coming into the office we e-mail them the Confidential New Client Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person’s arrest, other witnesses, what they told the police, their occupation and information regarding prior criminal arrests and immigration status. Our interview sheet also asks if there is anything else important, such as a medical condition that affects their case. This form will also let us know whether or not the client will follow instructions and cooperate with us. If they refuse to provide information we may have a problem client. After reviewing the complaint and the interview sheet at the in-office consultation I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I often open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. 2. Retaining the Attorney Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the State Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to know who may be the judge and the prosecutor.