Temporary Restraining Orders All domestic violence cases in New Jersey commence with an ex parte application by a complaining witness for a Temporary Restraining Order (“TRO"). N.J.S.A. 2C:25-28; R. 5:7A. A sample complaint is included in the course materials. The TRO application/complaint is almost always based upon the sworn oral testimony of the complaining witness in connection with either (a) an application made to a Judge of the Family Part of the Chancery Division, Superior Court of New Jersey; or, (b) an application made to a Judge of the Municipal Court assigned to accept complaints and issue TROs. Obtaining copies of the written application/complaint, and where time permits, a transcript of the TRO hearing, are very useful to the defense.
Criminal Charges In some cases, criminal charges are filed against a defendant alleging the same or different predicate acts as those alleged in connection with the TRO application/complaint. See N.J.S.A. 25-19(a) (lists the 14 predicate criminal acts). The criminal charges will be handled either by the Municipal Prosecutor (non-indictable) or County Prosecutor (indictable). It is very important to obtain copies of the criminal complaint and related reports.
Violation of Orders If a term of a either a TRO or final restraining order (“FRO") is violated, the defendant faces criminal contempt charges pursuant to N.J.S.A. 2C:29-9. N.J.S.A. 2C:25-30. If the charges are non-indictable, they shall be heard in the Family Part of the Chancery Division, Superior Court of New Jersey.
Divorce ProceedingsDivorce proceeding often provide the backdrop for domestic violence cases. If your client has a divorce attorney, contact her for important facts that may be useful in your client’s defense. Often, clients allege that spouses use the criminal arena to gain leverage in their divorce or family law cases.
Photos of Injuries Because “bodily injury," “significant bodily injury," and “serious bodily injury" are often important elements of your client’s domestic crime, photos of both his and his partner’s injuries can be vital to his defense. Photos of the scene of the crime can also be important, depending on the defense.
Discovery Request before FRO Hearing A domestic violence complaint is civil in nature even though the statute is contained in the criminal code, namely N.J.S.A. 2C:25-29, et seq. Discovery generally is not allowed in civil domestic violence cases (i.e., TRO / FRO hearings) because the proceedings are considered “summary actions," which must be heard within 10 days pursuant to N.J.S.A. 2C:25-29(a). Pressler & Verniero, 2011 Rules of Court, Comment 4.3 to Rule 5:7A, Page 2121 (Gann). “[A] trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice." Crespo v. Crespo, 408 N.J. Super. 25, 44-45 (App. Div. 2009), aff'd 201 N.J. 207 (2010).
Criminal Discovery on Violations of Orders Governed by Rule 3:13-3. The Court Rule requires that the defense make a formal discovery request. This can take the form of a simple letter to the Assistant Prosecutor assigned to the case. In domestic violence cases, your lawyer should request the nine (9) items set forth in paragraph (c) of Rule 3:13-3.
911 calls and Dispatch Tapes / Logs– These calls nearly always end up being admissible in court, so it is crucial to listen to them as soon as possible and assess their evidentiary value. Often the best way to obtain theses calls is by making a request directly to the Municipal Clerk under New Jersey’s Open Public Record’s Act (“OPRA"). The records are often only retained for thirty (30) days so it is important to make the request as soon as possible. In addition to the 911 call itself, the police usually record the dispatcher discussion with offices sent to the scene and make a computer log of the call and enter notes relating to the call. Be sure to request the 911 call, dispatch tape, and the written log.
Photos– Arrest photos are often included in the body of many arrest reports. If your client was transported to a county jail, the county jail will take a photograph before your client is admitted.
Defendant’s statement– Generally an alleged victim will not have a copy of the defendant’s statement made to police at the time of arrest. It is a good idea to determine whether any such statement exists and to obtain it.
Prior Domestic Violence Applications / Criminal Complaints The domestic violence act expressly permits acts of prior domestic violence. In that regard, N.J.S.A. 2C:25-29 provides, in part,
At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim's safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.
N.J.S.A. 2C:25-29 (emphasis added). Therefore, it is important to obtain copies of all prior records relating to domestic violence. Unlike other states, in New Jersey a court may deny entry of a FRO if the alleged victim fails to prove a history of domestic violence and reasonable need for entry of an order of protection.
Statements of Witnesses– The defense should try and obtain all relevant written or recorded statements (or reports of those statements) of witnesses in advance of the FRO hearing.
Statements of the Complaining Witness– The Domestic Violence Complaint / Application is required to contain a short statement reciting the basis of the complaint. While this evidence should be included in the complaint, sometimes it appears on an Appendix to the Complaint. Make sure that you have a complete copy of the complaint.
Witnesses Prior FeloniesUnder Evidence Rule 609, you are entitled to impeach the credibility of any witness based upon a felony convictions. Lexis and Westlaw both offer criminal history records. If a prior conviction is to remote, however, the court may exclude its admission. Certified records of convictions are obtained from the Criminal Case Manager’s Office in the county where the offense was prosecuted.
C.Admissibility of Prior Acts of Violence
In TRO and FRO Hearings This evidence isadmissiblein civil FRO hearings.
Violation of Order Hearings This evidence is generally not admissible in criminal proceedings. Evidence Rule 404(b) provides thatevidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.In other words, a witness can’t testify that your client has a reputation for a wife-beater or beat his wife previously. The defense should be aware of the limitations of this section, however. In order for it to be utilized to admit evidence, the relevant fact must be in dispute. For example, it is often not enough that the prosecution aver that a prior act of violence against the victim, committed by the defendant, is admissible to prove identity, reasoning that the defendant was beaten previously by the defendant. In a case of self-defense, for example, the issue of identity is not in dispute, and therefore the statute would not apply to allow admission of the prior act.
Evidence Rule 403The Court always has discretion to limit the evidence that is admissible in a trial under this Evidence Code section if the evidence’s probative value is substantially outweighed by a probability that admission will lead to confusion, undue consumption of time, prejudice to the defendant or misleading the fact finder. D.Arraignment
FRO Hearings There is no “formal" arraignment on the domestic violence complaint / application. The Rules of Court require that the case proceed to trial within ten (10) days of the filing of the complaint. N.J.S.A. 2C:25-29(a). Therefore you must be prepared to proceed to trial on the first appearance, or in the alternative, be prepared to advise the court regarding why you require an adjournment. If you have specific discovery that you are seeking to obtain you should be prepared to inform the court how much time you require. Be aware that you may only be granted a two week continuance.
Violation of Order Hearings The arraignment is a formal reading of the charges. Usually, the Judge will inquire whether or not “formal arraignment" is waived.
A pretrial conference is the Court date that follows the arraignment in Violation of Order Hearings. This involves a negotiation session between you and the Assistant Prosecutor. Usually this happens at the counsel table. Once negotiation with the Assistant Prosecutor complete, you will have an opportunity to review the offer with your client. Most Courts will allow at least a few pretrial conferences in order for your Client to make an informed decision. If a decision is made to plead guilty a formal written plea form is usually not required. If no plea agreement can be reached, the alternative is to either set a Motion to Suppress is one lies, or set a trial.