By Greg Smith posted in Violent Crimes on Tuesday, February 3, 2015
1. Failing to demand a jury trial. Okay, this should be a no-brainer because it’s much harder for a prosecutor to convince many jurors – in Utah, that’s up to twelve! – unanimously of your guilt than for him to convince a single judge. Remember: the domestic violence judge may be a former prosecutor, and may socialize with the very prosecutor, “victim advocate,” and police officers that are involved with your domestic violence case (especially in small towns). Judges certainly don’t want to be viewed as “soft on domestic violence crimes.” There’s a reason why the Founding Fathers of this great nation died for your right to a trial by jury. Know how to demand a jury, and do so!
2. Failing to teach the jury what “proof beyond a reasonable doubt” means. This is absolutely critical – as critical as demanding the jury trial itself! And in my opinion, this is the SINGLE MOST OVERLOOKED thing by criminal defense attorneys. So, insist that your attorney clearly and methodically explain to the jury how this level of proof is very different from all the lower levels of proof such as clear and convincing, preponderance, material and substantial, etc.). Your lawyer should let the jury know that a “not guilty verdict” does not mean they have found you to be “innocent.” It simply means that the State has not convinced them that you are guilty “by proof beyond a reasonable doubt.” I personally like to use the Court’s whiteboard and show all the levels of proof, and I naturally place proof beyond a reasonable doubt at the top and “wild guess” at the bottom. I make sure the jury understands that a trial is not a mere guessing game, and “I’m not sure” means “not guilty.” If the prosecutor uses the words “it’s reasonable to assume,” have your lawyer POUNCE on that. After all, we aren’t interested in what is “reasonable,” we are interested in what has been “proven beyond a reasonable doubt!”
3. Failing to show the jury the “domestic violence victim” has the reputation as being untruthful. It is well established that “the credibility of the witness is always relevant in the search for truth.” Sanders v. Buchanan, 407 F.2d 161, 162 (10th Cir. 1969). Clearly, there are many true domestic violence victims, but there are also countless liars out there, too, who are just playing the system, which is why we have Rules 608 and 404. Remember: anybody who takes the stand to testify puts their credibility at issue. Rule 608(a) of the Utah Rules of Evidence provides “the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation . . . .” If applicable, have your lawyer call people to the stand that can testify that the domestic violence accuser has the reputation for untruthfulness. Rule 404 is even more powerful when the accuser is guilty is guilty of certain prior “bad acts,” and you should review that rule with your lawyer, too. A total liar can look lily white in court – so, have your lawyer expose this. Remember, the jury is to presume YOU are innocent. Your lawyer must not only tell the jurors that, but must also inform the jurors that the accuser is NOT presumed to be truthful, nor are any of the witnesses that are against you. In other words, YOU get the benefit of the doubt, they don’t. If this isn’t carefully explained, the jurors will miss it.
4. Failing to properly argue “consent.” This is a very touchy one because it can be highly politically incorrect, but can certainly be very logical and 100% legal, too! In fact, I’d argue that an attorney could commit malpractice by not going down this road for his client in a domestic violence case. Everybody knows that when two adults have sex there can be no rape when both adults consent to the acts. In other words, what two people voluntarily do to each other may utterly horrify others. The same can be argued in the arena of domestic violence. A domestic violence situation is often like an amateur boxing match. I recall as a kid the principal would not punish students for fighting if they both admitted that were both “just horsing around.” Why? That meant both kids had consented to the contact. In other words, if a man tells an off-color joke, and his wife hauls off and punches him in the arm for telling it, you can argue no assault took place because that’s what she always does whenever he tells such a joke, and he is just fine with getting punched. Again, this is a very touchy area! Have your attorney use the Wagner case as your jumping off point. In that case, the Utah Judiciary stated “a harmful or offensive contact is simply one to which the recipient of the contact has not consented either directly or by implication.” Also, at nearly every basketball game you see players slap one another on the butt after a good play. Is this battery or even even sexual assault? Hmmm. Have you ever seen the game stopped, and a player arrested for this type of an assault? If you are like most people, the answer is clearly no. This is because the conduct is not typically viewed as offensive to the recipient, even though it has nothing to do with playing the game. Now, in most cases, cops NEVER ask the “victim” if the “domestic violence” was against their will! Also, if for example, a door is kicked down, cops often won’t take a picture, so damage cannot be proven. And you can’t be guilty of criminal mischief (domestic violence related) if you damage your own property – because you can always consent to destroy your own stuff. Have your attorney carefully analyze this. After all, cops often fail to ask if the property at issue was marital property, etc. In other words, you are not automatically guilty of domestic assault simply because something was damaged or somebody got pushed, shoved or grabbed. In other words, domestic violence is not a “strict liability” crime. (See § 76-2-102. Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility. An offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state.) So, the lack of consent is key! Again, cops often fail to ask the “victim” this question: Was this against your will?
5. Failing to talk to an attorney. Most people know that spouses can typically invoke “the spousal privilege,” but most do not know that most people can refuse to testify if they feel what they say may lead to criminal charges against them. Often, accusers lie to cops (because they are often mad and had too much to drink), so they don’t want to be cross-examined. If they have a good attorney, he or she will tell them that they may refuse to testify against the defendant (to avoid self-incrimination). Often, as the days pass, accusers regret that the cops got called, and don’t want to testify – in fact, they often want the charges dropped. When this is the case, the witness or accuser should call a defense lawyer, not the prosecutor or victim advocate (this is because those people might threaten them with the filing of a false police report if they recant the accusory statements). The United States’ Supreme Court recently made it very clear that you have a right to cross-examine your accuser and their witnesses, so if they don’t testify, the case cannot go forward (but never engage in witness tampering!). The Court said out-of-court statements by witnesses that are testimonial (like what is found in police reports) are barred under the Confrontation Clause of the Constitution (unless the witnesses are unavailable and the defendant also had a prior opportunity to cross-examine the witnesses, which is almost never the case with a domestic violence charge) regardless of whether such statements are deemed “reliable” by court. They also stated that an admission of a wife’s out-of-court statement to the police, which regarded an incident in which the defendant, her husband, allegedly stabbed the victim violated the Confrontation Clause, so it, too, could not be allowed as evidence. In other words, people have to testify against you in court. Have your lawyer review Crawford v. Washington, 541 U.S. 36 (2004).