How the CJS manipulates Complaining Witnesses after a Domestic Violence Arrest

When someone has been arrested for a domestic violence charge, one of the key areas for legal guidance concerns what to do about a Florida no contact order. As you read this entry and watch the video below, here is your fact pattern: Complaining Witness and Defendant are drinking, have an argument, and 911 is called. The police respond, separate the parties, and start interrogating. The woman is crying, the man refuses to talk, so he goes to jail. She is devastated, and begs the police not to take him to jail. 

I could make a more interesting fact pattern, but the one shared above is one that is a daily occurrence - not "frequent," daily.

No contact orders are usually imposed as a condition of bond at first appearance. This is obviously problematic, since a) a criminal defendant is presumed innocent, yet b) he or she is kicked out of their residence after spending a night or two in jail. Since this article is designed for practical advice, I'll spare you the gender politics that led us to this highly biased and unnecessary knee jerk reaction that poisons every case. However, be advised that no contact orders are automatically imposed in every case unless the complaining witness shows up at first appearance begging for the defendant to be allowed to return home, or the defendant is somehow able to obtain legal counsel.

Usually, no contact orders are lifted at a separate hearing due to the absence of legal counsel. They are then transformed into "No Violence Contact" orders while the case is pending. This allows the parties to have nonviolent contact, and the defendant usually can then return home.

If you think the system is rigged, this area of criminal law virtually proves it: the system is set up for no contact orders as the default in every domestic violence case. Worse, the Complaining Witness is often given bad advice in order to help convict the defendant.

For example, in many cases, the Complainant is told to "go to the State Attorney's Office and ask to have it lifted" or to go there and "ask to have the charges dropped." This has the appearance of being helpful, but exposes the Complainant to outright manipulation: many are told that if they lied, that perjury is a felony. However, they are also told that if they recant, they have filed a false police report and will go to jail immediately - how do you think this impacts their statements? Worse, many are sent to "victims" propaganda classes as a condition of their request for a change in bond conditions to even be considered.

In other words, the criminal justice system is set up to manipulate to purported victims of domestic violence in the same manner that their "counseling and empowerment" classes warn about. Therefore, the best way to handle this situation is with an experienced criminal defense lawyer, preferably one who is certified as an expert in the field.

The Five Biggest mistakes people make when charged with Domestic Violence in Florida

The number of mistakes someone can make when they have been charged with domestic violence is actually unlimited. However, this short video discusses the five biggest ones.

Note: this video pertains to domestic violence assault, battery, domestic violence by strangulation, aggravated assault and aggravated battery. Sexual offenses within the domestic violence construct have not been addressed.

Someone asked me if there was one mistake that was the biggest of all of them, and I was hard pressed for an answer. After thinking about it, I've concluded that denial would have to rank as number one. Here is why:

In every type of criminal case, people often are so terrified, so out of their element, that they try to "talk their way out of the ride" to jail. Instead, they go to jail and begin making mistake after mistake. Thus Denial is the biggest mistake of them all.

As you watch the video, think about each one carefully, and you'll probably come to the same conclusion. If not, by all means, let me know, and let me know why.

Florida Domestic Violence Defenses: Mutual Combat

This is one of my favorite defenses to discuss, and it is rarely handled correctly.

First, we've already discussed Florida's "Primary Aggressor" law which means that if law enforcement is called on a domestic, someone is usually going to jail. However, this leads to a second point which is often poorly understood and not effectively taught in law enforcement seminars. Or there is a policy decision (read politics) to lock one of them up and let the court system sort it out. Either way, someone who engaged in lawful conduct - mutual combat - is arrested and now needs a criminal defense attorney licensed in Florida.

Mutual combat assumes both parties are engaged in wrongful behavior. This differs from self defense because someone engaged in self defense is, by the very nature of self defense, not guilty of the charge because they are the actual victim who is not required by law to suffer a battery.

In the domestic violence context, what often happens is that one party will make a statement such as "the other person hit/pushed/slapped/bruised/grabbed me" and leaves out the part about their mutual combat with that person. Legally, if two people want to fight each other - without causing serious injury - it is lawful. In other words, both parties decided to give consent to engage in a) intentional touching, that was b) harmful or offensive.

This type of defense may be a trial defense or in some fact patterns, actually subject to a motion to dismiss.

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Florida Domestic Violence Defenses: Consent

Everyone understands the basic concept of self defense to an assault, a battery or any form of domestic violence. But . . . consent?

Yes, consent is a defense to many (but not all) forms of assault, battery and domestic violence. Here are some caveats:

• Will work for misdemeanor charges, such as battery, domestic violence
• Will not work for felony charges such as aggravated battery, domestic violence

For example, let's say a couple has had a few drinks at a party and starts arguing. During the argument, one party spreads their hands wide and says "take your best shot." The best shot does not rise to the level of an aggravated battery with great bodily harm, but does result in the braggart complainant getting hit in the stomach and dropped to the floor breathless.

As the party attendees commence to howling in laughter, and the complainant begins hurting more from the wound to the pride, 911 gets called and the happy occasion of spontaneous entertainment during sobriety challenged festivities ends when the police arrive.

Although winner initiator of the fight gets a free ride to jail and is ultimately charged with domestic violence, battery, when it goes through the wringer legal process and comes up for trial, the defense of consent will prevail.

This defense is related to mutual combat (which presumes both parties are at fault), but is unique in that it is as if the case law is really saying, "Hey! Idiot! Don't ask for someone to take their best shot and then complain when they did!" However, in the case of aggravated battery, the law also basically says "no, you can't break someone's jaw or cut their arm off - that's not allowed."

This last one actually happened in a case I handled eons ago: my client instigated a second fight after the first one resulted in his friend getting beaten to the ground in the parking lot. During the fight, which occurred three weeks after getting out of prison, he cut the other person's arm so badly, it had to amputated. His defense? The guy asked for it: consent.

Yet this defense was of no avail, and he was sentenced to eight (8) years in prison (the State originally wanted fifteen (15), but we worked out a deal.

So, yes, consent is a defense to battery and assault, in both domestic and non-domestic scenarios. However, if given the option to take your best shot, your best bet is to decline.


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Florida Domestic Violence Defenses: Did Not Happen

The most common variant of a defense that a domestic violence allegation did not happen is precisely that: nothing illegal happened.

This is a very clear defense in its purest form - the two elements of battery, intentional touching or striking that was harmful or offensive, simply did not occur. Either there was a mistake or someone lied or both.

However, many cases are not so simple. As discussed in the video below, parts of the allegations may be admitted while others are denied. Some cases are felonies, some defenses may affect other defenses or even eliminate them.

One thing is very consistent: Many are being pushed into "counseling" classes that may last for over six (6) months when they never broke the law. Worse, these classes are a prime example of the 80/20 Rule: they will help 20% of the participants and will fail 80% of the time.

You read that right - domestic violence classes have a failure rate that often exceeds 80%.

Why? Two reasons.

1) Many of the class participants should not even be there in the first place. They foolishly tried to handle the case on their own, and found themselves imprisoned in worthless rehabilitation classes for "domestic abusers" when they never committed any act of domestic violence. Of course, they are blamed for their reluctance to admit to abuse that never occurred.

2) As I have pointed out repeatedly in other posts, such as here, an accurate diagnosis is required in order for treatment to be effective. Where the diagnostic model consists of "what's your charge?" followed by the conclusion "You need domestic violence counseling!", we have a problem. Treatment is only as effective as the diagnosis. Yet Florida has the usual, feel good, one size fits all approach. Thus if a woman or a man commits an act of domestic violence and really need treatment, they get a political solution to a medical problem.

Finally, not to harp on the oft stated and blisteringly obvious, but a large part of the problem is Florida's "somebody is going to jail when the police are called on a domestic" law (determination of the "primary aggressor" by statutory requirement). As a result, mistakes are made in the field, and people are going to jail for crimes they did not commit. Yelling during an argument is turned into an assault by the legal process, despite the fact no actual assault occurred. In the same manner, snatching the keys to your own vehicle becomes a battery. When neither an assault nor a battery occurred.

Florida Domestic Violence Defenses: Definitions

Definitions are extremely important. How things are defined can determine how a case result is obtained - or not. Therefore, a quick video primer on Florida Domestic Violence Law definitions is extremely important.

Note: Florida Criminal Law contains numerous definitions and to cover all of them would take an eternity. So, only the basics are covered here.

One of my favorite examples definitional disaster involves "assault and battery" since the phrase is commonly misused, and gives the impression that they are one and the same. However, assault is not a battery and a battery is not an assault. The penalties alone are strikingly different, even in the context of a criminal misdemeanor: assault can result in sixty (60) days in jail; battery, up to a year. The simplest way to describe the difference is to liken assault with a swing and a miss, and battery as a swing that hits. This is grossly oversimplified, but gives a good mental visual of the difference between the two.

Florida Domestic Violence Defenses: Introduction

This is the first in a series of videos discussing common domestic violence defenses in Florida. This is not an exclusive list by any means. There are many defenses that aren't covered, but this gives an idea of how criminal defense lawyers handle such cases.

The basics of defending assault and battery are covered, but sexual offenses in the domestic context will be dealt with in another series.

Domestic Violence Trial: Dismissed

No court on Monday. No jury selection, no battery trial. Why? A prosecutor did the right thing. After far more months of effort than it should have required:

Full case number, personal identification information and fact pattern redacted. Here is the problem with Florida criminal law. 

This domestic violence case should have never been charged. However, it really isn't the police officer's fault: they are required by statute to determine a "primary aggressor" and then somebody is going to jail. That's the law in Florida. If the police are called on a domestic, someone goes to jail.

And when it was investigated, guess what we learned: "the witness did not observe the events that occurred within the premises."  

Also - this is omitted from the Nolle Prosequi -  there was no "victim" in the case, thus no desire to testify. 

The State really tried to crush a Pre-Trial Diversion out of my client. This is now a common practice of how bad cases are handled by the government - a diversion offer where there should be an unconditional dismissal. We had to fight for this result.

Yet at the end of the day, because we were absolutely ready for trial, for the second time in two weeks, a false domestic violence charge was dismissed. When confronted with the facts, the State Attorney agreed to do the right thing on a charge they prosecute seriously.