Domestic assault is a mistreated offense that burdens the victim and their family more than it helps. Obviously a domestic abuser is a bad thing, but the reality of life sometimes makes it difficult for couples to separate. Whether it’s financial or emotional, even though a domestic situation plays out, it doesn’t necessarily mean the end of the relationship. Our attorneys have experience at getting domestic abusers help while keeping a conviction off their record and maintaining a healthy family dynamic.
Domestic assault is a common charge in Memphis. In fact, besides driving on a suspended license, domestic assault is the most charged crime in the city. There’s an entire courtroom dedicated to handling only domestic violence cases. The Shelby County District Attorney’s office has a special unit that only handles domestic violence cases. There are more staff, resources and time dedicated to this courtroom than any other courtroom in the criminal justice center. Despite this, more dismissals happen out of this courtroom than any other. Wonder why? Simple: most couples reconcile long before the bureaucratic nightmare of the Memphis domestic violence courtroom plays out.
The attorneys at Balestrini, Barnes, Jaber & Wood, PLLC have literally handled hundreds upon hundreds of domestic violence cases. We probably handle more domestic violence cases in a year than most attorneys handle in their entire career. It’s important to note that even though the likelihood of a dismissal may be high, it really depends on the victim’s ability to be served with a subpoena, not whether they actually want to prosecute.
What is the difference between simple assault and domestic assault?
The obvious difference is that domestic assault is an assault committed against a spouse, lover, family member, roommate or child of any of those, and simple assault is committed against a person with no association or blood ties that does not live with you. So an assault against your neighbor for example would only be simple assault, whereas an assault committed against your daughter’s live in boyfriend could be a domestic assault.
The reason the distinction matters is because domestic assault, if convicted, carries more serious and lasting penalties than just simple assault. For starters, domestic assault has a minimum sentence of 11 months and 29 days on probation. A conviction for domestic assault also means that you will never be allowed to own or possess a firearm again for the rest of your life. Read that sentence again. If convicted for domestic assault, you will have to surrender your carry permit and you can never own or possess a gun again.
The victim doesn’t want to prosecute, the case will be dismissed, right?
Maybe. One major area in which domestic violence cases differ from simple assault is the vigor with which the district attorney’s office prosecutes these cases. Their policy is that the victim is not the one pressing charges; the State of Tennessee is, and according to the law that's true. Therefore, whether the victim wants to prosecute or not is irrelevant in terms of dismissal.
Domestic violence laws came about because the victims often do not want to prosecute any further after the arrest. Due to the recent media attention of domestic violence cases, often a victim could just tell the prosecutor that they don't want to prosecute. This was changed because often the abuser would beat up on the spouse, the spouse would call the police, the abuser would be arrested, the spouse wouldn't want to prosecute, the abuser’s case would be dismissed, and two weeks later, the spouse is calling the police on the abuser again for being beaten. This is just an example, but continuous repetition of these events led to more aggressive prosecution.
With that said, a victim’s cooperation is invaluable in defending domestic violence cases. Often domestic violence arises from some other malady such as alcohol or drug abuse, anger management, etc. With the victim’s advice to the prosecuting attorney on these matters, the prosecuting attorney and the attorney may be able to make arrangements for treatment of the underlying problems that led to domestic violence. Often, if such treatment is sought and completed, the district attorney will agree to dismiss the case.
The victim wants to prosecute, is there anything I can do?
That’s why there is a court system. An attorney may be able to negotiate your case to a favorable settlement, including a dismissal. If no settlement can be reached, your case will likely be set for a preliminary hearing in general sessions court or a trial in criminal court. At that point, the State of Tennessee bears the burden of proving your case beyond the necessary level of proof for that hearing. In order to do so, the witnesses must appear to testify. If the necessary witnesses do not appear to testify, the case may be dismissed, but that may not be the end of the matter.
We filed for divorce, and the victim called the police on me when I went to pick up our kids.
First, you should come to our office and discuss the details of this incident with us. Often, we can formulate a plan to prevent this from taking place in the future, such as arranging for a public place to exchange the children. This place is usually designated in the parenting plan or visitation order. Therefore, we will likely have to get this document amended by the court to reflect the new exchange location.
Why are there so many court personnel in the domestic violence courtroom?
Supply and demand. More arrests are made in Memphis on domestic violence charges than any other criminal offense. Many factors contribute this. First, arrests are permitted for domestic violence upon the unsworn statement of a witness, whether the victim or not. Second, when officers are called to a scene for a domestic violence complaint, an arrest must be made. Third, and most tragically, it just simply occurs and is reported more often than any other crime.
Because of the great number of arrests, more resources are dedicated to the prosecution of this crime. The attorneys prosecuting these cases have investigators called victim-witness coordinators, who will likely reach out to the victim and any witnesses of the incident within days of the event. Also, because domestic violence is in the spotlight due to recent high profile cases, the court must appear more vigilant in the administration of these types of cases.
I called the police but they arrested me!
It is likely that the police made a determination that you were the primary aggressor. In other words, they think you started it. But remember, they weren’t there, and they didn’t see it.
I’ve been in this courtroom before, and I feel like I got a better deal last time.
You probably did. The district attorney’s office keeps a record of an individual’s arrests for domestic violence, even if that case was dismissed. If they notice a repeated pattern of conduct, they will become more strict about the penalty they seek. For example, if you were previously charged with domestic violence, your attorney may have negotiated an anger management class to have your case dismissed. This time, however, the prosecutor sees what happened on your last case and now believes that anger management is insufficient to prevent the domestic violence crime from recurring. Now they want more.
If you were convicted previously and the victim is the same as before, Tennessee law proscribes that a stricter sentence must be enforced. Our attorneys will be able to go through this analysis with you. In many cases, even though a stricter penalty may be proscribed, negotiations with the prosecutor may be able to lessen the sentence mandated by law.
The judge said if I make bond I have to hire an attorney.
This is a common mistake made by judges. While the ability to make a bond may be considered as a factor in whether a defendant is indigent, it is not the only factor. However, if the judge tells you to hire an attorney, that is their ruling and must be adhered to. The best thing to do is hire an attorney and fight the judges ruling with that attorney.
What is a special prosecution unit?
It’s a group of prosecutors that only handle one specific type of case. This allows them to hone in on the relevant facts and outcome levers to more affectively prosecute you.
I saw a bunch of people get their cases dismissed at 10:30 a.m.
You have probably witnessed dismissals for lack of prosecution. Most likely, these cases were set for a preliminary hearing or trial on that day. The State of Tennessee bears the burden of providing evidence through witness testimony to move forward with its case. If the necessary witnesses do not appear, the State cannot move forward. In this instance, the defense will make a motion to dismiss for lack of prosecution, and the judge will grant it. But be careful, sometimes this has negative repercussions. Nothing prevents the case from being refiled. If the case is refiled or an indictment is obtained, a new case arises, a new arrest must be made, and a new bond must be posted.
Why do domestic violence laws keep changing?
In the world of law, domestic violence is still a fairly new offense, and, therefore, not fully developed. Also, because of high profile domestic violence cases in the news, the legislatures who make those laws are pushing for stricter penalties.
Why do the domestic violence courtroom procedures always seem to change?
For the same reasons as above. Also, because this courtroom maintains such a high volume of cases, the court and the district attorney’s office is always trying to find the most efficient way to handle their cases.
Every time I go to court I go to jail.
When you were arraigned (the first court date), the judge informed you about certain conditions set on your release or bond. The primary condition is that you have no contact with the victim. If contact with the victim continues, the judge may then increase your bond and take you into custody until you post the increased bond. Our attorneys may be able to amend your bond conditions to allow you to have contact with the victim.
Every time I go to court I have to wait around all morning and then my case gets reset.
Two things: waiting around and case is just reset. Several factors may contribute to both of these. You may be waiting all morning because your attorney doesn’t arrive to court until later in the morning. The court has ordered you to be there at 9:00 a.m. but has not ordered the attorney to do so. Second, due to the volume of cases and the procedures for talking to the prosecutors, it just simply takes a long time to sit down with the prosecutor and discuss your case. Our attorneys are present in the court house at about 8:45 a.m. every morning out of respect for our clients’ time. By being there early, we can attempt to be one of the first in line to talk to the prosecutor and hopefully avoid either of us being there all morning.
There are several reasons why your case may be reset. If you are still in the midst of payment arrangements and your attorney has not yet signed your jacket, the attorney cannot do anything on your case. If the attorney has signed on to your case and spoken with the prosecutor, the prosecutor will want to investigate those facts. Sometimes we arrive back in court and the prosecutor has not been able to investigate for various reasons. Unfortunately, they don’t just take our word for it. If you ever have any questions as to why your case was reset, one of our attorneys will take the time to answer that question just as we do with any other questions.
Should I keep the public defender assigned to my case or hire a private attorney?
You have a constitutional right to hire the attorney of your choosing. If you can afford an attorney, it is generally better to hire one, but not any attorney. You should not hire a private attorney just because you found one that is cheap enough for you to afford. That being said, public defenders have an overwhelming case load, especially in the domestic violence courtroom. If you need that special attention and communication that comes with hiring a private attorney, come sit down with one of our domestic violence attorneys.
I was appointed an attorney but they don’t work for the public defender’s office.
Often, the public defender cannot represent a defendant because of a concept called “conflict of interest.” If your co-defendant or the victim in your case is or has been represented by the public defender, they generally elect to be removed from your case. In that instance, the court will appoint a private attorney who is paid by the Tennessee Administrative Office of the Courts to represent you.
Why is my bond so high?
There are several factors which the court uses to determine a defendant’s bond. The court considers the defendant’s contacts with the county, the likelihood of conviction, the defendant’s danger to the community, the defendant’s criminal record, the defendant’s failure to appear before the court in any other proceeding, the defendant’s ability to make a certain bond, and the severity of the offense to name a few. For example, a first time offender who lives in Shelby County and was arrested for a misdemeanor domestic assault will have a lesser bond than a multiple offender who lives in Arkansas and was arrested for aggravated assault and has missed court on six occasions.
What is an instanter subpoena?
If a witness is served with an initial subpoena but fails to appear as ordered in the subpoena, the court may issue a second subpoena called an instanter subpoena. This subpoena directs a law enforcement officer to find the witness and bring them to court immediately. The court will then order the witness to return on a date certain or be arrested. Essentially, the subpoena becomes a warrant.
Why is the prosecutor asking for a bond increase?
Chances are, either the bond conditions have been violated or the prosecutor has sought and obtained an increased charge, such as upgrading from domestic assault to aggravated assault. Essentially, a court may change a bond when circumstances have changed. Our attorneys have the knowledge and skill to combat this and force the court to perform the proper analysis on these issues instead of just doing what the prosecutor asks. Again, another reason you need an attorney on the first day you walk into court.
Why is the prosecutor talking to me at the podium?
The prosecutor, by the terms of the United States Constitution and the Tennessee Constitution, should not speak to a defendant in a manner which seeks to elicit a response. A defendant has the right to remain silent. If the prosecutor asks you anything about the details of your case, do not answer it.
Why does the prosecutor seem to run the domestic violence courtroom?
Because they have the most exposure to the judge and know more about the domestic violence laws than many of the attorneys standing across from them. Remember that these prosecutors only handle domestic violence cases. Therefore, they are only in that courtroom. If your attorney doesn’t know the law necessary to defend you (which is what you are probably seeing) then the prosecutor just runs rough shot over the defense attorney. The result is that the prosecutor gets exactly what they want.
What is anger management?
Anger management is a course which aims to educate its participants in events that lead to anger problems and ways to manage that anger. It is sometimes offered as a method to seek dismissal of an assault case or as a condition of probation. Generally, the anger management course is an eight week course (although, some agencies offer a one day class) which meets once a week for one hour. It is most commonly negotiated for after a domestic violence assessment as described below (DVAC) which shows a low likelihood for a repeat domestic incident.
What is batterers intervention?
Batterers intervention is a much longer course required or offered when the DVAC assessment indicates a median likelihood for future domestic incidents. It meets once a week for 26 weeks and is designed as a more thorough anger management course.
What is the Memphis Exchange Club?
The Memphis Exchange Club/Family Center is the agency which administers the domestic violence assessment and offers the classes associated therewith. They also provide child visitation supervision and other family dispute related services. They have a symbiotic relationship with the domestic violence courtroom as one receives government funding for using their services while the other takes cash to do the assessments.
What is a DVAC?
It stands for “Domestic Violence Assessment Center.” This is the center located at the Memphis Exchange Club which administers the domestic violence assessment. During this assessment, a participant will meet with a social worker who will ask questions concerning past family history and criminal activity. If you are there as a result of an arrest, they should not ask you anything about the incident which gave rise to the arrest. If they do, you should not answer any more questions and report it immediately to your attorney.
The victim doesn’t want to prosecute, can I get my case dismissed on the first court date?
Likely not, unless the injury was minor or non-existent. If the victim does not want to prosecute, you will need an attorney to set up an in person meeting between the victim and the victim-witness coordinator. At that time, the victim may be able to convey the necessary information that will encourage the prosecutor to dismiss the case. Otherwise, the prosecutor will want time to make contact with the victim and discuss the case.
I saw some people get their cases dismissed by the prosecutor before the judge showed up.
The cases probably had not actually been dismissed at that time but will be later that day. Often, we make arrangements for an outcome of a case prior to the court date. The prosecutor makes the necessary notes on the file. When the attorney arrives, they request the file to be pulled and reviewed. Once the prosecutor agrees to dismiss it that day, we often tell our clients that they may leave. A defendant does not need to be present to have their case dismissed. Another situation exists where the prosecutor reviews a file and determines that a domestic violence crime is not alleged in the affidavit of complaint. This is rare though.
The victim keeps texting and calling me.
Keep that evidence, especially if you are charged with stalking or harassment. In any event, your attorney needs to see those text messages. They contain evidence that is helpful to your defense. Your domestic assault attorney is the best qualified person to make a determination of what is necessary to protect your freedom.
The victim is lying about what happened.
Unfortunately, it is a common delusion that only defendants lie. Fortunately, the good prosecutors know that, but it is their job to prosecute cases. If the victim is lying, you need to sit down with our Memphis domestic assault attorneys and discuss your case in detail. Evidence must be obtained which indicate that the victim is being less than truthful.
Can I get a domestic assault expunged?
If it is dismissed, yes. If you are found guilty, maybe/eventually. The current expungement law in Tennessee specifically prohibits the expungement of a conviction for domestic assault, or any assault for that matter.
I was set for a hearing and the victim showed up, now what?
Now you basically have two options: you can choose to either have the hearing or waive it. Your domestic assault attorney should be able to explain to you which is the best option for you. Every case is different, and no general rule exists which encompasses every scenario in this situation.
How does a domestic assault case work in criminal court?
It works just like any other case in criminal court except that you will likely have the same prosecutor handling the case that handled it in general sessions court. This special prosecution unit prosecutes your case in both courtrooms.
Why doesn’t criminal court have a dedicated domestic violence courtroom?
No need. The volume of criminal cases in criminal court is far less than those in general sessions court. Most domestic violence cases settle in general sessions court.
2018 BBJW LAW © All Rights Reserved
Balestrini, Barnes, Jaber & Wood, PLLC
1555 Madison Ave, Ste 202
Memphis, TN 38104
(901) 578-1515 P
(901) 578-2929 F