Domestic violence is one of several criminal cases that also has consequences in civil court. In many cases, civil defendants in domestic violence matters have no idea anything is amiss until a process server hands them some unwanted paperwork.
Once upon a time, the criminal law domestic violence process was extremely straightforward, at least in most cases. Since Georgia was a common law marriage state, almost all alleged victims were “spouses” in these cases. The spouse asserted his/her right not to testify, and prosecutors dismissed the case. Today, as outlined below, things are different.
On the civil side, things are just as complex. The alleged abuser could be liable (legally responsible) for damages in some cases. A third party completely unrelated to the case, usually a landlord, could be liable as well.
Furthermore, neither civil nor criminal domestic violence cases are as one-sided as they used to be. The alleged abuser no longer automatically wins. Defendants, as well as alleged abusers, have significant legal rights in these matters. A Marietta criminal defense lawyer, who also deals with family law cases, can uphold these rights in multiple courtrooms.
Criminal Investigations
Reliable statistics are very hard to obtain, but as many as 95 percent of alleged victims are women. Therefore, when police officers respond to domestic disturbance calls, they usually assume the man “started it.” In criminal law as in life, quick assumptions often lead to false conclusions.
An alleged victim’s credible story often barely constitutes probable cause to arrest the defendant, especially in a he said, she said case. So, if officers rely on an alleged victim’s less-than-credible story, probable cause could be an issue.
Lack of corroborating physical evidence may be the best example. Assume Max and Ruby argued, and a neighbor called 911. When investigators arrive, Ruby says Max was drunk and out of control. But officers find no empty bottles at their apartment and Max shows no physical signs of intoxication, such as bloodshot eyes or slurred speech.
A rush-to-judgment arrest is often an illegal arrest. Frequently, a Marietta criminal defense lawyer leverages this weakness during pretrial negotiations and convinces prosecutors to reduce or drop the charges.
Incidentally, police officers almost always interview women first in these situations. So, the other “what happened” interview is basically a rebuttal.
This example also raises another issue, the motivation of a nosy neighbor informant. Frequently, these individuals call police because they want defendants to get in trouble. They care little or nothing about protecting anyone.
Criminal Cases
Most jurisdictions, such as Cobb County, have designated domestic violence courts. Judges and prosecutors have special training in this area. This “special training” often emphasizes the danger that domestic violence poses to women and skips past the rights of defendants. Since the playing field is slanted, a good Marietta criminal defense lawyer is an absolute must have.
At the outset, we mentioned the old days of spousal privilege cases. Spouses had an absolute right to refuse to testify against each other. That option is gone, but the alleged victim’s availability is still a key issue in these cases.
Spouses still have a right to not testify against their spouses, but prosecutors now have options in these situations. The excited utterance exception to the hearsay rule is the most common one.
First, let’s take care of some Legalese. Hearsay is basically an out-of-court statement used to prove the truth of the matter asserted. The police incident report is hearsay. An excited utterance is a statement like “Somebody stop that man!” which is made in the heat of the moment.
So, if the complaining domestic violence witness refuses to cooperate, prosecutors often try to admit relevant portions of the police report into evidence, claiming that a “he hit me” declaration is an excited utterance.
As mentioned, an excited utterance is an in-the-heat-of-the-moment statement. Usually, the alleged victim makes a “he hit me” declaration at least ten or fifteen minutes after the alleged assault. That’s usually enough time for most people to cool off.
The spousal privilege rule has changed, but the underlying principle hasn’t changed. Quite simply, no witness means no evidence and no case.
Civil Cases
As mentioned, the defendant in a domestic violence civil matter is usually a landlord. In Georgia, property owners have a duty of care to provide safe and secure environments for their apartment tenants and other invited guests.
The duty applies if the landlord or other property owner knew about the potential hazard, and the injury was foreseeable (possible). Evidence on both these points includes:
- Prior domestic violence incidents, whether reported or not, at that location,
- The area’s general crime rate,
- Similar instances at nearby locations, and
- The ingredients of domestic violence, such as drunk and disorderly conduct.
The burden of proof in a civil claim is only a preponderance of the evidence (more likely than not). So, a little evidence goes a long way.
Incidentally, the property owner is usually an out-of-state holding corporation. The CEO of this corporation probably can’t find Marietta on a map. However, the property manager, or other such person, is the owner’s agent. Whatever the agent knows, the principal also knows.
Other civil consequences of domestic violence cases include issues in family law cases and protective order proceedings.
A domestic abuse case often affects child custody and other such cases for years to come. A Marietta family law attorney can limit the damage if the incident involved another household and a child was not a victim or witness.
In Georgia, protective orders could last up to two years. At a minimum, these orders usually include keep-away orders. Defendants cannot be close to alleged victims regardless of their intent. Protective orders usually also include other provisions, such as payment of support, surrender of firearms, and exclusion from a shared residence.
To limit the fallout, a Marietta family law attorney often substitutes a consent decree for a protective order. Consent decrees have the same provisions as protective orders with none of the collateral consequences.
All parties in civil and criminal domestic violence matters have important legal rights. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
