How Can I Get A False Colorado Domestic Violence Case Dismissed?
How Can I Get A False Colorado Domestic Violence Case Dismissed? – When the State calls you a victim of “domestic violence” and you believe you are not – fighting for a dismissal of the case can be a long and difficult battle.
Dropping Colorado Domestic Violence – Assault Cases
Domestic Violence cases are charged in Colorado at rates much higher than one might suspect. Altercations arising from arguments about the sensitive issues in life sometimes cross the line of civility and result in a 911 call by one of the participants or a nearby perceiving witness. Alcohol is almost always a factor.
The pattern is a constant – the volume of the exchange may include yelling and the invasion of personal space – of course some minor pushing may follow ..and then to pushing and shoving, and in some of the most serious cases, more damaging forms of physical violence may occur.
At the rising of the sun the next morning – after the alcohol has worn off – the world is clearer – the alleged victim realizes why the argument happened, steps are taken, and life moves on.
BUT – when 911 is called, the Government enters your life and the damage the Government can do in a criminal case can prove to be more than a minor inconvenience.
The Typical Nightmare Scenario – Trying Anything To Stop The Case – Drop The Charges
In almost every other form of police intervention – other than domestic violence investigations – the decision to make an arrest and to charge a crime – versus simply mediating the situation – belongs to the police on the scene.
In the world of Colorado domestic violence cases – state laws mandating arrests – take away that important safety valve of police discretion.
On the other hand if 911 is called – the alleged victim still has options if he or she can stay in control.
One option when the police arrive is not to make a statement to the police. Do not answer questions – just thank them for responding. There is nothing in the law that requires the alleged victim or the suspect in a Colorado domestic violence investigation to cooperate.
As a citizen you ALWAYS have the right NOT to talk to the police.. not to make a statement and if there is no evidence to support a charge – there is nothing to try to “take back” later.
If You Cooperate And Give The Police An Oral – Written Or Combination Statement – You Lose All Control You Have Over the Case
Even if, in the light of day, the alleged victim wishes she had not cooperated, the question remains – how truthful was the statement?
Where the statement was NOT the truth – the next steps are familiar – the alleged victim can:
- Call the police and ask to “amend” or otherwise “take back” the statement.
- Call the District Attorney, explain the situation and ask to drop charges.
- Appear in court and ask the Judge to dismiss the case.
You will most likely fail at each and every one of these tactics – they are viewed by the system with great skepticism as acts of desperation.
The victim of domestic violence has no actual control over the case. The case is brought in the name of the State of Colorado or the City prosecuting the charges. In criminal cases, as opposed to private citizen filed cases called civil law cases, it is not the alleged victim’s decision as to whether the case will be prosecuted.
Not only is it not the alleged victim’s call, in some cases the DA – Prosecutor will move forward with the case without the alleged victim’s cooperation and this is true even if the victim launches a massive attempt to stop the prosecution. (See below).
The District Attorney routinely ignores the impassioned pleas of alleged domestic violence victims to drop the charges. The DA may not return your calls and if they do return your calls – they may threaten you with jail time if you do not cooperate in the prosecution of the case and appear in court to testify.
Does A Colorado Domestic Violence Prosecution Absolutely Need A Victim Who Will Testify At Trial?
I often receive the question of “what happens if the victim fails to show at trial?”
When I hear this question I respond with two points:
1. As a strategy – setting a case for trial to see “what happens” – that is – to play the hand of betting against the District Attorney’s ability to locate, subpoena, and bring that witness into the courtroom to testify – is a very risky strategy.
If you bet wrong – you are in a terrible position when, to your surprise, the victim walks into the courtroom and the trial starts.
2. If you take part in assisting or even encouraging a victim not to appear – you may be charged with a felony Tampering With A Witness charge or worse.
Also, if the District Attorney has used good faith and due diligence to locate and serve a personal service subpoena on the victim, most Trial Judges will permit at least one continuance of the trial date as long as the matter is set within the Speedy Trial date.
Finally, an even worse result for the victim may occur if she is personally served with a subpoena and then fails to show at trial. In that situation the Judge WILL issue an arrest warrant for her arrest for “contempt of court” and order the sheriff to locate and arrest her and bring her to court.
Finally, as a matter of law -while the majority of Colorado domestic violence cases involve a victim that does not want to cooperate and testify, contrary to the public’s understanding, in almost every case, there is no right of the victim to remain silent under the Fifth Amendment.
There is no marital privilege that prevents a spouse from testifying against the other spouse.
Can The District Attorney Proceed To Trial WITHOUT The Alleged Domestic Violence Victim?
Legally, although very difficult, it may be possible for the District Attorney to proceed to trial without the testimony of a domestic violence victim.
For example, the statements a victim makes at the scene of a Colorado domestic violence investigation such as those made to a 911 operator or police may come into evidence under certain arcane rules of evidence.
Often the alleged victim’s statements may be offered into evidence if those statements were recorded by audio or video recording. Also, the Colorado investigating police officer is allowed to testify using the police report or sheer memory as to the statements made by the victim at the scene of the investigation based on somewhat complex rules of evidence that govern the trial.
What CAN You Do To Work Towards A Dismissal Of The Domestic Violence Case?
In most cases, your loved one will have retained a Colorado criminal defense attorney to immediately begin the process of fighting the domestic violence charges. If that is not the case, the first birth control order of business is to make certain one has been retained.
The second task is to launch a campaign of ideas and strategies to compel the District Attorney to see the flaws in his or her case.
This “truth” campaign may include:
Creating an Affidavit – a simple process that does NOT require a lawyer – correcting the version of the facts found in the police investigation – if, in fact, the evidence developed by the police investigation was flawed or otherwise untrue.
If anger or impulse issues on both sides of the case were present, providing proof (making certain there is no violation of the Mandatory Restraining Order) that the parties are now in therapy, such as anger management or alcohol treatment counseling sessions have been initiated.
Providing ANY other mitigating or explanatory information that will cast reasonable doubt on the strength of the State’s case or that rebuts the perceptions and conclusions contained in what is often a very “one sided” investigation.
An Important Aside – Consult The Defendant’s Lawyer Or Consult Your Own
If it is intention of the alleged victim to drop or otherwise compel the dismissal of domestic violence charges, it may be prudent not to speak with the prosecutors until you have consulted with your own criminal defense lawyer or the Defendant’s criminal defense lawyer.
Putting Your Thoughts And Objections Into Writing – The Sworn Affidavit
A “sworn affidavit” is just a simple sworn (notarized) statement of fact that conveys information under oath to the District Attorney.
It is critical for the victim of a domestic violence case to understand that there are clear risks of recanting – or otherwise changing the statement that were orginally given to the police on the date and time of the offense.
The risks of recanting testimony, especially if the new testimony is a wholesale reversal of facts given to the police, is the possibility of a prosecution for making a false statement to the police – a misdemeanor crime in Colorado. To understand this risk – see the following link.
The positive side of this risky strategy is that the statement provides support in the record for the District Attorney that provides a basis for the decision to dismiss the case. It is in the nature of a C.Y.A. that renders “cover” if later, the same Defendant commits another crime or the case is reviewed by a supervising prosecutor who believes that dismissal was not warranted.
The sworn affidavit may actually point out how the arresting officers may have stretched the truth, exaggerated facts, ignored or marginalized certain evidence, or simply did not include evidence that points to the innocence (exculpates) of the accused.
Other reasons to submit a sworn statement of facts is to include reasons why – perhaps – the complete story was never included in the original report. These reasons may include the sloppiness or rushed nature of the investigation, the level of witness intoxication, or the conflation of issues that may have resulted because of the sheer tension and emotion taking palce during the investigation.
Here is an example of an Affidavit Format
AFFIDAVIT STATE OF COLORADO
BEFORE ME, the undersigned authority, personally appeared JANE SMITH, who, after being by me duly sworn stated the following under oath:
“My name is JANE SMITH.
My date of birth is JUNE 3, 1961 . I am over the age of fourteen (14) years, and I am competent to make this affidavit.
The following statements contained herein are true and correct.
I am the alleged victim in the case against JOHN SMITH who is accusef of one or more acts of domestic violence in Denver County Case Number 17M2001.
This case arises from an incident occurring on the day of January 01, 2017 .
I want to advise the Court and the District Attorney that I do not wish to pursue charges against JOHN SMITH.
I want the prosecution of this cause to be withdrawn, dismissed and terminated, and it is my desire that the District Attorney dismiss all such charges against JOHN SMITH.
I do not want to testify in this cause, although I understand that I may be compelled to do so against my will.
(This affidavit continues on additional ____ page(s))
What follows – in numerical paragraphs – is my sworn statement as to what actually happened in this case:
I AM SIGNING THIS AFFIDAVIT VOLUNTARILY. I HAVE NOT BEEN COERCED OR THREATENED IN ANY WAY TO SIGN THIS AFFIDAVIT, NOR HAS ANY PROMISE OF ANY NATURE BEEN MADE IN EXCHANGE FOR MY EXECUTION OF THIS AFFIDAVIT.
JANE SMITH, Affiant
Subscribed and Sworn to Before Me by ,___________________________ on this the day of ____________________, ___________________, 2017.
Notary Public, State of Colorado
How Can I Get A False Colorado Domestic Violence Case Dismissed?
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