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    Trial Issues In Colorado Domestic Violence Cases

    By Colorado Criminal Domestic Violence Defense Attorney – H. Michael Steinberg

    Like No Other Trial

    The trial of a domestic violence case is like no other trial. It may seem as if you are presumed to be guilty as soon as you walk in the door; the judge is overworked and other cases are stacked up behind yours; the court will try to rush the case. The defense lawyer must resist the pressures of the court to abbreviate the case and especially cross examination of key witnesses.

    Control During The Trial

    The defendant should control his/her reaction to the alleged victim’s allegations and the response is as important as the evidence that is presented in the court. The court clerk and law clerk, and the Sheriff’s officers, are all observing the parties and will report to the judge any adverse behavior of the part of the accused. The defendant must be calm and collected during the trial

    The defendant must keep it together even if the most vile remarks are made by the victim, he should not react adversely and should sit at the counsel table stoically.

    The defendant should not write copious notes during the trial in a hurried manner, or tug at the lawyer’s jacket sleeve and interrupt the lawyer’s train of thought as he is trying to listen to the testimony, and draw attention to themselves from the judge.

    The Most Common Defense – Self Defense.

    A person is justified under the statute using force upon or toward another person when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

    The reality, though, is that you have two parties, one weaker, one stronger, and the fact finder – usually the jury- will lean toward one position. They – the jury in most instances – are not going to believe that the stronger party used self-defense in order to fend off the advances of the weaker party.

    For example, if a woman actually attacks a man and scratches his face, and he simply holds her off and in so doing causes her bruises, Nine times out of ten the jury is not going to believe that the bruises on the woman are as a result of a man defending himself; but rather an aggressive posture on his part.

    The De Minimis Defense – This Is A Case That Is SO Ridiculous It Should Never Have Been Charged

    The argument – which juries – pulled away from their families, jobs and their live like – is that the defendant’s actions – even if believed –  are “too trivial to warrant the condemnation of conviction for these actions cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense.

    The Poor Credibility Of The Accusing “Victim”

    Most domestic violence cases revolve around one party’s version of an incident against another. He said, she said. There are rarely witnesses to the incidents, video tapes or tape recordings. Thus the way to defend the case is by testimonial evidence both direct and circumstantial.

    Testimonial evidence of course is evidence obtained from human beings who take the witness stand and testify as to events. Direct evidence is evidence in which an individual testifying establishes as directly proving a fact. Circumstantial evidence is evidence that proves a fact from an inference to the existence of a fact which may be logically and reasonably drawn from another fact or group of facts. Both direct and circumstantial evidence are accepted as means of proof and have various degrees of persuasiveness.

    In a domestic violence situation, direct evidence would be that the victim saw the defendant pull the phone out of the wall. Circumstantial evidence would be that when the victim left the house, the phone was intact, that when they returned, the defendant was there and the phone was on the ground.

    The direct evidence goes to prove that the defendant tore the telephone out of the wall; the circumstantial evidence established the facts from which the inference can be drawn that the defendant tore the phone out of the wall.

    The Competency – Ability To Testify – Of the Witnesses

    The victim may not be competent to testify if the defense counsel can establish that there is an impediment as to their perception or memory. The Rules of Evidence provide that a trial judge may reject testimony of a witness relating to the witness’s perception as to a particular matter if the judge finds insufficient grounds to prove that a witness has personal knowledge of the matter.

    Obviously if an eye witness was present at the event and observed the event in question, they would be competent. On the other hand, if the witness does not have personal knowledge of the matter, did not see the event happen, i.e. they were told about the event by someone else; or their perception was flawed, they would not be competent to testify.

    In order to preclude the evidence, the judge must reject the testimony of the witness only if he finds that no trier of fact would reasonably believe that the witness actually perceived the matter. Inherent in the discrediting of the witness is the fact that the witness does not have personal knowledge of the matter and thus their testimony should not be admitted. The person is deemed to be competent if he can observe, remember, narrate and recognize the duty to tell the truth. Lack of mental capacity is no longer sufficient grounds to establish a witness’s incompetency.

    Obviously in a domestic violence situation if the victim and the defendant are spouses, the witness spouse may NOT be prevented from testifying. Spousal immunity does not attach and there is no parent/child privilege, which would forbid children from testifying against their parents.

    An attorney for the defendant is prohibited from testifying under the  lawyer/client privilege under The Rules of Evidence. This, of course, extends not only to what a lawyer may have seen but also to disclosure of any communication between himself and his client.

    As stated before, the rules provide there is a presumption that the witness is competent to testify. A witness can acquire personal knowledge through any of their senses. Thus a person can see what happened or hear what happened if it did not directly happen in front of them.

    Challenging Witnesses On Lack Of Personal Knowledge

    If the lawyer challenging a witness on personal knowledge grounds, the lawyer will ask the judge for permission to voir dire (question) the witness before they give their testimony. For example, if the testimony proffered is that the witness saw a particular event, the criminal defense lawyer might be able to show that the witness was unable to see the event because of an obstructive view, distance problems, problems with eyesight, etc. and at the very beginning of their testimony, throw doubt as to their conclusions.

    The court should allow the lawyer to do this upon cross examination. Often the court will rightly allow the testimony, and not preclude it; but rather judge these attacks upon personal knowledge as going to the weight of the evidence rather than their competency to testify.

    If evidence is an issue allowed into evidence by the court, but after cross examination, the lawyer is are able to demonstrate the witness did not have personal knowledge concerning the events testified to on direct examination, move to strike the testimony.

    Child Witnesses

    There may be special problems presented when there is a child witness to the domestic violence. Under the Rules of Evidence it is not presumed that anybody is an incompetent witness. Thus a young child could be allowed to testify if they have the capacity to observe, remember, relate or narrate; and they understand the duty to tell the truth.

    The younger the child, the more there is a presumption that the child is incompetent to testify. This is of course a rebuttable presumption and if it can be shown that the child has the capacity to testify, they would be allowed as a witness.

    It would be a proper time to voir dire (question0 the child as to their competency prior to them testifying. The court most likely will not want a child to testify against either one of their parents, and may be looking for a way to avoid this confrontation.

    In order for a child to testify, the proponent must demonstrate that the child:

    1. Has the ability to observe the event about which they are about to testify;

    2. Has the ability to remember the event about which they are to testify;

    3. Has the ability to narrate to the judge that which they observed;

    4. That they understand the oath that is taken, i.e. the child recognizes that they have a duty to tell the truth and they understand what the truth is.

    Attacking The DA’s Case -Some Defense Arguments

    The Defendant was merely responding honestly to his wife’s inquiries despite the fact that these statements were made to belittle and demean the plaintiff, they were not made for that purpose although they might have had that effect.

    The criminalization of these inconsequential acts were never intended by the Colorado Legislature.

    The Defendant did not have any reasonable basis for her belief that she was terrified by defendant’s actions.

    That conduct cannot be found by the evidence to constitute an ac domestic violence.

    Defendant’s conduct may have been inappropriate or improper. However, there was justification for his or her conduct.

    The jury with necessity must distinguish between bickering between the parties from prohibitive acts of domestic violence.

    The victim’s repeated and petty complaints to the local police department evidence a lack of perspective and a sense of proportion that led to the filing of this complaint and are consistent with the conclusion that the jury he should not believe the “victim”.

    By acquitting the defendant, we are not asking the court to condone the offense of inappropriate behavior of the defendant, but merely to reassert the importance of “real” acts of domestic violence and denying the application of Colorado criminal law to trivial and petty communications between the two parties.

    The “Wrong” Court

    The parties’ disputes over custody, visitation, support and assets are already before the court in their matrimonial litigation. This is not the proper court to address these issues and to further  trivialize the plight of true victims of domestic violence.

    The jury should be mindful that the dissolution of a marriage is often acrimonious but such acrimony should not be used as a weapon to gain strategic advantage in that case, thus trivializing and distorting the beneficial purpose of actual and real acts of domestic violence which protect against regular abusive behavior. Matters such as the present case, do not rise to the level of domestic violence and can be addressed in family court.

    Policy Considerations

    There are “serious” policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure a ruling on critical issues such as support, exclusion from marital residence and property disposition, particularly when or where that a matrimonial action is pending or about to begin.

    The Colorado Criminal Laws as regards domestic violence – as in some other areas of our law, – are being used  “ as a sword rather than as a shield.”

    Despite the vulgarities that both parties obviously exchanged on numerous occasions and the inappropriate behavior to which they exposed their children, defendant’s behavior cannot fairly be said to have violated the criminal code.

    Colorado Domestic violence protections afford critically needed protections in appropriate situations. It was never intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by familial relationship.

    If you need a Colorado Criminal Defense Lawyer with considerable expertise in domestic violence cases -please contact H. Michael Steinberg for a free consultation…


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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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