Assault & Battery - Family Member

[lisa2568]

What is the name of your state? Virginia

My husband and I got into an argument that became physical and I took my two small children and left. After I left, I realized my wallet was missing so I called the police for assistance to go back and get my wallet. They asked several questions including "did the argument become physical?" and I answered yes. Anyway, the police come and continue asking a LOT of questions and even saw a mark around my neck and asked me about that. They escorted me back to the house and ended up arresting my husband - totally unexpected nor wanted on my part. My husband was taken to the police station where he was taken before a judge and the police officer evidently lied and embellished a lot of what I said. (My husband was also never read his rights.) Now, I have to go to court as a witness for the prosecution. I NEVER wanted my husband to get arrested - this has never happened before and I honestly think it was unintentional.

The police officer asked if we were both physical and I said we both were. He said there are no marks on my husband and there is a mark around my neck where my husband pulled a lanyard around my neck and pushed me against a wall. Therefore, they said that they HAVE TO arrest who they think was the bigger aggressor.

I don't want my husband to be found guilty. What can I do? Do I have to testify at all? Can I plea the fifth amendment? Do I have to testify against my husband? The police officer lied - what if the judge believes the police officer over me? Please help...

 

[Some Random Guy]

Police are required to make arrests in domestic violence cases because abused spouses are usually unwilling to press charges because they are so used to being beat up by their spouse that they don't realize that choking people and smashing them into walls is not acceptible behavior.

For the sake of any children in the household and for the spouse, it is necessary for the court system to get involved. That way the children have a chance of realizing that parents beating each other up is not normal and should not be tolerated.

 

[lisa2568]

As I mentioned before, the physical part went both ways. The physical part started when (while we were arguing) I went to the computer to get something off of it. My husband said not to use the computer he "paid for." He came and tried to turn the computer off in the middle of me downloading. I stood in front of the computer and he was trying to move me and I was pushing on him to get him away from the pc. It all ended up in a wrestling match. I had a lanyard with my keys around my neck and my husband told me to get out. When I refused, he grabbed the lanyard and tried to pull me out. I probably smacked or hit him because the lanyard was hurting my neck and that's when he pushed me into the wall. We were both at fault... I don't want him to have a record when it was only a one time thing. Any help or advice would be appreciated.

 

[Some Random Guy]

Society has spoken. Spouses beating each other up in the privacy of their own home is no longer acceptable. That's why new laws and procedures have been put into place.

According to your version of events, you should have both been arrested.

 

[Happy Trails]

As I mentioned before, the physical part went both ways. The physical part started when (while we were arguing) I went to the computer to get something off of it. My husband said not to use the computer he "paid for." He came and tried to turn the computer off in the middle of me downloading. I stood in front of the computer and he was trying to move me and I was pushing on him to get him away from the pc. It all ended up in a wrestling match. I had a lanyard with my keys around my neck and my husband told me to get out. When I refused, he grabbed the lanyard and tried to pull me out. I probably smacked or hit him because the lanyard was hurting my neck and that's when he pushed me into the wall. We were both at fault... I don't want him to have a record when it was only a one time thing. Any help or advice would be appreciated.

It is out of your hands now. Only thing you can do is tell your husband to hire an attorney.

The police officer lied - what if the judge believes the police officer over me?

What did the police officer lie about?

 

[lisa2568]

The police officer told the judge I told him my husband threw me across the computer desk. He told the judge that my husband "hit" me. There was no hitting except when the lanyard was around my neck and I tried to get my husband off me. It was wrestling - him trying to pull me away from the pc and me trying to push him; him trying to pull my wedding ring off; me trying to get out the door with two kids while he's holding the door shut; and finally him trying to pull me out the door. Never was I "thrown" anywhere, never were there "blows" exchanged, etc. I only called the police to have help getting my wallet since I knew things were out of hand - that's why I left. I had every intention of going and staying with family in another state for a while but couldn't go anywhere without my wallet - which I assumed was in my bag and wasn't. Also, my husband took my cell phone away and hid it so I figured the police could help me get that too.

 

[lisa2568]

The police officer also lied to me and told me that my husband would have an automatic restraining order of three days where he could not return home. I told him I did not think that was necessary and he said it "had to be done." In front of the judge, the police officer tried to push for the restraining order and the judge said it was unncessary. The police officer then calls me up and says that he (the police officer) requested that there would be no restraining order because I was adament about not wanting it and he wanted to "help" me and "make things easier" for me. He also said my husband purposely tried to choke me (among other things) - all of which I never said or implied. All lies!

 

[Some Random Guy]

well even if the officer was lying, based on _your_ version of events, the charges against your husband are justified.

 

[Happy Trails]

The police officer told the judge I told him my husband threw me across the computer desk. He told the judge that my husband "hit" me. There was no hitting except when the lanyard was around my neck and I tried to get my husband off me. It was wrestling - him trying to pull me away from the pc and me trying to push him; him trying to pull my wedding ring off; me trying to get out the door with two kids while he's holding the door shut; and finally him trying to pull me out the door. Never was I "thrown" anywhere, never were there "blows" exchanged, etc. I only called the police to have help getting my wallet since I knew things were out of hand - that's why I left. I had every intention of going and staying with family in another state for a while but couldn't go anywhere without my wallet - which I assumed was in my bag and wasn't. Also, my husband took my cell phone away and hid it so I figured the police could help me get that too.

I agree with SRG. Your husband should get an attorney.

 

[grasmicc]

A few things:

Unless you testify, the police officer isn't going to be able to testify as to what you told him regarding what happened. This would be so-called "Hearsay". (Edit: It's important that your husband or his attorney objects if the officer tries to do this.)

Since you committed a crime, you can in fact take the fifth. However, if you do that, they may find a way around it by immunizing you from prosecution.

If you testify and lie, they can use the police officer's testimony for the purpose of attacking your credibility, but even if they did this, the testimony of the police officer couldn't be "Evidence" that this fight occurred.

Theoretically they could charge you with perjury for lying, but it is extraordinarily unlikely.

You should see an attorney.

You can probably kill this case, but the way to win it is going to be through reliance on complex evidentiary rules that you don't know anything about. You need someone experienced with the local evidence rules.

If, for some reason, you refuse to see an attorney, then you and your husband should BOTH claim fifth amendment. If they try to make you testify anyway, then you'll have to use your best judgment about how to handle it in light of what I've listed above.

 

[You Are Guilty]

A few things:

Unless you testify, the police officer isn't going to be able to testify as to what you told him regarding what happened. This would be so-called "Hearsay". (Edit: It's important that your husband or his attorney objects if the officer tries to do this.)...

This is starting to get silly. Were you absent the day they taught hearsay exceptions in your evidence class?

 

[grasmicc]

On third thought, let's just treat this as a confrontation clause issue instead. Crawford v. Washington, 541 U.S. 36 (2004)

"Each day, up to one-half of all domestic-violence cases set for trial in Dallas County are thrown out because of a recent U.S. Supreme Court ruling reasserting a suspect’s right to confront his accuser in court...

...In a [9-0] opinion written by Justice Antonin Scalia, which referred to Roman law and the 1603 treason trial of Sir Walter Raleigh, the justices agreed that for hearsay testimony to be allowed in a trial, the accusing witness in most cases must be available for cross-examination."

http://www.ncdsv.org/images/DomesticViolenceCasesSeeNewTest.pdf



He needs to object to the evidence as hearsay in order to place the burden on the prosecution of clearly establishing the admissibility, "[a] party who relies upon an exception to an exclusionary rule of evidence bears the burden of establishing admissibility. 'One seeking to have hearsay declarations of a witness admitted as an exception to the general rule must clearly show that they are within the exception.'" Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984).



There's a seperate issue as to whether a case that rests entirely upon evidence admitted under an exception to the hearsay rule is sufficient to sustain a conviction in a criminal case, but we don't reach that issue here.


Simply objecting hearsay at trial, if he goes pro se, should be sufficient to preserve these issues.

The bottom line is that prosecution's case rests upon the admissability of her statements to the police, and it is a winning issue for the defendant if she refuses to take stand. He probably needs an attorney.

 

[lisa2568]

Then let me ask one more question. What is the possible sentence for him if he is convicted? (First time offense)

 

[Shay-Pari'e]

A few things:

Unless you testify, the police officer isn't going to be able to testify as to what you told him regarding what happened. This would be so-called "Hearsay". (Edit: It's important that your husband or his attorney objects if the officer tries to do this.)

Since you committed a crime, you can in fact take the fifth. However, if you do that, they may find a way around it by immunizing you from prosecution.

If you testify and lie, they can use the police officer's testimony for the purpose of attacking your credibility, but even if they did this, the testimony of the police officer couldn't be "Evidence" that this fight occurred.

Theoretically they could charge you with perjury for lying, but it is extraordinarily unlikely.

You should see an attorney.

You can probably kill this case, but the way to win it is going to be through reliance on complex evidentiary rules that you don't know anything about. You need someone experienced with the local evidence rules.

If, for some reason, you refuse to see an attorney, then you and your husband should BOTH claim fifth amendment. If they try to make you testify anyway, then you'll have to use your best judgment about how to handle it in light of what I've listed above.

Lets try this again, and I can only hope you start reading the full post before responding.


(QUOTE)Since you committed a crime, you can in fact take the fifth. (QUOTE)

She was not charged with a crime.

 

[grasmicc]

Paradise, you don't have to be the D to be entitled to fifth amendment protection. You realize that, correct?

I stated that she had COMMITTED a crime, not that she had been charged with one.

Both she and her husband have committed assault and battery from what I can tell. They are both entitled to take the fifth. If they both do that, the prosecution has no case, because, as cited above, hearsay is not admissable in criminal cases - even if an exception ordinarily would apply - unless the declarant is available to be cross-examined (under the confrontation clause (made applicable to the states through incorporation by the 14th amendment (just to spell it out for you))). This was a 2004 SCOTUS decision, so it is understandable that you might not be aware of it if you went to law school prior to that and aren't currently active in crim. law.