There is no question that family violence assaults occur? However, false allegations occur as well. In times of great stress, it's very easy for someone to call in a false report on an assault. It's extremely important to weigh the evidence in your case from the onset. The most important concerns involve the preservation of defense evidence and holes in the State's case that need to be maintained.
One of the first questions I ask all of my family violence assault clients is, "Were you arrested at the time of the alleged incident?" This is often met with looks of confusion. I ask because in many, if not most, assault cases the State may need to prosecute without the cooperation of the complainant. In this case, it will be necessary for the State to prove in trial that the Defendant is the person who committed the offense. If the Defendant was arrested at the scene, an identification can be made by the Officer on the stand. If the Defendant was not arrested, then the identification may not be possible.
The next series of questions deals with the preservation of evidence important to my client. Did my client call 911? Should that call be subpoenaed? Were witnesses available who are beneficial to my client? Would they write statements for my client? Did my client receive injuries and were they photographed? If there were injuries, can my client continue to photograph the injuries as they develop? And the list goes on.
Finally, are there weaknesses in the State's case that are in danger of disappearing? This often involves the Complainant's wish to not cooperate with the State. Many attorneys will recommend an affidavit of non-prosecution. I will often ask for a full-blown statement in addition to this affidavit. Additionally, did the witnesses present at the scene present a different take then what was written in the police report? Does the complainant have a history of calling the police on other people for other offenses anytime the mood strikes them (the serial victim)?
Many of the best ways to win an assault family case are done in the preparation stage in the weeks following the offense. Don't waste this valuable time waiting for a rabbit to get pulled from a hat at trial.
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