I – ANATOMY OF DOMESTIC VIOLENCE DEFENSE, PART ONE: THE ISSUES THAT ARISE DURING THE INVESTIGATION/ARREST
The process begins simply, with a 911 call. Who made the call? Was it you? What was said, from where? What noises were in the background? Was it an “anonymous” call? Was it from someone who has an axe to grind with you? Was an argument audible, was someone saying “If you call the police I’m going to tell them you did it”. A 911 call is frequently INADMISSIBLE in court as HEARSAY; which is simply an out-of-court statement, used to attempt to prove the matter asserted i.e. That a battery took place. For example: “Oh my God, please send someone, he is hitting me”. Like so many other Rules of law, there are exceptions. The hearsay exception most commonly applicable to these situations is an EXCITED UTTERANCE; as described in NRS 51.095. This is a statement that was made during an exciting or traumatizing event, such as the example above, such that it has elevated “indicia of reliability” – or is supposed to. Without getting too far afield and changing this post into an exploratory writing on the Rules of Evidence, let’s summarize by saying the admissibility of similar statements may end up being litigated later. Nothing is automatic; sometimes the statements come in, sometimes they do not, judges have a lot of power and do not always rule consistently. The main reason 911 calls are worth mentioning is that there may be a solid defense contained within the 911 call, whether its admissible or not.
Once the police arrive, they usually have been informed by dispatch of the details of the call – the history at that address, whether a weapon is involved etc. and all these things are important and may implicate The 4th Amendment of The United States Constitution. People have a right to be free from “Unreasonable searches and seizures”, and the police may have “Exigent circumstances” that allow them to enter your house – by force, WITHOUT A WARRANT. If the police violate the 4th Amendment, everything they find/intend to use may be inadmissible if your attorney files a MOTION TO SUPPRESS. If they knock and you INVITE them in, you can revoke your invitation at any time.
Regardless of whether or not the police violated the 4th Amendment, they will begin their investigation. Most agencies immediately separate the parties involved, they’re probably going to pat-down the parties too. They may or may not see things in PLAIN VIEW in your house i.e. contraband. If they do – you may be liable for that too. Best-practice is for police to get WRITTEN STATEMENTS from all the witnesses. Sometimes they do, sometimes they do not. The written statements are also HEARSAY, but sometimes become useful later for purposes of IMPEACHMENT i.e. differences between what was written then and potentially testified to later in court. Frequently, these written statements are “chicken-scratch” and of little or no evidentiary value. Only the best officers ensure that these statements are well-written.
Common-sense also says police should take PICTURES of any injuries, of the scene etc. Keep in mind that different people bruise more or less-easily, and bruises appear on different people at different times. I have seen cases where a current alleged victim was attempting to use PREVIOUSLY EXISTING bruises as proof of a CURRENT battery. This type issue quickly becomes something that will require an EXPERT witness, in addition to testing a potential juror’s common sense.
The police usually have body cameras today, and frequently I have been noticing things that are said/can be heard on video that may or may not find their way into the police report narrative and/or witness statements. This brings us to another of so many important issues we have learned of in the course of our collective experience: What happens when evidence is lost or destroyed?
SPOLIATION – This is a Nevada Rule of Law which states there is a rebuttable presumption: “That evidence willfully suppressed would be adverse if produced.” NRS 47.250(3).
The more common situation is the case in which a party (the police or alleged victim) loses or destroys evidence as a result of negligence. In this scenario, the court can issue an adverse inference jury instruction. In other words, a jury can infer that the evidence that was lost would have been unfavorable to the party who lost the evidence. The inference is permissible, not mandatory. To receive an adverse inference, the party claiming that evidence was lost must first demonstrate that the opposing party had a duty to preserve the evidence. This duty can arise from ethics rules, statutes, regulations, or the common law.
So – taking it a step further… if the police say later that a body camera recording that we felt was critical to your defense was “destroyed in the process of delivery to the DA’s office or defense” we may be entitled to that inference. ***Keep in mind that these obligations apply only to GOVERNMENT ACTORS and adverse parties. So if it is WALMART that has the video that is the key to your defense, we have to send them a letter informing them not to destroy it, and we have to do that QUICKLY.***
“Litigants owe an uncompromising duty to preserve evidence that they know or reasonably should know will be potentially relevant to a pending or reasonably foreseeable lawsuit.” Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). “That duty requires suspending any practice or policy of destroying documents or things relevant to the litigation and putting in place a litigation hold.” Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 218 (S.D.N.Y. 2003); see also IO Group, Inc. v. GLBT Ltd. No. C-10-1282, 2011 U.S. Dist. LEXIS 120819, at 14-15 (N.D. Cal. Oct. 19, 2011) (failure to suspend automatic deletion function of email system violated duty to preserve). “And there is no question that the duty to preserve applies not only documents and other physical evidence of the unlawful conduct alleged but also to physical property that may constitute or contain evidence relevant to claims in the litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)) ***Keep in mind that this evidence we are referring to MAY NOT BE beneficial to your defense, it may be used against you by the State of Nevada***
ARREST DECISIONS – Once the police complete their investigation, they are looking for probable cause. That is described as a reasonable basis to believe that a crime has been committed, and that the person to be arrested committed it. ***Note, this is a lower standard than proof beyond and to the exclusion of any reasonable doubt, and there is no presumption of innocence at an alleged crime scene. You only get that presumption in a court room.
Frequently Asked Question: Are the police REQUIRED to arrest someone once they show up?
Answer: No, but they USUALLY do anyway (see applicable laws below – I have highlighted important portions)
NRS 171.137 Arrest required for suspected battery constituting domestic violence; exceptions.
1. Except as otherwise provided in subsection 2, whether or not a warrant has been issued, a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon his or her spouse, former spouse, any other person to whom he or she is related by blood or marriage, a person with whom he or she has had or is having a dating relationship, a person with whom he or she has a child in common, the minor child of any of those persons, his or her minor child or a person who is the custodian or guardian of his or her minor child.
2. If the peace officer has probable cause to believe that a battery described in subsection 1 was a mutual battery, the peace officer shall attempt to determine which person was the primary physical aggressor. If the peace officer determines that one of the persons who allegedly committed a battery was the primary physical aggressor involved in the incident, the peace officer is not required to arrest any other person believed to have committed a battery during the incident. In determining whether a person is a primary physical aggressor for the purposes of this subsection, the peace officer shall consider:
(a) Prior domestic violence involving either person;
(b) The relative severity of the injuries inflicted upon the persons involved;
(c) The potential for future injury;
(d) Whether one of the alleged batteries was committed in self-defense; and
(e) Any other factor that may help the peace officer decide which person was the primary physical aggressor.
3. A peace officer shall not base a decision regarding whether to arrest a person pursuant to this section on the peace officer’s perception of the willingness of a victim or a witness to the incident to testify or otherwise participate in related judicial proceedings.
4. Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section.
5. The provisions of this section do not apply to:
(a) Siblings, except those siblings who are in a custodial or guardianship relationship with each other; or
(b) Cousins, except those cousins who are in a custodial or guardianship relationship with each other.
6. As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.
(Added to NRS by 1985, 2170; A 1989, 23; 1995, 901; 1997, 1533, 1802; 1999, 486; 2019, 1806)
NRS 171.1375 Arrest of person suspected of battery upon certain persons.
1. Whether or not a warrant has been issued, a peace officer may arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon:
(a) A person with whom he or she is actually residing;
(b) A sibling, if the person is not the custodian or guardian of the sibling; or
(c) A cousin, if the person is not the custodian or guardian of the cousin.
2. Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section.
(Added to NRS by 2019, 1805)
For more information on DV defense visit our website here.
Frequently Asked Question: Is a man more likely than a woman to be considered the “AGGRESSOR” and arrested assuming all other things are equal?
Sorry guys, the answer is (in my opinion) a very strong yes. Men are naturally, chemically, historically, actually, culturally and/or stereotypically more aggressive, violent and physically stronger than women ON THE AVERAGE, and unfortunately some men will suffer as a result. Nothing we can do or say will ever change this.
After the police COMPLETE their investigation – they almost always arrest someone – who goes to jail, bond is set, and they are SUPPOSED to assemble / safeguard all the evidence and draft a report which is reviewed by their Sergeant. ***Note, the police are entitled to SUPPLEMENT a report and should include the statement from the arrestee, and if they refuse to do so, they can appear biased.***
This the end of part one – STAY TUNED for part Two(2) which will involve issues that arise in the BOND/pre-trial release/conditions, Temporary Protection Orders etc. stage of this process, as far as HOW WE FIGHT your domestic violence case.
https://www.adamgraveslaw.com/
Michael R. Anello, Esquire
