DOMESTIC VIOLENCE DEFENSE ATTORNEYS IN ARIZONA
DOMESTIC VIOLENCE OFFENSES IN ARIZONA
Domestic (family) violence takes many forms, and the behaviors are generally designed to control another family member through fear and repercussions. The majority of people who commit crimes in the State of Arizona, and the nation, commit those crimes against members of their family. These offenses and charges almost always carry with them high levels of emotion, and fluctuations in those emotions.
There are several crimes in Arizona that are charged as Domestic Violence (DV) offenses when committed against family members, ranging from First Degree Murder (All levels of homicide may be charged as Domestic Violence offenses) to misdemeanor Disorderly Conduct. The mere allegation of Domestic Violence carries with it an incredibly dark taint. Much like Arizona Sex Crimes, allegations of these types of offenses can be exaggerated, or flat out fabricated. Unfortunately, when this fabrication occurs, it is generally designed by the reporting party to gain an upper-hand in something (such as child custody, or a divorce). All Felony Domestic Violence offenses in Arizona have serious ramifications. Due to the consequences a mere allegation of a Domestic Violence related offense carries, it is important to consult with an aggressive, skilled, and knowledgeable Arizona Domestic Violence attorney.
Jeremy Huss of Oliverson & Huss has nearly 20 years of experience handling Felony Domestic Violence offenses in Arizona. Mr. Huss has been lead counsel in several Domestic Violence Homicides (First and Second Degree Murder), Sex Crimes, Aggravated Assault by Domestic Violence, Kidnapping by Domestic Violence, and Stalking and Harassment by Domestic Violence. Mr. Huss has handled these cases as both a prosecutor and defense attorney solely in the Arizona Superior Courts. Mr. Huss has experience in eliciting testimony from “Domestic Violence Experts” who testify to the Domestic Violence “Cycle of Violence.” The Cycle of Violence is a theory generally presented by the State, especially in cases where the alleged victim has recanted testimony. Domestic Violence trials and prosecutions are emotionally charged, and have significant ramifications. Mr. Huss has a great deal of knowledge and experience in Arizona Felony Domestic Violence related prosecutions, and it is important to consult with an attorney with his experience if under investigation for Felony Domestic Violence related offenses.
Derek Oliverson of Oliverson, & Huss is a former Domestic Violence Judge, Former Domestic Violence Prosecutor, and Former Police Officer who investigated Domestic Violence offenses. Mr. Oliverson’s approach to defending Misdemeanor and Felony Domestic Violence cases in Arizona is based on a conglomeration of having been involved in every professional role in a Domestic Violence trial. This background provides him with invaluable and coveted experience that gives him an ability to communicate with law enforcement, the prosecutors, the judges, and his clients. Mr. Oliverson places his clients in the best possible position to resolve their case through his experience, and being able to draw from multiple prior career roles in the criminal justice system.
WHAT IS DOMESTIC VIOLENCE IN ARIZONA?
“Domestic Violence” defined in Arizona Revised Statute (“ARS”) 13-3601 is based on a relationship between an offender and victim. ARS 13-3601(A) discusses the several different crimes that may be charged as Domestic Violence offenses in Arizona. Subsequently, ARS 13-3601(A)(1)-(6) discusses which relationships create the basis for a Domestic Violence offense:
- The relationship between the victim and the defendant is one of marriage, or former marriage, or of persons residing, or having resided, in the same household.
- The victim and defendant have a child in common
- The victim or the defendant is pregnant by the other party
- The victim is related to the defendant, or the defendant’s spouse by blood or court order, as a parent, grandparent, child, grandchild, brother or sister, or by marriage, as a parent in law, grandparent in law, step parent, step grandparent, step child, step grandchild, brother in law, or sister in law.
- The victim is a child who resides, or has resided, in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or has resided in the same household as the defendant
- The relationship between the victim and the defendant is currently, or is previously, a sexual or romantic relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
- The type of relationship
- The length of the relationship
- The frequency of the interaction between the victim and the defendant
- If the relationship has terminated, the length of time since the termination
WHAT CRIMES MAY BE DESIGNATED AS DOMESTIC VIOLENCE IN ARIZONA?
According to Arizona Revised Statute (“ARS”) 13-3601, “Domestic Violence” means any act that is:
- A Dangerous Crime Against as defined in ARS 13-705;
- Negligent Homicide: ARS 13-1102
- Manslaughter: ARS 13-1103
- Second Degree Murder: ARS 13-1104
- First Degree Murder: ARS 13-1105
- Endangerment: ARS 13-1201
- Threatening or Intimidating: ARS 13-1202
- Assault: ARS 13-1203
- Aggravated Assault: ARS 13-1204
- Custodial Interference: ARS 13-1302
- Unlawful Imprisonment: ARS 13-1303
- Kidnapping: ARS 13-1304
- Sexual Assault: ARS 13-1406
- Unlawful Disclosure of Images: ARS 13-1425
- Criminal Trespass in the Third Degree: ARS 13-1502
- Criminal Trespass in the Second: ARS 13-1503
- Criminal Trespass in the First Degree: ARS 13-1504
- Criminal Damage: ARS 13-1602
- Interfering with Judicial Proceedings: ARS 13-2810
- Disorderly Conduct: ARS 13-2904 subsection A, paragraphs 1, 2, 3, or 6
- Cruelty to Animals: ARS 13-2910, subsection A, paragraph 8 or 9
- Preventing Use of Telephone During an Emergency Situation, subsection A, paragraph 3
- Use of an Electronic Communication to Terrify and Intimidate: ARS 13-2916
- Harassment: ARS 13-2921
- Aggravated Harassment: ARS 13-2921.01
- Stalking: ARS 13-2923
- Surreptitious Recording: ARS 13-3019
- Aggravated Domestic Violence: ARS 13-3601.02
- Child or Vulnerable Adult Abuse: ARS 13-3623
ARIZONA LAW ENFORCEMENT INVESTIGATIONS OF DOMESTIC VIOLENCE
Throughout the last 20 plus years, Domestic Violence awareness and prosecutions have increased significantly. There are several reasons for this awareness, likely commencing with the O.J. Simpson trial in the mid-1990’s. Moreover, Domestic homicides continue to gain attention because sadly,…they continue to happen. Approximately 50% of homicides in the United States are Domestic homicides, meaning people who have relationships laid out in ARS 13-3601(A)(1)-(6).
Domestic Violence offenses are prosecuted aggressively throughout the nation, and especially in Arizona. In fact, the State of Arizona has adopted a “Victim Bill of Rights” in the Arizona State Constitution (Article 2, Section 2), and has also codified the “Victim Bill of Rights” in its Revised Statutes. The Victim’s Bill of Rights is not limited to Domestic Violence cases at all, but is present in every Domestic Violence case.
Domestic Violence offenses, whether Misdemeanor or Felony, are some of the most serious crimes, and are investigated vigorously and thoroughly. The escalating seriousness of Family Violence in Arizona and the nation dictates the need for detailed investigations.
Law enforcement officers responding to Domestic Violence situations are responding to some of the most dangerous and volatile scenes an officer can walk into. Many times, they enter into scenes where one of the parties has been assaulted, or is being intimidated, or they may respond to a hostage situation where a family member, or multiple family members, are being held against their will, possibly with the use of a weapon.
Law enforcement will almost always make an arrest after response to a Domestic Violence call. ARS 13-3601(B) gives an Arizona Police Officer authority to arrest a person, with or without a warrant, if the officer has probable cause to believe that a person has committed a misdemeanor or felony domestic violence offense, whether or not it took place in the officer’s presence. Also, some law enforcement agencies have a policy that they will make an arrest after every response to a Domestic Violence call.
ARIZONA STATE PROSECUTIONS OF DOMESTIC VIOLENCE OFFENSES
Every prosecuting agency in the State of Arizona aggressively prosecutes Domestic Violence offenses. These offenses are viewed by prosecutors as precursors to what could quickly escalate into a homicide. As a result, the State is generally not willing to dismiss these cases, even if the alleged victim in the case ultimately refuses to cooperate, or recants their version of events completely.
By the time a Domestic Violence investigation turns into a court process and prosecution, the alleged victim in the case may very well have completely forgiven what occurred, forgotten it, or concluded in some way that they exaggerated to put the person into custody and get them charged. Whether any of these scenarios occur or are true, it is common for an alleged victim in a Domestic Violence offense to support the person charged.
However, this will not prevent the State from moving forward with a prosecution. In fact, most Arizona prosecutors take the position that they will try the case and push it as far as it will go, because no prosecutor wants to dismiss a Domestic Violence case, in case another crime, especially a violent one, occurs subsequently.
HOW CAN A DOMESTIC VIOLENCE PROSECUTION PROCEED WITHOUT A COOPERATIVE WITNESS?
How will the State proceed if the alleged victim does not appear at trial?
The State will subpoena the alleged victim into court. If the alleged victim does not show up, the prosecutor could get a warrant, and also could charge the victim with the crime of Failure to Appear in the First Degree (ARS 13-2507) or Failure to Appear in the Second Degree (ARS 13-2506), depending on whether the alleged victim failed to appear for a felony or a misdemeanor. However, an alleged victim who may be being manipulated by another person may not likely care that the State requests a warrant. Which is why in all likelihood the State will not request a warrant for the alleged victim in this situation (however, they can and some will).
If the alleged victim does not show up for trial, it is difficult for the State to obtain a conviction without an eyewitness, or some corroborating “non-testimonial” statements the victim may have made to another person, or even law enforcement, depending on the circumstances the statement was made. Regardless, it is difficult for the State to move forward in this circumstance due to the Sixth Amendment’s Confrontation Clause. The Sixth Amendment provides, in part, that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him”, a concept that goes back to Roman times.
However, the Confrontations Clause is not an absolute bar to the State being able to go forward with a prosecution without the alleged victim present. In fact, there are a couple of different ways the State may still proceed, depending on certain circumstances.
First, if the alleged victim made statements to law enforcement that were “non-testimonial” in nature, those specific statements will be allowed to be introduced into evidence even if the alleged victim does not appear for trial (“non-testimonial” statements include a cry for help, or a statement not intended to be used at trial; i.e., 911 call, excited utterances to neighbors or law enforcement as long as the statements were not coaxed out through law enforcement questioning).
Second, if the State can prove that the alleged victim did not appear at trial because of some action by the person charged, then the State may proceed without the alleged victim and introduce the statements through the law enforcement witness they were made to. This is called “Forfeiture by Wrongdoing”, an archaic rule dating back to 17th century English jurisprudence. However, it is a rule that has clearly been adopted by the United States as the Supreme Court held in 2006 (Davis v. Washington) that “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis v. Washington, 547 US 813, 832-834 (2006).
It is a felony in Arizona to tamper with a witness (ARS 13-2804), or do anything to attempt to influence their testimony (ARS 13-2802). The attorneys at Oliverson & Huss always advise their clients to comply with Court Orders and release conditions set by the Court, which include having no contact with the alleged victim prior to trial. Moreover, the State has the ability to introduce “non-testimonial” statements made during excited utterances or 911 calls, as well as to introduce an alleged victim’s statements if they have evidence the person charged had something to do with the alleged victim not appearing. It is advisable to consult an attorney throughout the entire process of the investigation and prosecution of a Domestic Violence case.
How will the State proceed if the alleged victim does appear at trial?
If the alleged victim does appear for trial, there are generally two different scenarios that could be happening. Either the alleged victim is on the person’s side and is going to undoubtedly testify to a different story than what was told to law enforcement, or the person is still on board with the prosecution of the case.
If the alleged victim is still on board with the prosecution of the case, the testimony will likely be consistent, for the most part with what was reported at the time of the incident. However, if the alleged victim has refused prosecution, and has informed law enforcement and the State of a desire to not go forward, there is a likelihood that if the alleged victim appears pursuant to a subpoena, then the account given close in time to the incident will likely be different that the testimony to be presented at trial.
However, law enforcement is generally equipped with AXON cameras or some recording device that they activate just prior to entering a Domestic Violence scene (any scene). These cameras generally capture the entire investigation, from multiple law enforcement officer’s angles and perspectives. The cameras also capture interviews law enforcement conducts on the scene, including an interview (at least the initial one) with the alleged victim.
If an alleged victim gives a damning statement to a person on the night in question, but is singing that person’s praises by the time the case gets to trial and blames the injuries on clumsiness and just bad luck, there is no doubt the jury (or judge if a misdemeanor) will hear the damning account given on the day in question. The prosecutor may “impeach” the alleged victim’s testimony with anything the alleged victim previously stated about the offense (as long as it is something material, and not collateral to the case). This may create some issues as the State will essentially be able to introduce every statement the alleged victim made about the offense on the day it occurred.
DEFENSE OF ARIZONA DOMESTIC VIOLENCE OFFENSES
Domestic Violence offenses may present a myriad of issues. The initial issues to explore are motives and biases of alleged victims and witnesses. Domestic Violence offenses are obviously by nature committed against family members who know their own family members the best. Family dynamics often times create issues that escalate into things that may get misconstrued or exaggerated. Also, if there are injuries, it is important to have an expert review the injury to determine if the injury is consistent with the account given. Further, are these injuries that were obtained in the person acting in self-defense against the alleged victim? In addition, it is important to determine any actions an alleged victim may have taken at the time, or leading up to that time, which may explain certain behavior by a person charged. There are a number of factors to explore, and every case presents its own unique issues. Domestic Violence cases may present some complexities in the introduction of evidence, and they present serious complexities due to the emotional nature.
A person under investigation, or charged with a Domestic Violence offense, should consult with an experienced and skilled Domestic Violence attorney knowledgeable in the nuances of Arizona law. These are very emotional charges and allegations, and can have the impact of ruining a person’s life and reputation. An experienced Arizona Domestic Violence Attorney will be able to guide you through the wilderness of confusion that everything becomes once charged with such a serious offense.
Jeremy Huss and Derek Oliverson of Oliverson & Huss are two very seasoned Arizona criminal defense attorneys with significant experience with Felony and Misdemeanor Domestic Violence offenses. Mr. Huss is a former major felonies prosecutor, and Mr. Oliverson is a former cop, domestic violence prosecutor, and domestic violence judge. Any person under investigation or charged with a Domestic Violence offense should contact either Mr. Huss or Mr. Oliverson to discuss the details of their case.
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