Recanting victims and the special issues that they raise in a California domestic violence stalking case

In California, an individual who commits a crime against his or her intimate partner will face the charge as a domestic violence crime. Intimate partners are heterosexual or homosexual partners and include persons who are married, divorced, dating, formerly dating, living together and persons who have children together. If an individual maliciously follows or harasses and threatens his or her intimate partner, he or she will likely be charged with stalking as a domestic abuse crime.

Stalking necessarily involves a victim who was the target of the stalking. When that victim originally calls the police or files a police report against the intimate partner who has been stalking him or her and then later changes or takes back his or her original allegations, he or she becomes what is known as a “recanting victim.” A recanting victim poses special challenges for a criminal defense lawyer because that victim can ultimately be devastating to the defense, even if he or she is genuinely trying to help. This is because a prosecutor is allowed a great deal of leeway when a victim recants and will usually be permitted to introduce evidence that may otherwise have been inadmissible if the victim had simply maintained his or her original allegations.

Recanting victims are common in intimate partner abuse trials because of the intense, volatile relationship that is defined by domestic violence. Very often, a victim may falsely accuse his or her intimate partner of stalking out of anger, jealousy or revenge or to simply gain control over his or her partner. Other times, a victim may have been threatened by his or her intimate partner into recanting his or her accusation, which is a crime in and of itself, known as witness intimidation. Sometimes a victim may get back together with his or her intimate partner after criminal charges were filed and then may feel badly that he or she accused his or her intimate partner of a crime. In an effort to help his or her partner, that victim will recant his or her original allegation, thinking that if he or she either refuses to cooperate with the police or prosecuting agency, that the charges will have to be dropped. This is simply not the case, as prosecutors actually anticipate that D.V. victims will recant and know how to proceed under this type of situation.

Recanting victims in an intimate partner violence stalking trial can be a gift to the prosecutor. Along with a host of other privileges, it allows the prosecutor to tell the jury what the victim originally told the police, either through the investigating officer or by playing a recording of the original 911 call placed by that victim. A recanting victim will also usually mean that the prosecutor will hire an expert witness to testify that the victim has recanted because of the abuse that he or she might receive from his or her intimate partner if he or she didn’t recant. It further encourages the expert to testify about the “cycle of abuse” and that the individual likely suffers from “battered person’s syndrome” which is the reason why he or she has changed his or her story.

If a stalking victim personally chooses to take back or deny his or her original allegations, for any reason, on his or her own free will, it is best for both partners to consult with an attorney who is experienced in California’s domestic violence laws and on the consequences that a recanting victim invites. The skilled attorneys at the Kavinoky Law Firm will take the time to sit down with both partners in an effort to devise the best defense strategy available. They will help both parties understand how a recanting victim may actually hurt the defendant and will advise that person on how to proceed in an effort to right a wrong. Click here for a free consultation and for the best representation.

The Power Imbalance That Characterizes Relationships Affected By Domestic Violence

California defines domestic violence as the use of physical, emotional or financial abuse used to exert power or control over a family member (one’s child, parent, grandparent and/or grandchild) or an intimate partner. Intimate partners are both heterosexual and homosexual and are married, divorced, have children together, dating, formerly dated, living together or formerly living together. There are many characteristics that are commonly associated with acts of domestic violence, perhaps the most telling being the power imbalance that exists between a victim and his or her abuser.

Power is what usually drives an individual to abuse another. Although single acts of domestic violence are often committed out of anger, stress or frustration, abuse that repeats itself is usually due to one’s desire to exert power and/or control over his or her intimate partner or other family member. Regardless of the type of domestic abuse that an individual inflicts upon a partner or family member, the power imbalance between the abuser and his or her victim remains the same and, until and unless the victim either flees the relationship or learns to exert his or her own authority, that imbalance will never change.

Family relationships that teach equality generally foster safe and nurturing environments. However, domestic violence statistics reveal that in a family where the power and control are out of balance, there will be a higher risk of domestic abuse within that family. A parent, in a family situation or perhaps the “breadwinner” in an intimate partner relationship may in fact have control over his or her other family members or intimate partner, as the others may be dependant on him or her for food, shelter, basic necessities and affection, but whether or not he or she chooses to exercise that power affects the likelihood of abuse. It should be noted that when a parent or grandparent inflicts abuse on his or her own child or grandchild, a separate charge of child abuse would likely be filed.

Many wonder why an abused individual would choose to stay with an abusive partner. Researchers and psychologists believe that it is because a person who has been consistently and/or severely victimized may suffer from a recognized psychological condition known as battered person’s syndrome. Battered person’s syndrome, also known as battered women’s syndrome or BWS explains why an abused individual (either a man or a woman) would voluntarily remain with his or her intimate partner. On a similar note, domestic violence studies suggest that strong, emotional bonds form between the victim and perpetrator involved in an abusive relationship due to the imbalance of power that exists. As the abuser gains more power, the victim’s self-esteem lessens and he or she becomes even more dependent on the abuser, feeling that he or she is undeserving of another’s love. In addition, during the “honeymoon phase” of the cycle of abuse, the abused partner believes that the abuse has stopped and forgives the abuser, which actually reinforces the abusive behavior and strengthens the bonds even more.

Help is available to those who wish to seek it. Counseling is available to both victims of domestic violence and to those who need help putting an end to their abusive behavior. Professional legal advice may also be helpful for either party involved in a relationship affected by intimate partner abuse. If he or she desires to learn more about what legal rights and/or remedies exist for domestic violence, the trustworthy attorneys at The Kavinoky Law Firm can address any questions or concerns about a Domestic Violence – related matter, as they specialize in California domestic violence law. They can advise a victim of intimate partner abuse on how to seek legal remedies, which may include helping the victim to file for a protective order or may help an individual charged with a D.V. crime, as they have a reputation for being exceptional domestic violence criminal defense lawyers. Contact The Kavinoky Law Firm today for a free consultation.

Civil Penalties and Violation of a Protective Order

Individuals who violate protective orders in California domestic violence cases can face civil penalties as well as criminal court consequences. Domestic abuse cases can involve any type of intimate partners – straight and gay couples who are married, divorced, living together, have children together, or who have dated at any time. Protective orders issued by courts are designed to prohibit an offender from committing specific acts of abuse, re-entering his or her own home, or engaging in certain behaviors.

Any intimate partner who knowingly violates a protective order faces a misdemeanor charge punishable by a maximum of one year in jail and a $1,000 fine. California courts may even punish an offender for violating an order in California that was issued in another state. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days, possibly up to one year, and the fine may rise to $2,000.

In a civil court, an individual who is found “liable” for committing this “wrong” or “tort” is subject to several different heavy fines but cannot be sentenced to jail or prison. Other than terminology, the penalty is the primary difference between a civil suit and a criminal case.

That being said, there are several differences between the procedures involved in civil and criminal courts with respect to violating a protective order. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the protected party (otherwise known as the victim), as many incorrectly believe. In a civil case, it is the protected party (who becomes known as the “plaintiff”) who sues the alleged abuser.

Another difference is that it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50 percent chance” that the defendant violated the court order that was issued to protect his or her intimate partner. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil lawsuit for violating a protective order, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property, and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for violating a protective order may also have a civil protective order issued against him or her. In general, a civil protective order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, in a case where the defendant has been found guilty of violating an order already in effect, the order would likely be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of violating a protective order. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon this type of accusation. The criminal defense lawyers at The Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the severe consequences that are associated with a conviction for violating a protective order. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

Physical Evidence and its Role in a California Domestic Violence Criminal Threats Trial

California has a number of laws concerning crimes that, when committed against one’s intimate partner, will fall under the category of domestic violence. Intimate partners are married, divorced, living together, dating or were formerly dating and include people who have children together. Intimate partners are both heterosexual and same-sex partnerships. Making criminal threats against one’s intimate partner is an example of one crime that will result in a domestic abuse charge.

“Criminal threats” may be prosecuted as a misdemeanor or a felony depending on the circumstances that surrounded the allegation. An individual may be charged with this crime if he or she threatens to commit a crime against his or her intimate partner that will result in death or serious bodily injury to that partner. The threat can be verbal, written, electronically communicated or even made through a third person. Whether the accused actually intended to carry out the threat is irrelevant, as the only thing that matters with criminal threats is that the intimate partner reasonably feared for his or her safety or for the safety of his or her family. This offense is punishable by up to one year in the county jail or state prison.

Intimate partner abuse cases can be difficult to prove, as many are based on “he said, she said” allegations. Physical evidence of the crime is therefore critical if and when it exists. Without it, an aggressive criminal defense lawyer may be able to have the charge either reduced or dismissed due to insufficient evidence. With it, an attorney will have to know what arguments to make to have it excluded or will have to downplay its significance if it is admitted.

Physical evidence is evidence that one can see, hear or touch and helps to convict or acquit a defendant. Examples of physical evidence include injuries, DNA, documents or records and audio or visual recordings. In a domestic abuse case and, more specifically, in a case where the defendant has been accused of making criminal threats against his or her intimate partner, common types of physical evidence include letters written to the intimate partner (either on paper or sent through an e-mail or text message), messages that are recorded on the partner’s voicemail or answering machine, injury to the accuser and damage to personal property.

In a domestic violence trial, physical evidence can be a gift to the prosecutor. In a D.V. case, many jurors are looking to convict the defendant for the alleged abuse and this type of evidence makes it that much easier to do. When this type of evidence exists, it is up to a skilled defense attorney to try to either exclude it if it is damaging or to ensure that it gets admitted if it is favorable and clears his or her client of the charge.

In an effort to cover all the bases, the attorneys at The Kavinoky Law Firm work with private investigators and expert witnesses to carefully examine physical evidence. Private investigators take photos of the crime scene, including injuries that were sustained by the intimate partner, damage that was done to the home or to personal property, and of anything else that they feel is appropriate. They interview everyone who was involved in or witnessed the charged incident. Expert witnesses analyze physical evidence to determine if it is authentic. They examine handwriting on a letter, the voice on a recording and injuries to make sure that they are genuine and weren’t fabricated in an effort to falsely charge the defendant. The attorney then gathers the information he or she received from the defense team and devises the most effective defense strategy possible.

The experienced attorneys from The Kavinoky Law Firm know how to exclude or refute physical evidence, as they receive ongoing training in intimate partner violence law and on the evidentiary issues that frequently arise in domestic abuse trials. They understand the critical role that physical evidence can play in a criminal threats case and know ways to respond to it so that it favors their client. A knowledgeable defense lawyer can explain the role of physical evidence in a California domestic abuse case during a free consultation.

Private Investigators

California’s domestic violence laws include a variety of offenses and a variety of punishments. The offenses include disputes between any intimate partners, whether or not the couple remains together. These partners may be married, cohabiting, have children in common, be divorced or separated, dating or formerly dating. The laws apply to both heterosexual couples and same-sex partnerships.

Because of the very nature of these intimate relationships, disputes between intimate partners are often highly charged and emotional. Many times, a simple argument can end up taking a turn for the worse. Sometimes there are witnesses involved in a domestic abuse charge, but many times there are not. A private investigator gathers information to help turn a potential “he said, she said” into a defendable case supported by evidence. The investigator works directly with the defendant’s attorney to help build the strongest defense case possible.

Many private investigators are retired law enforcement officers and therefore have an intricate understanding about how the criminal justice system operates. They not only have personal connections to other law enforcement officials, but they also have first-hand knowledge about police procedures. This means that an investigator knows how police are trained to think and gather information during an intimate partner abuse investigation. This “inside information” can be particularly helpful to the defense, especially since the investigator works closely with the criminal defense lawyer and knows what evidence can destroy the prosecution’s case.

Because of their training and backgrounds, private investigators know how to gather helpful information and are able to collect evidence that an attorney may be unable to locate. He or she will take photos of the scene as well as any injuries that were sustained in the dispute. The investigator will interview everyone involved in the incident, including any witnesses who were either present or who have intimate knowledge about the violent history (if any) of the parties involved. He or she will often gather the relevant medical records of both parties. Additionally, a private investigator will examine the criminal history of both the accused and his or her accuser.

It is the investigator’s job to locate and gather all of the information available regarding the parties involved and the incidents that led to the defendant’s arrest. It is his or her job to then turn over that information to the defense attorney. The defendant’s lawyer then analyzes the evidence and responds appropriately. Depending on the evidence that he or she receives, sometimes the attorney may be able to convince the prosecutor to either reduce or dismiss the charges against the accused, based on facts that the investigator uncovered with respect to the prosecution’s witnesses. The experienced attorneys at The Kavinoky Law Firm take the information that they receive from their investigator to help them devise the best possible defense. They then use that information to make sure that the defendant’s side of the story is not only heard by the judge and/or jury but believed as well.

A good criminal defense attorney needs to know all the information possible about the event that led to his or her client’s arrest (even when it’s potentially damaging) in order to devise the best defense. An experienced attorney will have established relationships with several private investigators and will hire one who is especially experienced with intimate partner violence cases in order to obtain all of that information. Even the best attorney can’t successfully defend a case without being aware of all the facts.

Because the consequences of a domestic violence conviction can be so severe, it is vital to hire a skilled California defense lawyer. A well-qualified and knowledgeable attorney from The Kavinoky Law Firm will work directly with a private investigator to gather as much information as possible to effectively develop the strongest defense strategy. They have successfully defended countless domestic abuse cases with skill and compassion. Do not hesitate to contact them. Click here for a free consultation and for the best representation.

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If you have been the victim domestic violence and want to press charges against your abuser but are afraid to do so, the first step you need to take is to reach out to a Los Angeles domestic violence attorney. Surprisingly, a Los Angeles criminal defense lawyer with domestic violence experience can often offer very sound advice as to your first steps depending on your circumstances. They will almost always include finding a way to make yourself safe from your abuser such as moving out.

You need to understand a few things about domestic violence. If you have been a victim, pressing charges may be emotionally and practically difficult, especially if the abuser is your spouse or the parent of your child. He or she may threaten you or attempt to prevent you from informing the police or testifying, which is illegal but can be quite coercive. And if the only evidence of the abuse is your word, the abuser’s defense lawyer will almost certainly attack your character in court, so you need to prepare to defend yourself despite your stressed emotional state. Once you have contacted a lawyer to begin preparing your legal charges, and moved out or done what you need to make yourself safe from the abuser, you should also call the police.

In dire circumstances, this should actually be your first step as the police should come and arrest the accused abuser and get him or her out of the house. They can also collect immediate evidence of the abuse at this point, or direct you to a police medical examiner to look for physical or emotional signs of abuse. This is important because this evidence will service as the primary foundation for your case and will make it more difficult for a Los Angeles criminal defense lawyer to weaken the case by assaulting your character. You will have to tell the police you want to press charges, and it can be difficult to persevere when put on the spot about having your partner tried for abuse. But in the end, nobody should live in fear of abuse, least of all children, so you will find you are doing the right thing to seek legal help and press domestic abuse charges.

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Domestic violence cases will be more difficult to prosecute following a U.S. Supreme Court decision that will make it harder for prosecutors to use out-of-court statements as evidence against defendants.

The court ruled that allowing a murder victim’s earlier reports to police to be admitted as evidence denies the suspect’s right to confront his accuser unless the killing was committed to silence the accuser.

The court ruled 6-3 to overturn the murder conviction of a Los Angeles man who shot and killed his girlfriend. The man claimed the killing was done in self-defense but was convicted after a police officer testified that the woman had reported that the man threatened her life.

Until 2004, prosecutors could introduce statements made by victims who were unable or unwilling to testify, including statements made to police.  Police can now testify about what they witnessed, but cannot repeat statements made by the victim unless prosecutors can prove that the victim was killed in order to silence him/her.

However, proving that a killing occurred to silence the victim is extremely difficult. The court’s ruling will also impact domestic violence cases where the victim is available to testify but unwilling to do so.

To learn more about prosecution and defenses to California domestic violence cases, contact a skilled defense lawyer from The Kavinoky Law Firm today for a free consultation

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The Possible Consequences of Domestic Violence in California

Domestic violence is a “wobbler” crime in California, and it can be charged and prosecuted either as a misdemeanor or a felony. A Sacramento criminal attorney can explain the likely consequences of a particular domestic violence charge best, because this requires an understanding of how the local and state statutes and penal codes determine the gravity of the offense and appropriate punishment.

In general, California law establishes the baseline consequences for a domestic violence conviction. If convicted for a misdemeanor, the potential sentence includes minimum of a 52-week domestic violence course with behavior counseling, 40 hours of community service, a “No Contact Order” with the victim, and several different fines. Many times the prosecutor will not try to get the maximum fine and many judges will not opt for more than a month of jail time, though a maximum of a year is possible. In many cases, alternate sentences that increase the financial cost but eliminate jail time in favor of a work program are possible.

A felony conviction entails a similar domestic violence program, more community service, the same no contact order, significantly higher fines, and a minimum jail sentence of three months. Depending on the severity, this can take the form of a year or more in prison, or something less serious such as supervised probation. In either case, local statutes leave a wide range of sentences for the prosecution and the judge to choose from depending on all the related factors.

No matter what your circumstance, whether you are a victim of domestic violence or have been charged with the crime, you need a Sacramento criminal attorney immediately. The right attorney can help protect you, help you get the counseling or therapy you need, and see that local and California laws are executed fairly for the sake of the victim and the accused .The end goal is the appropriate sentence so that both people can lead better, safer lives.