Domestic violence prosecutions can be long and difficult. Emotions often run high. When a prosecutor charges a crime as domestic violence, it’s a way of saying the complainant is one of the people closest to the defendant, one they are expected to protect and love. A defense to the accusation must be carefully planned and developed. Anyone who is charged is likely to want to know how a case proceeds– the steps from incident to trial, and any appeals that may follow.
Step 1: The Incident
Domestic violence in Washington is defined in RCW 10.99.020. There is no crime in Washington called “domestic violence.” Rather, “domestic violence” is an allegation—a label, one can say—that a prosecutor will add to a crime that is said to have been committed by “one family or household member against another family or household member, or . . . one intimate partner against another intimate partner.” Plenty of crimes can carry the “domestic violence” label, such as assault, stalking, false imprisonment, and violating a restraining order.
Decades ago, police in Washington responding to a domestic violence call often made no arrest. Part of Washington’s increased emphasis on domestic violence crimes in recent years has been to remove that discretion from the police. Now, if responding police believe they have probable cause to believe that someone has committed a crime of domestic violence, they must arrest that person.
There will be a bail hearing within one judicial day of a domestic violence arrest; persons arrested on the weekend may have to wait in jail until Monday. If injuries are severe, the defendant has a bad criminal record, or the defendant is thought likely to flee, the judge may set high bail. A bail bond agency may, for a fee, provide the defendant a bail bond, enabling them to post bail. Otherwise, the defendant remains in jail until trial. The judge at the first hearing also usually prohibits the defendant from contacting the complainant; if they have lived in the same home, as they often have in domestic violence cases, this usually means that the defendant must find another place to live while the case is pending. Violating such a no-contact order could lead to the revocation of bail and to an additional charge; violating a no-contact order is a crime in Washington.
A prosecutor will receive the police report and consider whether to file a formal domestic violence charge. At this point a vigorous defense attorney may be able to influence that decision in favor of the arrested person.
Step 2: Defense and Trial
Whenever a prosecution occurs, the defendant has a constitutional right to counsel. This is fulfilled either by a private defense attorney or by a public defender. Public defenders are state-paid attorneys; with their wide pool of different cases, they are typically generalists in criminal defense. Some private defense attorneys in Washington, such as the lawyers at the Marshall Defense Firm, specialize in domestic violence cases, with years of experience defending against domestic violence accusations.
Regardless of what type of lawyer the defendant has, the lawyer must investigate the case, develop a defense, and prepare for trial. The constitution requires that defendants be granted a speedy trial, but “speedy” can take months or even years.
When the day of trial comes, the court will assemble a random selection of people living in the Washington county where the domestic violence crime is said to have happened. The defense and prosecution attorneys both participate in jury selection. During a process known as voir dire, the prosecution and defense take turns asking potential jurors about their backgrounds, pre-existing knowledge of case, life experiences bearing on the issues in the case, and potential biases. Potential jurors are always asked about their experiences with domestic violence. Both sides are able, by law, to have persons removed from the pool of potential jurors, sometimes because it appears the person could not be fair in the case, sometimes without the attorney’s giving any reason. Any challenge to a potential juror that appears based on the person’s race, though, will be rejected; Washington law is unusually strict on this.
Once a jury is selected, the domestic violence trial begins. The prosecution will present their evidence that the defendant committed a crime of domestic violence. They will call witnesses, usually including the complainant, to give testimony. Other testimony can come from police officers and experts in medicine and other technical fields. To secure a conviction, the prosecution must prove to the jury beyond a reasonable doubt that the defendant committed the crime.
After the prosecution rests its case, the defense can present evidence–testimony from witnesses, including defense experts, and exhibits. The prosecution has the burden of proof, but good defense attorneys know not to rest on the legal rule that the defense need prove nothing. Rather, they know that they, too, should argue to the jury that the evidence shows certain events happened—events that do not include the defendant committing any crime.
After closing arguments, jurors go into deliberations. These can last as little as an hour or as long as many days. The jurors must come to a unanimous verdict. Once they have, they present their verdict to the court: Guilty or Not Guilty. If they are unable to reach unanimous agreement, the judge declares a mistrial, and the prosecutor decides whether to try the defendant again.
Step 3: Sentencing and Appeal
If a domestic violence defendant is found not guilty, the case is over. The prosecution cannot appeal to get the not-guilty verdict overturned.
If the defendant is convicted, then the judge will issue a sentence at a sentencing hearing. The sentencing hearing includes arguments from both sides, as well as any statement the complainant chooses to make. RCW 10.99.100 states factors that affect the length of the sentence in a Washington domestic violence case, such as whether the act occurred within view of minor children or was part of a pattern of control or abuse.
Time in jail or prison is common—but not universal—in domestic violence cases in Washington. Courts also usually impose no-contact orders, a violation of which would be a felony.
A defendant has a right to appeal a guilty verdict. An appeal goes to the regional division of the Washington Court of Appeals, where a panel of three appellate judges reviews the case. An appeal may not include any new evidence and generally may not directly challenge the jury’s decision. Instead, appeals target the trial judge’s application of the law. Things like admissibility of evidence, jury instructions, and other legal decisions by the judge may be challenged by the defense.
If the appellate court finds that the law was wrongly applied, it can order the case to be remanded to the trial judge, perhaps for a new trial. If the appeals court finds the law was properly applied, or that any error was a “harmless error” that didn’t affect the outcome, the appeal will be denied and the judgment affirmed.
There are many steps in a Washington domestic violence prosecution. Facing one is an ordeal in the best of cases. It can be many months of stress and anxiety, with one’s future on the line.
At the Marshall Defense Firm, we provide unwavering support to our clients. We have decades of combined experience defending against domestic violence charges. We bring both expertise and creativity to our work.
If you or a loved one faces a domestic violence charge in Washington, we will fight for you every step of the way. Contact us at 206.826.1400 or email@example.com for an appointment.