Washington DV Press

Working with Survivors Charged with DV-Related Crimes:
Some Information for Advocates

From the King County Coalition Against Domestic Violence, October, 2003¹

The King County criminal legal system is complex and can be overwhelming to people who are defendants or victims in criminal cases, especially those who are domestic violence survivors. The information below describes the various stages in the criminal court process and highlights some opportunities for advocacy with survivors who have been charged with DV-related crimes.

Police Agencies, Jails, Courts and More Courts: In the King County region there are 26 independent cities, most of which have their own police agencies and courts². When a person is arrested for a misdemeanor crime, their case is processed either in the local municipal court, or in one of the King County District Courts, depending on where it occurred. When a person is arrested for a felony crime, their case is processed in by the King County Prosecuting Attorney’s Office, and heard by judge in King County Superior Court.

Criminal Cases: There are several stages to a criminal case, which are explained in more detail below. Key stages are:

arraignment, when charges are officially filed, Pretrial” or “case scheduling” hearings, depending on the court system, Trial: if a trial results in conviction, then the case proceeds to Sentencing.

Steps in the Court Process

Initial investigation: The initial investigation of the crime is conducted by one or more patrol officers who travel to the crime scene or to the location of the victim, shortly after the crime is reported. Officers interview the parties and any witnesses, and begin an initial report listing the circumstances of the crime. The officer may also take photographs, and collect any related evidence.

According to Washington State Law, (RCW 10.31.100)

When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider: (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence between the persons involved.

¹ Funded by the Domestic and Sexual Violence Prevention Office, Human Services Department, City of Seattle, through VAWO, Arrest Programs Grant, 98-WE-VX-0028² A list of courts in King County is available on the Internet at www.courts.wa.gov, under Court Directory.

If the person was acting in self-defense, it may be beneficial to tell the officer why and how she was defending herself. If she has been physically or sexually abused or threatened by her partner, she may wish to tell the officer as much information as possible about this history. As described in the RCW above, officers are required to consider the history of domestic violence between the parties.

If you are working with a survivor who has been arrested for acting in self-defense, and she wants you to talk to the law enforcement agency that arrested her, you can contact the supervisor of the officer who made the arrest, or the detective assigned to the case (if there is one). You may discuss what you know about the case. Take a respectful approach, and understand that arrest decisions are often very complex for the responding officer. Share information, but do not assume that the officer made a mistake. At the time of arrest, he or she may not have had access to all the information that you have.

The person identified as the suspect in the crime has the right to make a statement to the responding officer. The officer will generally write down everything that the suspect says. Anything the suspect tells the police officer can also be used in court. The suspect has the right to remain silent, and if she wishes to do so, she should respectfully inform the police officer: “I wish to remain silent. I do not want to answer any questions unless a lawyer is present.”

Arrest: When the responding officers decide that there is valid reason to make an arrest (“probable cause,”) they make an arrest and take the suspect to jail if she (or he) is present at the scene.  Jail inmates rarely have information about or access to community-based DV advocacy services.

It is helpful for advocates to develop and maintain contact with jail staff to ensure that this information about community-based advocacy services is made available to inmates who are survivors of domestic violence. (The King County Coalition Against DV has developed a DV brochure for Jail Inmates³).

Follow-up investigation: In the King County region, detectives are generally assigned to conduct a follow-up investigation for felony DV cases only.

Formal charging procedure: When the investigating officer believes that a suspect has been identified and that there is enough evidence, he or she sends the case to the prosecutor for review. If the prosecutor believes that the report provides enough evidence to indicate that the suspect has committed a crime, and that the case has a reasonable likelihood of conviction at trial, the prosecutor will file a criminal complaint. In some cases the prosecutor determines that there is not enough legal evidence to file the case, the charges are dropped.

The prosecutor may file charges if (s)he believes the charges can be proven beyond a reasonable doubt. This may happen even if the person named as the victim does not want the charges to be filed.

Advocates can support the survivor when charges are filed by encouraging her to provide relevant information to her defense attorney, or talking with her defense attorney yourself, if she wants you to do so. (See section on arraignment below

³ For copies of the brochure, contact the Coalition at info@kccadv.org

for information on obtaining a defense attorney.) Essential information for the defense attorney includes: the survivor’s history as a victim of violence, and access to relevant medical records, police reports from previous incidents, and any other information that supports this history. It may be helpful to provide the attorney with some articles about the dynamics of domestic violence. If you want to talk with the prosecutor about the case, it is important to consult first with the defense attorney. Otherwise, you may unintentionally disclose information that could be harmful to the survivor’s case.

Initial appearance: The Washington State law requires that defendants be taken before a judge or commissioner for an initial appearance within 48 hours of arrest on a misdemeanor, or 72 hours of arrest on a felony. Some defendants may be released on their personal recognizance or “PR’d.” This means they are released on their promise to return to court. Some defendants will be required to post bail before they will be released from custody. The amount of bail is decided by the judge.

Judges will also generally issue a “No Contact Order” before releasing the defendant. If the alleged victim does not wish to have one, that person should appear in Court and make that position known. The Court may disagree, but it is still important for that person to be heard. If asked, the Court will generally make some provision in the Order for visitation of children. The Court will also generally allow a “civil standby,” so that, with police assistance, the defendant can go to a shared residence and remove their clothes and any necessary property. If the alleged victim is sharing a residence with the defendant, but the defendant owns the property, the defendant should make sure that the Court knows. If there are children that will be staying with the defendant instead of the alleged victim, the Court should be made aware of this also.

Many batterers use the No Contact Order as a way to set the survivor up for rearrest by preventing her from accessing her home, or contacting her children. When the survivor is the defendant in the case, make sure that there are provisions in the order for her to access the things she needs, and to see her children.

Release from jail: If a defendant is PR’d or posts bail, she will be released some time the same day. Release may take up to several hours to be completed. Family members, advocates and others who want to be informed of the time of the defendant’s release from the King County Jail can register with VINE, an automated telephone system (877-425-8463). For release information from the Auburn, Enumclaw, Issaquah, Renton jails, it is necessary to contact the jail directly.

Arraignment: At the arraignment, the defendant is informed of the specific nature of the charges against him or her. The defendant is advised that she should have an attorney and if they can’t afford a private attorney, they will be assigned a public defender.

The process for arraignment is different in misdemeanor and felony cases. In most courts, defendants on misdemeanor charges will be screened for eligibility for a public defender at this time. Under current practice, if a defendant is charged with a felony, a public defender will be provided unless the defendant hires private counsel.

If you are working with a survivor who needs a public defender and doesn’t yet have one, you can assist her in applying for one at the Office of the Public Defender (see the phone numbers at the end of this document) Applicants for a public defender must go to an initial appointment to verify financial eligibility. You may remind the survivor to bring her court summons, two most recent pay stubs, her most recent bank statement, and a copy of her income tax return. There is also a $25.00 processing fee,which must be paid at the time of the financial interview.

In the misdemeanor system, the arraignment happens within 48 hours if a person is in custody. This means that there is not enough time for a public defender to be appointed in advance. A public defender will be present at the hearing and assigned to the defendant if she is eligible. If additional information is needed in order for the judge to make a decision about the defendant’s release, this can be done after the hearing and the attorney can help the defendant make a request for a new bail hearing.

In the felony system, the defendant will generally have time to work with a public defender, prior to arraignment. During this time the defendant should help the attorney gather information that relates to the issue of release from custody. If the defendant is in school, has a stable home, is employed and welcome back at work, has responsibilities like childcare or care of a parent, has medical concerns, or simply needs someone called to bring in bail money, the defense attorney can help. It is also important for the defendant to tell his/her attorney if there has been a history of violence in the relationship especially if the defendant has previously been the victim of violence.

In either system, the defendant is asked to enter a plea of “not guilty” or “guilty.” In most cases a plea of “not guilty” is entered and a pretrial or case scheduling hearing is set. In some systems, a plea offer may be made to the defendant. If that occurs, the defense attorney must disclose the plea offer to the defendant and explain the pro’s and con’s of accepting it. Defendants should never plead guilty before they have a chance to fully understand all the implications of a guilty plea. (See Section on Guilty Pleas). The conditions of the plea, such as completion of a Batterers Intervention Program may be inappropriate to the defendant’s situation. It may not always be in the defendant’s best interests to agree to these conditions to get the case over with and get out of jail. It may be better to wait for the trial date in jail, than to agree to certain conditions in order to get released as soon as possible.

Right to a speedy trial: Defendants are entitled to a speedy trial. The general rule is that if a defendant stays in jail, the trial date must be set within 60 days from arraignment for those who are in jail, or 90 days from arraignment for those who are out of jail. This 90-day deadline also applies to defendants who are released from jail after posting bail.

Relatively few cases actually go to trial in our region. In the majority of cases, the defendant is offered and accepts a plea or the charges are dismissed. A plea may take place at arraignment, or at any of the subsequent hearings. Charges may also be dismissed at arraignment, or at any time before sentencing. If a defendant enters a plea of guilty at arraignment, a sentencing date is set.

Many things can delay the trial date. Some of these can be helpful to the defendant’s interests, some may be harmful. The defendant should discuss any delay with their defense attorney for more information about what it might mean.

Pre-trial Activities/Hearings: After arraignment, and before trial, the attorneys for both sides must do several things. Both the prosecutor and defense must disclose information to the other side through “discovery.” For instance, there may be motions to file, investigation to be done, or medical evaluations to obtain. Because some of this can take time and should be done before a case is set for trial or a plea is taken, the pre-trial or case scheduling hearing may get postponed and held again at a later date. Therefore, three things can occur at the pre-trial or case scheduling hearing. The defendant may choose, 1) to set a trial date, 2) to accept a guilty plea, or 3) the defendant may decide that it is too early to choose between these two, and would then ask for a “continuance” to postpone the hearing.

Plea Agreements: Before trial, the prosecutor assigned to the case may discuss the possibility of a negotiated case settlement with the defense attorney. The defense attorney may seek an agreement that allows the defendant to plead guilty to the original charges, to lesser charges or to dismissal of the charges. Before the defendant makes a decision about the guilty plea, it is important that she fully understand the pros and cons of accepting the offer versus turning it down. If her attorney is not able to answer all of her questions, it is appropriate for her to ask the Court for more information. If an agreement is reached, the defendant enters a plea of guilty and signs a form that says that he/she is knowingly giving up various rights, including the right to trial.

Loss of Rights When Pleading Guilty: While many defendants (especially DV survivors) want to plead guilty in order to avoid the time and expenses of going to trial, defendants who plead guilty lose the following legal rights:

The right to a jury trial,

The right to remain silent and the right to refuse to testify against themselves,

The right to have witnesses testify for them,

The right to be presumed innocent,

The right to appeal a determination of guilt.

When possible, advocates should ensure that the survivor has complete information about the pros and cons of taking a plea, and should support her in making the decision that works best for her. In addition to the loss of rights listed above, some of the long-term implications of accepting a guilty plea (in a felony or misdemeanor case) may include loss of employment or license to practice in certain fields, a ban on receiving public benefits, loss of eligibility for public housing, negative impact on child custody decisions, deportation, ineligibility for admission to some educational institutions, and loss of the right to serve on a jury as well as other civil rights.

Trial: If the defendant does not wish to plead guilty, or the parties do not reach a plea agreement, the case may go to trial. All parties to the case are subpoenaed (summoned) in advance to testify before the court. No witness other than the testifying party can be present in court during testimony. However, the victim has the right to be present throughout the trial.

After the jury is selected and sworn, the prosecution and defense each make an opening statement to the jury to explain the case. The prosecutor then presents the case against the defendant, and must prove “beyond a reasonable doubt” that a crime was committed and that the defendant is guilty of committing this crime.

After the prosecutor presents the case against the defendant, the defense presents its evidence. This could consist of additional witnesses who have not yet testified, additional documents or evidence that has not been shown, or additional questions that have not yet been answered by the witnesses who have already testified.

After jurors receive instructions and deliberate, each side gets to present closing arguments, summarizing the reasons why the jury should rule in their favor.

Sentencing: If the defendant pleads guilty or is found guilty, the judge will set a date for sentencing. At the sentencing hearing, the prosecutor and the defense attorney will each have an opportunity to address the Court, make a recommendation about sentence, and explain why that recommendation is fair and appropriate. Either side may call witnesses if it will help them to do this. The defendant also has the constitutional right to address the Court at sentencing. Before doing so, she should talk with her attorney about what to say. After hearing from all parties, the Court will determine the sentence. This could consist of jail or prison time, probation, other monitoring in the community, electronic home monitoring (home confinement during which the defendant must wear a monitoring device), completion of a batterer intervention or anger management program, parenting classes or chemical dependency, another No Contact Order, community service, fines, or other conditions related to the crime for which the defendant was convicted. The defense attorney can help the defendant understand the conditions of sentence.

Resources for People Charged With A Crime:

Access to an attorney: If the survivor can afford to hire an attorney, then she can do so at any time. If she cannot afford an attorney, in most courts she will have a public defender appointed to represent her if she is charged with a crime. There will also be a public defender present to assist at any criminal hearing before the survivor is charged.

To speak to a public defender before the survivor is charged, call the Office of the Public Defender, 206-447-3900. To talk to a public defender after the survivor is charged, call 206-2967662, Monday-Friday, business hours.