A Guide for Complaining Witnesses in Domestic Violence Cases In New York City
If you are the person in whose name the charges have been brought (in the sense that the Government has labeled you the complaining witness), you may have your own concerns about the process and you may be confused about the reaction that the Government agencies involved have had to your situation.
I frequently am contacted by the complaining witnesses in domestic violence cases even though I am representing the person who has actually been charged. Often, when I am contacted by a complaining witness in a domestic violence situation, it is as a result of what is perceived by the complainant as an unsatisfactory interaction with the prosecutor on the case.
In some cases, the complainant will not be satisfied with the prosecutor because the prosecutor will refuse to do what the complainant wants to be done. This most frequently comes up in situations where the complainant does not want the charges to be pursued at all and wants the case dismissed outright without an Order of Protection.
Other situations in which complainants have expressed frustration to me have involved a frequent confusion over vocabulary between the non lawyer complainant and the prosecutor. It goes something like this:
I frequently am contacted by the complaining witnesses in domestic violence cases even though I am representing the person who has actually been charged. Often, when I am contacted by a complaining witness in a domestic violence situation, it is as a result of what is perceived by the complainant as an unsatisfactory interaction with the prosecutor on the case.
In some cases, the complainant will not be satisfied with the prosecutor because the prosecutor will refuse to do what the complainant wants to be done. This most frequently comes up in situations where the complainant does not want the charges to be pursued at all and wants the case dismissed outright without an Order of Protection.
Other situations in which complainants have expressed frustration to me have involved a frequent confusion over vocabulary between the non lawyer complainant and the prosecutor. It goes something like this:
Complainant has conversation with prosecutor in which the idea in complainant’s mind is that she (or he) wants the charges dismissed without an order of protection. Prosecutor will tell complainant that the Government will not seek to put the defendant in jail or give him a criminal record. Complainant will take this to mean that the charges are going to be “dropped” and that all problems are solved. Defendant appears in court expecting that the matter will be dismissed only to discover that the Government is NOT seeking to dismiss the charges, but is instead making an offer on the case. The offer may be to plead guilty to a non criminal offense, may include an order of protection (either limited or full) and the offer may also include a requirement that the defendant participate in a program (such as an anger management program or a substance abuse program).
In such situations, I will occasionally be called by complainants who can’t understand what happened.
And the problem is one of communication between the prosecutor and the complainant. Technically, the prosecutor has done exactly what was promised - that is an offer has been made to resolve the case that does not leave the defendant with a criminal record and does not require a jail sentence. The complainant, often someone without experience in the criminal justice system and often someone who is nervous in dealing with government officials, simply assumes that no jail and no criminal record means that everything will be dismissed.
But it DOESN’T.
The Government still often wants a plea of guilty to SOMETHING, just not something that would result in a criminal record. The Government still often wants the defendant to participant in some kind of counseling or program. And the Government still often wants the defendant to be bound by the terms of an Order of Protection.
All of these things represent potential issues for the complaining witness and the defendant alike. The Government’s insistence on a violation plea (a non-criminal offense) may seem like no big deal, but in some cases, especially for those who are not citizens, even the plea to a non-criminal offense can potentially create problems with immigration status.
The Order of Protection, if insisted upon by the Government in conjunction with a program of some sort, is often times going to be in effect until the completion of the program, sometimes 6 to 12 weeks down the road. That could have the effect of keeping the defendant and the complaining witness in separate locations for the time. Complaining witnesses often report that these sorts of details are not made clear to them in conversations with the prosecutors.
A complaining witness in a domestic violence situation who wants the government to drop the charges against a defendant should make every effort to clarify her wishes with the prosecutor, not because the prosecutor is required to do as she wishes, but to make sure there is no confusion about her wishes.
In such situations, I will occasionally be called by complainants who can’t understand what happened.
And the problem is one of communication between the prosecutor and the complainant. Technically, the prosecutor has done exactly what was promised - that is an offer has been made to resolve the case that does not leave the defendant with a criminal record and does not require a jail sentence. The complainant, often someone without experience in the criminal justice system and often someone who is nervous in dealing with government officials, simply assumes that no jail and no criminal record means that everything will be dismissed.
But it DOESN’T.
The Government still often wants a plea of guilty to SOMETHING, just not something that would result in a criminal record. The Government still often wants the defendant to participant in some kind of counseling or program. And the Government still often wants the defendant to be bound by the terms of an Order of Protection.
All of these things represent potential issues for the complaining witness and the defendant alike. The Government’s insistence on a violation plea (a non-criminal offense) may seem like no big deal, but in some cases, especially for those who are not citizens, even the plea to a non-criminal offense can potentially create problems with immigration status.
The Order of Protection, if insisted upon by the Government in conjunction with a program of some sort, is often times going to be in effect until the completion of the program, sometimes 6 to 12 weeks down the road. That could have the effect of keeping the defendant and the complaining witness in separate locations for the time. Complaining witnesses often report that these sorts of details are not made clear to them in conversations with the prosecutors.
A complaining witness in a domestic violence situation who wants the government to drop the charges against a defendant should make every effort to clarify her wishes with the prosecutor, not because the prosecutor is required to do as she wishes, but to make sure there is no confusion about her wishes.
In the absence of specific information, for example, the default position of the Government is most likely going to be that an Order of Protection is required. Therefore, unless a complaining witness SPECIFICALLY tells the prosecutor that she DOES NOT WANT an order of protection, there will be an order of protection requested by the Government. Of course, even if the complaining witness says she does not want an order of protection, the Government is free to substitute its own judgment on the matter.
Therefore, a complaining witness would be well advised to keep the following items in mind when dealing with a prosecutor:
Assuming the desire is that the Government should drop all charges against the defendant, the following questions should be asked directly of the prosecutor and the complaining witness should be prepared to explain how she feels about these issues and why.
Therefore, a complaining witness would be well advised to keep the following items in mind when dealing with a prosecutor:
Assuming the desire is that the Government should drop all charges against the defendant, the following questions should be asked directly of the prosecutor and the complaining witness should be prepared to explain how she feels about these issues and why.
- Is the Government prepared to actually dismiss ALL charges against the defendant? That means NOT just dismissing the misdemeanor and offering a lesser plea. That means NOT offering an ACD. Is the Government going to outright dismiss everything? If you want the Government to dismiss everything, be prepared for the Government to ask you whether you want the case dismissed because you feel sorry for the defendant even though he did what was charged, or whether you want the case dismissed because the defendant did not do what he is accused of doing. Be prepared to be threatened with prosecution for filing a false complaint if you made the initial complaint to the police and are now saying that it never happened.
- Do you want an Order of Protection? Keep in mind that there are two types of orders of protection. There is a limited order of protection (LTOP) and a full order of protection (FTOP). A limited order of protection allows you to be with the person, but the person is not allowed to assault, harass, annoy, or commit any crime against you. A full order of protection requires that the defendant stay away from you completely. That means that he will not be allowed to contact you under any circumstances in any way, and it means that YOU should not contact him in any way for any reason whatsoever.
- Social Programs - The Prosecutor is likely to ask you about your relationship with the defendant and the source of the problem that led to the arrest. Typically, this will involve questions about whether the defendant has a drug or alcohol problem and/or some sort of anger management problem. If the prosecutor believes that these sorts of issues are in play, then don’t be surprised if drug/alcohol treatment and anger management counseling become part of how the Government wants to resolve the case. IF you honestly do not believe there is a drug or alcohol problem or anger management problem, then don’t be afraid to say so.
A complaining witness in a domestic violence case who keeps the above issues in mind when talking to the prosecutor, will be in a much better position to make clear what exactly her position is on important aspects of the case.
Signatures Required or Not Required?
Complainants have historically complained to me over the years about not being accurately informed about the significance of their signatures on various documents that are presented to them. Complainants would be well advised to make certain exactly the consequences of their signatures before putting pen to paper on any document, let alone a document presented to them by the Government.
In the Domestic Violence context, complaining witnesses will often be provided two documents of critical importance to the prosecution: the Domestic Incident Report, and the Corroborating Affidavit. It has been reported to me by individual complainants that these documents have occasionally not been explained accurately to them.
The signature on the complaint, called the "corroborating affidavit" means that the complainant agrees that all of the facts provided by her that appear in the complaint are true. But the fact that all of the facts in the complaint are true is a different concept than whether or not the complainant "must" sign the document. The Government has no authority to require a complaining witness to sign any document, let alone a corroborating affidavit. If a complaining witness does not sign the corroborating affidavit, then it is possible that the Government will not ultimately be able to maintain the charges against the defendant and that the case will be dismissed in 90 days. In this way, the complainant can seek to control the Government's ability ultimately to be successful.
In the absence of the signature on the complaint, the Government can sometimes be permitted to use a signature from the Domestic Incident Report (DIR) that is often obtained right at the time of the incident by the police.
Again, there is no obligation on the part of anyone to sign anything, and no matter what a Government agent says, there is no requirement to place pen to paper and sign anything. Obviously, if the reason a person is not signing comes as the result of illegal influence, that is a different story, but if, of a person's own free will, they choose not to put pen to paper, there is nothing illegal about that.
But no complainant who is not being victimized by illegal influence ought ever believe that they MUST sign a document that the Government wants them to sign. And if it is a complainant's considered opinion that she does not want the Government to pursue a criminal case against the defendant, then refusing to sign either the DIR or the corroborating affidivat may be a way (in some but not all circumstances) to control what the Government does -- eventually. In the absence of the signatures, the Government may be in a position intentionally to drag the case out to the last possible moment of the 90th day, even if they fully know they are not going to get the needed signature.
I have heard any number of stories from complaining witnesses about some of the things that various Government agents (police or prosecutors) have said in order to convince complaining witnesses to sign either the corroborating affidavit or the DIR. I tend to feel more forgiving of the police in this context since they are not lawyers and their inability therefore to communicate tricky legal concepts may be forgiven. It is also possible that the things that complainants report to me as being said to them are inaccurate, although the frequency and similarity of the comments sometimes trouble me.
In any event, a complaining witness should know that he or she is never obligated by the law to sign any corroborating affidavit or domestic incident report. Of course if the refusal to sign anything comes as the result of illegal influences, that should never be a reason to refuse to sign and the illegal influences should of course be made known to law enforcement.
Taking Away Children from Complaining Witnesses as Leverage When the Complaining Witness is Reluctant to Sign Affidavit against Defendant
Although the Government cannot literally force a complaining witness to sign anything, the Government has any number of means to persuade a complaining witness to its way of thinking. One means in particular can arise in the context of a domestic violence accusation in the context of a family with children.
For example, it has been suggested to me by complaining witnesses who have children with the defendant, that they have been threatened by the Government that if they refuse to sign a corroborating affidavit or DIR, that a case would be opened in Family Court naming the complainant in a "neglect" petition. The theory of neglect would be in failing to pursue an abuser in the home and therefore placing the children at risk. Once a neglect petition is brought in Family Court the Government would then be in a position to remove the children from the custody of the mother and place them either with other willing family members, or failing that alternative, placing the children in a safe foster care environment.
BY: DON MURRAY, Partner in the New York Criminal Defense Law Firm Shalley and Murray