Expert: Jack Toomey - 10/19/2006

Question
My brother is facing a trial for Criminal Domestic Violence.  When he went for the hearing, his lawyer said that the magistrate was not willing to work with him and he had to plead guilty or not guilty right then and there because they wouldn't even give him a continuance.  My brother never got to say the first word.  Everything the magistrate seen was on paper from his wife and the deputy point of view.  The statement is full of lies that the wife told on the husband to get out of the marriage and have the power to get what she wants.  I am going to tell you what the deputy wrote on the police report word from word.  Please keep in mind that the deputy did not see my brother.  He came an hour after my brother left the house.  (I know this because my husband and I were the ones to pick him up)  Here is the statement from the deputy:
On the above date and time victim advised R/O that she had left their home to look for her husband.  She met him on the road.  He tried to run victim off the road way when the victim got home, she asked why he had tried to run her off the road.  She advised he went into a rage and started to break dishes and shove and push her causing her to fall and burn her left arm by hitting a hot frying pan on the stove top.  Then he broke a chair by throwing it at the storm door.  All this was done in the presence of their three kids ages, 12,10 and 4 year old.  The kids were very upset.  The offender threaten to pull the phone line out if they tried to call 911.  Threaten the victim by saying if she tried to press charges against him that he would kill her.  Victim was given a victims bill of rights and advised to call the *********Coalition for help and to see the Family Court as soon as possible.  Victim's cousin had cleaned up the broken dishes and glass off the floor in fear the small kid would get into the glass.  Officer observed the broken plates and bowels in a pile in the kitchen floor.  END

There were many lies in this statement that was told to the officer and he put these down on paper.  He wrote a lot of hear say in this report.  He seen the dishes on the floor, which is about the only thing that was true in this statement.  My question is:

How can they convict him on a statement that the officer did not witness himself?  He seen the after math of a huge argument that got heated with a few broken dishes.  How is this officers account hold up in the trial when he himself did not witness him trying to run her off the road or hear him threaten to kill her if she called 911.  This is her word against his.  How much weight is this going to carry in front of the judge?

Can we bring up things during the trial that will indicate that she planned this as a way to get him out of the house and be able to get what she wants, such as alimony, the house and the kids. (She has never worked more than a few weeks in their 14 years of marriage)  Please tell me what you think our chances are to get the judge to see that there was an agenda behind these lies.

Answer
  
    Your question is a bit confusing because you said that the magistrate said that he had to either plead guilty or not guilty at that time.  But you go on to talk about an upcoming trial so that is a contadiction.  I am assuming that the hearing was a preliminary matter and he had the option of entering either plea for an upcoming trial.

  However here is the problem.  Your brother has an attorney and is paying for his services.  Ethically I cannot give you or him advice since I am not an attorney and your brother has the services of an attorney.  What if I told you one thing and the attorney told you another thing?  Can you see what troubles that would cause?

   I can tell that generally in most states that an officer has the obligation (under the law) to make an arrest in a domestic violence complaint solely on the word of the complaintant if there is one ounce of coroberating evidence (one ounce of additonal evidence such as a mark, an emotional statement, fear, flight, etc) and if he (the officer) doesn't he could be charged with a crime himself.  The officer can testify to anything he saw at the scene including statements made by both parties.

  Years ago almost all of the states changed their laws in order to protect battered wives or girlfriends because of pressure from womans rights groups.  So this is how all of this happened.

   For the answer to your other questions I am afraid that you are going to have to talk to your brothers attorney.