Domestic violence is a very big problem. No one has a privilege to hit any other person, for any reason, outside of a boxing ring or hockey arena. But people get excited and angry. Sometimes this anger causes them to hit their mates and sometimes this anger causes them to call the cops and claim that they were hit. Sometimes people are just arguing, when a neighbor calls the cops. No matter who calls the cops, the family has a very serious problem. Many police departments have a policy that when there is a domestic violence complaint the officers must arrest one of the parties.
Because domestic violence is a hot issue, state and local authorities are taking a very hard line on prosecuting people who are accused of physically assaulting family members. In past generations, fistfights among siblings were tolerated and spanking or hitting of wives by husbands was considered reasonable behavior. Now, the same behavior can result in criminal charges.
Once criminal charges have been instituted in this type of case, it is extremely difficult for the complainant (person who filed the complaint) to drop the charges. Prosecutors and judges think–with some justification–that domestic abuse victims want to drop the charges either because they are afraid of the defendant or because they unreasonably think the defendant will not assault them again. When the complainant says he or she does not want to testify, the prosecutor will threaten that a charge of obstruction of justice or contempt of court will be brought unless the complainant testifies in agreement with the statement that was originally given to the police. In a case in which the complainant made a false or exaggerated police report, this is a big problem.
Now if the original police report was correct, and there is a legitimate domestic violence charge, the complainant has a duty to go forward for self protection and the protection of other victims of domestic abuse. However, if the complainant truly wants the charges dropped and is willing to take the consequences, he or she should not be forced by the prosecutor to press the charges.
If the complainant filed a false or exaggerated report, he or she has a legitimate 5th Amendment right to remain silent. Sometimes it is not the complainant’s fault. Police officers often add facts to reports because they misunderstand what is told to them, or because they want to justify higher charges, or because they think the report will be more interesting if there are wounds or bruises. This puts the complainant in a double bind–if he or she testifies in accordance with the false police report, that is perjury; if he or she testifies in a manner that contradicts the report, the prosecutor may charge perjury, obstruction of justice, or something else. In any case, the complainant’s testimony cannot be compelled unless the judge grants immunity and there is an opportunity to consult with an attorney about the matter.
If you are a complainant and you want a matter dropped because the police report is inaccurate, tell the prosecutor that you do not want to proceed. If the prosecutor says that you will be forced to testify, state the following, “I respectfully claim a 5th Amendment privilege not to testify and I request that an attorney be appointed to advise and represent me under my 5th Amendment right to counsel.” Then say nothing else to the prosecutor or any police officer, unless a judge orders you to speak. When I say “say nothing else” I mean do not discuss the weather, politics, the judge’s hairdo, the state of the economy, or your sexual preferences. Do not talk to anyone involved in the criminal justice system unless he or she is your attorney! If you state that the police report is false, you are locking yourself into a charge of filing a false report.
The prosecutor may say, “I’m your attorney and I advise you to testify.” That is a lie (yes, prosecutors sometimes lie). If you are claiming the 5th Amendment, the prosecutor is your opponent and cannot advise you.
In most cases, the prosecutor will drop the matter if the complainant claims the 5th Amendment. It would be difficult to prove that the police report was not false in some respect. If the complainant claims the privilege, there are two possibilities: the police report is false or the complainant is falsely claiming the privilege. The prosecutor can not charge you with being either false in the original report or false in claiming the privilege. Therefore, the prosecutor probably cannot proceed against you.
If you are brought before a judge, make the same statement, but with greater respect. If the judge refuses to grant you counsel and orders you to testify, you may have no choice in the matter. However, any judge who respects the constitution will arrange for you to consult with an attorney. When you have your own attorney–not the prosecutor–he or she will advise you what you can do. Good luck!
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com ©2008 John B. Payne, Attorney