If you are charged with any type of assault family violence, the goal is to get the case dismissed. However, only the prosecutor can dismiss the case, and if a case is not dismissed, at some point you will have to choose between a trial and a plea agreement.
Many people charged with a criminal offense will say that they wish to avoid a trial because it is too risky. But in reality, a trial may often be the best option if a case is not dismissed and the plea agreement offered by the prosecutor is not acceptable. For example, if you are charged with class “A” misdemeanor assault family violence (for a first-time domestic violence arrest), and the only offer is to plead guilty to the offense and go on probation, in many instances, that will not be a very attractive offer because that is the result you might receive even if you went to trial and lost. In other words, in this situation, you are basically getting a “free” shot at an acquittal and keeping a conviction off your record.
The point is that to obtain the best possible result in an assault family violence case, you should keep all options, including going to trial, open. The below article summarizes the general procedure of a trial and some key points in each stage.
What are the stages of a domestic violence trial?
In Texas, trials are split into several parts – jury selection, the guilt/innocence stage, and the punishment stage. Jury selection is the stage where a jury is selected to hear a case (unless the case is only being presented to the judge, which is rare). The guilt/innocence stage is the part of the trial where the prosecutor will attempt to present evidence and witnesses to prove a defendant guilty beyond a reasonable doubt. If there is a guilty verdict, then there will be a separate sentencing hearing, where evidence is presented to a judge or jury that is to be considered in assessing a sentence.
In assault family violence cases – like all criminal cases – a defendant has a Constitutional right to have his guilt or innocence decided in front of a jury. Juries are composed of six jurors in a misdemeanor case and twelve jurors in a felony case. The jury selection process is known as voir dire.
The purpose of jury selection is to allow a jury to be selected that is impartial and willing to follow the rules that control jury trials. Typically, forty potential jurors or more arrive for jury selection. The judge will usually address the entire group regarding general legal principles and give an overview of the process. Then the prosecutor and defense attorney will have a chance to address the jurors.
The parties will usually ask jurors if they or someone close to them have been the victims of assault family violence, and if they can be impartial in this case. One side or the other might also ask questions about whether they have family or friends in law enforcement, to try and uncover people that might give an unfair advantage to one type of witness over another. Uncovering clear bias is one of the most important functions of jury selection.
A smart defense attorney will also use the opportunity to emphasize legal principles like proof beyond a reasonable doubt. Proof beyond a reasonable doubt is the legal standard that controls all criminal cases and it is important to understand that it is the highest legal standard in the law. In an assault family violence case, a smart defense attorney might also use jury selection to preview issues that might come up in trial. For example, let’s imagine that a defendant is charged with assault family violence with an allegation of choking that was so bad, the victim claims she lost consciousness. However, the police did not observe any marks or injuries of the victim. A smart defense attorney might ask the jury panel what kind of evidence they would expect to see if a case involving a serious allegation of choking, and then write down all the responses the jury makes, which would likely include things like bruising, or scratching. Later on in the trial, when it is revealed that there were, in fact, no injuries at all in this case, the jurors might become suspicious of the allegation.
Once both sides are given an opportunity to speak to the jury, then “strikes” are made, which means that each side is given the opportunity to eliminate jurors. The first strikes are known as strikes “for cause” which are strikes for legal reasons, like when a juror says he cannot follow the law because he was a victim of domestic violence. The second type of strike is known a peremptory strike and can be for any permissible reason (the prosecutor is prohibited from eliminating people due to their race). Each side is given a certain number of strikes and the jurors that are left after this process comprise the jury for the case.
The Guilt/Innocence Phase
Once the jury is selected, the trial begins. First there are opening statements. Opening statements are supposed to be previews of what the evidence will show and are not supposed to contain arguments. Opening statements in assault family violence cases are typically brief.
Since it is the prosecutor’s burden to prove the case, the prosecutor will then begin calling witnesses. In a domestic violence case, the witnesses are typically the alleged victim, other firsthand witnesses to the incident, police officers who investigated the alleged incident, and sometimes medical professionals.
Very often, in domestic violence cases, the only witness to an incident might be the alleged victim. In these cases, it is usually necessary that the alleged victim testify in court. Under the United States and Texas Constitutions, a defendant has a right to confront their accuser, which means that they have the right to have their attorney cross-examine a witness. This means that in most instances, a 911 recording or written statement of the incident cannot be admitted if the victim is not there to testify. An experienced criminal defense attorney should be prepared to make “confrontation” objections to any attempts by the prosecutor to present evidence about the incident if there is no firsthand witness.
A defense attorney should carefully and strategically cross-examine all witnesses presented by the prosecutor. A defense attorney should be intimately familiar with all of the evidence that will be presented. The defense attorney should have a clear defense to present and should cross-examine each witness with the goal of furthering that defense strategy. Cross-examination is an art and it is critical to showing a witnesses’ bias, motive to lie, poor investigation or lack of knowledge.
It is important to understand that the evidence a jury hears is controlled by the rules of evidence. In general, only evidence that is likely to prove or disprove the accusation – that domestic violence occurred in this instance – can be admitted. For example, if a defendant in an assault family violence case has been previously convicted of DWI, that usually won’t be admissible as it does not make the allegation of assault family violence more or less likely to have occurred.
After the prosecutor has presented all of his witnesses, then the defense may present witnesses. Because it is the prosecutor’s burden to prove the case, the defense is not obligated to present any evidence whatsoever, and the jury should have been instructed that a defendant has an absolute right to choose not to testify. Attorneys have different philosophies regarding whether a defendant should testify. If a defendant chooses to testify, a criminal defense attorney should let him know what to expect and how to testify effectively.
Next, closing statements are made. Unlike opening statements, closing statements can – and should – contain arguments. In other words, closing arguments should tell the jury what conclusions should be drawn from the facts that are presented. Once both sides present evidence, the jury will go to a private area to decide whether a defendant is guilty or not guilty.
If the verdict is “not guilty,” the trial will be finished. If there is a guilty verdict, then there will be a sentencing hearing in front of a judge or jury. In Texas, a defendant is supposed to choose whether to have a judge or jury assess the sentence, prior to the start of the trial. Whether to choose judge or jury sentencing is a decision that should be made with the advice of an attorney who understands the judge’s sentencing habits and also legal limitations on sentencing (for example, in domestic violence cases where the use of a deadly weapon is alleged, a judge cannot sentence a defendant to probation).
Attorney Jose Ceja has tried over 50 jury trials and has extensive experience going to trial in domestic violence cases, both as a defense attorney, and as a prosecutor. He is an excellent choice if you are charged with domestic violence anywhere in the Greater Houston Area. Call today for a free consultation.