Domestic Violence Charges: What You Don't Know Can Hurt Your Defense

"How The Right Domestic Violence Defense Can Keep Accusations of Past Conduct Out of Court"

At The Law Office of Brian J. Prain, PLLC, we concentrate on defending those accused of Domestic Violence.  If you're facing a Michigan Domestic Violence charge, getting the right advice is critical to the outcome of your case - it can even mean the difference between going to Jail or maintaining your freedom.  One thing that can put your defense in jeopardy is when the complainant accuses you of committing other acts of Domestic Violence or abusive conduct in the past.  This can hurt you not only if you decide to take your case to Trial, but also if you are looking to get the best plea or sentence agreement possible.  That is because one of the largest factors for determining whether you get the plea deal you need is what your chances would be if there were a Trial.  Remember, the Prosecutors don't have to offer you a plea deal in a Domestic Violence case!

Generally speaking, if you're facing a criminal charge in Michigan, evidence of accusations that you've allegedly done other, similar things in the past is not admissible at Trials and other Evidentiary Hearings.  That is a good thing when you are the Defendant, and the principle behind it is that our justice system demands that your guilt or innocence be decided on the facts of the particular Domestic Violence case at issue, rather than based on prejudice.   But there are exceptions to every rule, and in 2006, the Michigan Legislature carved out a very specific exception for those facing Michigan Domestic Violence charges, and it is found in the Code of Criminal Procedure, MCL 768.27b.  If you are a Defendant in one of these cases, you NEED to know about this special law!  Here, we'll explain it in detail . . .  

MCL 768.27b(1) reads exactly as follows (in relevant part):

"[i]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403."  

First, you should notice that it does not say that the alleged "other act(s)" have to involve the same complaining witness; it could be an accusation from a bitter ex that you dated a decade ago whom the Prosecutors have reached out to and interviewed after you were arrested.  And when you realize that the definition of Domestic Violence in Michigan under MCL 750.81(2) is broad enough to include your own child, parent, or even a past roommate of the same gender, you'll understand how damaging, admissible evidence can stack against you over past incidents and arguments that you've long since forgotten about.

Next, you should notice  that there is no requirement that you were actually convicted of the past alleged act of Domestic Violence.  There's not even any requirement that you were ever arrested or charged for it!  In-fact, there's no requirement that your would-be accuser from the past ever even mentioned the alleged past incident to anyone - ever!  This is obviously dangerous because people tend to exaggerate and even outright lie, especially when they believe they are helping the police and prosecutors - who they often feel intimidated by.

Finally, this special exception law contains a definition of "offense involving "Domestic Violence" and "other acts of Domestic Violencedifferently, and more broadly than the definition of Domestic Violence in the Penal Code.  In this law, the Michigan Legislature said that the alleged past conduct that could find its way into Court includes:

(i) Causing or attempting to cause physical or mental harm to a family or household member.

(ii) Placing a family or household member in fear of physical or mental harm.

(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.

(iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

The only time limitation that applies is in subsection (4), which says that "(e)vidence of an act occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that admitting this evidence is in the interest of justice."  So events that supposedly happened within 10 years are admissible in Court, and even longer ago if the Judge feels like they should.

So what does all of this mean for your Domestic Violence case?  You could end up sitting there at your Jury Trial listening to one or more of your angry exes, spouses, casual partners, or even your estranged child claiming that you hit them, beat them, choked them, gave them a black eye, and so on and so forth . . .  This is very, very bad for you, and will very likely get you convicted - and it happens quite a lot in Domestic Violence cases that are not properly defended.  Even if you're only seeking a plea deal, remember that what kind of a deal you get depends on how likely you are to win if there were a Trial (think ... poker).

"But if all someone has to do is make-up a story because they don't like you, how can there be any defense against this type of thing?"

Actually, there's quite a lot that the savvy Michigan Domestic Violence lawyer can do to kick this kind of crap out of Court.  But you must be proactive - waiting until the last minute is the wrong strategy.  If the Prosecutor intends to introduce this type of evidence against you, they must give written Notice in advance (15 days before trial - although Prosecutors may try to sneak it in at the last minute, claiming they "just discovered" it).  For those of you in the know, these Notices are the Domestic Violence version of 404(b) Notices in other criminal cases.

At The Law Office of Brian J. Prain, PLLC, your Michigan Domestic Violence lawyer, we have literally had these Notices filed claiming that an ex girlfriend's father is going to testify that our client broke his daughter's leg years ago, but with no evidence that she ever went to the hospital!  Can you imagine if the Jury were allowed to hear that?  We know the intricacies of the law that surrounds MCL 768.27b, and we put it to work for our clients to make sure that this evidence doesn't come to Court in your case.  Give us a confidential phone call and set-up your free consultation now!  You can't afford to wait . . .

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