Stage 2: Pre-File
Process of Domestic Violence Case
The days immediately following your release from custody are absolutely critical in terms of fighting and defeating the case before it begins. The sooner your attorney can contact the prosecutor before the case is filed, the greater the likelihood the case will not be filed to begin with. Domestic violence can be very difficult to prove at trial. Prosecutors always have an eye on the likelihood of success at trial when determining whether or not to file charges. Be sure to retain an attorney that frequently deals with the family protection unit reviewing your case. Your attorney’s relationship with the prosecutor, and reputation for success in the domestic violence cases, can heavily influence the prosecutor’s filing decision in the case.
It is also imperative that your attorney conducts a thorough investigation prior to charges being filed. You cannot wait until court to obtain witness statements and gather necessary evidence. An investigator must contact any individuals who know the relationship between the accused and the victim to shed light on the history of violence or lack thereof. The victim may wish to modify their statement to law enforcement and provide a new statement that may benefit the accused.
The entire history and good character of the accused, including any professional, scholastic, philanthropic achievements, must be presented to the prosecutor. Domestic Violence arrests often result from he said/she said situations with little to no injury. Seasoned prosecutors are well aware that “victims” often lie or embellish their story at the time of the arrest.
They have experienced the difficulty in sifting through police reports to determine what really happened. A meticulous investigation and fully prepared witness declarations can ultimately convince a prosecutor not to file the case, or to reduce the charges to a misdemeanor.
Many times following an arrest, there is an emergency protective order that prevents the accused from seeing the victim or their children. It might even prevent them from going back to their house once they are released from jail. If there is not a protective order in place prior to the arraignment, the prosecutor will always ask for the court to issue one at the arraignment.
An attorney in the pre-file stages can coordinate with the prosecutor and sheriff’s department to potentially have the protective order lifted prior to the court date. Getting involved early will also allow your attorney to present to the judge an appropriate and convincing argument to eliminate the protective order so that the accused is not separated from his family and home for the duration of the case.