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Case History: What Will Transpire if Both Parties in a Domestic Violence Incident Are Purported to Have Inflicted Physical Injury? Is Self-Defense a Viable Defense?


Frequently the police will arrive and both individuals will have been involved in the fight and then there is a dispute as to who might have started to fight.

The police might get different versions as to what transpired.

Each Party May Place a 911 Call for the Police

For example, two individuals are getting divorced and neither one of them have moved out of the house pending the divorce, until a judge makes a decision as to who has to move. Then one night an incident of domestic violence occurs and both of them call police. You have two 911 operators getting phone calls simultaneously for the same address.

The Police Must Determine Which Party was the Aggressor and Make an Arrest

So the police arrive and it’s obvious to the police that both people have been involved in the fight. The attorney general of law enforcement directive dictates they must make an arrest and the police have to make a determination as to the aggressor. That’s the person that gets arrested and not both of them.

The Defense Attorney Would File a Motion of Self Defense, Which States That the Contact Originated because of Assault by the Other Party

In that type of scenario I would file a notice of self-defense on behalf of my client. This motion would state that the physical contact was justified and it originated because the client was assaulted by the other person.

The prosecutor would have to at a trial, disprove beyond a reasonable doubt that it was self-defense. They’d have to prove beyond a reasonable doubt that the client had committed the assault, but they’d also have to disprove beyond a reasonable doubt that it’s not self-defense. What happens is that the prosecutor at that point has to alert the complainant, “You’re now being accused of the assault.”

Self Defense and a Richards’ Hearing

In a self-defense issue what would also take place is the defense attorney would make a request for a “Richards’ hearing.” There’s A New Hampshire Supreme Court case “State versus Richards.” This case changed the rules regarding taking the Fifth Amendment.

Years ago, if you wanted to take the Fifth Amendment, you had to take the Fifth Amendment with respect to all questions. You couldn’t pick and choose questions. If you answered any questions, had to answer them all and if you wanted to take the Fifth Amendment, you’d have to decline to answer any questions.

The Richards Case Altered the Manner in Which a Defendant Can Claim the Fifth Amendment Protection

The Richards case at this point is 20 years old, it may be older. It stands from the proposition that when the witness is taking the Fifth Amendment, the court is to make an inquiry as to whether they can take the Fifth Amendment question by question. So what would occur is a pre-trial hearing to determine whether or not the complainant can testify without recrimination.

When a defense attorney raises that type of issue, the court would be required to advise the complainant that they should retain an attorney and the court would actually appoint an attorney for the individual if they couldn’t afford one.

The Richards’ Hearing Is Frequently Requested When Both Parties are Alleging Assault

Then they would have the hearing to decide whether or not the witness could take the Fifth r whether they would be required to answer the question. That’s the complication that occurs, as I say, when both individuals have been involved.

Cases Are Often Dismissed as a Result of the Richards’ Hearing Due to Lack of Evidence

In the Richards hearing, frequently the cases fall apart at that point. By that, I mean if the witness is able to take the Fifth Amendment and if the court, after its inquiry, determines that taking the Fifth Amendment, in fact is justified given the circumstances, then at that point the government may lose its case.

The prosecution doesn’t have a witness to testify, other than the police officer and typically, the cases fall apart at that point.

Both Attorneys May Work Together in the Event of a Richards’ Hearing

With respect to the Richards hearings, what I have done with other lawyers that I have worked with in the past is that when a domestic violence arrest takes place, the person identified by the police as a victim calls the prosecutor and wants to drop the charge.

They consult with the defense attorney for the significant other if there is an issue of self-defense that is raised. Then the complainant would retain their own attorney who would raise the Fifth Amendment issues promptly, before the court schedules the hearing. At that point, the prosecutor wanting to go forward is confronted now by a pair of lawyers and then at that point frequently, those cases collapse.

When There Are Witnesses to Incidents of Abuse, the Prosecutor’s Case Rarely Collapses

They would not collapse in a situation where the police witnessed an incident of abuse or where have eyewitnesses that could testify, even if the person identified by the police is the victim doesn’t testify. That’s an interesting scenario that can be developed in cases where the facts are appropriate to do so.