It happens too often: neighbors hear a couple arguing, call the police, and the police take someone to jail. Maybe one spouse even encouraged the arrest in the heat of the moment. But when things cool down, one spouse rarely wants the other to receive a criminal conviction. Is there anything that spouse can do? Here are a few things that a domestic violence attorney may want you to know.
Can You Refuse to Press Charges?
If the police haven't taken the person accused of domestic violence to jail yet, the alleged victim might try to refuse to press charges. In domestic violence cases, they usually don't have this option.
Most states require an automatic arrest if the police see visible injuries or other clear signs that a violent incident occurred. Unless there's a neutral witness who can provide evidence to the contrary, police have to assume that the alleged victim is acting in fear and that it's best for everyone for the couple to be separated for the night.
Do You Have to Cooperate with the Prosecutor?
Once the case hits the court system, the prosecutor will have to start building a stronger case. The police can arrest on probable cause, but the prosecutor has to prove guilt beyond a reasonable doubt.
The prosecutor will often need a witness, and the alleged domestic violence victim may be the only witness. Technically, you can be forced to testify under subpoena, but prosecutors usually won't go there because forcing you to testify looks bad in front of a jury. For spouses, your state's spousal privilege law may give you a legal right to refuse to answer certain questions or even to refuse to testify at all.
Can You Bail Your Spouse Out?
If your spouse is arrested, you may be able to go post their bail but may not be able to pick them up from the jail. This is because judges will usually issue an automatic temporary order of protection barring the alleged perpetrator of a crime from coming into contact with the alleged victim of a crime.
Can You Waive an Order of Protection?
Only a judge can end an order of protection. You do not have the right to waive it or ignore it.
If your spouse is found with you while an order of protection is in effect, even if nothing bad is happening and you want to be together, they can receive additional charges.
To best help your spouse, don't do anything until you've talked to a criminal defense attorney.