Defense Against Domestic Violence and Domestic Assault Charges

domestic argumentJohn Maher: Hi, I'm John Maher. I'm here today with Ted Lothstein of the Law Office of Lothstein Guerriero, with offices in Concord and Keene, New Hampshire. Lothstein Guerriero represents people charged with crimes throughout the State of New Hampshire in both State and Federal Court, in trial courts and on appeal. In part one of our discussion today, we're talking about the defense against domestic violence and domestic assault charges. Later, in part two, we'll talk specifically about restraining orders and stalking orders. Welcome Ted.

Ted Lothstein: Thank you John, glad to be here.

Domestic Assault Charges in New Hampshire

John: Ted, what is domestic assault as a charge, and what are some of the issues involved in the defense in domestic assault or domestic violence charges against someone in New Hampshire?

Ted: So New Hampshire has a number of different laws that cover different levels of severity for an assault. We have simple assault, which is usually charged as a Class A Misdemeanor or could be charged as a Class B Misdemeanor. We have second degree assault which is a felony‑level assault.

There are several different ways that a second‑degree assault can occur, but the one most often prosecuted is an assault that causes serious bodily injury.

Then there's the first‑degree assault, which is an assault using a deadly weapon like a gun or a knife.

John: What are some of the issues involved in the defense against those charges, when somebody is charged with one of those crimes?

Ted: Let's start with simple assault. Simple assault, the misdemeanor, is the most frequently prosecuted domestic assault offense in New Hampshire. Simple assault can occur in two different ways. One way is to have contact with another person that causes bodily injury, and that can be reckless, or knowing, or intentional.

The second way is to have unprivileged physical contact with another person. That can only be prosecuted as a knowing or intentional crime, not a reckless crime.

If you think about the different types of assault that could occur in a relationship, if you push somebody -- a lot of people listening this would probably think, "Wait a second, prosecutors, police, wouldn't prosecute someone for any kind of, minute push."

Actually, it's very common. So if you push somebody, then you're having unprivileged physical contact with them. Unprivileged means that they didn't give you permission to have the contact, and there isn't some other basis that would give you a privilege to have that contact.

If someone reaches out their hand to shake your hand, they don't have to say anything for you to know you have a privilege to touch their hand, to shake their hand.

But if you're on a bus, and it's crowded, then there’s a societal understanding that on that bus you may inadvertently bump up against someone, push against someone.

That would not be unprivileged physical contact, because it's basically accidental, and it's incidental to the very nature of riding in a crowded bus. A lot of domestic assault charges in New Hampshire are charged under the unprivileged physical contact.

Situations where someone hits somebody, but does not cause any mark, bruise -- pushing, hair pulling ‑‑ these are also the types of assaults where, frankly, the situation is right for a person to exaggerate or make up a story, because, by the very nature of it, there is not going to be any physical evidence to support the claim.

If someone gets pushed, it's basically their word against the alleged pusher. Those are the two most often prosecuted types of assaults.

Less frequently prosecuted among the simple assault crimes is the offense of recklessly or knowingly having contact with a person that causes bodily injury. This doesn't have to be a serious injury. This could be a bruise. This could be a black eye.

This could be something of that nature. If it's going to be more severe, like a broken bone, then it's probably going to be prosecuted as a felony, as a serious bodily injury. These are less often prosecuted, because I think prosecutors perceive that they're taking on an extra burden.

Not only do they have to show that this was assaultive conduct -- that it was unwanted, basically -- but they also have to show that some kind of injury occurred. We don't see those as often.

Defenses Against Domestic Violence Charges

You asked a very big question there, John. You asked, "What types of defenses can be raised?" As far as simple assault goes, I guess probably the most frequently raised offense, as any listener can figure this out on their own, is that it didn't happen.

It's his word against hers or, her word against his. They can have different stories when they talk to the police. The government has to prove guilt beyond a reasonable doubt. You have two people saying two different things. The judge has to decide whether it happened or not.

Notice I said "judge." This is a little bit of a segue. Or little bit of a jump into a different topic.

In New Hampshire, if you're charged with a class A misdemeanor, you try your case to a judge, and if you're convicted, you can appeal to a full jury trial -‑ a full jury trial with 12 jurors who have to unanimously make a decision, either guilty or not guilty.

If you're charged with a class B misdemeanor, then you do not have the right to appeal for a jury trial. You only have a trial in front of a judge. Unfortunately it may be a judge who hears these cases all the time, and has certain views.

That's something important for people to understand. Of course, the good news about a Class B Misdemeanor is that means there's no possibility of going to jail. The only penalties available in a Class B Misdemeanor are a fine of up to $1,200, part of which could be suspended.

You don't have the same range of penalties as a class A misdemeanor, where a person convicted can face up to a year in jail, up to two years of probation, along with a fine of up to $2,000.

Another commonly raised defense, John, is self‑defense. Most of us think of it in the -- outside the realm of domestic violence. When we think of self‑defense, we think of a stranger attacking us, or we think of some kind of fight that occurs out in the community, and the person accused says that they were only defending themselves against someone else who attacked them who started a fight.

But self‑defense is also an affirmative defense for a charge of domestic violence. In self‑defense you have to show several things.

The elements of self‑defense are that the person, number one, reasonably perceived that the other person was trying to have unprivileged physical contact with them, if the other person was using physical force against them, or a threat of physical force.

Number two, you have to use only a reasonable amount of defense. If someone raises their hand to you in a domestic setting, obviously you can't shoot them.

There might be an exception to that, but basically you have to use a reasonable level of force that's proportionate to what's being brought against you. I've talked about that, implying it's a burden on the defendant, but it's not.

All the person that's accused has to do in the trial is show there is some evidence of self‑defense, and then the government takes on the burden of having to prove, beyond a reasonable doubt, that the accused was not acting in self‑defense. It's almost like a double negative thing.

The government has to prove that the accused was not acting in self‑defense. Those are several of the legal defenses that you see. There are also a lot of other issues that come up in these cases, John.

A lot of times the person who made the complaint is not a willing participant in the prosecution. We see a lot of cases where ‑‑ I'm going to put gender into this, but domestic assault of course can occur and go either way -- a woman can assault a man, a man can assault a woman. We also see, more and more often now, cases involving same‑sex couples and claims of domestic assault. Just to give an example.

After being charged with domestic assault: now what?

John: Ted, before you give that example, why don't we take a step back and start at the beginning. If a person is charged with domestic assault, what's the next step they should take?

Ted: Let me just explain some of the laws and some of the Police Department customs that are associated with these cases. First of all, there are a lot of things that make domestic assault cases different.

One thing that makes them different is that police officers almost never witness a domestic assault. They're called in, a 911 call, or a neighbor calls because of hearing shouting or screaming or things like that.

They almost never witness the assault. They come in and they hear a story given by one of the parties. Sometimes they hear a different story from the other party. In domestic assault cases, even though the officer witnessed nothing, the officer does not have to get a warrant to arrest the accused.

Just to give you a contrast -- if Walmart called in a police officer and showed them video surveillance and said, "This person shoplifted”, the officer would have to go and get a warrant to arrest that person, because the officer didn't witness any part of the offense and because it's not a felony.

For domestic violence, the officer has up to 12 hours to find the accused. Often they are, of course, in the same place. Waiting in a residence or apartment, or a car, outside a car. These are the typical places where domestic fights occur.

If the accused has left the scene, the officer has 12 hours to find him or her, and arrest them without a warrant. That's one difference from other offenses. Another difference is that the accused is often either asked about, or is more often persuaded, encouraged, to get a restraining order, which is a civil matter.

We have procedures in New Hampshire so even in the middle of the night, the police officer can essentially easily contact a judge, any hour of the day or night, by telephone and explain the situation.

As long as the complainant, the person who says they were assaulted, as long as they want to have a restraining order, then the judge can issue a restraining order.

Restraining orders are very shocking to people who receive them, because unlike almost everything in the law, John, a restraining order can issue based on one person's word, without a court hearing, without even a face‑to‑face meeting where a judge sort of sizes up the complainant and decides whether they're credible.

That's called an ex parte order. We'll have to talk a little bit about what the accused can do about that, but we're going to have another episode that focuses in more on restraining orders.

All I'm going to say about that right now is that the accused has the right to request a very speedy court hearing. We'll cover that more in another interview.

Basically, domestic assault cases start with a person being arrested very quickly, seeing a bail commissioner, the bail commissioner will almost always set a condition. Even if there is no restraining order, the bail commissioner will almost always set a condition of no contact.

No contact effectively means that you can't go back to that residence, if it occurred in a residence or apartment, but just to make sure, the bail commissioner will almost always also set conditions of where the accused can and cannot go.

Cannot go to the complainant's residence. Cannot go to the complainant's place of work. Often there will be a condition that the accused cannot come within a hundred yards, or some distance, of the complainant.

This takes fathers and husbands out of homes instantly, again without any kind of court hearing, and it can take a mother or a spouse out of a home, too, depending on who was accused.

The bail order, set by the bail commissioner, prohibiting contact, is a separate and distinct thing from the restraining order. In order to get out from under that, you would have to get the restraining order dismissed, if there is one, and you would have to get a judge to change the bail order.

Often in these cases, the next thing that happens -- if you remember, John, when I talked about how a lot of complainants end up being unwilling to prosecute -- frequently, all the complainant really wants is, even if some kind of assault did occur, often all the complainant really wants is to get the person out of the home tonight.

What they bought themselves is much more than that. It's going to take some time to get to see a judge, a week or two, possibly longer. It's going to take some time to get to your hearing on restraining order.

In the meantime, what we see in case after case, is the complainant stops cooperating with the police, or asks the police to help him or her, because now they want to have contact.

They just were trying to deal with one fight by separating the parties. They didn't realize what they were getting into, where you might render your spouse effectively homeless for some period of time.

John: Right. Or maybe you rely on your spouse to help take care of the kids, or something like that, and now they're completely incapable of doing that.

Ted: That's a great point, John. With a no contact order, all those orders say direct or indirect. Technically, they can't even, sort of through a third party, exchange information about “when should the kid be picked up?”

“When should the kids be taken to soccer practice? Which party is responsible for taking the child to her doctor's appointment tomorrow?”

I'll tell you right now that one of the great advantages of hiring a lawyer very quickly is the New Hampshire Legislature changed the law so that even if there is a restraining order and a bail order, a lawyer can facilitate contact between the parties. If the accused has a lawyer -- let's say I'm hired by the accused -- even though the accused can't even have indirect contact with his wife, or his girlfriend -- through Aunt Bertha, I can. I can contact the girlfriend, wife, husband, boyfriend, etc., and as long as they are willing to talk to me, I can talk to them about facilitating different things, and about the case.

Of course, I can't do anything intimidating, or try to talk them into something or out of something, but I can speak with them about the facts of the case, if they're willing to speak with me. Most often I find that they are. I can have an investigator do that, if I want to put a little distance between.

There's a big advantage in having a lawyer, because these cases are very scary for the accused. In most cases, they've never been arrested before. In most cases, they find themselves in a surreal and frightening situation where, because contact's not allowed, the accused has no idea where his partner is at this point.

Does she want him back? Does he want her back in the household? It can be very helpful to get a lawyer quickly, so that you have some way of opening up a line of communication.

What I was saying before is that a lot of times complainants change their mind, or realize that things have gone much further than they ever expected, and they don't want that. Then, they appear in court for that first hearing, and they have an opportunity to tell the judge what they want.

The girlfriend, wife, will say to the judge, "Your honor, I want my husband, my boyfriend, back in the home. He's a good father. He helps take care of the kids. I love him. We had a fight that night, and I did not want him to be completely banished from the household. That's not what I want."

At that point, the judge will make a decision whether to change the bail orders. This part is extremely court‑specific. What judges tend to do in those situations is wildly different from court to court, and you just have to talk to a good lawyer who has experience in that particular court to get good information to even have an idea of what the judge might do.

The judge does not have to go along with the complainant. The complainant is not a party to the case. She doesn't have the ability to drop the case. She doesn't have the ability to change the bail orders. Her input is important, but judges and prosecutors make the decisions, not the complainant.

John: Do the judges in some cases feel as though the complainant is maybe being coerced to go back on their initial complaint, or something like that?

Ted: I think that's always a background concern. It's always a background concern, John, because sometimes it happens. That's one of the things the judge will discuss with the person -- if we're going to be honest with ourselves, more often a woman but not always -- who's in court, who has brought the charge.

Another thing that the judges want to know about is, “what is the severity of the assault”? Is there a history of this, a history of the police coming to this residence, a history of prior restraining orders, a history of prior domestic abuse?

Obviously, that would have a big impact about whether the judge will heed the complainant's wishes and allow contact to resume, or whether the judge will decide to kind of take on a paternalistic role and say, "Well, I know that you want to be with him or her, but at this point, until this case is resolved, I'm not going to allow that. I'm going to keep in place the orders."

John: Like, "I think it's in your best interest if I don't let him back into the home."

Ted: Exactly. Judges also can find a middle ground. I've seen cases where I've represented clients where what the judge does is allow written contact, but does not allow in‑person contact. When I say written contact, John, why do you a think a judge might say, "I'll allow text messages, but I won't allow you to speak on the phone"? I'm going to turn the interview around on you, and ask you.

John: [laughs] Probably in the case that we were talking about before, where a mother and a father might have to communicate with each other to let each other know what's going on with the kids or, "Hey, can you help out by picking up Johnny from school at 2:30 this afternoon?" Or arranging things like that.

Ted: Exactly. But, a lot of times we'll see a judge say that, "I'm going to allow all that contact, but only written," meaning -- it's the 21st Century, so that's going to mean a text message.

John: Or email.

Ted: Or maybe emails. The reason that the judge is going to call upon that to be written is that that actually protects both parties. It protects the accused. I have situations where the accused is telling me, "This is false. She's just angry at me because I had an affair, because I was a jerk to her”, because of any innumerable reasons.

And I say, "Well, if you're right that she made this up, then she can make up something again."

So it would be good to have contact limited to written contact, because then you're protected. A person can look back and see what's in the text message. It makes it impossible for him or her, the accuser, to say that, "They told me if I don't drop the charge, that harm is going to come to me."

If you're restricting your contact to written communications, then you can protect yourself against those false accusations.

So, sometimes I am a fan of those types of restrictions, also. The other reason judges use those restrictions...sometimes the judge will say, "I'm only limiting contact for one or two purposes." For example, what you just said ‑‑ facilitating parenting. If all the contact is in writing, then we can see if the parties are really limiting themselves to that topic.

John, let me tell you the number one question that everybody asks me who ends up being under a bail order or a restraining order, no contact. They say, "But, she's having contact with me. She's texting me. Isn't that an offense?" And the answer is no. All these orders only go one way. It doesn't feel fair at all to the accused, but that is the reality.

All these orders only go one way, and so the accused who's received an order to absolutely have no contact with the complainant might find themselves in the frustrating position of receiving text messages or emails or calls from the complainant.

John: And not being able to reply back.

Ted: Exactly. What I tell my clients to do in this situation is just make sure you change your settings in the phone. Do not allow any of this to be deleted. Change your settings.

You don't have to change settings for email, obviously. You just have to decide that you're going to be smart and not delete things, and even if you delete email you can usually retrieve it.

But, for text messages, change your settings so that you'll store text messages for a long period of time, because it will be helpful down the road if we can show that this person who sought a restraining order or asked for a no contact order is themselves not respecting it in the least bit.

John: Even though they're not required to, it still shows a certain good faith going against what the order is.

Ted: Exactly. Even though they're not under the order themselves, if that person calls you and you answer the phone, then you've committed a crime. Sometimes my clients call it entrapment. It's not really entrapment. Entrapment is something that only the government can do…

John: Right, that’s a very specific thing.

Ted: Right, but it feels like entrapment. "She's calling me, and if I answer the phone and talk to her, then she's going to call the police." This happens. These cases can be awful, John.

I watched a trial in Plymouth Circuit Court -- Plymouth, New Hampshire -- where a woman had obtained a restraining order against ‑‑ and a criminal bail order ‑‑ against her husband, who had season tickets to see ‑‑ this is not my own client, this is just a trial I watched ‑‑ the Plymouth State hockey team, and then she intentionally went to a game knowing where he sits and where he would be, and then at the game she called the police and had him arrested for being within 100 yards of her.

John: Wow.

Ted: These cases can be very scary and frustrating for clients.

Domestic Assault Charges & 2nd Amendment Rights

John: To change the topic a little bit, Ted, what impact do domestic violence charges have on a person's right to possess a firearm? I know that that's a constitutional right for everyone to possess a firearm. If you are slapped with domestic violence charges does that change that right, or can it?

Ted: It certainly can. If we start at the top, if a person has been found guilty of a felony, like first‑degree assault or second‑degree assault, under state and federal law a person cannot possess a firearm who's a convicted felon. It's a federal crime.

I bring out the federal law for a reason. That means that you can't solve the problem by just leaving New Hampshire, and moving to Vermont or Maine, and purchasing a firearm or possessing one, because the federal law reaches the whole country.

Convicted felon, no firearms. But what a lot of people are not aware of is that any person convicted of a domestic assault where the assault involves an element of some kind of abuse of the complainant, that's a lifetime ban on possession of firearms.

I represented a woman who was prosecuted in federal court when she was about 18 years old. She had been accused by her then‑boyfriend of pushing him.

Based on the story that I heard, frankly, it sounded like if he was pushed, he amply deserved it. But she was brought to court and she was told that it was only a Class B Misdemeanor. If you plead guilty, you'll get a suspended fine, you won't have to pay a dime.

She was in this situation of, "OK, well I'll either do that ‑‑ it's only a class B misdemeanor ‑‑ I won't have to pay a fine -- or, I'll have to hire a lawyer for a substantial amount of money."

So she plead guilty to this Class B Misdemeanor for having unprivileged physical contact with her boyfriend by pushing him, and nobody told her at the time that that would be a lifetime ban on owning a firearm, and sure enough sometime later she had attempted to purchase a firearm in a gun store, and the feds prosecuted her for a federal felony of being a prohibited person trying to obtain a firearm.

John: So it's not even a case where you just simply aren't allowed to buy the firearm, but just the process of even trying to buy a firearm is now against the law, and you might not even know that.

Ted: Not even buying. You can't inherit one. You can't trade something for a firearm. You can't pick one up that you find on the ground, not that that happens very often, thank God, but you cannot possess a firearm, period.

And the situation is worse. If you get the conviction annulled in New Hampshire, which means the complete destruction of the record of conviction, and New Hampshire recognizes you as having no record whatsoever, the feds don't recognize state law annulment and still make you a prohibited person unless you go to the feds and try to get basically a determination that you've been rehabilitated and you've had a restoration of civil rights under state law.

You have to actually affirmatively go to the feds and ask for permission to have a firearm again. It's really important to have a lawyer who's very familiar with all these laws. We've had a big change. It's sort of a superficial change, but it's an important change in New Hampshire law. In 2014, the New Hampshire House and Senate passed a bill that placed all domestic violence offenses under one umbrella.

It's called the Crime of Domestic Violence, basically. That was mostly done to help with the tracking of these cases, because it's sometimes difficult to tell the difference between someone who's been convicted of simple assault of their roommate, which does not bring about any bans on possessing firearms, versus simple assault of their domestic partner, which does bring about the ban.

The definition of a crime of domestic violence is a person who is a household member. Doesn't mean that you're having intimate relations with a person, it doesn't mean you're married, but it has to be a household member.

It can't just be a friend who's visiting you overnight and has a fight with you. It also can be a girlfriend, boyfriend, or husband‑wife intimate relationship where they don't live under the same roof. But, it has to be one or the other. It can't just be two people.

The Legislature made this new umbrella offense of domestic violence to cover everything. The reason that I brought this up is that if maybe somebody did make a mistake and went too far and was physical with their spouse or girlfriend, boyfriend, obviously, that's wrong. It's a crime.

Maybe there's a way for the case to be resolved in some way so that it's not an assault crime, it's some other crime of domestic violence or some other offense altogether. Something like disorderly conduct, where the person will not have the stigma of a domestic violence crime on their record and will not have the lifetime gun ban.

Defending Someone Charged with Domestic Assault

John: To finish up our discussion, Ted, how would you go about defending someone in court who's been charged with domestic assault? Or, what are some of the common problems with the prosecution of domestic assault cases that would help you, in a way, to defend somebody against these charges?

Ted: Obviously, we're going to read the police report and witness statements. We're going to make every effort to conduct an independent investigation, meaning talking to myself or through an investigator if appropriate, talking to the complainant, any witnesses, neighbors, other people who may have been in the apartment or house or scene at the time where the offense occurred. We're going to look at what they have for corroboration.

If she says that she -- or he -- that he experienced, sustained a bruise or injury, what's the proof of that, what do the photographs show, were photographs taken at all? If only the complainant is producing photographs, are they authentic?

Can you prove when they were taken, under what circumstances were they taken? Who took the photographs? How do we know that the photograph was not manipulated?

We're going to look at all that stuff, and then as we get closer to trial, I would tell you that the number one problem for prosecutors is that complainants ‑‑ and we kind of already covered this ground ‑‑ don't really want to have a conviction happen. They don't want their partner to go to jail. They don't want their partner to receive a fine, because the family needs the money for other things.

Ted: A lot of pressure is put on the prosecutor, you know prosecutors don't have clients. The closest they ever come is when they are dealing with domestic assault cases.

I don't envy their position, because in a lot of cases, they find they have a very difficult witness on their hands, a complainant who does not want to go forward for one reason or another.

As you suggested earlier, John, sometimes it’s something insidious, that they feel threatened and we have to recognize that reality. More often it's because they just don't want that.

They don't want the person they love to be convicted of a crime, go to jail, and be fined, or be put on probation. They are not interested in that. That becomes something that the prosecutor has to deal with -- that can make prosecution difficult.

Then we get to the situation of self‑defense. So we are going to be looking into “how did this fight start? What was it about? Who was the first to make contact? Who provoked it?” We are also going to look into, “do we have a defense that the complainant is exaggerating or lying?

What motive does he or she have to exaggerate or lie? Are they jealous about perceived infidelity? Are they angry because my client has been spending family money in an inappropriate way? Or being less than a perfect husband, boyfriend, wife, girlfriend, et cetera.”

We are going to look at all of those possibilities. In many of these cases, we are going to be looking at challenging the credibility of the complainant, of course.

We need to build a file on them, John. Has this complainant ever brought similar accusations against other individuals in past relationships? What happened with those? Did convictions occur? Or were those charges dismissed? Have they brought restraining orders in the past, against people in other relationships, where the basis of the restraining order is suspect in some way?

Do they have a criminal record that includes crimes of dishonesty? Things like false report to law enforcement, or perjury -- which you never see -- but you do see the false report to law enforcement, a person who likes to tell stories to get attention.

So we're going to go to those courts, get those court records. Get them certified so we can use them when we cross examine the complainant. So we can admit them as exhibits in evidence. So we can show that if it is a he said, she said -- more and more nowadays it can be a she said, she said, or a he said, he said -- if it's one of those cases, we are going to want to build up the credibility of our client, and attack the credibility of the other person, within the limits of the law.

John: Well, Ted, that is all really great information and very helpful, I am sure, to your listeners. For more information, please visit the Lothstein Guerriero website. That's or call Ted at 603‑513‑1919. That's 603‑513‑1919. Ted, thanks very much for speaking with me today.

Ted: John, it's been great talking to you, thank you.

John: And make sure you join us for part two, where we will be talking specifically about restraining orders and stalking orders.

Categories: Criminal Defense