When someone is charged with domestic violence, there are a number of ways that an attorney can help. In Albuquerque, attorney Simon Kubiak of Kubiak & Kubiak explains that most domestic violence cases are essentially battery cases between two family members.
At its most basic, a battery charge is what results when one party alleges that he or she was the victim of harmful or offensive contact by another party. The difference between a battery case and a domestic violence case, in this scenario, would be that the two parties also happen to be family members, as opposed to strangers or social acquaintances.
Kubiak says that as a criminal defense attorney, he represents clients in Albuquerque who have been charged with domestic violence quite frequently. He explains that there are three main ways how he, or any other criminal defense attorney, can help a client defend himself in a domestic violence case:
1) Identify and Pursue Constitutional Defenses. Kubiak says that the attorney working on your case should be able to identify and pursue any constitutional defenses that might apply to what you are going through. If the state or the detectives working on the case violated your constitutional rights in any way, then a competent attorney should be able to identify those violations and have them taken into account by the judge in the case.
2) Identify and Pursue Procedural Defenses. Another element in a domestic violence defense is to identify and pursue any procedural defenses that might apply in the case, according to Kubiak. He says that an attorney should check to see whether the state violated any of the rules of criminal procedure that must be followed in between the time of the arrest and the time of the trial. If this is the case, and the state did in fact violate the defendant’s rights in any way, then Kubiak says this could be grounds for dismissal of the charges.
3) Factual Defense. The third way that an attorney can help a client in a domestic violence case is to prepare a factual defense, which includes finding any corroborating witnesses who can back up the defendant’s claims of what actually happened on the night in question. He explains that factual defenses are most common in domestic violence cases, as opposed to other criminal cases, because typically only two parties were witness to whatever event occurred—the victim and the defendant. “Without a third witness, the only two people testifying as to what happened on the day in question are the defendant and the alleged victim,” Kubiak says. “So basically you have a he said, she said type of case.”
Without a third party witnessing the act, though, it can be nearly impossible for the state to prove its case and convict a defendant on domestic violence charges. If one spouse says that the other acted violently, but the other spouse denies the charges, then the state will most likely not be able to prove its case to a level of reasonable doubt and the victim will most likely not be able to win the case. Therefore, in cases like this, the defendant will usually win these types of arguments when there is a jury trial, Kubiak says.
Kubiak explains that defendants in domestic violence cases are entitled to a jury trial in the state of New Mexico, and that nearly any criminal defense attorney would encourage his client to go with a jury trial rather than let a judge make the final ruling. “Why would you let your fate be in the hands of one judge, when you could get a panel of people instead? Especially given that you only need one juror to hang the whole jury,” he explains.
An attorney with experience in this area will almost always recommend that his client in a domestic violence case choose a jury trial, according to Kubiak. However, not all attorneys necessarily have the same level of experience or judgment. “Your attorney should request and demand a jury trial for you,” he says. If you are worried that your attorney may not have the qualifications or skill to handle your case, then Kubiak recommends calling Kubiak & Kubiak in Albuquerque, where you can schedule a consultation and meet with an attorney to go over the facts of your case.
This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.
