the suspect has not been arrested:
suspect has not been arrested it's important to determine
why not, and to determine if, indeed, there should have
been an arrest. Most states in the US have pro-arrest policies
when there is probable cause of domestic violence, as do
most individual jurisdictions. Knowing the laws and policies
governing your police should make it fairly easy in most
cases for you to determine whether or not there should have
been an arrest in your client's case. (As mentioned earlier,
it's critical for advocates to have copies of, and be familiar,
with your local jurisdiction's written law enforcement policies
on domestic violence and sexual assault.)
in California, if there is any injury to the victim, "no
matter how slight", police should make an arrest.
If you feel there should have been an arrest in your client's
case, and there was not, call the on-duty sergeant or
call the head of the police domestic violence unit and
ask why there was no arrest.
When you make
these calls, it's always a good idea to take notes on
the answers you're given, especially if the answers are
ridiculous. Also, make sure that a crime report was actually
written, and that the crime report has been, or is being
sent up to the district attorney's office. If, after looking
at the case, the ranking officer argues that the responding
officer was correct in not making an arrest, but you still
believe the suspect should have been arrested, you'll
need to escalate your advocacy strategies to make the
arrest happen. (See Part III, "When Push Comes to
legitimate reason police may not have made an arrest,
even if there was sufficient evidence for an arrest, is
that the suspect fled the scene and couldn't be found.
Once the suspect has managed to evade police and police
have moved on to their next call, police will rarely double
back and go looking for the suspect. However, if your
client is able to determine the suspect's whereabouts
and then gives this information to police, police will
often follow-up on the information and make the arrest.
So if your client's up to it, have her dig around a bit
to the extent that it's safe, and then get the information
to the police, and, if necessary, push police to make
the arrest. Since victims know the suspect well, if they're
willing to make a few calls, they can usually come up
with the suspect's whereabouts in no time.
if the suspect has not been arrested because he has fled
the scene, check to make sure the officer has issued a
'stop and hold order'. A 'stop and hold order' is an order
put out over the police communication system giving notice
to other officers that the suspect of given description
should be detained.
If the suspect
was not arrested because there was no injury, ask the
victim if she was informed by the officer, as is required
by most law enforcement domestic violence policies, that
the victim had the right to make a citizens arrest. If
the officer didn't so inform the victim, you and she should
complain to the department.
In Rape and Child Molest Cases police rarely
make an arrest right after the victim has made the report.
One reason this is so is because it generally takes
some time to develop the kind of evidence needed to
prove a case of sexual assault. Another reason is that
some of the common sexual assault investigative techniques,
such as pretext calls, can only be done if the defendant
is not in custody. (For more discussion of these issues,
see the section on sex crimes.)
rape and child molestation are usually very upset and
concerned that the suspect isn't arrested immediately
after the victim makes the report. Sex crimes victims
often take the lack of arrest to mean that the police
don't believe her. Her friends and family also come to
the same unfortunate conclusion that this means police
don't believe the victim's story about the sexual assault.
This easily leads to increased erosion of a sex crimes
victim's already fragile support system.
to concerns that police don't believe them, the lack of
immediate arrest also makes sex crimes victims very fearful
that the perpetrator is still out there able to retaliate
against her for having made the report. This victim fear
sex crimes perpetrators know their victims well, and since
perpetrator and victim usually have important shared social
circles, sex crimes perpetrators frequently launch all
kinds of retaliatory attacks against the victim, from
harassment campaigns, to organizing their shared social
circle against her, to threats and attacks of bodily harm.
for Rape Victims" for tips on how to prevent
and deal with these common problems)
All in all,
it's very important that you, the victim's advocate, explain
to sex crimes victims, and to the victim's support system
if possible, that in most sex crimes cases the perpetrator
won't be arrested until after police complete their investigation.
Advocates should routinely have this discussion with their
client even if the client doesn't specifically ask about
it. It is also critical to remind sexual assault victims
that every and all harassment or retaliation by the perpetrator
should be reported to the detective or prosecutor assigned
to the case.
that any and all attempts to dissuade a witness from testifying
or attempts to get the victim to change her testimony
are a crime, whether committed by the perpetrator or by
insist that police write a crime report and investigate
every such incident. And then send these reports up to
the DA's office for prosecution.
Mandated Arrests on Violations of Domestic Violence
Restraining Orders: California Penal Code
Section 836(c)(1) requires that police make an arrest
on all restraining order violations. This law was passed
because so many police have systematically failed to
enforce restraining order violations, and because this
particular law enforcement failure is so often the prelude
to domestic violence homicide.
Citizen Arrests: In domestic violence cases
where there is insufficient evidence to make an arrest,
most law enforcement policies require that officers
inform the victim of the right to make a citizen's arrest.
California Penal Code Section 836(b) requires that police
responding to a domestic violence call inform the victims
of their right to make a citizen's arrest and of how
to safely execute the arrest.
the suspect has been arrested:
If the suspect has been arrested both you and the victim
will want to get the answers to basic questions about the
arrest as soon as possible: including, whether or not the
suspect is still in custody, the booking charges, the amount
of bail, the date, time and courtroom of the next court
hearing, the purpose of the next court hearing, whether
or not the district attorney has filed charges, the exact
charges filed, and whether or not a criminal court protective
order has been obtained for the victim.
There are two
primary sources for obtaining this post-arrest information.
The first source is by making a simple call to the county
jail. Almost all jails can be called 24 hours, 7 days
a week. Anyone who calls the jail can obtain the following
information on any inmate: the amount of bail, the date,
time, and courtroom of the next hearing, and the booking
charges. (Booking charges are the criminal charges recommended
by the police department when the suspect is booked into
jail. Booking charges are not necessarily the charges
the district attorney will file in the case, nor do they
guarantee that any charges will be filed at all. But the
booking charges do give you a good idea of where the criminal
justice system is likely to go with the case.)
jail can be called 24 hours a day, and because victims
are usually very fearful that the perpetrator may get
out, it's very important that you give the victim the
jail telephone number so she can update herself on the
perpetrator's status whenever she feels the need to do
so, including in the middle of the night. (Most states
provide that if the victim so indicates, the jail will
notify the victim prior to release of the suspect. Even
so, it's important that the victim herself be able to
call into the jail, and be informed of the spectrum of
information the jail must provide.)
and more complete source of information, is the district
attorney's office. So it's also important that you give
your client the telephone number of the district attorney's
office. But remind her that the district attorney's office
will only be able to answer her questions during normal
Tell her the
receptionist at the district attorney's office has a computer
in front of her, and can generally give more in-depth
information about the case than can be obtained from the
jail. The district attorney receptionist will usually
be able to tell her or you such things as the purpose
of the next hearing, what happened at the last hearing,
the name of the deputy district attorney on the case,
the charges that are being filed (or not), whether or
not there is a criminal protective order in place, and
if the district attorney receptionist cannot (or does
not) provide you or the victim with the needed information,
ask the receptionist to put you through to the deputy
district attorney assigned to the case and leave your
questions on his answering machine. Also, advise your
client as to other personnel in your district attorney's
office who can assist her in obtaining information, such
as victim advocates assigned to the district attorney's
If you or the
victim do not get answers to your questions within 24
hours of leaving a message on the phone of district attorney
office personnel, you or she should not hesitate a moment
to put in a phone call of complaint to the District Attorney
him or herself.
Arrest Warrants: In cases where officers don't
make an arrest at the scene, but later determine through
further investigation that there should be an arrest,
the police will usually first obtain an arrest warrant
before making the arrest.
In sex crimes
cases, where it is the usual situation that suspects are
not arrested immediately following the report, it is very
common for officers to seek an arrest warrant after concluding
their investigation and prior to arresting the suspect.
The reason this is significant for victims and advocates
is that the existence of an arrest warrant generally provides
you with a means to obtain substantial information about
a sex crimes investigation that you otherwise would likely
be unable to obtain.
unlike domestic violence victims, sex crimes victims in
most states do not have the right to obtain a copy of
the sex crime police report. If the sex crimes detective
has established a cooperative relationship with the victim
and advocate, this detective may be willing to answer
the questions you and the victim have about the evidence
in the case. But too often sex crimes detectives are not
forthcoming in this regard and the victims and victim
advocates in sex crimes cases are frequently kept in the
dark about case evidence and the adequacy of the investigation.
This is especially
detrimental if the district attorney says there's not
enough evidence to file this or that charge on the case.
If you and the victim don't know the details of the evidence,
it's very difficult to argue the district attorney's stance.
And this is where the arrest warrant can save the day.
apply to the judge for the arrest warrant, they must attach
an evidence based argument for the arrest. Often police
simply attach a copy of the police report instead of writing
up a whole new text. But either way, once the judge has
signed the warrant, that arrest warrant goes on to the
public record - along with whatever evidence the police
has provided to argue for the arrest. This means that
once there is an arrest warrant in a case, you or the
victim can simply go to the court house, usually to a
criminal court clerk's office, and request a copy of the
arrest warrant. And presto, you now have in your hands
either a copy of the police report or a police summary
of the evidence in the case.
In short, once
a suspect has been arrested in a sex crimes case, it's
highly likely you can obtain substantial information on
the evidence in the case, if not the whole police report,
simply by going to the court house and requesting a copy
of the arrest warrant.
If the suspect is in custody, the state (the prosecutor,
the district attorney) has 48 hours to file formal charges
and to hold an arraignment. If the prosecutor fails to
file formal charges before 48 hours have passed, the suspect
must be set free. If the suspect is freed, (or if for
some reason the charges were filed and then quickly dismissed)
the prosecutor can still file charges at a later date.
But once charges have been dismissed, the prosecutor generally
doesn't file (or re-file) charges unless you and/or the
victim actively work to convince the prosecutor to do
purpose of the arraignment is to officially inform the
defendant of the charges against him and to have the defendant
enter a plea of guilty or not guilty. It is usually at
the arraignment that the defendant is also assigned a
defense attorney if he cannot afford a private attorney.
In addition, if the defendant is in custody at the time
of arraignment, the defendant can, and usually does, request
a bail reduction hearing. This bail reduction hearing
will usually be scheduled for within a couple of days.
the arraignment is the best time to have the prosecutor
obtain a criminal protective order for the victim. Also
at the arraignment a date is set for the next court hearing
on the case. A date is set for the preliminary hearing
if the defendant is charged with a felony, and, if the
case has been charged for a misdemeanor, a date is set
for a settlement hearing.
victims are usually very anxious about the arraignment
and other early court hearings. They feel unprepared.
They're afraid things are happening so fast that critical
legal events are taking place at the same time their lives
are most traumatized. They wonder why they haven't been
notified or called to appear. Many fear this means they
have been cut out of the process, and that they will have
no input or control over the course of the criminal case.
So it's very
important to calm your client's anxieties about the arraignment.
And the best way to do that is to make sure she really
understands the function and limits of the arraignment;
that the arraignment is not the time when testimony is
heard, nor will any evidence be introduced or weighed
at the arraignment, nor is it the time when any decisions
are made about the defendant's guilt or innocence. The
arraignment is simply an official informing the defendant
of the charges against him.
On occasion, arraignment may be delayed beyond 48 hours.
This happens most frequently if the suspect has bailed
out of jail and hired a private attorney, and the defendant
then chooses to waive his right to arraignment within
48 hours. This is often done as an attempt to drag out
the case. The defendant will then be cited to appear for
arraignment on a date maybe two or three weeks hence.
Sometimes the defense attorney will come into court on
that date, and ask for more time, arguing that the defendant
hasn't yet quite decided to hire the attorney, or some
other such nonsense. And so begins what can be a nasty
defense strategy to drag things out endlessly in hopes
of exhausting the victim.
When this happens
it is the prosecutor's responsibility to argue vigorously
against the tactic and to get the judge to call a halt
to the game. But often the prosecutor doesn't. So if this
happens in your client's case, you and she need to go
to the prosecutor's supervisor to light a fire under the
prosecutor's feet to get things underway.
however three principal questions you and the victim should
consider prior to the time of the arraignment and bail
each of these questions in turn.
Protective Orders: A criminal court protective
order has many important advantages over a domestic violence
restraining order obtained in the family court system.
A criminal protective order is a restraining order put
in place by the criminal court judge to protect a case
witness from the defendant. Like a domestic violence restraining
order obtained in family court, a criminal protective
order can order the defendant to stay away from the victim
and her children, and, as such, by default, a criminal
protective order can also determine custody.
Though a criminal
protective order can be obtained at any time throughout
the criminal case against the defendant, it's usually
best to obtain the order at the earliest possible occasion,
which is why we discuss it here under the topic of the
court protective order, unlike a domestic violence restraining
order, can be obtained simply by requesting the prosecutor
to obtain one when he goes into court on the case. This
includes when the prosecutor goes into court at the arraignment.
The victim doesn't have to be present. All she has to
do is make a phone call to the case prosecutor prior to
the arraignment (or at any other time) and ask the prosecutor
to obtain the criminal court protective order. It's that
criminal court protective order has so many advantages
over a domestic violence restraining order, we outline
those advantages in more detail below.
of a Criminal Court Protective Order:
Police usually treat a violation of a criminal protective
order much more seriously than a violation of a domestic
violence restraining order. When a police officer sees
on the computer or in the paperwork that the victim has
a criminal protective order, the officer knows immediately
that the woman is a protected witness in a criminal case
overseen by a criminal court judge, and that the suspect
currently has criminal charges filed against him. Since
police themselves are officials in the criminal system,
since the criminal system always trumps the family system
in power, and since so many officers scoff at family law
, police are much more likely to treat violations of a
criminal protective order more seriously than violations
of a domestic violence restraining order which is issued
in family court.
In order to obtain and maintain a criminal court protective
order, the victim never has to appear in court, does not
have to fill out any paperwork, does not have to prove
she needs the order, never has to respond to the defendant's
response, does not have to go back into court to fight
to keep the order, doesn't have to go to mediation with
the abuser, doesn't have to listen to defendant's excuses,
nor respond to his usual rash of counter accusations,
none of that. In fact, the defendant doesn't get a hearing
to respond to a criminal court protective order for the
simple reason that the criminal charges already filed
against him provide a sufficient level proof to sustain
only thing a victim has to do to obtain a criminal court
protective order is tell the prosecutor she wants one.
The prosecutor then goes into the criminal court, asks
the judge to sign the order, and in most all cases, the
judge signs the order without further ado. And since the
defendant is sitting right there in court, the judge informs
the defendant of the order, and the order is served.
clerk puts the order in the state-wide law enforcement
computer system. And in no more than a minute or two the
whole process is done. The victim is immediately protected
in nearly identical terms as she is under a domestic violence
restraining order. And she never had to do a thing except
tell the prosecutor she wanted the order.
is a far cry from the drudgery a victim goes through to
obtain a domestic violence restraining order in family
court. The trip to the court at one of the worst times
of her life, the half day process just to fill out the
application, the return to the court to pick up the temporary
order, and another return trip to the court a couple weeks
later to battle the defendant's arguments in his attempt
to defeat the permanent order.
3. In obtaining a criminal court protective order there's
never any of the hassle of having to find and serve the
defendant with the order. This is because the defendant
is right there in court when the judge signs a criminal
court protective order. In great contrast, after a family
court judge signs a domestic violence restraining order,
there is often a huge hassle getting officials to find
the defendant and serve him with the order. And often
they don't succeed. And since the order doesn't go into
effect until the defendant is served, the whole lengthy
process of obtaining the domestic violence restraining
order in family court can turn into a giant waste of time
with the victim ending up with no protection at all.
4. A criminal court protective order, unless for some
unusual reason the judge has specified differently, is
good for the duration of the court's jurisdiction over
the defendant including through any probationary period,
and including during the jail sentence. This brings up
the one possible disadvantage of the criminal court protective
orders which we'll discuss in more detail a few paragraphs
down. If the criminal case is dismissed, the criminal
protective order is negated the moment the case is dismissed.
5. Another advantage of a criminal court protective order
is that the defendants, as well as the police, also generally
take a criminal court protective order much more seriously
than the domestic violence restraining order obtained
in family court. This is because the criminal court judge
who issues the order is the same judge who is hearing
the defendant's criminal court case. Victims can simply
notify the prosecutor or the judges themselves of the
defendant's violations. The last thing most defendants
want is for the judge on their criminal case to be further
prejudiced against them.
6. If the children were present during the domestic violence
incident in question, and often when they are simply living
in the same household, a criminal court judge is usually
open to extending the criminal protective order to the
children too. This means the defendant cannot go near
the children, and the mother doesn't have to worry about
the mediation, visitation or custody hassles while the
criminal court protective order is in effect.
of a Criminal Court Protective Order:
is one principal disadvantage to a criminal court protective
order. The order can be abruptly and unpredictably rendered
null and void if the criminal case against the defendant
is suddenly dismissed.
If you think there is a possibility this might happen
in your client's case, then she should be sure and back
up her criminal court protective order with a domestic
violence restraining order.
a domestic violence restraining orders obtained in family
court, a criminal court protective order cannot resolve
Criminal Court Protective Order Policies: Because of the
many advantages of the criminal protective order for victims
of violence against women and children, many women's groups
have pressured their district attorney's offices to routinely
and automatically obtain criminal protective orders on
all domestic violence, sexual assault, and child abuse
cases. In our county, we have only gotten so far as to
have our prosecutors routinely request criminal protective
orders on all rape and felony domestic violence cases.
And even on these cases we have to stay vigilant that
prosecutors exercise the policy.
a Criminal Protective Order for Your Client:
you know and trust the prosecutor on your client's case,
you or the client can simply leave a message on the
prosecutor's phone stating that the victim in a given
case wants a criminal protective order. Make sure and
give the prosecutor any needed particulars, such as
the full names of any children to be covered in the
you don't trust the prosecutor assigned to the case,
or as sometimes happens at the arraignment, you're not
sure which prosecutor's going to be handling the arraignment,
have your client write out a one or two paragraph note
to the judge. In the note she should identify herself
as the case victim, and state that she wants a criminal
court protective order. Then she should write two or
three sentences saying why she wants the order. This
statement should include her level of fear of the defendant.
The statement should also say whether she wants the
children covered in the protective order. If the victim
also wants to make sure the defendant can't bail out
of jail, this letter is also a good opportunity to make
this request to the judge too.
note to the arraignment judge requesting a criminal court
protective order and requesting that defendant's bail not
May 1, 2003
I am the victim
in the domestic violence case of people v. Ray Johnson.
I am willing to testify in this case.
that you please don't reduce the defendant's bail. I'm
also requesting that you issue a criminal protective order
ordering that Mr. Johnson have no contact with me or with
our children. My children were present when Mr. Johnson
beat me and threatened to kill me two days ago. Mr. Johnson
also said if I ever called the police he would take the
children and I would never see them again.
I am very afraid
of him and believe he is capable of carrying out his threats.
He has been violent towards me and the children for the
last two years and every beating is worse than the one
before. Please don't reduce his bail. Please grant a criminal
protective order for myself and my children.
Signed and Printed Name
NOTE: Although the criminal court protective
order will be entered into the state law enforcement computer
it is still a very good idea for the victim to obtain
a copy of the order and carry it on her person. Victims
can obtain a copy of the criminal court protective order
simply by requesting one from the district attorney's
it's also a good idea to double check to make sure the
order got entered correctly into the state law enforcement
computer. (In California, the state law enforcement computer
system is called CLETS.) To make this check simply ask
any law enforcement official or clerk to check the information
the defendant is booked into jail, there is usually a
standard bail amount set for each charge for which he's
booked. As mentioned above, you or the victim can call
the jail at any time to ask the amount of the defendant's
bail. If the defendant hasn't been able to bail out in
the day or two before the arraignment, most defendants
will ask for a bail reduction hearing when they are arraigned.
The bail reduction hearing will usually be set for within
the next few days.
If your client
does not want the perpetrator to get out on bail, doesn't
want the bail reduced, or would like the bail amount to
be increased, you and she have three options:
If you know and trust the case prosecutor, you and/or
the victim can simply call and ask that the prosecutor
argue for no bail reduction at the bail reduction hearing.
If you want the bail to be increased, it's important to
present the reasons why the bail should be increased.
The two main
arguments for increasing or for not reducing bail are
that the defendant is a flight risk, or that the defendant
is a threat to victim or public safety.
(Keep in mind
one problem you're likely to encounter early on in cases,
is uncertainty about which prosecutor will actually be
handling the case in court. There are frequent substitutions
of attorneys at the beginning of cases. This is true even
if your district attorney claims to practice vertical
prosecution on violence against women cases.)
* Even before the arraignment, the victim can write a
short (one or two paragraph) letter to the judge, whoever
that may be. A request that the defendant's bail not be
reduced, or that bail be increased, can be part of the
same note in which a victim asks for a criminal protective
order. (See sample letter in the
criminal court protective order section above.)
* If there is
a bail reduction hearing scheduled, the victim can call
the probation department and ask to talk to the probation
officer that is assigned to preparing bail recommendation
reports. The victim should tell the probation officer
why, and how intensely, she fears for her safety if the
defendant gets out on bail. Or she can tell the probation
officer why she believes the defendant is a flight risk.
the Charges being Filed Adequate to the Crime?
Is a fractured skull being filed as misdemeanor domestic
violence? A rape being filed as sexual battery? Multiple
counts of felony child abuse being filed as one felony
count? Stalking being filed as a violation of a restraining
order? A violation of a restraining order being filed
as a violation of probation?
Or is a perfectly
viable case not being filed at all?
question of whether or not adequate charges are being
filed in your client's case will bring you and your client
squarely into the realm of your local district attorney's
office. So we'll discuss the all important question of
evaluating the charges being filed at arraignment in the
following section, Section F on the District Attorney.