Criminal Processes

_MG_2547

Q: What are my options if I do want criminal charges brought against my abuser?

Q: What are the differences between the options for reporting a crime?

Q: What if both law enforcement and the magistrate refuse to issue a criminal charge against my abuser?

Q: Will my abuser be taken to jail if he/she has been charged?

Q: How can I be involved in making sure that the abuser’s pretrial release conditions include provisions to keep me safe?

Q: How long will my partner be in jail after he/she is arrested?

Q: How can I find out when my partner gets out of jail?

Q: How can I find out what the abuser’s pretrial release conditions are?

Q: What can I do if my abuser contacts me after the criminal charges are pending?

Q: My abuser has been arrested and now he/she wants me to drop the charges. What should I do?

Q: What happens after my abuser is charged and pretrial release conditions set?

Q: How soon is the first court date?

Q: How quickly will the case be resolved?

Q: Do I have to go to court? Will I have to testify?

Q: What if I want the case handled differently than the prosecutor is handling it?

Q: What does the prosecutor have to do to convict the abuser?

Q: What are some of the punishments that the abuser could get because of the criminal charge(s)?

Q: Is there any help for things like medical bills as a result of my being a victim of domestic violence?

Q: I’m the victim but I’ve been charged with a domestic violence crime. What do I do?

Q: What are my options if I do want criminal charges brought against my abuser?

A: There are several ways you can report a crime against you.

  • Call 911. If you are in immediate danger you should always call 911 so that law enforcement can respond to protect you. After law enforcement ensures your immediate safety, they will investigate whether any crime has taken place.
  • Call the non-emergency number for your local law enforcement agency.
  • Go directly to a local law enforcement office.
  • Go directly to the local magistrate’s office.

In all of these options it is important to understand that you alone do not have the power to “take out” a criminal charge against an abuser. While you absolutely have a right to report a crime against you, ultimately an independent judicial official such as a magistrate has to determine that there is what is called “probable cause” that a crime was committed and that the abuser committed that crime. Even if you believe or are 100% sure that the abuser committed a crime against you, if a law enforcement officer and magistrate disagree with you, you will not be able to take out a criminal charge. This is because criminal charges are between the “State of North Carolina” and the offender (called the “defendant” once he/she is charged). Therefore, even though you are the victim, you do not have the final say so as to whether a charge is taken out. The flipside is also true- sometimes victims do not want criminal charges taken out, but law enforcement see evidence of a crime when they respond to a 911 call to protect a victim’s safety. Law enforcement will often proceed with taking out charges in order to hold the abuser accountable for his/her criminal actions even if the victim doesn’t want the criminal charges. This is because criminal charges are between the State of North Carolina and the abuser- not between the victim and the abuser.

Q: What are the differences between the options for reporting a crime?

A: As stated above, if you are in immediate danger, you should call 911. If you are not in immediate danger but want to make a report of the abuser committing a crime against you, it is typically helpful to make a report to your local law enforcement agency. Law enforcement is trained to investigate crimes and to prepare a case for later prosecution by the District Attorney’s Office. It is law enforcement’s role to determine whether an abuser has committed a crime. Law enforcement is familiar with the various crimes in North Carolina and what we call the “elements” of those crimes, or the different actions that someone has to do to make what they’ve done fit the legal definition of that crime in North Carolina. They know how to interview you and other witnesses, document evidence, and write reports. Therefore it is often helpful for prosecutors when victims have reported a crime to law enforcement rather than gone directly to a magistrate’s office.

When a victim goes directly to a magistrate’s office, there is no report or other evidence for the prosecutor to rely on later to help prove the case in court. This can make it very difficult because in order to convict someone in criminal court, a prosecutor has to prove that the defendant committed the crime “beyond a reasonable doubt.” In addition, while you can report a crime directly to a magistrate, if the crime committed against you was a felony, the magistrate will not be able to issue the warrant without law enforcement investigating it first. Magistrates can only issue criminal charges to non-law enforcement complainants that are misdemeanor crimes under North Carolina law.

However, in some parts of the state when victims report domestic violence crimes to law enforcement, the officers might refer victims to the magistrate rather than take out the charges themselves. If this happens to you, then you absolutely have the right to go to the magistrate’s office and present your facts to the magistrate for the magistrate to decide whether to issue a criminal charge. You have the right to ask the law enforcement officer if he/she will document your report and ask the law enforcement officer for a report number which you can later provide to the district attorney’s office if the magistrate issues a criminal charge.

Q: What if both law enforcement and the magistrate refuse to issue a criminal charge against my abuser?

A: You do not have the power to take out criminal charges on your own. Therefore if law enforcement and the magistrate deny your request, the abuser cannot be charged criminally at this time for those actions. You still have a right to call the police the next time the abuser does something that places you in fear or that you believe is a crime. Just because you were denied a criminal charge one time does not mean you will be denied in the future. The law is very complicated and sometimes an abuser’s behavior can walk the line without crossing over it one time and the next time it might cross it. You always have the right to call the police if you do not feel safe. In addition, you have other options to help protect yourself including the possibility of filing for a restraining order (see information on Domestic Violence Protective Orders) and receiving support and safety planning services from your community-based domestic violence agency. For a list of those agencies click here: http://www.councilforwomen.nc.gov/displayprograms-dv.aspx

Q: Will my abuser be taken to jail if he/she has been charged?

A: Most crimes of domestic violence result in the abuser being arrested, although on a rare occasion an abuser might be only “cited” or “summoned.” If the abuser is only “cited” or “summoned” when he/she is charged, the abuser will be given paperwork telling the abuser what he/she has been charged with and when to go to court but will not be arrested (think of what happens when you get a speeding ticket for instance). However, this is not generally the case. Typically, because of the seriousness of domestic violence charges, when a law enforcement officer or magistrate determines there is probable cause that a domestic violence crime has occurred they will seek or issue a warrant for the abuser’s arrest.

When an abuser is arrested for domestic violence, they will be brought before a judicial official, typically a magistrate, for their pretrial release conditions to be set. Most people think of this as “bond.” However, pretrial release conditions include more than just a money amount that a defendant has to pay to get out of jail. In addition to setting a money amount, the judicial official can also add other provisions that a defendant has to follow as a condition of being released from jail. For instance in almost every criminal domestic violence case, the judicial official will order the defendant to have “no contact with the victim” while the criminal case is pending. This is sometimes referred to as a “criminal no contact order” or a “criminal restraining order.” This is different than a Domestic Violence Protective Order because it is something that the judicial official has put in place as part of the criminal case rather than something that you, the victim, did by going to civil court.

The judicial official can also order other provisions for your safety as a condition of the defendant’s release. Some of these might include ordering the defendant to 1) stay away from your home, school, and business, 2) not assault, beat, molest, or wound you, 3) comply with a valid protective order, and 4) not possess a firearm. In some districts, the judicial officials use a specific form created by the Administrative Office of the Courts to be used to set pretrial release conditions for domestic violence crimes (AOC-CR-630). You can see this form here to get a better idea of the provisions a judicial official can order: http://www.nccourts.org/Forms/Documents/1081.pdf. But regardless of whether they use this specific form or not, all judicial officials have the ability to order these and other conditions to ensure your safety as part of a defendant’s pretrial release conditions.

Q: How can I be involved in making sure that the abuser’s pretrial release conditions include provisions to keep me safe?

A: These conditions are often set very quickly after an abuser is arrested. If law enforcement has made the decision to arrest the abuser “on-scene” and you would like to express your desire for specific pretrial release conditions, you may want to share your concerns for safety with the law enforcement officer right then and ask that they be shared with the magistrate. In addition, you can call the magistrate’s office directly and tell the magistrate’s office that a law enforcement officer has arrested your abuser and is transporting them to the magistrate now and that you are concerned for your safety and would like for the magistrate to consider certain requests when the magistrate sets pretrial release conditions. It is important for you to understand that the magistrate is an independent judicial official and may not do what you want him/her to do. But you have the right to express your concerns and what you hope he/she will do. It is always important to be polite when speaking with law enforcement and magistrates and usually helpful if you let them know you understand that they have to make the decision but you want them to know what you would like to see happen and why. Magistrates want to keep victims safe and most of them would appreciate being able to hear from victims before they set pretrial release conditions. You can ask the law enforcement officer who responded for the magistrate’s number or you can typically locate it by doing an internet search for “[insert name of your county] magistrate’s office” (example: Wake County Magistrate’s Office). You might also be able to locate the phone number by using the Administrative Office of the Courts website: www.nccourts.org, selecting “Courts,” selecting “Court Information by County,” selecting your county, and then selecting “Court Telephone Directory” on the left-hand side. This usually brings up a list of phone numbers, including the magistrate, district attorney, clerk’s office and other numbers for court personnel.

In some cases, when abusers are charged with crimes of domestic violence they will be held without a money bond until they can be seen by a judge rather than a magistrate. The longest that a defendant will be held without a money bond is 48 hours. However, whether a defendant will be held without a money bond is dependent on many factors including what crime they are charged with, what their relationship is to you, and how soon a judge is available in your district. If a defendant is held without a bond, it is so that a judge can set the bond with the assistance of information provided by the District Attorney’s Office. Therefore, if a magistrate tells you that they aren’t setting a bond, then you will likely need to contact the District Attorney’s Office to let them know what pretrial release conditions you would like to be put in place. You can locate the number for your District Attorney’s Office by selecting your county on the map here: http://www.ncdistrictattorney.org/yourDA.html. Or you can use the Administrative Office of the Courts website: www.nccourts.org, selecting “Courts,” selecting “Court Information by County,” selecting your county, and then selecting “Court Telephone Directory” on the left-hand side. This usually brings up a list of phone numbers, including the magistrate, district attorney, clerk’s office and other numbers for court personnel.

Q: How long will my partner be in jail after he/she is arrested?

A: The defendant will remain in jail until he/she can meet the conditions of pretrial release. This varies widely depending on the conditions set and the financial and other abilities of the defendant to comply with the pretrial release conditions. However, for your safety, you should be aware that defendants can bond out of jail almost immediately in some circumstances.

Q: How can I find out when my partner gets out of jail?

A: There are a couple of ways that you can try to learn when your partner is released from jail. Some local jails have set up a victim notification program. You can call the local jail and ask them if they have a victim notification program and if it’s possible for them to call you if the abuser is released from jail. This is the most ideal way to learn of the abuser’s status as it will give you the most up-to-date, real time information and without you having to constantly call the jail or a check a website. If they do not have such a program you can access resources through NC SAVAN, which you can learn about here: https://www.vinelink.com/vinelink/siteInfoAction.do?siteId=34003. NC SAVAN allows you to register for alerts or notifications for when an offender’s status changes. The downside to this system is that it is linked to local computerized systems which only update periodically. Therefore, for instance, if the local system only updates at 10:00 a.m. and 10:00 p.m. and your abuser is released from jail at 10:01 a.m., you won’t receive a notification until 10:00 p.m. when the system updates again. There are also two Smart Phone apps available for download if you have access to a smart phone: VineMobile and Mobile Patrol to help monitor an offender’s status in jail. These also have the problem with the time gap that NCSAVAN has. Finally, you can periodically call the local jail and identify yourself as the victim to ask them if the offender is still in custody.

Q: How can I find out what the abuser’s pretrial release conditions are?

A: You can obtain a copy of the pretrial release conditions from the clerk’s office or from working with the District Attorney’s Office. In addition, the community-based domestic violence agency may be able to help you through this process and assist you in obtaining a copy of those conditions.

Q: What can I do if my abuser contacts me after the criminal charges are pending?

A: If the abuser contacts you after the criminal charges are pending, he/she is probably violating the pretrial release conditions since almost all defendants charged with domestic violence are ordered to have no contact with the victim.

Even if the abuser isn’t committing a new crime (isn’t threatening you or harassing you), the abuser likely shouldn’t be having any contact with you at all. If you do not want the abuser contacting you, you can call the police and let them know that there are criminal charges pending and that the abuser is contacting you. If you have obtained a copy of the pretrial release conditions from the clerk or district attorney, you can show those to the law enforcement officer. In a few areas, law enforcement have access to those conditions in a computer system called NCAWARE. If law enforcement has probable cause to believe that the abuser violated a condition of his/her criminal pretrial release conditions then they can arrest your abuser without a warrant. The arresting officer will then take the abuser to the magistrate’s office to present the probable cause and if the magistrate finds that the abuser did violate the conditions of pretrial release, the magistrate will revoke (cancel) your abuser’s prior bond and place him/her back in jail, likely with a much higher money bond. This is not a new charge against your abuser. But since the abuser couldn’t follow the conditions the judicial official set that allowed him/her to be released from jail while waiting to go to court on the criminal charge, the judicial official puts the abuser back in jail with new conditions.

Q: My abuser has been arrested and now he/she wants me to drop the charges. What should I do?

A: Many abusers will try to get victims to “drop” charges. However, you cannot drop the charge even if you want to because criminal charges are between the State of North Carolina and the defendant. Once a crime has been charged, the District Attorney is responsible for prosecuting the defendant and you are a witness in the prosecutor’s case. It is ultimately up to the prosecutor whether to proceed with the case or whether to dismiss the case. Nevertheless, abusers will try to get victims to not participate by telling them to not come to court, to not testify, to ignore subpoenas, to lie, to say that they made the whole thing up, etc. Abusers will use many tactics to avoid being prosecuted. They promise victims that they will change, that they will get counseling, and that the abuse won’t happen again. Abusers will threaten to harm victims, to take their children, or to use the legal system or child protective services against victims if they cooperate with law enforcement and prosecutors. All of these promises or threats make it very hard for victims to continue to participate in the criminal process. However, you should know that any time that your abuser even asks you to not participate, to now show up to court, even if he/she doesn’t threaten you, that your abuser is likely committing another crime called “Interference with a State’s Witness.” You have a right to report that crime to law enforcement or to the assistant district attorney who is prosecuting the defendant.

Q: What happens after my abuser is charged and pretrial release conditions set?

A: Defendants are given what is called a “first appearance” as soon as possible. Usually at a first appearance, a defendant’s pretrial release conditions are reviewed, the first court date is scheduled, and the defendant is advised of his/her right to an attorney.

Q: How soon is the first court date?

A: When the first court date is will vary across the state. However, on average it is oftentimes about one month from when the abuser was arrested. You can often find information about the abuser’s charges, including what he/she is charged with, the case file number(s), the court date, courtroom, and time, all online on the Administrative Office of the Courts website here: http://www1.aoc.state.nc.us/www/calendars/CriminalQuery.html

Be sure when you enter your abuser’s name that you put their last name first and then a comma and then their first initial without any spaces in between. You can spell their whole name out but sometimes if there are misspellings in the system it won’t catch your abuser’s case. So if you don’t find their case using their whole name, you can try entering just their last name and first initial and looking through the results. You can also call the clerk’s office or the district attorney’s office to learn more about when the abuser’s court date is. It is always a good idea to be in touch with the district attorney’s office as soon as possible about the case so that you can learn who is assigned to prosecuting the case and find out how you can share information with them.

Q: How quickly will the case be resolved?

A: Unfortunately how long it takes for a criminal case to be completed also varies based on a number of factors. Criminal charges can take anywhere from a couple of months to a couple of years to be resolved. Cases are continued for a variety of reasons, such as the court’s calendar is too full to resolve all cases, the defense attorney or assistant district attorney needs more time to prepare the case, the investigation is incomplete, or witnesses are unavailable. It is important to know that even if your case is continued, it is not because the assistant district attorney does not care about your safety or getting justice for you. A further thing to know is that you may be subpoenaed to attend each court hearing that is held.

Q: Do I have to go to court? Will I have to testify?

A: As the victim in a criminal case, you are one of the State’s witnesses. You will need to talk with the assistant district attorney assigned to your case to determine whether the case will be for plea or trial and whether the assistant district attorney will need you to be present at the hearing and testify. While you have the right to let the assistant district attorney know whether or not you wish to attend or testify, if the State serves you with a subpoena to testify, you should understand that it is a court order.

Q: What if I want the case handled differently than the prosecutor is handling it?

A: Sometimes a prosecutor will need to handle a case differently than a victim wants them to. This is sometimes confusing for victims who understandably feel like since they are the victim in that case, the prosecutor should do what they want with the case. It is a difficult position for both victims and prosecutors to be in. However, the prosecutor’s job is to represent the entire State of North Carolina, not just the victim in this one case. The prosecutor has to keep in mind the safety of the entire community and has a responsibility to hold the abuser accountable for breaking the law, even if the victim doesn’t want to hold the abuser accountable. Sometimes this responsibility of the State is a good thing for victims because it shifts the burden off of victims and puts it squarely on the State. Domestic violence is a crime and should be treated seriously. It is not something that happens just between two people. But it is often still very frustrating if you find yourself in the position where you want a case prosecuted more strongly than it is being prosecuted or if you want a case dismissed and the prosecutor is proceeding anyway.

Either way however, North Carolina grants you important rights during the criminal process through the Crime Victims’ Rights Act. A few of these rights include: 1) the right to consult with the prosecuting attorney to share your views about what you would like to see happen with the case, including your opinion about dismissal, plea or negotiations and sentencing; 2) the right to receive notice of the date, time, and place of all trial court proceedings; and 3) the right to offer admissible evidence of the impact of the crime in sentencing the defendant. The full text of the Crime Victims’ Rights Act can be accessed here:https://www.ncdps.gov/div/vcs/CrimeVictimsRightAct.pdf

Q: What does the prosecutor have to do to convict the abuser?

A: The prosecutor has to prove that the abuser committed the crime “beyond a reasonable doubt.” If the case is in district court, the prosecutor has to prove the crime to a judge. If the case is in superior court, the prosecutor has to convince a jury- and all 12 people have to agree that the defendant committed the crime beyond a reasonable doubt.

Q: What are some of the punishments that the abuser could get because of the criminal charge(s)?

A: The punishment a defendant gets is dependent on many factors. The two main factors are the severity of the crime charged (for instance if the crime is a misdemeanor or a felony and how severe of a misdemeanor or felony) and the defendant’s past criminal record (what the defendant has been convicted of previously, not just charged with). In addition to looking at the severity of the crime charged and the defendant’s criminal history, the assistant district attorney and the court will often consider additional factors such as, but not limited to: 1) what you would like to see happen with the case, 2) the defendant’s ability to be rehabilitated (what has worked or not worked in the past, 3) the facts of the particular case, 4) the defendant’s ties to the community, 5) whether the defendant has ever been on probation before and if so, was he/she successful or not, 6) what community treatment programs are available that might benefit the defendant.

Some courts offer defendants charged with domestic violence the opportunity to “earn a dismissal” of their charge by completing community-based treatment programs such as a certified batterer intervention program and other appropriate rehabilitation programs. These “earned dismissal” programs are often only offered to defendants who do not have any prior court involvement. A defendant may also be offered probation, in which he/she is sentenced to an amount of jail time, but rather than the defendant actually going to jail, that jail time is “suspended” or “put on hold.” The defendant is oftentimes also ordered to batterer intervention program or other appropriate rehabilitation program while on probation. The defendant is assigned a probation officer who monitors the defendant’s compliance with the probation conditions. If the defendant successfully completes the conditions of probation, then the defendant won’t ever go to jail. However, if the defendant fails to complete the conditions of probation, or commits a new crime, then the defendant faces consequences for those violations, including sometimes having to go to jail. Some defendants are repeat offenders for whom probation has not been successful in the past. For these defendants, a new conviction of domestic violence will likely result in an “active” sentence, meaning that the defendant will serve time in jail or prison immediately upon conviction.

Q: Is there any help for things like medical bills as a result of my being a victim of domestic violence?

A: Yes. North Carolina has a crime victims compensation program which reimburses citizens who suffer medical expenses and lost wages as a result of being an innocent victim of a crime committed in North Carolina. Victims of domestic violence are eligible to apply. You can learn more here: https://www.nccrimecontrol.org/index2.cfm?a=000003,002144,000016

Q: I’m the victim but I’ve been charged with a domestic violence crime. What do I do?

A: Although law enforcement officers make every effort to determine who the real abuser is and who the victim is when they respond to a 911 call, sometimes officers make mistakes and the wrong person is charged or both the victim and the abuser are charged. If you are a victim charged with a crime of domestic violence you also need to understand that it is the State of North Carolina, or the district attorney’s office, who is responsible for prosecuting you- not your partner. Your partner cannot “drop” charges against you. You should follow all court orders that are put in place. Being charged with a crime, even if the charge is ultimately dismissed, can often have negative consequences for people in other areas of their life such as employment and housing. A conviction for a domestic violence crime makes it that much more difficult. Sometimes people think that because they are innocent they shouldn’t need to hire an attorney. However, innocent people may especially need attorneys to help prove that they are innocent. If you cannot afford to hire an attorney, you will be given the opportunity by the court to apply for a public defender to assist you. You can discuss your case, including your history of being a domestic violence victim, with your attorney who can help strategize with you about how to best proceed in defending yourself against criminal charges.