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Our office is looking at the best way to charge misdemeanor assaults involving family violence, and whether to submit to the jury, or simply to the trial court alone, the question of whether a given assault involved family violence. We are dealing not only with the law, but also with judges who are reluctant to make a finding on that issue. Our present inclination is to charge a misdemeanor assault, with a separate paragraph alleging family violence (in much the same way that we charge deadly weapon or enhancements in a separate paragraph), and then, if it is tried to a jury, submit the issue of family violence to the jury as a separate issue (again, in much the same way that we would a deadly weapon finding), and finally to ask the judge to independently adopt that finding as a finding of the court for purposes of CCP 42.013. We would like to know what other offices are doing in these cases? | ||
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Member |
You could do that. Keep in mind that while it is easier to prove a subsequent offense with a prior conviction that has an affirmative finding, an affirmative finding is not required in the statute, so you could also prove that relationship from the first case as part of your evidence in a trial on an enhanced case through witnesses or other methods. | |||
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Member |
Doug, the procedure you talk about is one that we decided to use in Dallas long ago. I don't know that it was ever fully implemented, but it is a cautious approach that the defense can't complain about and it makes it easier for you to get the "repeaters." It is probably easier to prove up a judgment with a good finding made by a jury or judge than try to prove family status 8-10 years after the fact. | |||
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Member |
I think the better practice is to include the allegation of the relationship in the charging paragraph itself. We describe the offense as Assault-Family Violence on the charging instruments. Just place a comma after the victim's name, and allege one of the relationships that qualify: a member of the defendant's family or a member of the defendant's household or a person with whom the defendant had or had had a dating relationship. Then, neither the judge nor the jury have the option to make a negative finding and the offense is clearly labeled for future use. | |||
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Member |
We handled it the the counties I worked for the way Ken handled it. My earlier suggestion was predicated on the fact that it sounded like the judge was being reluctant to include affirmative findings on the record or include them in the charge. | |||
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