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Your Rights And The Criminal Justice System


By: The Santa Clara County Probation Department

CHAPTER 3: Your Rights and the Criminal Justice System

The criminal justice system can be intimidating and confusing; it can also help you. The following information will help you understand the process better. The Victim Advocacy Project through the Support Network for Battered Women is available to assist you throughout your experience with the criminal justice system.

THE POLICE...

Calling 911

If you have just been threatened or beaten, call 9-1-1. Tell the dispatcher that you are in danger and you need help immediately.

When the police arrive, describe your injuries in detail. Include the following information:

  • How you were injured.
  • Information about violation of the restraining order.
  • Any threats the batterer made.
  • Any weapons used.
  • Any other instances of threats or violence.
  • Whether there are any witnesses.

Ask the police to take pictures of injuries, bruises, and damaged property and to remove any weapons used in the crime from the scene. Try to be as calm as you possibly can.

Making a Report

The police are required to write an incident report for all domestic violence calls, even if the batterer has already left the scene when they arrive.

The police are required to provide you with an information card with the report number and the officer's name and badge number.

Although it is best to make the report as soon as possible, you can also call the police hours after you have been abused, or even the next day, to have a report taken.

If the police do not write a report, you can go to the police station to make a report yourself.

Photos of your injuries are crucial. Bruises may appear hours or days after the incident, and the pictures can be used as evidence. While police may take photos, you should also take your own photos.

Never hesitate to call the police for help. If you disagree with an officer's responses to your situation, you can directly contact the commanding officer or request assistance from a domestic violence advocacy agency in communicating your concerns to the law enforcement agency involved.

Always get the police officer's names and badge numbers.

Civil Stand-By

If you need to return to your house to get your things or you don't want to let the batterer back in your home to pick up his or her things, you can request a civil stand-by. A civil stand-by means the police are present to make sure everyone is safe. The police will only allow a limited time for the person to gather property. You can call your local police department to request a civil stand-by at any time.

Copy of the Police Report

You have a right to obtain a copy of any police report in which you are listed as the victim. The reports are available through the police agency that handled the case. The charge for the report can be as much as $20, depending on the agency.

It is always a good idea to get a copy of any incident report documenting your batterer's abuse against you. These police reports can be used as evidence of abuse in other court proceedings, such as restraining order or custody hearings.

Restraining Order Violations

If your abuser has violated a restraining order, show the police your court order and the proof of service. Restraining orders can be verified in the state registry. The police are required to make an arrest if the batterer is present and they believe a violation of the restraining order has occurred.

Emergency Protection Restraining Orders

You have a right to request an Emergency Protection Restraining Order (EPRO) from an officer at the scene of the crime. An EPRO is temporary, and only a police officer, with the approval of a judge, can obtain this order.

Since you need an officer's assistance to get an EPRO, it is important to describe the batterer's actions and the basis of your fears.

EPRO's are available 24 hours a day and good for up to 7 days and can include orders for custody and residence exclusion. To get a more permanent order, you must go to Superior Court to file for a civil restraining order (see the Family Court section for more information).

Arresting the Batterer

Even if the batterer has broken the law, he or she may not necessarily be arrested. If asked, you do not have to tell police you want to prosecute. An officer's decision to arrest the batterer should not be based on whether or not you want to "press charges". Only the District Attorney can charge a person with a crime.

Private Person's "Citizen's Arrest"

If the police refuse to arrest the batterer and the batterer is present, you have the right to make a citizen's arrest under Penal Code Section 837. All you have to say is, "I want to make a citizen's arrest." You can tell the police of your request to make a citizen's arrest outside of the hearing of the batterer. The police are supposed to advise you of your right to make a citizen's arrest.

Release from Jail Following Arrest

If the batterer is arrested and taken to jail, he or she may be released on bail. This release can happen within just a few hours. You have the right to be notified of your batterer's release from jail.

Arrest by Warrant

If the batterer is not arrested at the time of the incident, the case may be assigned to a detective for further investigation. A detective will re-interview people, collect more evidence, and gather medical information. Not all reports are sent to the District Attorney for review.

The District Attorney's Office will review all reports received and decide whether to file charges. If the District Attorney authorizes charges, a warrant for the batterer's arrest will be valid once a judge has signed the warrant.

The warrant is sent to the police agency that completed the report, and the batterer is then notified of the warrant, usually by mail. If the batterer does not turn him or herself in, the police will attempt to find the person. This process can be lengthy.

THE OFFICE OF PRETRIAL SERVICES...

When a batterer is arrested and taken to jail, the Office of Pretrial Services gathers information to help the judge in setting bail and to make recommendations to the Court and District Attorney about the batterer's possible release at court.

Your input is very important. A Pretrial Services Officer will call you and ask you about your safety, past violence or threats, and any conditions of release you believe the batterer should have if the judge allows him or her to be released.

Bail

You have the right to request an increase in bail. The law requires that a judge set a person's bail within eight hours of being booked into custody. The judge can increase bail if the victim's safety is in danger. Tell the Pretrial staff that you fear for your safety and want the batterer's bail increased. Once bail is set, you have the right to request a rehearing for bail setting to increase or revoke bail.

Release at Arraignment

If the batterer has not posted bail, the judge will decide whether to release the batterer from custody at the first court hearing, the arraignment. The judge's decision is typically based upon the information provided by Pretrial Services. A recommendation for release should not be made without your input.

Supervised Own Recognizance Program (SORP)

Many batterers are released by the judge at arraignment on SORP. This program means the batterer's release is conditional upon meeting certain requirements the Court feels are necessary for your safety and to guarantee the batterer's appearance in court. Batterers are supervised by Pretrial staff to monitor their conduct.

Stay Away and Other Conditions of SORP

You have the right to request that a "stay away" or no contact order be a condition of release. This order is different from a restraining order. The order is available to local police agencies for enforcement and a notice is mailed to you. This no contact order will remain in effect throughout the court process, but can be changed.

Once the order is terminated or changed, the police agencies are notified, and you are also provided written notice. Other common conditions of release include participation in a batterer's program and substance abuse treatment.

Violation of SORP Conditions

If the batterer does not comply with the conditions of release, the Pretrial Officer will notify the Court and may recommend revocation of the Supervised Own Recognizance release. If the Court revokes the release, the batterer will be taken back into custody or a bench warrant will be issued. Pretrial Services' involvement in the case terminates at this point.

THE DISTRICT ATTORNEY'S OFFICE...

The decision to "press" or "drop charges" can only be made by the District Attorney's Office (DA). You, as the victim of a crime, cannot "press" or "drop" charges against the batterer.

The DA's Office will either file charges or reject the case based on the facts in the police report. There is a special unit that prosecutes domestic violence cases.

Your cooperation in the case is very important, but your lack of cooperation will not stop the prosecution. The DA prosecutes batterers to stop the violence against you.

If you have questions or would like to convey your thoughts about the case, you may contact the Deputy District Attorney assigned to the case.

Felony versus Misdemeanor

In general, a felony is a more serious crime than a misdemeanor. A felony conviction can result in a state prison sentence or local jail time. A misdemeanor conviction, however, is limited to no more than one year in the county jail.

Arraignment

If the District Attorney files charges, the batterer will be brought before a Superior Court judge who will tell the batterer what the charges are and ask for a plea.

The batterer may plead guilty or "no contest" and be immediately sentenced by the Court. You have a right to be present and heard by the judge at this time.

If the batterer is in custody, arraignment occurs within 48 to 78 hours.

If the batterer is out of custody, the filing of charges and arraignment could take several weeks.

Pretrial Conference (Misdemeanor Cases)

If the batterer pleads not guilty, a court date will be set for pretrial conference. At pretrial conference, the case is discussed by a judge, DA, defense attorney, and the batterer. You have the right to be present, but your presence is not required. If the batterer still pleads not guilty, the case goes to trial and a court date will be set.

Preliminary Hearing (Felony Cases Only)

If the batterer charged with a felony pleads "not guilty", a preliminary hearing is held to determine if the batterer should stand trial in Superior Court.

You will be asked to testify at this proceeding. You have the right to have an advocate or support person with you during this hearing. There is no preliminary hearing if the batterer is charged with a misdemeanor.

The Trial

The most cases are resolved by guilty pleas and do not go to trial. If the batterer pleads not guilty, a trial will be held.

The DA's Office has the burden of proving guilt "beyond reasonable doubt."

You will be called upon to testify at the trial. You have the right to have an advocate or support person with you at the trial.

Your Role as a Witness

If you receive a subpoena from the Court, you are required to appear in court. If you fail to appear, the Court may take you into custody to make sure you are present to testify.

You don't need a lawyer to represent you – only the batterer faces charges. You are never obligated to go to court unless you are subpoenaed. You have the right to attend any public court proceeding concerning the batterer.

If Someone Calls You About the Case

If someone calls you about the case, ask whom they represent. You have the right to speak with or refuse to speak with the batterer's attorney or investigator, including anyone from the Public Defender's Office.

Plea Agreements

Many cases are settled prior to trial through a plea agreement. A plea agreement means the DA's Office, the defense attorney, and the batterer agree upon the charge(s) and the conditions of the sentence. Charges may be reduced or dismissed during the process.

You have the right to be notified by the DA's Office of any plea agreement made in a case involving a violent felony. You can call the DA's Office any time to ask if the batterer's charge including a violent felony.

Notification of the Disposition of the Case

You have the right to be notified of the disposition of the case by the DA's Office. If formal probation is granted, the Probation Department will send you a written notice advising you of the conviction, the charge(s), and the conditions of the sentence.

THE PROBATION DEPARTMENT...

Presentence Investigation by Probation

In all felony cases, and in a small number of misdemeanor cases, the Probation Department prepares a presentence investigation report for the Court prior to sentencing. The report includes a description of the crime, the personal history and criminal record of the batterer, the batterer's statement, and your views regarding the offense.

Your statement is very important and may have an impact on the probation officer's recommendations and the Court's orders.

Notification of Sentencing Hearing

If a presentence investigation is completed, the Probation Department will notify you of the sentencing hearing date and your right to appear and express your views to the Court. You also have the right to express your views in writing. You will receive this notice by mail.

The PO assigned to complete the report will attempt to contact you to ask about the nature and extent of your injuries and emotional distress. The PO will also be interested in your feelings about the batterer and the crime.

If you suffered a financial loss, you have the right to request that the batterer be ordered to pay those costs.

Probation Recommendations

The Probation Department makes recommendations to the Court about sentencing in cases referred for a report. These recommendations may include prison or jail time, programs to assist the batterer in taking responsibility for the violence, and restrictions of contact to protect you.

You have the right to:

  • Know the PO's recommendations;
  • Submit your own views and additional information to the Court to dispute the report;
  • Express your views to the Court prior to the sentencing.

Sentencing Requirements

The law requires the following conditions as the minimum sentence for anyone convicted of a crime against their partner:

  • Three years formal or court probation.
  • A criminal protective order protecting you from further acts of violence, threats, stalking, sexual abuse, harassment, and residence exclusion or stay-away conditions.
  • Notice to you of the disposition of the case. Completion of a certified batterers program.
  • Restitution to you (payment of medical expenses, property damage or lost wages).
  • Public service work, fines, and booking within one week of the sentence if the batterer has not already been booked into custody.

The purpose of these conditions is to provide protection for you and to hold the batterer accountable.

Jail Alternative Programs

The batterer may be ordered to serve a County Jail sentence. There are, however, a number of jail alternative programs available to inmates that allow them to live or work in the community while serving their jail sentence.

Court Probation

If the batterer is granted court probation, the court is responsible for monitoring the batterer's compliance with the court orders. For assistance in a court probation matter, you must contact the sentencing court.

Formal Probation

If the batterer is granted formal probation, a probation officer (PO) will be assigned to supervise the batterer.

The Probation Department supervises the batterer to provide protection for you and to enforce the court order. The Probation Department has a specialized supervision unit to handle more serious domestic violence cases. You are encouraged to speak directly with the PO assigned to supervise the batterer.

Batterers Programs

The batterer will be required to attend a year-long batterers program as a condition of the sentence. Participation in this program does not guarantee that the batterer will not be violent or abusive again. The purpose of the program is to teach the batterer how to stop the violence, but only the batterer can choose to stop the abuse.

By law, victims are not allowed to participate in the program with the batterer. You have the right, however, to request and receive information about the program and the batterer's participation in the program.

Contact with the Batterer while on Probation

The Court may also make an order restricting the batterer's contact with you. Typically, there are three kinds of contact orders imposed:

  • Do not harass, annoy, or strike the victim;
  • No contact whatsoever;
  • No contact without the approval of Probation.

Your safety is the primary concern. The PO will make the decision to restrict or otherwise place conditions on the contact the batterer is allowed to have with you. This decision will be based on risk, rather than your preference.

Other Probation Conditions

The batterer may also be required to participate in substance abuse counseling, submit to warrantless searches, submit to chemical testing, participate in parenting classes, and be prohibited form owning or possessing weapons. All persons convicted of a felony are prohibited from owning or possessing a firearm for life.

Service of Restraining Orders

If you decide to seek a civil restraining order in addition to whatever contact order the criminal court has made, you have the right to request that the PO serve a Restraining Order on the batterer.

You will need to provide the appropriate documents to the PO within the time frame required by the court to allow time for the PO to have the batterer report to the Probation Department.

Modifications while on Probation

You have the right to be informed of changes in the batterer's probation status, including a revocation of probation, the issuance of a bench warrant, or transfer to a lower level of supervision.

Violation of Probation

You have the right to report any violation of the court order to the PO. If the batterer fails to comply with the court order, he or she may be returned to court for Violation of Probation proceedings.

Sometimes, a hearing will be held and witnesses called. If you are called as a witness, you may request an advocate to accompany you to the hearing.

The judge, not a jury, will determine if the batterer is in violation of probation. Consequences for a violation of probation include more jail time or additional conditions of probation. In felony cases, the batterer may be sentenced to State Prison.

STATE PAROLE...

Upon release from State Prison, the batterer will be supervised by a State Parole Agent. The batterer's parole agent may be contacted to answer any concerns or questions regarding the batterer and parole. The typical parole term is three years, although the length of the term is determined by the offense(s) and the parolee's adjustment.

Release from Prison

You have the right to request that the Board of Prison Terms advise you of an inmate's release from prison. This notification is not automatic and will only be done with your written request.

Parole Conditions

A parolee released from State Prison for a domestic violence offense may be:

  • Prohibited from living with the victim.
  • Prohibited from having contact with the victim without parole agent approval.
  • Required to attend Parole Out-Patient Clinic (for psychiatric or psychological counseling).
  • Required to seek substance abuse counseling.
  • Required to attend a batterers program.
  • Subject to other restrictions as determined by the Parole Board.

Contact with the Parolee

The decision to allow the parolee to reside or have contact with you is based upon the parole agent's assessment of your safety. Contact the parole agent about your concerns. A parole agent can also serve a restraining order on a batterer, at your request.

Violation of Parole

If a batterer commits a criminal act such as domestic violence while on parole, he or she is in violation of parole. The parole agent will conduct an independent investigation into the violation, which is separate from criminal prosecution. The batterer is subject to both criminal prosecution and parole violation proceedings.

You have the right to report any violation of parole to the parole agent. In the investigation of the parole violation, the agent will want a police report case number, a statement from you, names and ways to contact witnesses, and photographs of injuries or property damage.

Morrissey Hearing

You may be subpoenaed to testify if there is a parole violation hearing. This administrative hearing is called a Morrissey Hearing, and is much less formal than a court trial.

At this hearing, a member of the Parole Hearing Division reviews the evidence of the violation. Although the parolee is usually present and may ask you questions, extreme cases may require you to be interviewed outside the presence of the batterer. In that instance, the parolee may leave a list of questions for you to answer.

Following the hearing, the victim may be notified as to its outcome. Violation of parole proceedings may take place with the batterer in or out of custody. The primary consideration is whether the batterer presents a threat to the safety of anyone if he or she is not incarcerated.

Consequences for Parole Violations

The consequences for a parole violation depend upon the severity of the charge. Any parole violation may result in actions that include, but are not limited to the following:

  • Continue on parole with no additional restrictions or limitations;
  • Continue on parole with additional requirements or conditions;
  • Increased supervision;
  • Return to custody for a period of time not to exceed 12 months.