Queens County Bar Association
Martindale Hubbell - Distinguished 2023

Common Misconceptions About Domestic Violence Cases

Interviewer: What would you say are some of the top misconceptions that people have about domestic violence as a whole?

Most Victims Are Surprised When The Police Arrest The Accused; They Presume The Police Are There Just To Mediate The Situation

Martin Kane: I think the biggest misconception is that they think the police are going to come and they’re just going to clear up a problem situation. The wife thinks the husband is getting out of hand, and so she’ll call the police expecting that the police will just say, “Hey, buddy, cool down. Why don’t you go out of the house for a while?” They are very surprised when their husband is actually arrested.

Many times, the first call that I get is from a wife who calls to tell me that her husband’s locked up because she called the police. She didn’t expect that he was going to be arrested, and, now, he’s in jail, and what can she do to get him out. I would say almost half of the cases start that way.

What to Avoid During A Pending Arrest For Domestic Violence

Interviewer: Now, what are some unintentional mistakes that your clients make during the process?

Avoid Lengthy Conversations With The Police They Are Questioning You To Gather Evidence To Use Against You

Martin Kane: The first mistake that they make is that they talk to the police officer. They think that when the police officer calls them to come to the precinct, that the officer will even say to them, “Hey, buddy, we want to get your side of the story.”

They think that if they talk to the officer and explain the situation, it’s going to go away. Nothing could be further from truth. The officer does want to hear their side of the story. But the reason that the officer wants to hear their side of the story is because that almost always leads to incriminating statements.

For example, let’s use the situation where a husband and wife had a fight. The husband is called down to the precinct and gives his side of the story. He says, “Well, she was hitting me, so all I did was push her away.”

He’s admitted to committing a crime. He’s admitting to pushing her and maybe that’s what caused her injury. “She started the fight. I was only defending myself.” None of these things are helpful. In fact, there’s nothing that you can say to the officer that’s going to change anything other than to make it worse.

To Avoid Self-Incrimination, Defer Questions To Your Attorney

The biggest mistake is saying anything. The best thing that somebody can do is simply say nothing. Say, “I have an attorney. My attorney doesn’t want me to speak or say anything about the case.” That’s probably the biggest misconception and the most common mistake that people make.

If An Order Of Protection Has Been Issued, Do Not Contact Your Partner To Inquire Why Or Ask Them To Drop The Charges

The second one is the person will, after his arrest and after he’s seen the judge and maybe he’s sent back to the jail and been told that there’s an order or protection, he then calls the wife and says, “Hey, honey, why did you do this to me? You know I love you. Why don’t you drop the charges?”

All of this is recorded, and all of this leads to additional charges against the defendant. Again, the best thing to do, when the judge says, “Don’t have any contact with the complainant,” usually the wife, don’t have any contact. You can only harm yourself.

Incidents Of Domestic Violence Are Known As Assault Charges, With First-Degree Assault Being The Most Serious Charge

Interviewer: What determines the levels of an assault in a domestic violence case? What’s a first degree and what’s a second degree?

Martin Kane: They are the same as any other assault. Again, there is no such legal charge or crime called domestic violence or a domestic assault. It’s exactly the same as anything else. Assault in the first degree will mean a permanent injury or a serious injury with a dangerous weapon. That’s an extremely serious charge with up to 25 years in jail.

Second-Degree Assault Is Charged As A Felony; Third-Degree Assault Is The Most Common Charge In An Incident Of Domestic Violence

The second-degree assault is either causing a serious injury or assault using a dangerous weapon. Those are felony charges, and they’re exactly the same for domestic violence or any other assault.

The third type of assault, which is what you see the most in domestic violence cases, is assault in the third degree. This charge is simply causing physical injury with the intent to cause injury. That’s the one that we see most of the time after an incident.

Find out more by contacting The Law Office of Martin D. Kane at (718) 793-5700.

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