Queens County Bar Association
Martindale Hubbell - Distinguished 2023

The Police Protocol if They Are Called to the Scene of an Altercation Between Family Members or Partners

Interviewer: Now, is there ever a situation where the police will not make an arrest if they are called to the scene of an altercation?

If There Is Any Visible Sign Of Injury To One Party, The Police Must Make An Arrest

Martin Kane: Whenever the police come upon the scene and there is physical evidence that an assault took place, even if the wife says, “I don’t want him arrested. I just want him to cool off,” the police will always make the arrest.

They are mandated by their superiors. They must make an arrest under those circumstances. The officer does not have any discretion whatsoever.

Can the Accuser Have the Charges Dropped Against the Accused?

Interviewer: Can the person who is the accuser simply just drop the case if they wanted to after a period of time?

The Complainant May Often Wish To Drop The Charge

Martin Kane: No. Again, it’s part of the same thing. I would say that in at least half of the domestic violence cases that I handle, maybe more, the complainant, usually the wife or the girlfriend, does not want to pursue the case.

The complainant will call the district attorney and say, “I don’t want to prosecute this case. I don’t want to testify in this case.”

Only The District Attorney Can Decide To Drop The Case And Usually Pressures The Complainant To Testify Against The Accused

Without fail, the district attorney handling the case will say, “It is not up to you. We are prosecuting this case. You are only a witness. We will subpoena you to come and to testify. If you do not testify, we will try to make out the case without you.” The complainant has no option whatsoever in making that decision.

This is a constant battle in the courts. Most of the issues that we litigate are whether the district attorney has enough evidence, without the wife, to prove the case. This is because, most of the time, the wife or girlfriend or other person involved does not want to testify against the defendant.

If the Alleged Victim Wants to Recant, Does It Benefit the Defense?

Interviewer: How does that situation impact the defense?

Martin Kane: There are times when we will actually have the complainant come in and testify on behalf of the defendant. The district attorney will try to utilize the statements that she previously made. Usually, that might be a 911 call, for instance, where she called up, particularly, if she was in an excited state when she called the police and demanded that the police come over right away. “He’s beating me up. He’s hurting me.” The district attorney can use that as part of their direct evidence.

There are times when we will have the complainant come in and testify for the defendant. The problem is that what she is doing is she’s saying that what she said before was untrue. That can be very difficult.

Are There Any Typical Scenarios Of Domestic Violence Incidents?

Interviewer: What is the most common scenario that you see over the years? Is there one typical story that exists about an incident of domestic violence?

There Is No One Typical Case; Almost All Stem From A Dispute, Most Commonly Between Spouses

Martin Kane: There really is no one typical case. But the most frequent case involves a fight; there’s an argument; maybe one spouse starts it, but the other pushes back and causes some minor injury. The average so-called injured spouse calls the police; they don’t even think that the person is going to get arrested, as I said before. Those are the most typical cases that we see.

Both Parties Are Usually Regretful After A Domestic Violence Incident

By no means are all the cases like that, but, if you had to pick one scenario, it’s just an argument that got out of hand. Afterwards, both parties wished it never happened; both parties wished it would go away. The district attorney, once the police have made an arrest, insists on going forward. I would say that that’s true in probably the majority of cases.

Contact The Law Office of Martin D. Kane at (718) 793-5700 to discover more about police protocol.

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