Subpoenas for Domestic Violence Witnesses

Many witnesses, including alleged victims, have questions regarding subpoenas in a criminal case, especially domestic violence cases.  Often, the alleged victim in a battery domestic violence case does not want to testify against the defendant in a case for a multitude of different reasons.
Compelling people to appear in court to tell their version of events is essential to the criminal justice system.  In order for a prosecutor to obtain a criminal conviction, he must prove a case beyond a reasonable doubt at trial.  In order to do this, the state must introduce evidence that leads a trier of fact (judge or jury) to believe the defendant committed the crime in question.  In most cases, this evidence mostly comes from the testimony of witnesses.  This is especially true in battery domestic violence cases.
In order for a witness to have an obligation to appear in court to testify in a criminal case, they must be properly served with a subpoena.  The law regarding service of the subpoena in a criminal case is as follows:
NRS 174.345 states:
"Service of subpoena.  1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed."
Below are the repercussions if a witness fails to attend the court date in question.
NRS 174.385 states that, "Failure by any person without adequate excuse to obey a subpoena of a court or a prosecuting attorney served upon the person or, in the case of a subpoena issued by a prosecuting attorney, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney, of the court in which the investigation is pending or the indictment, information or complaint is to be tried."
There are also other provisions of the law which enable a prosecutor to obtain a warrant for a witness's arrest if it can be shown that the subpoena was properly served and the witness failed to attend the hearing.
If you are a witness in a criminal case and you have questions about the process, please contact Attorney George Robinson at georgeforjustice@gmail.com .

Jury Trials for Misdemeanor Domestic Violence Cases

The Nevada Supreme Court has recently decided that a person charged with misdemeanor domestic violence is entitled to a jury trial.  This is brand new Nevada law and can be found at Anderson v. Eighth Judicial District Court, 135 Nev. Advanced Opinion 42.  Prior to this decision, misdemeanor domestic violence was considered a "petty" rather than a "serious" crime because the maximum jail sentence in any misdemeanor battery domestic violence case is 6 months.  Six months is the maximum sentence for any misdemeanor crime in Nevada, so before this case, all misdemeanor crimes were considered "petty." Therefore, anyone accused of a misdemeanor crime was never entitled to a jury trial, only a bench trial without jury.  The Nevada Supreme Court evaluated misdemeanor domestic violence as a "petty" crime, and concluded that misdemeanor domestic violence should not be considered "petty" but it should be considered "serious."  The rationale for the Court comes from NRS 202.360(a) which prevents people convicted of misdemeanor domestic violence from possessing firearms.  This prohibition on firearms statute makes misdemeanor domestic violence more like a felony crime.  People convicted of felony crimes lose their right to bear arms under the same statute.  It was this additional punishment that pushed misdemeanor domestic violence into the category of a "serious" crime for the Nevada Supreme Court. 

Because of this decision, it is even more important for people accused of committing domestic violence to have experienced trial counsel.  If you have been charged with any crime involving domestic violence, please call Attorneys George E. Robinson or Peter R. Pratt at 702-451-2055.

Popular posts

This blog was established in 2010, and has had tens of thousands of page views.  Hopefully, the information on the blog has helped educate people about domestic violence cases.  Here is a list of the most read posts on the Domestic Violence Defense Blog with links to those pages.

5) Difference Between Assault and Battery

4) Domestic Violence and Kidnapping

3) Battery Domestic Violence and False Imprisonment

2) Felony Battery Domestic Violence with Strangulation Crime

1) Subpoenas and Battery Domestic Violence cases

The most read topic on the Domestic Violence Defense Blog continues to be regarding subpoenas as complainants do not wish to testify against the accused for a number of different reasons.

If you have been charged with a crime or are a witness in a criminal case, and you have questions about the process, please contact attorney George E. Robinson at georgeforjustice@gmail.com or call 702-800-6525.

georgeforjustice@gmail.com

Anyone is welcome to email me at any time if they have questions as to their domestic violence, protective order, or any other situation or they want to discuss any of the issues presented on the blog at georgeforjustice@gmail.com.  I will respond as soon as I can.

Witness and Victim Subpoenas

The most viewed topics on this blog have been about subpoena issues, the service of subpoenas, and the penalties regarding a witness not appearing in court after being subpoenaed, so here is the first article this blog posted about subpoenas. 
Many witnesses, including alleged victims, have questions regarding subpoenas in a criminal case, especially domestic violence cases.  Often, the alleged victim in a battery domestic violence case does not want to testify against the defendant in a case for a multitude of different reasons.  
Compelling people to appear in court to tell their version of events is essential to the criminal justice system.  In order for a prosecutor to obtain a criminal conviction, he must prove a case beyond a reasonable doubt at trial.  In order to do this, the state must introduce evidence that leads a trier of fact (judge or jury) to believe the defendant committed the crime in question.  In most cases, this evidence mostly comes from the testimony of witnesses.  This is especially true in battery domestic violence cases.  
In order for a witness to have an obligation to appear in court to testify in a criminal case, they must be properly served with a subpoena.  The law regarding service of the subpoena in a criminal case is as follows:
NRS 174.345 states:
"Service of subpoena.  1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed."
Below are the repercussions if a witness fails to attend the court date in question.
NRS 174.385 states that, "Failure by any person without adequate excuse to obey a subpoena of a court or a prosecuting attorney served upon the person or, in the case of a subpoena issued by a prosecuting attorney, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney, of the court in which the investigation is pending or the indictment, information or complaint is to be tried."  
There are also other provisions of the law which enable a prosecutor to obtain a warrant for a witness's arrest if it can be shown that the subpoena was properly served and the witness failed to attend the hearing.
If you are a witness in a criminal case and you have questions about the process, please contact attorney George E. Robinson at georgeforjustice@gmail.com or call 702-800-6525.

Remember It's Holiday Time... Just Walk Away

The holidays are supposed to be a joyous time of year, but we all should be aware that there are dangers inherent with the holiday time.  The holidays are a time for parties with family and friends in which many people enjoy drinking copious amounts of alcohol.  It is normally fun and rewarding to see family and friends that you don't get to see all the time.  This can be an opportune setting for an incident of domestic violence, family and booze.  Especially because some family members inherently just don't get along.  All of these relationships can be considered domestic.  If you get mad at your cousin, or your brother-in-law, because he's a drunkard and being obnoxious and you push him or push him, that is Domestic Battery in Nevada.  Any blood relationships can establish the domestic component.  In-laws are also included in the definition of domestic relationships as well as roommates, so, if you get physical with anyone included in this definition, you run the risk of being charged with Domestic Battery.  This looks exactly the same as getting physical with your wife on a background check, and the penalties are the same.
Everyone should have a Happy Holiday season, but family and friends need to remember there are very serious ramifications to physicality in these situations.  Stay in control, stay level-headed.  Even if your cousin is being a jerk, it's not worth it.
If you have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a TPO has been issued against you, please visit georgeforjustice@gmail.com to call 702-800-6525 for help.

Reasonable Punishment of a Child

How can you legally discipline your child?  Can you spank your child?  How many times?  How hard?  Can you slap your child in the face?  Can you whip your child with a belt?  Can you hit your child with a stick?  There is no statute regarding reasonableness of corporal punishment of a child in Nevada.  The Nevada Supreme Court in Newman v. State, 129 Nev. Adv. Op. 24, 298 P.3d 1171 (2013) cites to an Indiana case which gives us some factors (from a Restatement) as to whether a punishment was reasonable, and therefore lawful.   

... “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education.” Restatement of the Law (Second) Torts, § 147(1) (1965). We adopt the Restatement view. Not only is it entirely consistent with the law in this jurisdiction, but also it provides guidance on the factors that may be considered in determining the reasonableness of punishment. It reads:

In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:

(a) whether the actor is a parent;

(b) the age, sex, and physical and mental condition of the child;

(c) the nature of his offense and his apparent motive;

(d) the influence of his example upon other children of the same family or group;

(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;

(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Restatement, supra, § 150. We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case. But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable.

Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008).

If you have been charged with Child Abuse or Domestic Violence against a child for corporal punishment of the child, these factors, as well as others, must be discussed with your attorney to formulate the best defense for you.

It is essential to retain competent counsel if you are accused of a crime, who can evaluate your case and present an effective defense.
If you are a suspect or have been charged with Battery, Battery Domestic Violence, Child Abuse or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please email georgeforjustice@gmail.com or call 702-800-6525 for help.

Corporal Punishment or Domestic Violence

In the state of Nevada, you can legally punish your children via battery as there is a privilege that allows parents to do so.  The Nevada law dealing with corporal punishment is not lengthy or specific, and it comes from the courts not the legislature.  As stated by the Nevada Supreme Court,

A number of states have codified the parental privilege defense. See Willis v. State, 888 N.E.2d 177, 181 n. 5 (Ind.2008) (identifying jurisdictions with parental privilege statutes). Nevada has not, so in Nevada the privilege exists by virtue of common law, see NRS 1.030; 3 William Blackstone Commentaries 120 (1862) (“battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice,” quoted in *1179 Willis, 888 N.E.2d at 180–81), and by virtue of the “fundamental liberty interest [a parent has] in maintaining a familial relationship with his or her child [which includes] the right ... ‘to direct the upbringing and education of children.’ ” Willis, 888 N.E.2d at 180 (quoting Pierce v. Society of Sisters, 268 U.S. 510, 534–35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)).

      Newman v. State, 129 Nev. Adv. Op. 24, 298 P.3d 1171, 1178-79 (2013).

The Court gives us some insight as to the parental privilege in Nevada as it pertains to the intent of the parent in committing the battery on the child.  Prior physical punishment of the child is part of this analysis of a parent's intent, as described below. 

At minimum, as both sides concede, the defense required the prosecution to establish that Newman did not “ ‘intend[ ] to merely discipline [Darian but] ... to injure’ ” or endanger him. State v. Hassett, 124 Idaho 357, 859 P.2d 955, 960 (Idaho Ct.App.1993) (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:10 (1993)); see State v. Thorpe, 429 A.2d 785, 788 (R.I.1981) (the privilege is lost “at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain”).

The intent underlying parental discipline and battery are not the same. “A parent who disciplines a child in a physical manner intends to correct or alter their child's behavior. That corrective intent is lacking in a battery.” Ceaser v. State, 964 N.E.2d 911, 917 (Ind.Ct.App.2012), transfer denied, 969 N.E.2d 86 (Ind.2012). “[O]ften the only way to determine whether the punishment is a non-criminal act of discipline that was unintentionally harsh or whether it constitutes the [crime] of child abuse is to look at the parent's history of disciplining the child.” State v. Taylor, 347 Md. 363, 701 A.2d 389, 396 (1997). In such cases, “[a] parent's other disciplinary acts can be the most probative evidence of whether his or her disciplinary corporal punishment is imposed maliciously, with an intent to injure, or with a sincere desire to use appropriate corrective measures.” Id.; see People v. Taggart, 621 P.2d 1375, 1384–85 (Colo.1981) (recognizing that prior acts of excessive discipline may be admissible to “negat[e] any claim of accident or justification”), abrogated on other grounds by James v. People, 727 P.2d 850, 855 (Colo.1986), overruled by People v. Dunaway, 88 P.3d 619, 624 (Colo.2004); Ceaser, 964 N.E.2d at 917 (“By arguing that she exercised her parental privilege in disciplining M.R., Ceaser necessarily represents that her intent was to correct M.R.'s behavior through corporal punishment, rather than to simply batter her daughter,” making admissible the defendant's prior conviction for battering her child); State v. Morosin, 200 Neb. 62, 262 N.W.2d 194, 197 (1978) (recognizing as “peculiarly applicable to child abuse cases” the principle that, “ ‘[w]here an act is equivocal in its nature, and may be criminal or honest according to the intent with which it is done, then other acts of the defendant, and his conduct on other occasions, may be shown in order to disclose the mastering purpose of the alleged criminal act’ ” (quoting 1 Wharton's Criminal Evidence § 350, at 520 (11th ed.))).

     Newman v. State, 129 Nev. Adv. Op. 24, 298 P.3d 1171, 1179 (2013).

There are other considerations in this analysis that are described more fully in cases sighted in the Newman opinion like the Willis case out of Indiana which would be a part of the defense of a child abuse case like the reasonableness of the punishment even if the intent was not to injure and was to correct.

It is essential to retain competent counsel if you are accused of a crime, who can evaluate your case and present an effective defense.
If you are a suspect or have been charged with Battery, Battery Domestic Violence, Child Abuse or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.

Most Read Posts on Domestic Violence Defense Blog

This blog was established in 2010, and has had tens of thousands of page views.  Hopefully, the information on the blog has helped educate people about the topics in question.  Here is a list of the most read posts on the Domestic Violence Defense Blog with links to those pages.

5) Difference Between Assault and Battery

4) Domestic Violence and Kidnapping

3) Battery Domestic Violence and False Imprisonment

2) Felony Battery Domestic Violence with Strangulation Crime

1) Subpoenas and Battery Domestic Violence cases

The most read topic on the Domestic Violence Defense Blog continues to be regarding subpoenas as complainants do not wish to testify against the accused for a number of different reasons.

If you have been charged with a crime or are a witness in a criminal case, and you have questions about the process, please contact attorney George E. Robinson through gerobinsonlaw.com or call 702-233-4225.

Las Vegas Justice Court and Municipal Court Procedures in a Misdemeanor Domestic Violence Case

If a person is charged with a crime, and they have never been part of the criminal justice system before, it can be a scary and unknown process.  Here is a general overview of the different steps in a misdemeanor criminal case in Clark County NV.

Las Vegas Township Justice Court -

If you are charged with Domestic Violence in the Las Vegas Justice Court, keep in mind that one court handles all of the misdemeanor Domestic Violence cases through trial.  This Court rotates between the LV Justice Court judges.  Currently, Melanie Andress-Tobiasson handles all of the Domestic Violence cases in the Las Vegas Township.  When hiring an attorney, the familiarity and success rate that he has had in this courtroom with this judge is important.

Arraignment - Normally, the first hearing in a misdemeanor case is called an arraignment.  An arraignment is a procedural hearing where the accused is brought before the court to plead before the court.  At this hearing the defendant is given a Complaint.  A Complaint is a document that describes the charges that are being levied against the defendant by the State.  At the arraignment in this Court, the vast majority of the time the defendant would automatically enter a not guilty plea and set the case for trial.  A trial date is given to the defendant which is normally about 60 days after the arraignment depending on the court's schedule.  These dates are quicker if the defendant is in jail.  In the LV Justice Court, the State normally provides the defense with some discovery at the arraignment.  Discovery is the disclosure of evidence that the State may try to present to the court in its case against the defendant if there was a trial or other evidentiary hearing.  The defense receives a discovery packet of documents that normally includes police reports, witness statements, photographs, and other documentary evidence. Bail amounts and other issues are sometimes argued at the arraignment.

Trial - Normally, the second hearing in LV Justice Court is the trial date.  A trial is an evidentiary hearing where the State presents evidence to the judge that the accused committed the crime charged in the Complaint.  In Nevada, the judge evaluates the evidence as the trier of fact in a misdemeanor case, not a jury.  The defense can also present evidence to the judge and object to the evidence presented against him.  The judge then decides whether the State has proven its case beyond a reasonable doubt.

Status Checks -  Status check hearings are held before a trial in a misdemeanor case, normally at the request of the defense attorney, in an attempt to negotiate a case with the State before a trial is necessary.  Status check hearings are also held after a negotiated settlement of the case or a guilty finding, so the Court can review whether a defendant has followed the terms of the agreement or the sentence of the Court. 

Other Hearings - Other hearings in a misdemeanor case can be set at the request of the different attorneys via Motion.  Motions can be argued before the Court regarding many different legal issues.

Las Vegas Municipal Court -

Pre-Trial Hearing - The procedures in the LV Municipal Court are mostly the same as the LV Justice Court, except there is one additional hearing in the LV Municipal Court called a pre-trial.  The pre-trial is after the arraignment and before the trial.  The pre-trial hearing is a like a status check hearing as to the readiness of the parties for trial, and the pre-trial hearing also gives the parties an opportunity to talk about the case and attempt to resolve it before a trial is necessary.

If you are a suspect or have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help with your defense.