Victim Representation
In Colorado Domestic Violence Cases
- Former prosecutor & honors graduate of NYU Law
- Hundreds of misdemeanor and felony cases handled
- Track record of dismissals and acquittals in challenging cases
- Extensive experience with Colorado healthcare licensing boards
Victim Representation in Colorado Domestic Violence Cases
Matt Hand is an honors grad of NYU Law and a former prosecutor. I have prosecuted and defended hundreds of domestic violence cases on the Front Range of Colorado. I don’t take domestic violence lightly, but I have found that Colorado over-prosecutes some DV situations and deprives many victims of sufficient control over their cases. If you hire me because you want to try to dismiss a case, I will give you my thoughts but not steer you one way or another—you can always change your mind, and I will support you. I want you to be both safe and in control of your life– I will help you understand the criminal justice system, review options with you, and advocate for the outcome that you believe is best.
Due to high demand, I can not do free consultations about victim representation. If you are considering attorney representation as the named victim in a Colorado domestic violence criminal case, email me at matt@handlaw.com to schedule a paid (flat fee) phone consultation lasting up to 30 minutes. The cost is $200.
During that paid consultation I can answer your general questions about how the criminal system works, about mandatory protection orders, about your rights, and about strategies to help you pursue the result you want. We can discuss whether you want to retain me for further work after that consultation. Note, if your questions are about suing the defendant, you should seek a personal injury or other lawyer, rather than consult with me.
Can the Victim in a Colorado Domestic Violence Case Drop Charges?
In Colorado, the short answer is no, but the long answer is maybe. A criminal charge is brought by the state against the defendant, therefore only the state (or municipal) prosecutor can drop the charges.
Domestic violence cases, in particular, are tough to dismiss. A domestic violence case takes on a life of its own once the police get involved. From the police to the prosecutor to the judge, Colorado law limits the discretion of the people involved to creatively resolve cases. Colorado is a mandatory arrest state: if police have probable cause that a crime of domestic violence was committed, then they must arrest, no matter the wishes of the alleged victim, no matter how muddled or minor the evidence. Meanwhile, the prosecutor is prevented by law from dismissing a domestic violence case, or pleading one out to a non-domestic violence charge, unless they tell the court that they could not prove that domestic violence happened. (And domestic violence is defined broadly.) Judges must, in sentencing even the most minor cases, impose a domestic violence evaluation and an extended course of DV treatment, typically a year or longer while on probation.
These strict laws prevent some of the errors of the past, where some police and prosecutors, insensitive or undertrained in domestic violence, might abandon a prosecution because a frightened victim did not want to pursue charges against an abuser. Though arising from good intentions, these strict laws have a very high cost. Criminal laws are worded broadly, and their fair and reasonable application depends on the exercise of discretion by the police, prosecutors and judges—but Colorado law takes much of that discretion away.
The Colorado Victim’s Rights Amendment requires that the prosecutor consult with the named victim about how to handle a case, but prosecutors are constrained by the mandatory prosecution provisions described above, and they are accustomed to alleged victims trying to dismiss cases or improve resolutions. Prosecutors regularly brush off recants from victims, assuming the recant was the result of fear or dependency in a cycle of violence. While occasionally right, this paternalistic view is very often wrong, and it denies agency to countless people who deserve a greater say in the criminal justice process.
How an Attorney Can Help the Victim
If you are the named victim in a domestic violence case, an attorney committed to representing you can help push the process towards the result you want, whether that’s dismissal or something else. It is important to understand that the prosecutor is not your attorney. The prosecutor technically represents “the people” of a jurisdiction, but in practice applies his or her independent judgment (constrained by law and office policy) to decide how aggressively to prosecute cases. In practice, this is often more aggressive than the named victim wants. There are also victim advocates who work for prosecutors’ offices, and they are supposed to be a resource for you. But they also have a pro-prosecution bias– they tend to echo the prosecutors and steer named victims towards more aggressive prosecution and keeping protection orders in place. That is fine, if that is what you want—most victims who want the defendant prosecuted do not use or need private attorneys. But if you are seeking dismissal or a lesser impact from the domestic violence prosecution, you may find that your requests are ignored. Worse, the prosecutor and victim advocate may deny your request AND use your unguarded comments about the case to try to ensure a successful conviction of the defendant you are trying to help.
If you want the case against your partner or ex to be dismissed or handled differently, consult with an attorney. An attorney retained by a named victim can greatly increase the otherwise-low chances of a domestic violence case being dismissed, or can improve the resolution in a variety of other ways. You are always in control– an attorney will help you pursue the result you want, not what the prosecutor or victim advocate tells you that you should want. An attorney representing a victim does this in several ways, including:
- Making your wishes (and their justifications) known to the prosecutor assigned to your case, and involving supervisors or the court in cases where the prosecutor is not honoring your rights as a victim under Colorado law.
- Exploring case weaknesses with you and strategically sharing those weaknesses with the prosecutor. Nothing affects a case result more than the prosecutor’s perception of their trial chances. A criminal defense lawyer is the best person to assist with this, as this involves the same legal, factual and procedural issues that criminal defense lawyers analyze every day. We know what truly matters to the prosecution’s view of their winning chances, and how to communicate that effectively.
- Avoiding mistakes commonly made by alleged victims. Named victims who attempt this themselves often find that they’ve inadvertently strengthened the prosecution’s case. For example, if you tell a prosecutor (or the court, in a protection order modification hearing) “my partner did this, but it really it was the first time, and I know they didn’t mean it,” the prosecutor will be focused almost exclusively on the part of your statement that confirms what they need to prove at trial (“my partner did this…”), and will use it against the defendant. It is critical to focus the message and evidence to be shared, and to share it in the most effective way.
- Advising you on your legal rights that may undermine the prosecution’s case. Sometimes, a reason why the case should be dismissed is hard to share with the prosecution, because it might incriminate you (e.g., if you exaggerated or lied to the police, or if you were the initial aggressor, etc.). However, you have the benefit of the privilege against self-incrimination found in the 5th Amendment, which can keep you from being forced to testify in some situations, without you having to say exactly why. Ethical invocation of the 5th Amendment is a powerful weapon to change a case outcome without incriminating you, since it may prevent the prosecutor from putting on evidence that is necessary to convict the defendant. But doing so improperly could make things worse for you. You don’t have to actually be guilty of a crime to invoke the 5th Amendment, but you must be on solid ground, and there is subtlety involved in when and how to invoke it properly. An attorney can help determine if you have a valid 5th Amendment claim and advise you of its possible use.
- Advising on subpoena law. Many trials can not proceed without the testimony of the named victim. The prosecution wants you to volunteer to testify, essentially—they will often mail you a “subpoena” that really is a request for you to waive service of a subpoena. Most people don’t realize a mailed waiver form is optional and does not bind you to do anything (unless you sign it, which is your choice). If you are properly served a valid subpoena, however, you must attend court and give testimony, regardless of your wishes. But by not waiving service, it can become harder for the prosecution to convict the defendant—they then have to follow the law on proper subpoena service, which is sometimes challenging. I will ethically advise you of subpoena law, and review subpoena service attempts to let you know if you are required to appear in court, or if you can make that choice on your own. We are all constrained by law and ethics, but you don’t have to make the prosecution’s job easier, if you don’t want to.
- Protection order modifications. Protection orders are critical for safety in some cases, but Colorado law imposes them automatically in every single domestic violence case (called a mandatory protection order, or MPO, or sometimes a criminal protection order or restraining order). If you want to modify the MPO to regain communication or living arrangements with the defendant, you don’t technically need a lawyer-- you can go to court yourself, or write the court, or ask the prosecutor or victim advocate for help with these logistics. But there are some challenges to getting these modifications approved, especially when the prosecutor and victim advocate do not support your request. Modification requests made over the objection of the DA are harder to achieve, and named victims often say counterproductive things during these requests, due to inexperience with the legal system. A lawyer can improve your chances of modifying the protection order and of modifying it sooner, if that is what you want.