New York Domestic Violence Civil and Criminal Actions

Anyone interested in knowing the difference between New York domestic violence civil and criminal actions should speak with an attorney right away. A distinguished family violence lawyer can help you build an appropriate defense for the charges you may be facing. 

Difference in Criminal and Civil Case Processes

The main difference between New York domestic violence civil and criminal actions is the process and roles of law enforcement. A criminal domestic violence action is a violation of the penal law that involves the Prosecutor's Office and the New York Police Department (NYPD). It will be treated as the prosecutor's case with the input, essentially, of the complaining witness. The witness or the complainant is just a witness in the case, an important witness, but it the prosecutor's decision whether to press charges or not.

Trials in Civil Court

In a civil case where the family court is involved, the complainant, the petitioner in a civil case, has the discretion about what to do with the case. They go in front of a judge with their petition; speak directly to the judge, rather than the prosecutor, and they explain to the judge what happened and why they want an order of protection. 

The family court judge provides the defendant an opportunity to come to court and argue that no order of protection should be issued. They can present evidence, elicit testimony, and have a full hearing on the matter, after which the judge will make a determination about whether the issuance of the order is warranted. 

Role of an Accuser in a Criminal Domestic Violence Action

The accuser does not really ask for things in a criminal case because it is the prosecutor that handles the case.They are requesting an order of protection of the judge and will testify as to what specific allegations they are bringing that justify this request. The accuser might seek an order of protection as an outcome of New York domestic violence civil and criminal actions. However, protective orders are to be discussed with a prosecutor. Ultimately, the decisions on how the case is going to be prosecuted are made by the prosecutor. 

Who is Able to Drop Charges?

In a civil case, the petitioner/accuser can drop the charges whenever they want for any reason that they want. They are the specific party of that lawsuit and can choose the way they want to handle it, whether they proceed or terminate it.

A criminal lawsuit is a case of the people of the State of New York versus the defendant. The alleged victim is a witness and is a part of the case, but does not have the authority to drop the case. 

How the District Attorney Can Compel the Complainant to Comply

The alleged victim is usually cooperative if a criminal case is moving forward. If an alleged victim stops being cooperative, a lot of times, the District Attorney's Office has no desire to continue to prosecute cases that they cannot possibly take to trial. However, in some cases, if the District Attorney's Office feels that there is a compelling reason to go forward, they can issue what is called a material witness order, send detectives or other members of the New York Police Department (NYPD) to pick up an alleged victim and bring them to court in order to have them testify. That is something that is done on very rare occasions.

Why the Accused Should Limit Contact With Their Accuser

The accused really should not be reaching out to the accuser because there is almost always an order of protection involved with the prohibition against witness tampering. The accused should not speak with their accuser while the case is pending because it might seem like the defendant is attempting to persuade the alleged victim to drop the case. There is a common understanding that these communications might be attempts by a defendant or an accused to persuade the accuser not to proceed by kind of repairing their relationship and making them not want to continue to go forward.

Understanding the Role of a Prosecutor in a Family Violence Lawsuit

If the accuser or alleged victim of New York domestic violence civil and criminal actions decides not to cooperate with the District Attorney's Office, frequently the prosecutor’s hands are tied and they cannot proceed with the case. Ultimately, the decision on whether or not cases proceed or get dropped is up to the prosecutor.

The prosecutor is able to drop charges but an alleged victim can have a major impact in that as the prosecutor will probably know that without the cooperation of their alleged victim, they cannot prove their charges. 

An ethical prosecutor is not going to prosecute a case that they know full well they cannot establish the elements of. The actual authority lies with the prosecutor, however, they may still need or rely on the cooperation of the alleged victim.