Submitted by: Kimberly Diego

As a Denver Domestic Violence Attorney, I frequently get asked whether a victim in a pending domestic violence case actually needs a criminal defense attorney. This question is often asked of me in situations where the victim becomes frustrated with the so-called victim’s advocate, or where the victim does not wish to see the prosecution against the defendant move forward.

The truth is that victim’s advocates are not on your side unless you are on the prosecution’s side. They work for the prosecutor’s office. They are not your attorneys nor can they provide you with legal advice. Their job is to seek your position on plea bargains, sentences imposed, and modifications of the restraining order – and to remain in contact with you in such a way as to facilitate the prosecution. They may tell you they are there to help you, but that may only be true if you are in a sense “on their side”. If you are seeking, for example, to reconcile with the defendant, and therefore wish to have the restraining order vacated and the charges dropped, they are unlikely to assist you in achieving those goals and you may have to figure out how to modify the restraining order on your own.

If you want legal advice that is truly in your best interests, there is no substitute for hiring your own attorney. This is particularly true if your Fifth Amendment privilege against self-incrimination is implicated. If you believe that by testifying you may incriminate yourself, because you either lied at an early point in the process or because your testimony will expose that you yourself engaged in some criminal activity at the time the incident occurred, then it is imperative that you speak with a domestic violence lawyer about your rights. If your Fifth Amendment rights are implicated, and you actually do plead the 5th at trial, you may nonetheless be forced to testify if the prosecution grants you immunity. Keep in mind that an attorney cannot assert that you wish to raise your fifth amendment privilege against self-incrimination if in fact there are no valid grounds for you to do so.

You may also want to know what will happen to you if you do not show up for a jury trial in a pending domestic violence case. Many victims choose not to appear at trial, because they do not wish to see the prosecution proceed. There are limited occasions in which the prosecution may still be able to proceed without the victim’s presence, however, they are in the minority of cases. Also, if you have not been personally served with a subpoena, you are not legally required to appear. Even a subpoena by mail is not binding if you have not mailed it in, and you are not obligated to send it in; by sending it in you are actually waiving personal service.

Unfortunately, Colorado law does not provide for victims to “drop charges” against defendants in pending domestic violence matters. Hiring a lawyer of your own as a victim will not ensure that charges get dropped; but it may make it harder for the prosecution to make their case against the defendant, particularly if the prosecution is in municipal court and not county or district court.

If you are in doubt as to whether you need to retain a domestic violence attorney, you can always take advantage of the free consultations the majority of criminal attorneys provide to all potential clients.

About the Author: Kimberly Diego – Domestic Violence Attorney –

diegocriminaldefense.com

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