Some U.S. jurisdictions are using advanced formulas to evaluate the risks that defendants pose. Judges weigh these evaluations when considering pretrial release.
"Domestic violence" in this context has to do with the relationship between the defendant and victim, not the label on the misdemeanor.
It’s a federal crime for someone convicted of a domestic violence offense to possess a firearm. In 2014, the U.S. Supreme Court decided that “domestic violence” in this context doesn’t necessarily involve “violence.” (See What kind of “domestic violence” conviction prevents you from having a gun?)
Five years earlier, the Court decided a slightly different issue. It determined that misdemeanors that don’t have the “domestic violence” label can nevertheless qualify as domestic violence for gun possession purposes. In a 2009 case, the Court reviewed a man’s federal conviction for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. Officers had found a rifle in the defendant’s home when responding to a 911 call. Ten years earlier, he had been convicted, under West Virginia law, of battery against his then-wife. The battery conviction didn’t involve “domestic violence” in that the relevant statute applied to all sorts of people, not just those in domestic relationships. The law applied to anyone who “unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person….”
The defense argued that the battery conviction didn’t qualify as domestic violence. It pointed to the fact that the battery statute didn’t specify the existence of a domestic relationship between a defendant and victim. But the Supreme Court held that, in order to qualify as a domestic violence misdemeanor for purposes of the federal gun possession law, the prior offense doesn’t need a "domestic relationship" element. The Court decided that what matters is not whether the law mentions a domestic relationship, but whether the offender and victim actually had such a relationship. In other words, the defendant’s conviction for plain old battery could qualify as domestic violence. (United States v. Hayes, 555 U.S. 415 (2009).)
If your criminal record doesn’t qualify for expungement or sealing, don't despair. You can take several steps to make it more likely that you’ll be hired.
Discovery—the information about the other side’s case—is supposed to promote fair trials and case settlement. Learn how it works.
Discovery is the process through which defendants find out about the prosecution’s case. For example, through standard discovery procedure, they can:
- get copies of the arresting officers’ reports and statements made by prosecution witnesses, and
- examine evidence that the prosecution proposes to introduce at trial.
Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.
Modern Discovery Policy
Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.
Can prosecutors spring evidence on defendants like they do on TV?
No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.
Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.
Are discovery rules really intended to help defendants at trial?
Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.
Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certaininformation that's helpful to the defense.
Does discovery mean that the prosecution has to reveal its case strategy?
No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it
Is there a particular period of time prior to trial when the defense is supposed to engage in discovery?
Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.