If after sorting over the pretrial options, a client decides they want to go to trial, we discuss possible defenses. The problem with most domestic violence cases in Michigan is that my client is probably technically guilty of having "unwanted contact with the victim".
Most clients believe that domestic violence involves punching, kicking and most commonly "hurting someone" - known of these common believes are required to be charged and found guilty of domestic violence in Michigan. I typically demonstrate what domestic violence is on my own clients - simply giving them a shove in the shoulder or pushing them out of the way is "unwanted contact"
The bar is quite low and if my client was present and we don't have a mistaken identity (not happening when there is a domestic relationship) it seems like it would be impossible to win a domestic violence trial.
The most common ways to win a DV trial are the following:
1. The victim does not want to testify (prosecutor then dismisses) or they don't want to testify (prosecutor doesn't dismiss) but the jury or judge have a difficult time convicting when the victim is denying anything happened.
2. Self-defense or reasonable response
Going to focus more on the reasonable response; the Michigan Jury Instructions for domestic violence, specifically M Crim JI 17.24a states
(1) The defendant has raised the defense that [his / her] conduct was a reasonable response to an act of domestic violence. The defendant has the burden of proving this defense. To satisfy this burden, the evidence must persuade you that it is more likely than not that [his / her] conduct was a reasonable response to an act of domestic violence, given all of the facts and circumstances known to[him / her] at the time.
(4) If the defendant has proved that [his / her] conduct was a reasonable response to an act of domestic violence in light of the facts and circumstances known to [him / her] at the time, you must find [him / her]not guilty of _________. If [he / she] has failed to prove this defense, [his / her] defense that [his / her] conduct was a reasonable response to an act of domestic violence fails.
What all this legal language means is if someone is charged with domestic violence, a judge or jury gets to hear what they did from all witnesses and decide if that was reasonable. That reasonableness is not defined, but up to the jury or judge to decide. Here are two clear examples, which aren't always the case - it's usually more grey area.
1. Defendant claims the victim yelled at him about not paying the bills, and at one point pushed him and told him he was a no good husband. Victim admits to doing this on the stand, but then says the defendant punched her in the face multiple times and kicked her on the ground. Defendant claims he was pushed and victim was trying to push him a second time so he reacted.
1. Victim and defendant both admit to a verbal fight over bills not being paid. Victim claims she was shoved by the defendant and pushed out of the way, and she was afraid of the defendant. Defendant admits he shoved the victim, but claims the victim was cornering him and removed himself out the situation by pushing victim out of the way.
In scenario #1 it is probably not reasonable to punch and kick someone as a response to pushing and yelling. In scenario #2, if there is a lot of mutual contact and the defendant simply wants to get away, admitting to pushing someone out of the way may technically be "unwanted touching" but is COULD BE reasonable within that moment.
In Michigan, scenario #2 may offer the defendant a good defense to the domestic violence charges. The caveat being trial is always risky and alternative options should always be discussed prior to rolling the dice on your future.