Ray McDonald (49ers) domestic violence

[Mike]

So walk me thru what the trial looks like without the victim testifying.

The police respond to a call for service, they see a woman who is visibly upset with fresh bruising around her neck.

Now what?

Detain the suspect get victim/witness statements. Take photos of the victim and the location. Ask the victim if they want medical attention or an EPO. Give them a Marcy card and D.V. information card/pamphlet. Arrest suspect. Transport to station, Mirandize. If they invoke take them to jail If not interview. Write report before you go home and send it up the chain.

 

[12intheBox]

That's not correct. In some jurisdictions, DV is technically a "crime against the state" and as such does not require victim testimony. This was done to remove the possibility of victim intimidation and to make it even possible to prosecute with overwhelming physical evidence in the instance where the victim was incapacitated via shock, coma, catatonia or in some other way incapable of communicating testimony either to police or in court.

So, in that respect, it's highly dependent on jurisdiction. In this instance, we're talking about California.

If there's any evidence against him, Ray McDonald has REAL problems and it won't just be missing a few games. He was booked on FELONY assault. Because that's in CA that's a crime against the state, he's definitely looking at jail time and because she was pregnant.

Did a google search and among the wikis and other stuff, I saw a CA law firm that spelled it our rather plainly. This was helpful I thought because it includes the law citation and the judge's options.

http://www.wklaw.com/corporal-injury-spouse-sentencing.html

Corporal Injury on Spouse Sentencing for Felony Charges

If you are found in violation of a felony under CA PC 273.5d, you could be sent to jail for up to four years and face a fine of up to $6,000. If you have been previously convicted for battery, sexual battery or other types of aggravated assault, you will face up to five years in state prison. The prison sentence could be extended if the victim was seriously hurt.


This extended sentence can be handed down if the person hurt is not a spouse, co-parent or cohabitant. For instance, if a person is trying to intervene in a domestic dispute and is seriously injured, you could still be convicted under CA PC 273.5d.


The court has many options. The court can do any of the following:

1. 
   
   
   • Sentence you to two, three or four years in county jail
   • Place you on probation and sentence you to a period of time in county jail for up to one year.
   • Place you on probation and impose no jail sentence.

So, sure, he could possibly dodge the legal bullet, but maybe not. He's facing up to 4 years in county jail and the prosecution won't have to rely on any testimony. Physical evidence and the testimony of the officers at the scene will be all they need to go straight to trial should they decide to do so. And DAs have gone to trial with less than has already been reportedly released.

You jumped straight to sentencing! You have to be found guilty first which means a trial. And a trial means admissible evidence. California may wish they could bypass the constitution but they can't.

 

[Mike]

How is being thrown in jail until your trial is over (if you can't meet or they won't set bail) any different? They suspended the policeman who murdered (allegedly) Mike Brown.

Plus these two incidents:

"St. Louis County cop suspended when racist, sexist rant goes viral after patrolling unrest in Ferguson, Mo."

"A suburban St. Louis cop who was suspended for pointing his semi-automatic rifle and threatening protesters in Ferguson, Missouri, has resigned, the police chief told the Associated Press. Lt. Ray Albers, who was put on indefinite leave from the St. Ann Police Department after being caught on a cellphone video that went viral, quit the job he had held since 1994 on Thursday. Albers could not be reached for comment."

Do you also have a problem with that? After all, they haven't been convicted yet (or in some cases never will be) either.

As far as I'm concerned, he can attempt to get redress later but you do know that a spouse/girl friend almost never testify against their attackers right? That's why the law was written in such a way as to discount their attempts to cover up/pretend the crime never happened. Same thing with child abuse.

I'll have to respectfully disagree with you there Les.

EDIT: Beat to much of my rant Mac.

Is he suspended or on Administrative Leave?

 

[12intheBox]

Detain the suspect get victim/witness statements. Take photos of the victim and the location. Ask the victim if they want medical attention or an EPO. Give them a Marcy card and D.V. information card/pamphlet. Arrest suspect. Transport to station, Mirandize. If they invoke take them to jail If not interview. Write report before you go home and send it up the chain.

The defendant makes no statements. He is arrested and later posts bond. The victim gave a nice juicy statement at the scene but good luck getting that into evidence when she doesn't show up for the trial.

So here we are at trial - you (I can only assume you are a cop) are on the stand. What do you think the judge is going to let you tell the jury if the victim isn't testifying?

In a DV case, how often are there outside witnesses? Seldom at best / these things tend to happen at home and not in public. Even in cases where the neighbor heard yelling and called the cops doesn't get the case past a motion to dismiss. There has to be some evidence that he hit/choked/kicked/something.

 

[Mackeyser]

You jumped straight to sentencing! You have to be found guilty first which means a trial. And a trial means admissible evidence. California may wish they could bypass the constitution but they can't.

Well, sure...*I* did. The State of California hasn't done anything other than book him, it seems. I am by no means the State of California...LOL. I think it's pretty clear he did it. They went and arrested him and his "significant other"?... I dunno... but she's pregnant and has bruises on her arms and neck. Of course, I could be wrong, but at this stage, it LOOKS like a duck... I'm saying in the end, it's going to be a duck... a woman hitting duck. Could be wrong, but that's just my guess...

If I'm correct, then I was outlining what he's looking at. So I was skipping ahead.

Does anyone think he didn't do it?

I mean the legal system must presume his innocence and I WANT that for everyone which is why he should have his day in court. Soon. Very soon, actually. Sooner the better, AFAIC.

I was just looking at the logical next step because I'm just...not...presuming his innocence... /shrug.

 

[Mike]

You jumped straight to sentencing! You have to be found guilty first which means a trial. And a trial means admissible evidence. California may wish they could bypass the constitution but they can't.

Mackeyser's post quotes the law, which states if you are found guilty you are subject to the punishments stated in his quote. In other words after a trial.

 

[Alan]

Mike getting technical:
Is he suspended or on Administrative Leave?

If your talking about Brown's killer, I heard (on the news and not on the net) he was suspended with pay. I could be wrong but what's the difference between the two? Practical difference.

 

[Mike]

The defendant makes no statements. He is arrested and later posts bond. The victim gave a nice juicy statement at the scene but good luck getting that into evidence when she doesn't show up for the trial.

So here we are at trial - you (I can only assume you are a cop) are on the stand. What do you think the judge is going to let you tell the jury if the victim isn't testifying?

In a DV case, how often are there outside witnesses? Seldom at best / these things tend to happen at home and not in public. Even in cases where the neighbor heard yelling and called the cops doesn't get the case past a motion to dismiss. There has to be some evidence that he hit/choked/kicked/something.

It would depend on what the Prosecutor asked me and what the defense objects too and the Judge allows. Witness/Victim statements if she gave any, her demeanor. Pictures of the victim and location. Many times the place has broken stuff all over the floor. Usually at the time of the incident the victim is pissed and rightly so and give a statement, but they do at times recant later. A D.A. wouldn't let it get to trial unless they thought there was a case to be had.

 

[12intheBox]

Knowing very little about the actual facts, yeah I think he did it and I hope he gets convicted.

But law is law and it takes admissible evidence to even get to the point where the jury gets to make a decision.

 

[Mike]

If your talking about Brown's killer, I heard (on the news and not on the net) he was suspended with pay. I could be wrong but what's the difference between the two? Practical difference.

He is probably on paid administrative leave which is what happens until it's all sorted out.

 

[Mike]

Well, sure...*I* did. The State of California hasn't done anything other than book him, it seems. I am by no means the State of California...LOL. I think it's pretty clear he did it. They went and arrested him and his "significant other"?... I dunno... but she's pregnant and has bruises on her arms and neck. Of course, I could be wrong, but at this stage, it LOOKS like a duck... I'm saying in the end, it's going to be a duck... a woman hitting duck. Could be wrong, but that's just my guess...

If I'm correct, then I was outlining what he's looking at. So I was skipping ahead.

Does anyone think he didn't do it?

I mean the legal system must presume his innocence and I WANT that for everyone which is why he should have his day in court. Soon. Very soon, actually. Sooner the better, AFAIC.

I was just looking at the logical next step because I'm just...not...presuming his innocence... /shrug.

If there are visible injuries they are required to book him. I would bet that once the police found out it was a 49rs player the Sgt. was there pretty fast as well as the Police Admin getting a phone call.

 

[Mackeyser]

The defendant makes no statements. He is arrested and later posts bond. The victim gave a nice juicy statement at the scene but good luck getting that into evidence when she doesn't show up for the trial.

So here we are at trial - you (I can only assume you are a cop) are on the stand. What do you think the judge is going to let you tell the jury if the victim isn't testifying?

In a DV case, how often are there outside witnesses? Seldom at best / these things tend to happen at home and not in public. Even in cases where the neighbor heard yelling and called the cops doesn't get the case past a motion to dismiss. There has to be some evidence that he hit/choked/kicked/something.

It's California. The victim does NOT have to testify. It's based on jurisdiction. In CA, unless I'm recalling inaccurately, I lived there most of my life, DV is a "crime against the state". I forget the term. Victims don't have to testify.

 

[Alan]

Mike with his thoughts:
He is probably on paid administrative leave which is what happens until it's all sorted out.

First of all, it's nice to talk to someone with an actual name Mike.

Maybe, I can only type what I heard but other than the spelling, is there any practical difference?

 

[12intheBox]

It's California. The victim does NOT have to testify. It's based on jurisdiction. In CA, unless I'm recalling inaccurately, I lived there most of my life, DV is a "crime against the state". I forget the term. Victims don't have to testify.

It doesn't work that way.

I believe what you are thinking of is this ....

In Some jurisdictions, the victim can elect to drop charges. It is their decision.

There is nothing any state can do to lessen the criminal burden of proof or eliminate a defendants constitutional right to confront and cross examine.

 

[Mike]

First of all, it's nice to talk to someone with an actual name Mike.

Maybe, I can only type what I heard but other than the spelling, is there any practical difference?

I'm not sure about Missouri, but here in California if he was suspended his police powers would be removed and his badge gun and ID taken from him. He has not been accused of any wrongdoing that I know of so if he is still getting paid he is on admin leave.

 

[Mike]

At the end of the day, he got arrested and will get his day in court.

 

[12intheBox]

At the end of the day, he got arrested and will get his day in court.

And let's all hope that day goes very poorly for him.

 

[Mackeyser]

It doesn't work that way.

I believe what you are thinking of is this ....

In Some jurisdictions, the victim can elect to drop charges. It is their decision.

There is nothing any state can do to lessen the criminal burden of proof or eliminate a defendants constitutional right to confront and cross examine.

http://criminal-law.freeadvice.com/criminal-law/violent_crimes/domestic_punishment03.htm

A frequent pattern in domestic violence cases is for the victim to be abused, call the police, press charges, then reconcile with the abuser, and seek to have the charges dropped, only to have the entire pattern repeated. Because of this, in some local communities and states, domestic violence is now prosecuted as a crime by city and district attorneys, even without charges being brought by the abused person, and even without his or her assistance. In these localities, a criminal case may be brought against the person causing the harm without a complaint being made by the victim.

Domestic violence is considered a crime against the community and the "state" should prosecute all harms against the community. Such localities try to "get the word out" that local authorities will not tolerate domestic violence; offenses will be prosecuted with or without the assistance of the victim.

Read more: http://criminal-law.freeadvice.com/...rimes/domestic_punishment03.htm#ixzz3C1SYfnVh
Under Creative Commons License: Attribution
Follow us: @FreeAdviceNews on Twitter | freeadvice on Facebook

Thus, as I said...

California, in its entirety, is one such jurisdiction, iirc. Thus, it is NOT up to the victim to press charges, it is up to the DA or AsstDA on whether charges are filed.

Moreover, the victim never has to face the defendent. Why? Expressly because the way the law is written, the accuser is the state as the crime is technically against the state, not the victim.

That's the law.

 

[Alan]

Mackeyser talking my language:
Because of this, in some local communities and states, domestic violence is now prosecuted as a crime by city and district attorneys, even without charges being brought by the abused person, and even without his or her assistance. In these localities, a criminal case may be brought against the person causing the harm without a complaint being made by the victim.

Domestic violence is considered a crime against the community and the "state" should prosecute all harms against the community. Such localities try to "get the word out" that local authorities will not tolerate domestic violence; offenses will be prosecuted with or without the assistance of the victim.

Read more: http://criminal-law.freeadvice.com/...rimes/domestic_punishment03.htm#ixzz3C1SYfnVh
Under Creative Commons License: Attribution
Follow us: @FreeAdviceNews on Twitter | freeadvice on Facebook

Thus, as I said...

California, in its entirety, is one such jurisdiction, iirc. Thus, it is NOT up to the victim to press charges, it is up to the DA or AsstDA on whether charges are filed.

Moreover, the victim never has to face the defendent. Why? Expressly because the way the law is written, the accuser is the state as the crime is technically against the state, not the victim.

Yeah, that's what I was talking about too.

 

[12intheBox]

http://criminal-law.freeadvice.com/criminal-law/violent_crimes/domestic_punishment03.htm

A frequent pattern in domestic violence cases is for the victim to be abused, call the police, press charges, then reconcile with the abuser, and seek to have the charges dropped, only to have the entire pattern repeated. Because of this, in some local communities and states, domestic violence is now prosecuted as a crime by city and district attorneys, even without charges being brought by the abused person, and even without his or her assistance. In these localities, a criminal case may be brought against the person causing the harm without a complaint being made by the victim.

Domestic violence is considered a crime against the community and the "state" should prosecute all harms against the community. Such localities try to "get the word out" that local authorities will not tolerate domestic violence; offenses will be prosecuted with or without the assistance of the victim.

Read more: http://criminal-law.freeadvice.com/...rimes/domestic_punishment03.htm#ixzz3C1SYfnVh
Under Creative Commons License: Attribution
Follow us: @FreeAdviceNews on Twitter | freeadvice on Facebook

Thus, as I said...

California, in its entirety, is one such jurisdiction, iirc. Thus, it is NOT up to the victim to press charges, it is up to the DA or AsstDA on whether charges are filed.

Moreover, the victim never has to face the defendent. Why? Expressly because the way the law is written, the accuser is the state as the crime is technically against the state, not the victim.

That's the law.

Hi. I'm a criminal defense attorney. This is what I do for a living, and while I have mostly burned out at this point and spend most of my time on football these days, I have a ton of real life experience in exactly what we are talking about here. What your web searches are telling you is that it is not up to the victim whether prosecutors pursue charges against a defendant. I get that. In fact, that isn't the exception these days - that's how it works in most (but not all) jurisdictions across the country.

What your web searches are not telling you is that criminal prosecutions still involve the rules of evidence and our constitutional protections - in this case, our 6th Amendment right to confrontation.

Yes, if the state can make it's case without victim testimony - they can prosecute the heck out of this guy - even if the victim is kicking and screaming for them not to do so. But it is really hard to prove a DV case without victim testimony UNLESS the defendant confessed, someone else who is willing to testify saw the assault, or the victim made a "non-testimonial" statement to the police which is deemed admissible as a present sense impression or some other exception to the hearsay rule. (Really, really, really rare) - it would need to be something like the assault was taking place while the girl was on the phone with 911.