Your Rights And The Criminal Justice System
By: The Santa Clara County Probation Department
CHAPTER 3: Your Rights and the Criminal Justice System
The criminal justice system can be intimidating and confusing; it can also help you. The following information will help you understand the process better. The Victim Advocacy Project through the Support Network for Battered Women is available to assist you throughout your experience with the criminal justice system.
THE POLICE...
Calling 911
If you have just been threatened or beaten, call 9-1-1. Tell the dispatcher that you are in danger and you need help immediately.
When the police arrive, describe your injuries in detail. Include the following information:
- How you were injured.
- Information about violation of the restraining order.
- Any threats the batterer made.
- Any weapons used.
- Any other instances of threats or violence.
- Whether there are any witnesses.
Ask the police to take pictures of injuries, bruises, and damaged property and to remove any weapons used in the crime from the scene. Try to be as calm as you possibly can.
Making a Report
The police are required to write an incident report for all domestic violence calls, even if the batterer has already left the scene when they arrive.
The police are required to provide you with an information card with the report number and the officer's name and badge number.
Although it is best to make the report as soon as possible, you can also call the police hours after you have been abused, or even the next day, to have a report taken.
If the police do not write a report, you can go to the police station to make a report yourself.
Photos of your injuries are crucial. Bruises may appear hours or days after the incident, and the pictures can be used as evidence. While police may take photos, you should also take your own photos.
Never hesitate to call the police for help. If you disagree with an officer's responses to your situation, you can directly contact the commanding officer or request assistance from a domestic violence advocacy agency in communicating your concerns to the law enforcement agency involved.
Always get the police officer's names and badge numbers.
Civil Stand-By
If you need to return to your house to get your things or you don't want to let the batterer back in your home to pick up his or her things, you can request a civil stand-by. A civil stand-by means the police are present to make sure everyone is safe. The police will only allow a limited time for the person to gather property. You can call your local police department to request a civil stand-by at any time.
Copy of the Police Report
You have a right to obtain a copy of any police report in which you are listed as the victim. The reports are available through the police agency that handled the case. The charge for the report can be as much as $20, depending on the agency.
It is always a good idea to get a copy of any incident report documenting your batterer's abuse against you. These police reports can be used as evidence of abuse in other court proceedings, such as restraining order or custody hearings.
Restraining Order Violations
If your abuser has violated a restraining order, show the police your court order and the proof of service. Restraining orders can be verified in the state registry.
The police are required to make an arrest if the batterer is present and they believe a violation of the restraining order has occurred.
Emergency Protection Restraining Orders
You have a right to request an Emergency Protection Restraining Order (EPRO) from an officer at the scene of the crime.
An EPRO is temporary, and only a police officer, with the approval of a judge, can obtain this order.
Since you need an officer's assistance to get an EPRO, it is important to describe the batterer's actions and the basis of your fears.
EPRO's are available 24 hours a day and good for up to 7 days and can include orders for custody and residence exclusion. To get a more permanent order, you must go to Superior Court to file for a civil restraining order (see the Family Court section for more information).
Arresting the Batterer
Even if the batterer has broken the law, he or she may not necessarily be arrested. If asked, you do not have to tell police you want to prosecute. An officer's decision to arrest the batterer should not be based on whether or not you want to "press charges". Only the District Attorney can charge a person with a crime.
Private Person's "Citizen's Arrest"
If the police refuse to arrest the batterer and the batterer is present, you have the right to make a citizen's arrest under Penal Code Section 837. All you have to say is, "I want to make a citizen's arrest." You can tell the police of your request to make a citizen's arrest outside of the hearing of the batterer. The police are supposed to advise you of your right to make a citizen's arrest.
Release from Jail Following Arrest
If the batterer is arrested and taken to jail, he or she may be released on bail. This release can happen within just a few hours. You have the right to be notified of your batterer's release from jail.
Arrest by Warrant
If the batterer is not arrested at the time of the incident, the case may be assigned to a detective for further investigation. A detective will re-interview people, collect more evidence, and gather medical information. Not all reports are sent to the District Attorney for review.
The District Attorney's Office will review all reports received and decide whether to file charges. If the District Attorney authorizes charges, a warrant for the batterer's arrest will be valid once a judge has signed the warrant.
The warrant is sent to the police agency that completed the report, and the batterer is then notified of the warrant, usually by mail. If the batterer does not turn him or herself in, the police will attempt to find the person. This process can be lengthy.
THE OFFICE OF PRETRIAL SERVICES...
When a batterer is arrested and taken to jail, the Office of Pretrial Services gathers information to help the judge in setting bail and to make recommendations to the Court and District Attorney about the batterer's possible release at court.
Your input is very important. A Pretrial Services Officer will call you and ask you about your safety, past violence or threats, and any conditions of release you believe the batterer should have if the judge allows him or her to be released.
Bail
You have the right to request an increase in bail. The law requires that a judge set a person's bail within eight hours of being booked into custody. The judge can increase bail if the victim's safety is in danger. Tell the Pretrial staff that you fear for your safety and want the batterer's bail increased. Once bail is set, you have the right to request a rehearing for bail setting to increase or revoke bail.
Release at Arraignment
If the batterer has not posted bail, the judge will decide whether to release the batterer from custody at the first court hearing, the arraignment. The judge's decision is typically based upon the information provided by Pretrial Services. A recommendation for release should not be made without your input.
Supervised Own Recognizance Program (SORP)
Many batterers are released by the judge at arraignment on SORP. This program means the batterer's release is conditional upon meeting certain requirements the Court feels are