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It can be very frightening when the police come to your house, even if you have called them to help you or someone else has called them for you. It can be much easier for you if you are familiar with what the police are supposed to do once they get to your house. There are Mississippi laws which spell out in detail what actions the police officers are supposed to take to protect you and your family. We will discuss these laws, then we will go through the legal steps that will be taken if your abuser is charged with one of the crimes we discussed in Section One.
When the Police Come to the House
First, you should understand that Mississippi law, as well as the laws of most other states, require police officers to make an arrest if they have probable cause to believe that domestic violence has occurred at any time in the past twenty-four hours. Probable cause can be determined by what you or other people tell them about what has happened, by things they see at the scene, by visible injuries that you might have, by anything that would lead an ordinary person to believe that an act of violence had take place. The police do not need a warrant to arrest a person for simple or aggravated assault or for disturbing the peace; they only need probable cause. They must also arrest the person if they have reason to believe that he has violated a protective order issued by any court. If you have a protective order and you have to call the police to protect you because the terms of the order are being ignored, either by the abuser actually trying to do violence or by his being where the order forbids him to be, you should show the order to the police as soon as possible after they arrive.
If your abuser accuses you of hitting him, or committing any act of violence against him, or if the police can tell from talking to witnesses or from anything they see at the scene, that violence has been committed by both you and your abuser, they must attempt to determine who was the primary, or "most significant" aggressor and arrest that person. For instance, if someone comes at you to commit violence, and you have to hit out to defend yourself, he would be the primary aggressor, even if each of you had hit the other. You should not be arrested because you only acted in self-defense.
When they are deciding who is the primary aggressor, the police will also look at any history of domestic violence in the family: Have they been called to the house before and what was the result? Has the abuser been arrested before for hitting you or the children? Has he gone to jail? Is there a likelihood that if he is not arrested further violence will occur in the home? All these questions will need to be answered.
A police officer cannot base his decision on making an arrest on what the victims of the crime wants. If he finds evidence of domestic violence, he has to arrest the abuser and take him to jail, whether or not you, the victim, want an arrest made.
The police must also inform you of any assistance available to you in the community, including how to get in touch with the nearest domestic violence shelter. If you need medical care because of the violence, the officer should see that you get that care, either by taking you to the hospital or doctor if your injuries are not severe, calling an ambulance if they are, or making sure that you have a friend or relative available who will take you to get the medical help needed.
Returning to Your Home with Police Protection
As we discussed in Section Two, if you have had to leave your home because of violence or the threat of violence, and you need to return to get clothes, medicine, food, or other personal items needed by you or your children, you are entitled to police protection for the purpose.
This applies whether you are staying in a shelter, at a relative's home, with friends, in another house or apartment, wherever you have gone to escape from the violence. It does not mean that you can have police protection to get furniture, cars, or anything else that is not of an emergency nature. This law only allows you to have the police protect you while you are obtaining whatever it will take for you and your children to live somewhere outside the home until your situation is resolve and you are safe.
If you have had to leave you home and a judge gives you a protective order directing your abuser to stay away from the family home or from you in the family home, you are entitled to police protection when you go back to reclaim your residence.
Your Rights When You Are a Victim of Violence
In 1999, Mississippi passed a "Crime Victims Bill of Rights." A part of this law spells out in detail what steps both the law enforcement officers, the prosecutor and the courts are to take to keep you informed of what is going on and what your rights are when your abuser has been arrested and the case is going to court.
The Right of Notification
Within seventy-two hours of the time that the violence occurred, the law enforcement officers investigating the crime are supposed to notify you of any services available to you in the community, and of how to apply for victim's compensation funds to help you with any expenses that you incurred because of the crime. The police officers should also advise you what to do if you are subjected to further threats or intimidation from your abuser or anyone else acting for him.
They should explain to you the steps in a criminal prosecution and they should give you a form to let you invoke you rights to be notified or any hearing or trial dates or of anything else that may be happening with you case. This form must be signed by you and sent to the prosecuting attorney.
The police officers will give you their names and the phone number of their agency, along with the name, address and telephone number of the prosecutor. It is very important that you sign the form saying that you want to invoke you rights as a victim of crime and to be informed at all steps of the criminal proceeding. If you do not sign this form and send it to the prosecutor, he is not required to give you any further notification about your case or to inform you of hearing and trial dates and times. Some police departments have a policy that directs their officers to take the signed form and send it to the prosecutor for you; some will just leave it with you to sign and send. You should ask them if they are going to take care of this for you or if you have to do it.
If you have filled out and sent in the form requesting notice, the prosecutor must notify you of all charges filed against the defendant and of the criminal proceedings to follow. If any changes are made in the date or times set for hearing or for trial, you must be notified. Your name, address and phone number will be on the form that the police officer has given you, in most cases that will be you home address and phone number at the time of the abuse. If your address or telephone number changes because you had to go to a shelter, go and stay with relatives or move into another house or apartment, you should let the prosecutor know. If the charges filed against your abuser are misdemeanors, the prosecutor will be the county or city attorney where you live. If the charges are more serious felonies, the prosecutor will the district attorney. If you were not given the names and phone number by the police, you can find them in the government section of your phone book.
Notification of Bail
After the defendant is arrested, if you have signed the form invoking your rights, the law enforcement agency having the prisoner in custody is supposed to notify you if he is released on bond, if he escapes, and if he is recaptured after an escape.
The Right to be Present and be Heard
As the victim of the crime, you are entitled to be present in the court room at any stage of the criminal proceedings, including any hearings and trials, except grand jury proceedings. (By law, grand jury proceeding can be attended only by the grand jury members, the prosecutor and any necessary witnesses. You may be called as a witness, but you would have to leave the room for the remainder of the questioning and deliberations.)
More important, you have the right to be consulted by the prosecutor before any trial and to give your feelings on any plea bargain agreement, reduction of charges or sentencing recommendations the prosecutor might recommend to the judge. Any information that you give him during these conferences is to be held confidential unless it is information he needs to present as evidence at trial or it is something that he is required by law to disclose. For instance, if you should give him information about you or your family that has nothing to do with the abusive acts and is private to you, he would not disclose it to anyone it to anyone else, but if you told him about another crime that had been committed or was about to be committed, he would have to disclose that.
Protection in Court
If you need to keep your current whereabouts a secret, for instance, if you are staying in a shelter or with relatives and don't want your abuser to know where you are, the prosecutor can petition the judge to direct that you not be asked questions at trial or at any pre-trial proceedings that would disclose your place of residence or your place of employment to the defendant. The court should also provide a separate waiting room, so you will not have to be in the presence of the defendant or any of his witnesses while you are waiting to testify. If there is not a separate room available, the prosecutor or the judge should see that there is a bailiff, a police officer or someone assigned to keep you and other prosecution witnesses form being harassed.
Which Court Will You Be Attending?
If the charge against your abuser is a misdemeanor, he will be tried in the municipal court if the violence occurred in a town or, if you live outside a city limits, in the justice court of the county where the violence occurred. Municipal court and justice court may be somewhat informal, especially in the smaller municipalities and counties, but everyone should remember that it is a court and should dress appropriately and act properly.
You will be sworn to tell the truth and will be asked by either an attorney or the judge to tell what happened when the violence occurred. It is very important that you answer each question asked to the best of your ability, remembering that you are in a court of law and sworn to tell the truth. The prosecutor will probably call as witnesses any other persons who were present when the violence occurred or anyone else who has information about the incident.
If the trial is held on a misdemeanor charge, there will probably not be a jury; the judge will hear the evidence and make the decision on whether or not the defendant is guilty of the charge. If the defendant is convicted, there will be a fine and/or a term in the county jail. Usually on a first conviction, only a fine is imposed. If the defendant is brought to court a second time there is usually a jail term.
If the injury is serious enough for a felony crime to be charged, the proceedings are more formal. After the arrest, there will be a preliminary hearing to determine if there is enough evidence to continue the case. At this point, you may be called to testify, but usually only the arresting officer is called for the preliminary hearing. However, even if you are not called to testify, you have the right to be notified and to be present. After the preliminary hearing, the prosecutor will present the facts of the case to the county grand jury, who will again decide whether there is evidence which warrants a trial. You do not have the right to be present at the grand jury, but you should be notified that the grand jury will be hearing the case at a certain time and you should be notified of the outcome of the grand jury hearing.
It the grand jury decides the case should go to court, it will be heard in the circuit court of the county. In circuit court, there are strict rules on how the case is to be presented. If you are called as a witness, you will be questioned by the attorney who called you and then cross-examined by the attorney for the other side. Again, the important thing is to tell the truth as completely and precisely as you can. The attorney should interview you before the trial starts so that both you and he will know what questions you are going to be asked and what information you have to impart when you get to the witness chair.
In circuit court trials, there is a jury of twelve people who will decide where or not the defendant is guilty of the crime. They must all twelve agree on a verdict. If the defendant is convicted in circuit court, he probably will receive a sentence of some time to be served in the state penitentiary, with the length of time depending on the severity of the crime and on his previous record.
Remember that you are entitled to be informed of what is going on at every step of the proceedings. The police officer who investigated your case should have given you the phone number to call for information about your case. If you feel that you are not being kept informed, you have every right to call the prosecutor and ask what is happening. If after making the call, you still are not satisfied with the information you have received, you can call the shelter director in your area and she will help you get the answers that you need.
Sometimes a defendant decides to enter a plea of guilty instead of going to trial. Usually this occurs after the prosecutor and the defense attorney have reached and agreement on what sentence the prosecutor will recommend to the judge. You have the right to be informed of any plea bargain agreement reached by the prosecutor and the defendant before it is presented to the judge. You also have the right to be present when the defendant enters his plea of guilty and the sentencing recommendation is given to the judge. You have the right to be heard by the judge on whether or not you agree with this recommendation and to give the judge a statement about the crime and the effect it has had on you and your family. This is called a "victim impact statement." The judge is not supposed to accept any plea agreement until he is told that the prosecutor has talked to you about the sentencing recommendation or that reasonable efforts were made to find you and give you the information, including the time, date and place of the hearing. Remember, it is your responsibility to keep the prosecutor informed of any change in your address or phone number so that he can get in touch with you to keep you informed.
If the defendant decides to enter a plea of guilty or if the case goes to trial and he is convicted, the judge will hold a sentencing hearing. You have the right to be notified of the date of sentencing, attend the sentencing and to give the judge an impact statement. On misdemeanors, the sentence is usually imposed right after the guilty verdict, with no separate hearing. If the crime is a felony, the circuit court judge may direct a probation office to prepare a pre-sentence report. This report will show any prior record of the defendant and other information that the judge should know to impose the appropriate sentence. You can give the probation officer who is preparing the report a written statement or you can just talk with him. In making his report to the judge, the probation officer has to consider the economic, physical and psychological impact of the crime on you and your family. This information will come from you and other family members. The probation officer may also interview other persons who have knowledge about the crime or about your family circumstances. This is an important step in seeing that you are protected by having the proper sentence passed on the defendant.
Victim does not have veto power
Although you have the right to be notified, to be present and to be heard at the hearings and trial, as well as at the sentencing, you are not in charge of the prosecution. The decision of whether or not to go to trial, how to conduct the trial and what sentencing recommendation to make is the responsibility of the prosecutor. At sentencing, the judge is not bound either by your wishes or by the prosecutor's recommendation. The judge can impose any sentence allowed by law. That's why it is so important that the judge have your statement of the impact of the crime to consider at time of sentencing. If you have not been contacted by the prosecutor or by a probation officer and have not done a written statement for the judge's consideration, you can request to speak to the judge at the time of sentencing.
If the defendant goes to trial and is convicted, he has the right to appeal his conviction and/or sentence to the state Supreme Court. This is not usually done in misdemeanor cases, but is often done after felony convictions. If the case is appealed, you have the same rights of notification that you have prior and during trial, but the notice will come from the Office of the Attorney General. The AG will get your name and address from the district attorney, so, again, it is very important that you keep your address and phone number current so that you can be notified.
You have a right to a transcript of the trial, but this is at your own expense and in a lengthy trial, can be quite expensive. There are not many situations where the victim would need a trial transcript. Unless the case is appealed, no transcript is prepared; the testimony from trial stays available through the court reporter's tape of the proceedings in case it is needed later. If you requested a trial transcript, you would be responsible for paying for the transcription, which could run into hundreds of dollars. If you think you want or need to transcript, it would be advisable to ask the prosecutor about the probable length of the document and its cost. If there is only a part of the testimony that you want, the prosecutor might can arrange for you to get this shortened version and at a much lower cost.
Parole Board Hearings
If the defendant goes to prison after a felony conviction, he will at some point likely be eligible for parole. If you have furnished the parole board with a current address and phone number, you will be notified when the hearing is scheduled to take place. Either the district attorney or the attorney general's office can help you get the proper forms to the parole board. You have the right to attend the parole board meetings and to speak to the board before they make any decision of whether or not to grant parole. It is very important that you keep your address and telephone current with the board, because the parole hearing will be several years after the trial and conviction and the board is required only to try to contact you at the address they have on file.
When the Prisoner is Released from Prison
If you have furnished the your name and address, you are entitled to be informed within 15 days prior to the prisoner's release. This is to protect you from having him out of prison and back in your area without your knowing it. You will also be notified within fifteen days if the prisoner dies while he is prison.
If You Have Questions
When violence against you or your children forces you to seek help and you become involved in the legal system, questions keep coming up that you need to have answers for. We have tried to answer as many question as possible in this guide, but you may have others. You can always contact the domestic violence shelter in your area. If the staff there cannot answer your questions, they can seek help and advice for you for the state Coalition Against Domestic Violence. Please do not be afraid or embarrassed to ask questions and/or to seek legal advice. It is there for you.