The Super Bowl spotlighted entitlement, anger, and even domestic violence without a 7 million dollar commercial. Who can file a domestic violence complaint. What evidence is admissible at a trial?
The average Super Bowl television commercial costs approximately 7 million dollars for a 30 second advertisement. Many consumers admit to not even watching the game but look forward to the commercials. More than 123 million people turned on to watch the Kansas City Chiefs and the San Francisco 49ers along with the commercials. One of the most talked about parts, however, wasn’t a specific play on the field, a commercial but an in game incident between Travis Kelce and Andy Reid. It put a national spotlight on player entitlement, anger, respect for coaches, and even domestic violence.
While there is no evidence of domestic violence here, many have asked who can make a domestic violence complaint in New Jersey or Pennsylvania where our law firm represents persons accused of crimes and offenses.
Who can make a domestic violence claim in New Jersey or Pennsylvania?
New Jersey, like Pennsylvania, provides protection for victims of Domestic Violence. In New Jersey and Pennsylvania victims may seek a Restraining Order or Protection From Abuse Orders (PFA) against his/her abuser. A person has standing as victim in New Jersey or Pennsylvania if the victim and the alleged abuser maintained a physical relationship. The two parties DO not need to have children and they DO not need to be married or even engaged.
What type of evidence is admissible at a domestic violence trial?
With regards to what evidence is admissible at these trials, the answer is practically anything provided that is satisfies the rules of evidence, especially those pertaining to hearsay, foundation and witness competency. Courts will consider a wide range of evidence and burden in these cases is always on the Plaintiff (victim). The victim, typically through counsel, must establish by a preponderance of evidence (more probable than not) an act, acts or a pattern of violence.
Protection From Abuse (PFA) in Pennsylvania
When a person files for a PFA in Pennsylvania , a magistrate or Master will decide if the Petition has merit. If there is merit to the petition, the court will grant an emergency order. The court, however, will also schedule a formal proceeding where the defendant will have a right to defend the allegations usually within 10 days. The defendant must be served with the petition during this time. Following this emergency order, a judge will not conduct a hearing unless there is proof of service.
A successful petition requires that the court find that the petitioner has demonstrated that the defendant is an immediate threat to the person’s physical safety through an incident or a course conduct in the form of violence or threats of violence. While the court can look at a pattern, it isn’t required to obtain a PFA order.
One instance alone is sufficient for the Petitioner to meet the burden of proof. The judge will hear testimony and make a decision based on that testimony but the Petitioner isn’t represented by the District Attorney and the defendant isn’t entitled to counsel. Both parties, however, may retain an attorney to assist them either with the defense or the petition in itself. Remember that the burden is on the petitioner (person making the allegation) not the defendant!
Is an abuse allegation made within a PFA in Pennsylvania, the same as a criminal charge?
Unlike in criminal court, however, the burden of proof in these proceedings is “by the preponderance of the evidence” which is much lower than “beyond a reasonable doubt” – the standard in all criminal courts in the United States. Keep in mind that unlike a criminal proceeding, a PFA matter is the Petitioner versus a defendant and not the Commonwealth vs. a defendant. Keep in mind, however, that if a person violates a PFA it can and often does lead to criminal contempt charge. In addition, to violating a Court Order the Commonwealth can prosecute this person for additions charges such as assault, and terroristic threats.
I was served with PFA petition in Pennsylvania? I’m required to appear in court?
If you’re served with a PFA petition, its important to contact a criminal defense lawyer and immediately begin devising a defense strategy which may include contesting the allegations or agreeing to a “cooling off” period. Never ignore the petition and go to the proceedings even if you don’t have a lawyer. If you fail to appear the Court can issue a bench warrant and even issue a final order if the Plaintiff can show that you were served with the petition. This order will last 3 years and will substantially your hinder your ability to do things like a carry or possess a gun or even remain in your home.
Even if you don’t have a lawyer right now, don’t ignore the hearing notice and simply not show up. It is important to advise the court that you are working on obtaining a lawyer so the judge sees that you are taking the matter seriously.
Will a PFA affect my ability to carry or even possess a handgun in Pennsylvania?
It is important to understand that a PFA will prevent you from legally owning or possessing a gun or firearm in the Commonwealth of Pennsylvania despite your Second Amendment Right to do so. This is very similar to what happens in New Jersey. While all persons have a Second Amendment right, Pennsylvania may and will restrict that right based on your prior certain criminal convictions, a PFA (6105 – VUFA).
Keep in mind that this emergency order still requires the defendant to relinquish their guns, firearms and ammunition within 24 hours of being served with the order.
The formal hearing is extremely important to your ability to possess and own a gun or firearm in the Commonwealth long term. If the judge at the hearing finds that a PFA is appropriate, he can issue a final order requiring the defendant to surrender all guns and firearms to the county sheriff’s office or provide. PFA Act, 23 Pa. C.S. § 6108(a)(7)).
In addition, a person can also be charged under the Uniform Firearm’s Act if he or she violates the Order (on top of a contempt charge). A person can be charged under Section 6105 even if the gun or firearm never leaves the person’s home or place of business. If the defendant is found outside of the home he is not only in violation of Section 6105, but 6106, and 6108. While violations of 6105 related to a PFA, aren’t as serious (misdemeanor of the first degree as opposed to a felony of the second degree) as other violations of this statute (enumerated offenses) a person would still have a criminal record. This could also affect your ability to obtain a permit to carry in the future!
How can a Protection From Abuse (Pennsylvania) or a Restraining Oder (New Jersey) affect your everyday life?
In addition to preventing you from possessing or carrying a weapon, gun, or firearm a PFA Order in Pennsylvania or a Restraining Order in New Jersey can also do the following:
- Evict you from your home
- Modify your child custody arrangement
- Order supervised visitation with your children
- Prevent you from seeing your children
- Prevent you from attending your children’s school’s function
What is a Temporary Restraining Order (TRO) in New Jersey
Where a claim of violence is alleged, the victim may seek a Temporary Order at any time. The victim may seek this Order during normal Court hours or at a police station when Courts are closed. To retain a Temporary Order (TRO) the victim must allege predicate under the PDVA and further state that he or she believes that the abuser presents a threat to their safety. The Court will grant the Temporary Order and schedule a Final Restraining Order Hearing (FRO).
While the TRO is in place, however, the abuser cannot contact, directly or indirectly, the victim. If the abuser contacts the victim, he or she can be held in contempt of this TRO.
What happens at a Final Restraining Order Hearing (FRO)
At an FRO Hearing the victim, through counsel, must satisfy a two (2) part test:
- The Court must determine whether the Plaintiff (victim), has proven by a preponderance amount of evidence that one (1) or more predicate acts under the Domestic Violence Act was committed; and
- Whether a Final Restraining Order should be granted to protect the victim from further violence.
What is considered domestic violence in New Jersey (predicate act?)
In New Jersey domestic violence means one or more of the following acts (predicate act)
- Terroristic threats
- Criminal restraint
- False imprisonment
- Sexual assault
- Criminal sexual assault
- Criminal mischief
- Criminal coercion
Violation of a FRO or TRO is a crime in the fourth degree in New Jersey.
It is important to understand that the Commission of one or more predicate acts in and of itself does not automatically require a Restraining Order. The Plaintiff must prove that it is necessary to protect the victim from immediate danger or to prevent further abuse.
Contact Our Criminal Defense and Domestic Violence Lawyers in PA & NJ
Please click here to contact our criminal defense and domestic violence lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey, Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.