Domestic Violence in Utah

Domestic violence is a serious problem worldwide, and Utah is by far no exception.

Wife and her dog

One of the several cases of domestic violence this month in Utah left a woman with facial wounds, a dog in surgery, and a man in jail. Earlier this month, a 40 year old Santaquin Utah man was arrested for multiple charges when he was involved in a fight with a woman at their home. After hitting the woman in the head in front of her children, he then stabbed her service dog- nearly killing it. While it is unknown what sparked the argument that ended with physical aggression, domestic violence rarely needs a rational reason.

Legal definition

Photo by: West Midlands Police

Photo by: West Midlands Police

Utah Code 77-36-1 identifies domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another.” 77-36-1 also states that it can . . . include “commission or attempt to commit, any of the following offenses by one cohabitant against another:

(a) aggravated assault . . .
(b) assault . . .
(c) criminal homicide . . .
(d) harassment . . .
(e) electronic communication harassment . . .
(f) kidnapping . . .
(g) mayhem . . .
(h) sexual offenses . . .
(i) stalking . . .
(j) unlawful detention . . .
(k) violation of a protective order . . .
(l) [some] offense[s] against property . . .
(m) Possession of a deadly weapon with intent to assault . . .
(n) Discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle . . .
(o) Disorderly conduct . . .
(p) Child abuse . . . “

Penalties  for charges can range from a misdemeanor to a felony depending on the offense in question.

More than assault

Domestic violence is typically seen as a physical assault on a person, usually a spouse. What is unknown to many however is that it can also be delivered as mental and emotional abuse. The Utah Domestic Violence Coalition states: “Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

Not just between couples

Domestic violence takes place frequently between couples but it can also occur with children, elderly family members, and even roommates with no blood relationship. As long as the victim and the assailant are cohabitants, then domestic violence charges can occur from any violent or threatening episode between the two parties.

Domestic violence away from home

Although the most common setting, domestic violence doesn’t always take place at a residential building such as a home or apartment. It can be any harm done to someone by a person they live with, regardless of where they are when the attack takes place. A spouse that starts a fight with their significant other at work, or a parent that slaps their child around in front of the school are both cases in which domestic violence charges could ensue.

Statistics & penalties

Compiling statistics of domestic violence cases in Utah is difficult, as many of them go unreported. The reports that are compiled base their information on injuries and deaths of women at the hands of men. While there are many women who are the victims of domestic violence, it isn’t uncommon to see the man as the one being hurt. These new findings can create a lot of confusion for officer who respond to domestic violence calls. All too often “who is at fault” is not completely clear to police upon arrival. This can lead to false or misguided charges against a person. For anyone facing charges of domestic violence, whether the charges are justified or not, speak with an attorney immediately.

Hearsay is Probable Cause for a Search Warrant

When a judge authorizes a search warrant, there has to be sufficient proof in the affidavit to attest probable cause; however is hearsay evidence enough to qualify?

Probable cause

Probable cause is required to obtain a search warrant. Probable cause can include the officer’s own observation such as: seeing illegal contraband through an open door while talking with a suspect; hearing loud noises presumed to be from a violent act taking place; and even smelling illegal activity such as marijuana smoke or other drug use. Beyond these observations made by the actual office, probable cause can also consist of hearsay – a statement overheard by a random witness.

Hearsay

Photo by: Francisco Osorio

Photo by: Francisco Osorio

According to Utah Courts Dictionary of Legal Terms, hearsay is “second-hand evidence, generally consisting of a witness’s testimony that he/she heard someone else say something.” Like a bad game of telephone, information by hearsay could end up muddled and far from the truth. Another concern with hearsay besides being an innocent misunderstanding is the fact that hearsay could be nothing more than a fabricated plot to cause undue stress on another person.

Protection from false info

To avoid untrue or mistaken information, there are certain steps that must be taken before a judge can accept hearsay. The following is Utahcourts.gov explanation how hearsay is evaluated and what is required for hearsay to be acceptable for a search warrant:

1. “Veracity” of the informer. This means the informer providing the hearsay must be credible. The affidavit must contain sufficient facts indicating the informer is believable or truthful. For example, the affidavit should state the reasons why the informer believes that the seizable items are located in the place to be searched and the reasons why the police officer believes that the informer is reliable.
o To satisfy the veracity test, the affidavit must establish that: (a) the informer is a truthful person; (b) the informer has a particular motive to be truthful about the specific allegation (for example, it is against the informer’s interest); or (c) the allegations of criminality are sufficiently corroborated.

2. “Basis of knowledge” of the informer. This means that the informer has a factual basis for the information furnished. The affidavit must contain sufficient facts indicating the basis for the informant’s knowledge. For example, the affidavit should describe the accused’s criminal activity in sufficient detail for the judge to determine that the allegation is something more substantial than casual rumor.
o To satisfy the basis of knowledge test, the affidavit must establish that: (a) the informer gathered the information of illegal activity in a reliable fashion; or (b) the informer’s information is based on either personal knowledge or on reliable hearsay received by the informer. “

Hearsay usually not admissible in court

Although there are some guidelines concerning what hearsay is considered valid, it is still an alarming thought that someone’s word is enough evidence for authorities to obtain a search warrant. Fortunately, hearsay statements typically won’t hold up later on in court. This is due to the defense being unable to cross examine the informant after the hearsay statement is admitted. The same would go for an anonymous tip. While that tip may lead officials in the right direction to catch a crime, there is no way to use it in court as the defendant would not be able to question the person accusing them of a crime. IF hearsay is allowed before the judge and/or jury, Utah Courts states that “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”

Speak with an attorney

For anyone facing charges for evidence obtained during a hearsay driven search warrant, it is crucial to contact a criminal defense attorney. An experienced defense attorney can help their clients fully understand their 4th Amendment rights regarding searches and seizures and what their rights are during trial.

Deadly Force Justified in Utah- Legally Defending Self and Home

The majority of states have laws in place that protect residents and homeowners if they ever need to use deadly force while defending their self or home. Since the laws differ from state to state, it is important for individuals to understand exactly what their rights are in their state if they feel threatened by another person.

Stand your ground

frankieleon

frankieleon

Many states including Utah have a law in place that allows a person to use deadly force to defend themselves against an attacker as long as they are someplace where they are legally allowed to be and not voluntarily in a relationship with the attacker. This is called a Stand Your Ground law. According to Utah Code 76-2-402, “A person is justified in using force intended or likely to cause death or serious bodily injury only if the person reasonably believes that force is necessary to prevent death or serious bodily injury to the person or a third person as a result of another person’s imminent use of unlawful force, or to prevent the commission of a forcible felony.”

Duty to Retreat

Photo by: bark

Photo by: bark

Other states that do not have Stand Your Ground laws may have a contrary rule called Duty to Retreat. While Utah doesn’t have Duty to Retreat laws presently, there is discussion about it in the future. Duty to Retreat laws require that individuals make an effort to leave a situation in which they feel in danger or threatened. If a person tries to retreat but is unable to get away successfully, then they are justified in using deadly force to keep themselves from being harmed. If the threatened individual makes it inside their own home, the laws again differ depending on what state they are in. Some states argue that a home is a “safe zone” and therefore once inside, the threatened individual cannot use deadly force to protect themselves. This is not the case in Utah, as they have laws to justify homeowners who use deadly force if they are threatened when at home.

Castle Doctrine

Photo by: Steam Pipe Trunk Distribution Venue

Photo by: Steam Pipe Trunk Distribution Venue

Castle laws, otherwise known as Castle Doctrine are laws that allow homeowners to protect their self and home from threatening individuals who are attempting to break into their residence. Utah has a version of castle doctrine in place called “force in defense of habitation”. There are stipulations about how and when this would apply however. Utah Code 76-2-405 states that a resident is justified in using deadly force when:
“He reasonably believes that the force is necessary to prevent or terminate the other’s unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:

(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or

(b) He reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.

(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.”

Utah’s Castle Doctrine also applies to any building or structure that is attached to the property where someone may be inside such as a garage or a shed. Deadly force is not justified during the theft of personal property unless someone is inside that property and feels threatened such as a carjacking of a vehicle that is occupied.

Be informed about defense rights

Photo by: F Deventhal

Photo by: F Deventhal

It is important to study and be informed about rights regarding defending self or home. Therefore if the time ever came that an individual felt the need to use deadly force, they would feel confident in defending their actions. For those who are up-to-date about laws regarding when it’s acceptable to legally defend self or home, a criminal defense attorney would still be a wise addition to any criminal proceeding regarding justified use of deadly force.