Good Chance of Dismissal
It’s never good to be charged with a crime. However, if you’re charged in a case involving “cross-complaints”, there’s a good chance your case will be dismissed.
Cross-Complaints typically arise in assault cases, often domestic-violence assault cases.
Police arrive at the scene of a fight. You and the other fighter are both injured. You Each points a finger at the other and tells police that the other one started it: “I was defending myself.”
The police didn’t see who threw the first punch, kick, shove, threat, etc. They don’t know who’s telling the truth and who’s lying. They do no investigation, other than speaking to witnesses at the scene. So they arrest both of you.
Two cases get filed in Criminal Court. You’re a defendant in one and a “complainant” (also known as a “complaining witness”) in the other. In the case where you’re the defendant, the person you fought is the complainant; and in the case where you’re the complainant, the person you fought is the defendant. These are known as “cross-complaint” cases.
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Forget about your complainant status. Let it go. Wave goodbye. Your entire focus should be on losing your defendant status — on avoiding a criminal conviction and possibly jail.
The District Attorney can’t prove the case against you without the other fighter’s cooperation (because the DA has no other witness to the fight). And the DA can’t prove the case against the other fighter without your cooperation (same reason).
If you and the other fighter don’t cooperate with the DA, then both cases likely will be dismissed.
Use this potential stalemate to your advantage.
Protected by the Fifth Amendment
Ordinarily, the DA can force reluctant witnesses to testify by subpoenaing them. However, because you’re a defendant, you risk incriminating yourself if you testify.
Under the Fifth Amendment to the United States Constitution and the New York State Constitution, you can’t be forced to incriminate yourself: the Court can’t hold you in contempt if you refuse to answer questions from the witness stand.
Your status as a defendant means the DA can must give you “immunity” to force you to testify.
If the DA were to give you immunity, then the case against you would be dismissed. So the DA will almost certainly not give you immunity.
The same is true in the other direction. If the DA were to give the other fighter immunity, then the case against the other fighter would be dismissed. So the DA will almost certainly not give the other fighter immunity.
In this situation, both cases eventually will be dismissed, because the DA can’t prove either one.
Usually, desire for retribution is the only thing to prevent mutual dismissals in a cross-complainant case.
If you or the other fighter agrees to cooperate with the DA’s prosecution against the other, because you want the other person to be punished, then you’ll face a bumpier road to resolving your case.
Through your attorneys (you won’t be able to communicate with each other because you’ll have orders of protection preventing you from doing so), agree to mutually exercise your rights against self-incrimination. Agree that you’ll each “plead the Fifth” and remain silent if called to testify against the other.
Both cases likely will be dismissed, and you’ll each be free to hopefully not fight another day.
Bruce Yerman is an domestic violence lawyer in New York City. His office is located on the fourth floor of 160 Broadway in Manhattan.
If you’d like a free consultation to discuss cross-complaints or any other issue related to criminal defense or family law, call Bruce at:
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