The Indiana Coalition Against Domestic Violence

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1 Evidentiary Issues in Domestic Cases: An Overview Introduction A. Importance of legal representation in cases that involve domestic violence. B. History of protection order laws and implications for evidence. 1. Protection order statutes were designed to facilitate easy access to the courts and expedited court action to protect victims of violence. 2. Pro se representation was anticipated because early on (1980s) attorneys were not as aware of domestic violence issues as attorneys now are. 3. Because of the large numbers of pro se litigants, courts relaxed adherence to the rules of evidence in court proceedings. 4. Though this was necessary, consider what may have been compromised. Further proceedings often were not on the record (think about importance of record). C. Attorneys are more available now in protection order cases but still, consider: 1. Courts adherence to rules is sometimes indicative of the seriousness with which domestic violence cases are perceived. 2. Balancing the needs for court efficiency against zealously representing your client. 3. Importance of ensuring that proceedings are part of a record. 4. Incorrect evidentiary rulings are a mistake of law and may lead to appeal. D. Skillful use of rules of evidence promotes equal justice and fair play. 1. Attorneys for victims must comply with and use the rules if they want their own evidentiary objections to be sustained. 2. The rules of evidence can help prevent inappropriate and manipulative assertions by abusers. 1

2 3. Consistent application of the rules of evidence holds everyone to a standard, including the judge. Courts may ease up on the rules in pro se cases even though opposing party is represented by counsel. Courts may require counsel to use rules even though pro se litigant is given a break Preparing Your Case A. Though your case may not culminate in a contested hearing, your client will benefit if you prepare as if it will. 1. Organizing your thoughts, gathering information and contemplating your cases strengths will put you in a better place to negotiate. 2. Collecting and ordering evidence effectively will strengthen your case before and during a contested hearing. B. Mapping Your Case 1. From the many different styles of organizing a case, hone the one that works best for you. 2. Drafting proposed findings of facts and conclusions of law is one style. 3. Drafting pretrial and trial briefs is another style. C. Investigation and Evidence Collection 1. Client interview 2. Documentation a. Police Reports b. Medical Reports c. Bills, invoices, etc. 3. Photographs 4. Real Evidence 5. Other Witnesses D. Anticipating Evidence Admission 1. Think through available evidence and how it is best presented. 2. Anticipate objections from opposing counsel. Anticipate the opposing parties evidence and objections you may make. 2

3 Evidence Getting Started A. Each state has its own rules. Many states (Including Indiana) have adopted the federal rules of evidence B. Federal Rules are cited for quick reference. C. Evidence is admitted by parties stipulating, judicial notice, or through witnesses testifying D. Admissibility of evidence 1. Materiality: relates to whether the evidence is offered on a matter properly in issue. 2. Relevance: a relation between an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition. 3. Competence: subject to reasonable rules as to physical and mental qualifications (also training and experience for experts). E. Forms of Evidence 1. Testimonial 2. Demonstrative 3. Documentary 4. Real Presentation Coverage: We are not taking up every rule; just select rules that are most relevant to proof of domestic violence facts. Witnesses A. Witnesses may include victim, opposing party, eyewitnesses, child witnesses, expert witnesses, medical personnel, law enforcement, and essentially anyone else who is competent to testify and has relevant, material evidence to offer. B. Expert Witnesses (703 and 705) 1. Benefits of calling expert in civil cases. 2. Who can you call? C. Child Witnesses 1. Approach cautiously when calling a child witness to testify in a domestic violence case. 2. Think through alternative means for entering the same evidence. D. Exclusion of Witnesses (615) 3

4 1. Upon motion of a party, Court must exclude witnesses to a case from room where hearing is conducted. Though there are exceptions to the rule, it is not discretionary. 2. This rule may serve your case in several ways discuss the pros and cons with your client. a. Victims are frequently quite anxious about testifying, especially in front of abuser s family and friends. However, this bars the victim s support system too if they are also witnesses. Helps to facilitate impeachment of untruthful witnesses Testimonial Evidence A. Then Existing Mental, Emotional, or Physical Condition (803(3)) 1. Hearsay exception allows for an array of evidence to be introduced in domestic violence cases, important in domestic violence and custody cases. 2. Witnesses can testify that victim stated that my neck is stiff and my throat is sore (803(3)). 3. State of mind/fear testimony falls under (803(3)) then existing mental, emotional, or physical condition. 4. Example: Victim stated that she couldn t walk because her leg was injured. Pain or physical condition/description of injuries. Often, there are no other witnesses to a domestic violence attack. Friends, coworkers, or family members may later see injuries and can testify about what they saw from their personal knowledge not an (803(3) exception. B. Present Sense Impression (803(1)) 1. Exception to the hearsay rule allowing the witness to state what the declarant stated while perceiving an event or condition or immediately thereafter. 2. Example: Telephone conversation with victim who stated, He s walking up the driveway and looks angry. C. Excited Utterances (803(2)) 1. Often used in domestic violence civil and criminal cases. 2. You must establish that the statement is relevant and that the witness heard your client make the statement. 4

5 The statement must be related to a startling event or condition (e.g. a beating) and must be made while the declarant was still under the stress of excitement caused by the event or condition 3. Research the case law in your jurisdiction regarding allowable time frame. a. Determine how much time can elapse between the event and the statement, as this varies from state to state. b. Argue how the abuser s act of not allowing the victim to leave for some period of time extends the event. D. Fresh Complaint of Sexual Assault 1. Applies only to statements regarding sexual assault. 2. Applies to the victim s fresh complaint of sexual assault, allowing statements into evidence that may not be admissible as excited utterances if too much time has passed since the abusive event. Operates much like excited utterance rule. Set it up by asking victim what happened (i.e., she was sexually assaulted) when it happened, and who she told about it (i.e. the witness you intend to introduce the evidence under the fresh complaint rule). E. Prior Statements by Witnesses 1. Prior Inconsistent Statement is considered non-hearsay if it was made under oath at a prior proceeding or deposition. Would be admissible to impeach credibility and also as substantive proof. 2. Prior Consistent Statement, regardless of whether made under oath, is not hearsay if it is offered to rehabilitate witness from an express or implied charge of recent fabrication or improper motive. F. Admissions by Party-Opponent 1. Statements made by opposing party are non-hearsay. Witnesses may testify as to what the opposing party said. 2. The statement must be offered against the person who said it. You may not offer your own client s statements under this rule. G. Prior Bad Acts in Protection Order Proceedings 1. Domestic violence is a pattern of behavior so it is relevant to introduce other acts when informing the court of the extent of violence perpetrated. 5

6 2. Important to draft petitions to include more than one act. 3. Stalking orders require evidence of a pattern of activity. 4. (404 (b)) prohibits admission of evidence of prior crimes or other bad acts to prove the defendant acted in conformity with the act on the date(s) in question. a. This rule prevents punishment from being imposed based on past (uncharged) mistakes or crimes. It should not be applied to civil cases. b. Ready a memorandum of law brief to submit to the court on this issue. c. Protection orders are inherently about the future and protect petitioners from future acts of violence. While prior acts happened in the past, they are relevant to predict future occurrences. d. Custody case focus on what is in the best interest of the child in the future. What has happened in the past is relevant to future conduct (think supervised visitation). 5. Other prior bad acts arguments a. Custody character issues are relevant to best interest of a child. b. Prior bad acts exceptions include proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Demonstrative Evidence A. Demonstrations by Witnesses 1. Injuries often leave physical scars (or in the case of protection orders, bruises and other wounds). 2. If you plan to have a witness demonstrate evidence of injury, look to yourself first: consider modesty of concerns and visibility of markings. 3. Victims may use their hands to demonstrate what happened (for example, he put his hands around my neck like this). Be attentive to the record when this occurs and describe what the witness is doing or showing. B. Photographs a picture is worth a thousand words. 1. Good idea to keep a camera in your office. 2. Routinely advise clients to photograph injuries, even if they do not want to pursue legal action at the time. Documentation may be useful later on. 6

7 3. Bruises ripen after a couple of days. What is a sore muscle on the day after turns into a significant bruise two days later. 4. Photograph of residence indicating broken furniture and disarray. 5. Foundation for introducing photographs a. Photo must be relevant. b. Witness must be familiar with subject of photograph. c. Witness must know when photo was taken. Photo must fairly and accurately represent the scene, object or person as it existed on the day the photo was taken. Real Evidence C. Weapons 1. Many different items can be characterized as weapons depending on how they are used (criminal definition ). 2. If gun, knife or the like is involved, identify to whom the weapon belongs. 3. If custody is an issue, determine whether weapon was safely stored. D. Clothing (torn, cut-up or damaged, bloody) E. Chain of Custody Issues; Lay the foundation, publish to opposing council and ask to have the evidence admitted Documentary Evidence A. Documents are an exception to hearsay they must be certified or authenticated B. Refreshing recollection 1. Witnesses may look at almost anything before or during hearing to refresh recollection. This is referred to as present recollection revived. 2. Past recollection recorded with proper foundation contents of a written document can be introduced into evidence as an exception to the hearsay rule. a. Writing made by observer while events were fresh in her mind. b. More reliable than distant memory. c. Cross-examination is curtailed somewhat. C. Official Records and Other Official Writings 1. Exception is necessary to avoid requiring public officers to leave their jobs to testify about acts done in their official capacity. 7

8 2. Deemed trustworthy because officials are under a duty to record properly that which they do. 3. Police reports usually fall under official records and can be admitted in civil cases. BUT NOT here in Indiana, unless the officer is available to put in in to evidence. D. Business Records 1. Memorandum or record of an act, event, transaction or occurrence made in the regular course of any business at the time or within a reasonable time thereafter. 2. Some states require noticing the opposing party of intent to admit certified business records. 3. Hospital records and medical reports a. Powerful evidence of abuse. b. Victims may have misrepresented cause of injury to medical provider. Address misrepresentations head on and ask her why she misrepresented. c. Determine whether abuser was present or in the proximity when she obtained medical services and misrepresented cause of injury. d. Some states allow submission of certified medical reports eliminating the need of bringing in the entrant to testify. e. Accessing medical records i. May be easier for your client to access them. ii. Hospital or medical provider may respond more quickly to lawyer. iii. Build a relationship with records department if this is a regular request. iv. Subpoena may be appropriate. Some hospitals will fax for emergency hearings. 8

9 f. Foundation for Admission i. Authentication (either certified or testimony of custodian) ii. 803(6) for specific elements for admitting business records g. Alternatives to Medical Records i. Excited utterances in emergency room. ii. Existing mental, emotional, or physical condition. Prior consistent statements if statement is offered to rebut an express or implied charge of untruthfulness 9

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