Prosecuting Domestic Violence Cases Casey Gwinn, J.D. casey@nfjca.org Resource Information: National Family Justice Center Alliance www.familyjusticecenter.org
A Humble Beginning: Effective Intervention in Domestic Violence Cases (1986) Effective intervention in domestic violence cases we can prove with or without victim participation, coupled with a strong advocacy program, a prevention strategy, and a coordinated community response
The Message Today: EVIDENCE-BASED PROSECUTION IS ALIVE AND WELL!!
Defining Effective Intervention Making the Victim Safer Holding the Abuser Accountable Stopping and Preventing the Violence Never Letting a Victim Die in Vain Making Misdemeanors Matter
Personal Reflections We need passionate determined prosecutors If you don t have passion, go do something else If you are burned out, go do something else Submit yourself to advocates and survivors Be willing to be unpopular to do what is right
So what is evidencebased prosecution?
It is not... It is not victimless prosecution It is not about replacing the batterer with the criminal justice system It is not about revictimizing victims of domestic violence It is not a repudiation of victim advocacy It is not about ignoring the rights of victims
It is... It is focusing on the offender It is holding the criminal accountable It is about building cases prosecutors can win with or without victim testimony in the case-in-chief It is a partnership with advocates It is about victim safety It is a about effective intervention
The Approach of the Prosecutor How can I prove this case if the victim does not testify in this case? What evidence exists that I have never used before? If this was a circumstantial evidence homicide case, how would I prove it? Judges need information prosecutors are the conduit!!!!!
Are You Putting a Target on Her Chest? Who presses charges? Who decides the disposition? If she says no to prosecution, do you dismiss? Reduce the charge? If she is hard to deal with, do you... Plan less for her safety? Think more of the batterer? Does it matter if she never says thanks?
Evidence Based Prosecution 911 tapes and printouts Child witness statements Neighbor witness statements Medical records Paramedic log sheets Prior police reports Restraining orders Booking records/jail Calls Letters from the suspect Videotaped/Audio taped interviews with the victim Don t Forget the Defendant s
What evidence still wins the case even after Crawford v. Washington? 911 Tapes Pictures Body diagrams Child witnesses Family/Neighbor witnesses Witnesses to prior incidents Expert testimony Good police officers on the stand Notes, cards, letters, text messages, emails
Specialized DV Form - Front Spontaneous Statements History of DV Photos Evidence Impounded Medical Treatment Paramedics Use of drugs/alcohol
Specialized DV Form - Back Information about Children Names, ages, statements & demeanor Body chart Restraining orders Victim information Medical release
Specialized DV Form - Lethality Delaware Domestic Violence Incident Report
Family Justice Center Model WHAT IS THE IMPACT OF A FAMILY JUSTICE CENTER ON THE EVIDENCE-BASED PROSECUTION APPROACH? From 70-30 to 30-70
Key Evidence: Notes, Cards, and Letters I m sorry for hitting you and leaving this way. I hit you too hard. Please forgive me. I love you. Love David & the Girls Fresno Case, Mike Agnew
HOW TO RECOVER NOTES, CARDS, AND LETTERS FROM PREVIOUS ABUSE? Can you please give me the notes, cards, and letters that he has given you after he has hurt you before?
People v. Michael Shields
Get the Hallmark Cards!
What else is there? Text Messages to her Emails to her Text Messages to Family, Friends Emails to Family, Friends Cell Phone Voicemails
Minimum Requirements for our Relationship from David to Bella I need to know about your day each day I need you to show interest and know about all my days. I need you to tell me every day that you love me. I need you to show me appreciation for my efforts in financially supporting us.
I need you to acknowledge the fact that we have a dog and to try to enjoy and interact with him. I need you to understand I need time alone each week (6-8 hours). I need a massage (one hour) from you once a week. I need you to take responsibility for cleaning the house. I need you to allow me to complete my sentence when speaking to you before you begin to speak to me.
I need you to maintain your body weight between 100 and 110 lbs. I prefer you at 106 lbs or less. You must wear your wedding ring at all times on the correct finger. I will also wear mine when you get me one with money you earned.
Do not blame me for the things that happen to you in your life. Life is the result of the choices we make in our lives. I do not want to have any more children. If you choose to remain married to me you have no right to hold me responsible for any regret you may have if you develop the desire to have children while married to me. You must never hold me accountable for any lack of communication in our lives.
Always get your 911 tapes, even on hang up calls... Even on a hang up call, the microphone into the DV home has been on briefly...
Key Post-Crawford Question to victim by patrol officer Who else did you call before and after you called 911?
Photographs Victim Suspect Children Crime scene Damaged property Film? Digital?, and Video? Go,go, go!!
Photograph and impound Defendant kicked the victim in the stomach. Victim was 3 months pregnant. He kicked her with hiking boots. She miscarried.
Photograph the Scene
Photograph the Scene
Take the Photo and Impound Police report said: She hit him with a fork. Impound and take a picture of any weapons.
Bruises Behind the Ear
DO NOT FORGET THE CHILDREN!! How often are they present? 1992 New York Study Children Are Present in 68% of All Reported Domestic Violence Incidents
Suspect Photos Examine the suspect Look for injuries Look for any pain and/or suffering If the suspect is GOA, ask for a photo of the suspect. Ask what he was wearing at the time of the incident?
Good questions for the victim when corroborating the evidence: Who have you told & who knows about it? How can we reach you in six months? Who will know where you are?
Good Question to Ask Suspect What will your girlfriend (wife) tell me about what you did?
THE LESSON Successful Domestic Violence Prosecutors Have the Evidence Necessary to Hold Offenders Accountable!
Effective Prosecution of Domestic Violence Cases
Our Priorities Do Justice Hold Offenders Accountable Increase Victim Safety Convince the Jury of D s Guilt Beyond a Reasonable Doubt Help The Jury Feel What Domestic Violence Is
The Biggest Battle for Prosecutors: Understanding Batterers...
Batterers Know How to Manipulate Almost Everyone... Nicest guy you would ever want to meet I love her but she s very unstable and she needs counseling has many problems I love her so much I just can t bear to be away from her I am so sorry, I will never do it again... This is our business you stay out of it She is trying to destroy our family She is turning the children against me...
Experienced Batterers Know How to Hit: And Blame it on the Victim (self-defense) Without Leaving Immediate Marks Without Creating Subsequently Observable Injuries Without Predictable Patterns Without a Cycle of Violence Without Hitting
Mark Wynn: A person who is being assaulted or is about to be assaulted may realize that they are no match for the violence that is about to be used against them and will often times use a weapon or object as an equalizer.
The Backlash Movement Domestic violence is really 50/50 men and women Women are as violent as men Protocols and policies in agencies are biased against men because of the feminist movement It takes two to tango
Life after Crawford
Illinois v. White 502 U.S. 346 (1992) (The Legal Core of Evidence-Based Prosecution) Issue: Does admitting 4-year-old s statement to cop (as 1240 Spontaneous Statements) and statement to doctor (1250-for medical diagnosis) when 4-year-old did not testify violate 6A right to C and C? (Does DA have to prove unavailable? ) Holding: No 6A violation. The evidence had sufficient guarantees of reliability to come within firmly rooted exception to HS rule. No unavailability requirement.
And then came CRAWFORD.
What is Crawford? 3/8/04 Crawford v. Washington (2004) 541 U.S. [124 S. Ct. 1354, 158 L.Ed. 2d 177, 2004 U.S. LEXIS 1838, 2004 WL 413301] Wrestling match: Hearsay vs. Confrontation Clause
Crawford Holding: Reversed D s conviction. Admitting wife s statements violated Ds 6A right to Confront and Cross Overruled Ohio v. Roberts (no violation unless 1) admitted under firmly rooted exception or 2) had particularized guarantees of trustworthiness) Crawford new rule:
Crawford RULE: Testimonial statements of witnesses absent from trial are admissible only when 1) declarant is unavailable AND 2) D had a prior opportunity to cross-examine ** is a constitutional rule **irrelevant whether the HS statement is otherwise admissible under FRE Dying declarations is an exception FORFEITURE is the KEY in DV Cases!!!!
Davis v. Washington Davis v. Washington (2006) 547 U.S [126 S.Ct. 2266, L.Ed.2d ] [Davis]. 911 call made during on-going DV emergency 911 hang up call D fled while V on phone with police H, Call not testimonial
Key Facts - Davis Primary purpose of questions was to allow officers to address ongoing emergency Events occurring as call was made Victim in the unsafe situation
Prosecutors Don t File Everything Once you file, make it stick! Educate the court with studies, research, and statistics in bail arguments File trial briefs Bring the terror and passion of DV to the court or find another area to work in Advocate for graduated sanctions (30/90/Max)
Holding in DAVIS: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
THE DAVIS V. WASHINGTON COURT FURTHER ENDORSED THE RULE, AND RECOGNIZED THAT DOMESTIC VIOLENCE CASES MAY REQUIRE GREATER FLEXIBILITY IN THE USE OF TESTIMONIAL EVIDENCE. DAVIS 547 U.S. AT P. 18 [126 S.CT. AT PP. 2278-2279, L.ED.2D. DOMESTIC VIOLENCE, THE COURT NOTED, IS NOTORIOUSLY SUSCEPTIBLE TO INTIMIDATION OR COERCION OF THE VICTIM TO ENSURE SHE DOESN T TESTIFY AT TRIAL. WHEN THIS OCCURS THE CONFRONTATION CLAUSE GIVES THE CRIMINAL A WINDFALL. (ID., AT P.18)
Hammon v. Indiana Police respond to DV call V sitting on front porch somewhat frightened V nothing is the matter V then interviewed by a different officer, and stated that D had broken household items, shoved her to the floor, and punched her twice. H, testimonial
Key Facts - Hammon No on going emergency Officer taking notes for crime case Interrogation taking place after crime occurred Written affadavit (Remanded for forfeiture by wrongdoing analysis )
Guidance for Prosecutors Focus on evidence where V is distraught and describing incident while it is happening Focus on on-going threat, emergency, fear, danger Train Officers to Be Quiet Upon Arrival! Train Your 911 Operators to Focus on Current Emergency! Ask V who else she has talked to avoid Crawford et al completely! Develop your arguments for forfeiture by wrongdoing!!!! FRE 804(b)(6)
People v. Corella (2004) 122 Cal.App.4th 461 (911 Call Case) Moreover, it is difficult to identify any circumstances under which a section 1240 spontaneous statement would be testimonial. The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement. [Citation.] Mrs. Corella s statements were ultimately used in a criminal prosecution, but statements made without reflection or deliberation are not made in contemplation of their testimonial use in a future trial. (Id. at p. 469.)
The Future: Forfeiture by Wrongdoing!! Davis 547 U.S. at p. 18 [126 S.Ct. at pp. 2278-2279, L.Ed.2d. Domestic Violence is notoriously susceptible to intimidation or coercion of the victim to ensure she doesn t testify at trial. Killing the V = Forfeiture of Confrontation Cl. Rights People v. Hampton, 2005 Ill. App. LEXIS 1188 (Ill. App. Ct. 1st Dist. 2005) We conclude that any conduct by an accused intended to render a witness against him unavailable to testify is wrongful and may result in forfeiture of the accused s privilege to be confronted by that witness. What has D said/done to cause V to be too afraid to testify? Notice a Forfeiture by Wrongdoing Hearing Put on all available evidence, hearsay is admissible, preponderance of the evidence standard, and call an expert!! Post-crime conduct theories: Intentional acts by D Threats and Intimidation Post-crime victim emotional state: Abuse leading to Fear, Trauma
Key for Prosecutors: Focus on the Abuser Remove the responsibility for law enforcement intervention from the victim Put the responsibility for intervention on the system Focus on proving the actions of the abuser An evidence-based prosecution approach will survive Crawford v. Washington and its progeny if we continue to focus on abuser accountability
Prosecution - Jury Selection Use proposed voir dire questions Address sensitive issues during voir dire Absent victim Prepare the jury for the recanting victim Victim testifying for defense Self-defense, reasons why victim would stay in an abusive relationship Attitudes about domestic violence role of government Beware: Focus group of men San Diego July, 2000
Jury Selection, continued: Educate the jury Identify batterers and victims Focus on the state vs. the batterer Study shows that 1 out 3 jurors will lie Discuss sensitive issues in private Lower the expectation for level of violence
Prosecution - Opening Statement Tell the story 3 times Re-create the emotion of the crime Use your evidence - 80/20 Rule 911 tape, weapons, photos Create evidence People v. Brian Krueger (9/2002) Pick a theme Power & Control, Accountability, Effective Intervention Prepare jury for an absent victim Use powerpoint in your opening
Effective Intervention Themes Making the Victim Safer Holding the Abuser Accountable Stopping and Preventing the Violence Never Letting a Victim Die in Vain Making Misdemeanors Matter
Putting on Your Case Put a police officer on first, last Alternative: Expert first, cop in the middle, and cop last Never put your victim on first Believe in your cause/be passionate (or go do something else for a living) If you don t have good physical evidence, create some!
Effective Cross Examination Comes From Understanding Batterers The on-scene officer lays the ground work, the detective builds on it, and the prosecutor
Cross-examination of the Abuser Try to control the batterer Focus on batterer s emotions -- anger Choose appropriate level of disgust, rage, pity or sarcasm Expose use drugs or alcohol Expose dynamics of batterer - Lack of fear Expose motive to lie Use your impeachment evidence
Closing Argument Tell the story three times Use powerpoint in your closing for elements, evidence, etc. Discuss and dismiss the presumption of innocence (Rebuttal) Verbalize jury s bias and attitude that may exist about domestic violence Make it politically incorrect for the jury to consider weak points in your case (Rebuttal) Give the jury a reason to convict
From a Shoe Box to
1989 DV Council
Did the victim want the court to just let him go? Yes 4%/No 96% Did the victim want him to go to court for what he did? Yes 55%/ No 45% Did the victim think it was good the case was prosecuted? Yes 90%/No 10% Would the victim call the police if he harmed her in the future? Yes 79%/No 11%/Maybe 10% Overall conviction rate, 96% Jury Trial Conviction Rate on Misdemeanor DV Cases: 70% American Bar Association Research 2001 Study
American Bar Association Still with the defendant? Yes 83%/No 17% Has the D threatened to harm you since his conviction? Yes 14%/No 86% Has the D damaged your property since his conviction? Yes 8%/No 92% Has the D been physically violent with you since his conviction? Yes 9%/No 91% Has the D been verbally or emotionally abusive since his conviction? Yes 37%/No 63%
Closing Comments Use the Family Justice Center vision to wrap your victims in safety and support Keep advocating, keep pushing, don t back down in your effort to admit statements of the victim Keep evolving, changing, growing Be leaders in the evolving strategies of evidence-based prosecution! Change the world one family at a time
Thank You! casey@nfjca.org National Family Justice Center Alliance (888) 511-FJCA (3522) www.familyjusticecenter.org Thank you for your commitment to change the world one abuser at a time, one family at a time