Home | DVCC Updates | DVCC 360 | February 2012 Verve: Evidence Based Prosecution: An Effective Tool in Adjudicating DV

February 2012 Verve: Evidence Based Prosecution: An Effective Tool in Adjudicating DV

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There are concrete strategies that we, as professionals operating within our civil and criminal justice systems, can employ to recognize domestic violence as the societal crime it is and hold batterers accountable despite the absence of victim participation. A critical component of this effort is Evidence Based (or Victimless) Prosecution.

 Some Components of Evidence Based Prosecution

 The practice of Evidence Based Prosecution developed in response to the fact that battered women are often unable to or unwilling to cooperate with the prosecution of their batterer. For Evidence Based Prosecution to truly flourish, it requires not only dedication and expertise within the State Attorney’s Office, but also the awareness and cooperation of every member of the community response team, from those who answer the 911 call, to the police who respond to the scene, to our partners within the judiciary.

 Specialized Police Training

 Collectively, we have moved far beyond the time in which domestic violence calls were viewed as nuisances and not “real police work.” A foundational principle of Evidence Based Prosecution is thorough and detailed police investigations. In domestic violence cases, law enforcement should assume that the victim will not be able to testify and should employ the same techniques used to investigate homicides – the only crime for which there will never be a victim available to testify. Evidence Based Prosecution relies upon physical evidence, the testimony of third parties, and exceptions to the hearsay rule.  Each of these three critical components of the prosecution relies heavily on good police work at the inception of the case.  Law enforcement must collect any and all physical evidence, including bloody clothing and broken objects; take photographs of any injuries and damaged property; and consistently obtain statements from all victims and witnesses.

 Specialized Docket Courts

 The importance of specialized docket courts to the advancement of a community’s response to domestic violence is worth an entire issue on its own, and it is one that DVCC360 intends to explore at length in the future. However, it is important to note here that the benefits obtained by Evidence Based Prosecution are closely linked with specialized docket courts. Within the docket court, each court partner develops an expertise.  Judges, prosecutors, victim advocates and defense attorneys, etc. gain an institutional knowledge of domestic violence cases.  The docket court has built in safety enhancements such as victim outreach and access to community services.  The expertise developed within these courts also allows for an expedient processing of the case, which reduces the amount of time offenders have to exert pressure on their victims.

 Commitment and Expertise of Prosecutors

 A study of almost 100 domestic violence trials in San Diego in 2001 found that uniformly high conviction rates were obtained independent of whether or not the victim testified for the prosecution or for the defense.  Several other studies seem to indicate that the approach and determination of prosecutors, rather than the availability of victims accounts for varying rates of prosecution. Similar to law enforcement, it is critical that prosecutors approach domestic violence cases with the assumption that they will not have a cooperative complainant to testify.

 Some strategies prosecutors can employ to increase the effectiveness of Evidence Based Prosecution include:

  • Process each case individually;
  • Work with local law enforcement agencies to ensure that each officer is trained and understands what is required to promote successful prosecution in domestic violence cases;
  • Embrace working with court based advocates to understand what is driving the victim’s resistance; and
  • A foundational willingness to take to trial those cases in which there is not a cooperative victim;   

 Judiciary

 Evidence Based Prosecution is part of a broader landscape that recognizes the unique challenges that victims of domestic violence face as compared to victims of other crimes. Given this reality, our responses within the criminal justice system must necessarily be structured differently to respond effectively to the safety needs of victims. In domestic violence cases, there is often a behind-the-scenes coercive control element that judges will not see anywhere else. Additionally, the issues involved in these cases are inevitably going to be intertwined with the most basic daily household functions of the parties involved. Because of this, it is critical that judges appreciate the complexities, evaluate each case independently and with critical thought, and resist the urge to implement a one-size fits all approach.

 The Impact of Crawford v. Washington

 It has been suggested that the U.S. Supreme Court’s decision in Crawford v. Washington, works to “… upset an entire methodology for the treatment of domestic violence cases,” meaning, of course, that Evidence Based Prosecution could no longer be successfully practiced in the wake of that decision. However, as highlighted above, Evidence Based Prosecution is comprised of much more than a simple reliance upon statements given by a victim to law enforcement. Additionally, while Crawford held that structured police questioning would always be considered “testimonial,” it did not delineate the scope of “testimonial.” The Court’s decision in Davis v. Washington and several lower court decisions leave a wealth of non-testimonial hearsay on the table. For example:

 In Davis v. Washington,  the U.S. Supreme Court held that 911 calls are not testimonial if the statements are made in a context that objectively indicates the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

 In U.S. v. Wilson, the U.S. District Court for the District of Columbia held that statements made to civilians are not testimonial statements.

 In U.S. v. Bodkins and Plunkett, the Western District Court of Virginia held that statements to friends and acquaintances of a declarant who does not appear to testify are not testimonial.

 There are many reasons why battered women reach out to the criminal and civil justice systems for assistance and then later recant or become reluctant to cooperate. Despite of this, however, many victims are actually supportive of prosecution. Evidence Based Prosecution remains a viable tool for communities to hold offenders accountable for their criminal abuse without placing the burden of accomplishing this on the shoulders of their victims. DVCC360 encourages all of our community partners to reflect on how these practices can be implemented more effectively at a local level to advance our common goals of victim safety and offender accountability.

Notes:

 1.  Fulkerson, A. & Patterson, S., "Victimless Prosecution of Domestic Violence in the Wake of Crawford v. Washington," Forum on Public Policy: A Journal of the Oxford Round Table. Fall 2006 Edition. Available at: http://www.forumonpublicpolicy.com/papers.htm.

2. An expedited processing of the case does not necessarily having anything to do with the length of time between the arraignment and disposition, but instead is more closely aligned with the idea of that the community is best served where there is a capability for an expedited assessment of and response to the safety needs of any given victim.

3. See Smith, B. et. al, An Evaluation of Efforts to Implement No-Drop Policies: Two Central Values in Conflict, Final Report, U.S. Department of Justice, 98-WT-VX-0029, National Institute of Justice, NCJ 187772, Washington, D.C. (2001).

4. See Klein, A., Practical Implications of Current Domestic Violence Research, Part II: Prosecution, U.S. Department of Justice, 2007M-07032, National Institute of Justice, Washington, D.C. (2008).

5. See Harrell, A., et al, Final Report on the Evaluation of the Judicial Oversight Demonstration: Executive Summary, U.S. Department of Justice, 1999-WT-VX-K005, National Institute of Justice, NCJ 219386, Washington, D.C. (2007) (a study that found fear of defendant retaliation is the most common reason victims are reluctant to cooperate with prosecutors); Hartley, C. & Frohmann, L., Cook County Target Abuser Call (TAC): An Evaluation of a Specialized Domestic Violence Court, U.S. Department of Justice, 2000-WT-VX-003,  National Institute of Justice, NCJ 202944, Washington, D.C. (2003) (approximately one third of victims interviewed were reluctant to cooperate because they relied on the batterer for housing); Belknap, J., et. al, Factors Related to Domestic Violence Court Dispositions in a Large Urban  Area: The Role of Victim/Witness Reluctance and Other Variables, Executive Summary, U.S. Department of Justice, 96-WT-NX-0004, National Institute of Justice, NCJ 184112 (2000) (victims cited fear of testifying in court, fear of not being adequately prepared for the trial process, and fear that the batterer would not be convicted).

6. Crawford v. Washington, 541 U.S. 36 (2004).

7 Jaros, David. “The lessons of People v. Mascot: Confronting judicial bias in domestic violence cases interpreting Crawford v. Washington.” American Criminal Law Review 44 (2005), at pg 998.

8. Davis v. Washington, 547 U.S. 813 (2006).

9. Id.

10. See U.S. v. Wilson, 2005 U.S. Dist. LEXIS 18910 (D.C.D.C.), as cited by Fulkerson, A. & Patterson, S., "Victimless Prosecution of Domestic Violence in the Wake of Crawford v. Washington," Forum on Public Policy: A Journal of the Oxford Round Table. Fall 2006 Edition. Available: http://www.forumonpublicpolicy.com/papers.htm.

11. See U.S. v. Bodkins and Plunkett, 2005 U.S. Dist. LEXIS 16419 (W.D. Va.), as cited by Fulkerson, A. & Patterson, S., "Victimless Prosecution of Domestic Violence in the Wake of Crawford v. Washington," Forum on Public Policy: A Journal of the Oxford Round Table. Fall 2006 Edition. Available: http://www.forumonpublicpolicy.com/papers.htm.

12. See Smith, B., et. al, An Evaluation of Efforts to Implement No-Drop Policies: Two Central Values in Conflict, Final Report, U.S. Department of Justice, 98-WT-VX-0029, National Institute of Justice, NCJ 187772, Washington, D.C. (2001) (approximately 76% of victims interviewed wanted the batterer arrested, and approximately 55% of victims wanted the batterer prosecuted, even though they may  not have been willing to declare such desires openly); Smith, N., “Righting wrongs against domestic violence victims.” VERA Institute of Justice. Available at: http://www.vera.org/content/righting-wrongs-against-domestic-violence-victims (last visited February 2012).

Why Are Battered Women Unable or Unwilling to Cooperate with the Prosecution of the Batterer?*:

 Batterer’s Behavior:

 Threats/coercion.

  • Victim’s fear of increased violence.
  • Promises of change.
  • Lies about the how the criminal justice process can be used against the victim.

 Environmental/Economic Factors

 The primary concern of most battered women is for the violence and abuse to stop, not that the perpetrator be held accountable by the criminal justice system.

  • Concerns about the impact of prosecution on children.
  • Financial abuse by the batterer

 Systemic Barriers

 Unfamiliarity with the legal process and procedures.

  • Time delay between assault and prosecution.
  • Perceptions of, or unsatisfactory past experiences with, the criminal justice system.

 *This list is by no means exhaustive, and it is important to note that these factors are not mutually exclusive. In fact, it is more common that many of them will be relevant in any given situation.