Selected Trial Issues in Domestic Violence Cases

Selected Trial Issues Selected Trial Issues in Domestic Violence in Domestic Violence

CasesCasesJudge Victor ReyesJudge Victor Reyes

Judge Catherine ShafferJudge Catherine Shaffer

Learning ObjectivesLearning Objectives

Obtain tools to plan for pretrial Obtain tools to plan for pretrial release in DV casesrelease in DV cases

Discuss appropriate voir dire Discuss appropriate voir dire approaches in DV casesapproaches in DV cases

Assess how and whether to issue Assess how and whether to issue material witness warrants for material witness warrants for alleged victims in DV casesalleged victims in DV cases

More Learning More Learning ObjectivesObjectives

Manage DV trials to Manage DV trials to accommodate the requirements accommodate the requirements of victims rights statutesof victims rights statutes

Identify effective techniques for Identify effective techniques for managing pro se defendant managing pro se defendant requests for continuancesrequests for continuances

Pretrial Release Pretrial Release ConsiderationsConsiderations

Identifying Identifying

Lethality Lethality

FactorsFactors Effect on bail?Effect on bail? Make victim Make victim

referrals?referrals? Other measures?Other measures?

Bail or alternatives Bail or alternatives to confinementto confinement EHDEHD Day ReportingDay Reporting Work ReleaseWork Release GPSGPS

Other conditions of Other conditions of release?release? No contact ordersNo contact orders Firearms surrenderFirearms surrender

LETHALITY FACTORS IN LETHALITY FACTORS IN DOMESTIC VIOLENCE CASESDOMESTIC VIOLENCE CASES

The Most Dangerous The Most Dangerous TimeTime

SeparationSeparation means greatly means greatly heightened risk heightened risk of violence and of violence and homicidehomicide

First They Talk the Talk First They Talk the Talk

BewareBeware of: of:

Prior Prior threats to killthreats to kill

Threatened or actualThreatened or actual

use of use of firearmsfirearms

Threats of Threats of suicidesuicide

And They’ve Walked the And They’ve Walked the WalkWalk

Look out for:Look out for:

Prior episodes of Prior episodes of stranglingstrangling aka “choking”aka “choking”

Prior Prior forced sexforced sex

ObsessionObsession

Red flagsRed flags include: include:

Violently or constantly Violently or constantly jealousjealous

Attitudes of Attitudes of ownershipownership

Victim is Victim is centercenter of abuser’s of abuser’s worldworld

More and MoreMore and More

Be alert toBe alert toescalationescalation::

In risk-takingIn risk-taking

oror

In level of In level of abuseabuse

The GunmanThe Gunman

Look out Look out for access for access to to firearms!firearms!

Substance AbuseSubstance Abuse

Likelihood Likelihood of lethality of lethality is greater if is greater if drug or drug or alcohol alcohol abuse is abuse is presentpresent

Cognitive ProblemsCognitive Problems

Homicide risk increases with:Homicide risk increases with:

History of History of mental illnessmental illness

Current Current depression depression

Victim PredictionsVictim Predictions

High reliability High reliability when when predicting predicting dangerdanger

Low reliability Low reliability when denying when denying dangerdanger

Ripped From the Ripped From the HeadlinesHeadlines

Mom, Dad and Mom, Dad and kids (7-16)kids (7-16)

Dad is “strict,” Dad is “strict,” “controlling” : “controlling” : wife must ask wife must ask him before any him before any decisiondecision

Dad Dad impregnated impregnated mom at 13mom at 13

07 State parenting 07 State parenting plan after Dad plan after Dad commits “minor commits “minor assault” on childassault” on child

Unreported years Unreported years of physical, verbal of physical, verbal abuse against abuse against wife, kidswife, kids

Security guard Security guard Dad has rifle.Dad has rifle.

Ripped from the Headlines Ripped from the Headlines (2)(2)

Mom tried to Mom tried to leave before, leave before, kids said staykids said stay

Mom doesn’t Mom doesn’t come home from come home from workwork

Dad, with eldest Dad, with eldest child, tracks child, tracks mom with mom with cellphone GPScellphone GPS

Mom found with Mom found with male “friend.” male “friend.” Mom and Dad Mom and Dad fight.fight.

Mom says she is Mom says she is leaving Dadleaving Dad

Dad begs her to Dad begs her to stay, says he’ll stay, says he’ll change. She says change. She says no.no.

Spotting Lethality Spotting Lethality FactorsFactors

What What lethality lethality factors (if factors (if any) are any) are present?present?

PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASEHypotheticalHypothetical

Dave Defendant (DD) is charged with Dave Defendant (DD) is charged with felony violation of a no contact order.felony violation of a no contact order.

Based on alleged violation of a no Based on alleged violation of a no contact order after 2 prior convictions contact order after 2 prior convictions for violation of NCO (VNCO).for violation of NCO (VNCO).

DD appears before you in custody on DD appears before you in custody on the preliminary appearance calendar the preliminary appearance calendar within 48 hours of his arrest.within 48 hours of his arrest.

PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical

FACTSFACTS

DD’s criminal history:DD’s criminal history: DV Violation of NCO 5/25/09DV Violation of NCO 5/25/09 Felony Drug 5/1/09Felony Drug 5/1/09 DV Violation of NCO 8/23/08DV Violation of NCO 8/23/08 DV Assault 7/7/08DV Assault 7/7/08 A few prior FTAsA few prior FTAs


Prosecutor argues:Prosecutor argues:

There were at least 2 outstanding NCO’s There were at least 2 outstanding NCO’s at time of incident and DD surely knew at time of incident and DD surely knew of them.of them.

The neighbor who called police fears DD, The neighbor who called police fears DD, who she says is a known drug dealer.who she says is a known drug dealer.

Prosecutor has not been able to reach Prosecutor has not been able to reach the victim.the victim.


Prosecution recommendation:Prosecution recommendation:

$25,000 bail.$25,000 bail. Maintain treatment at the MH Maintain treatment at the MH

center.center. No drugs or alcohol.No drugs or alcohol. No contact order re victim.No contact order re victim. No contact with neighbor as No contact with neighbor as

condition of release.condition of release.


Defense counsel argues:Defense counsel argues:

DD is indigent, disabled and unable to DD is indigent, disabled and unable to work.work.

He lives with his mother.He lives with his mother. DD diagnosed as having Bi-Polar DD diagnosed as having Bi-Polar

disorder.disorder. Started treatment last week at MH Started treatment last week at MH

center.center. Jail is not giving him his medications.Jail is not giving him his medications.


Defense counsel argument continues:Defense counsel argument continues: DD is on deferred prosecution for his DD is on deferred prosecution for his

last VNCO conviction.last VNCO conviction. He is currently clean and sober.He is currently clean and sober. As for this incident, he and girlfriend As for this incident, he and girlfriend

separated in 2009.separated in 2009. He did not know the order was still in He did not know the order was still in

effect.effect. He drove by her home wanting to see He drove by her home wanting to see

their child and a neighbor called police.their child and a neighbor called police.


Defense recommendation:Defense recommendation:

PR or EHM release, on condition PR or EHM release, on condition continued treatment at the MH continued treatment at the MH center.center.

No drugs or alcohol.No drugs or alcohol. Do not issue a no contact order as Do not issue a no contact order as

two already exist.two already exist.

PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASEHypotheticalHypothetical

You order . . .You order . . .

Voir Dire Issues in DV Voir Dire Issues in DV CasesCases

Recurring problem – jurors with Recurring problem – jurors with personal experiences or special personal experiences or special trainingtraining Juror Questionnaire?Juror Questionnaire? If used, managing juror If used, managing juror

questionnaire follow up questionnaire follow up Seal questionnaires? Seal questionnaires?

Voir Dire in DV Cases (2)Voir Dire in DV Cases (2)

Juror bias in “atypical” DV casesJuror bias in “atypical” DV cases Judge Zide’s jury: Jury realizes mid Judge Zide’s jury: Jury realizes mid

trial that case of parent beating trial that case of parent beating child is “DV’ and feels strong biaschild is “DV’ and feels strong bias

DV cases involving LGBT people, DV cases involving LGBT people, differently abled people, people differently abled people, people from non US cultures, elder abusefrom non US cultures, elder abuse

Your thoughts?Your thoughts?

Material Witness Warrants for Material Witness Warrants for Alleged Victims in DV CasesAlleged Victims in DV Cases

Why Don’t Some Victims Why Don’t Some Victims Cooperate?Cooperate?

Reasons for victim reluctance, Reasons for victim reluctance, refusal to testify, recantationrefusal to testify, recantation Fear of retaliationFear of retaliation Unwillingness to face perpetratorUnwillingness to face perpetrator Shame and/or guiltShame and/or guilt Desire to forget, move onDesire to forget, move on Denial, withdrawal, emotional Denial, withdrawal, emotional

mood swings mood swings i.e. symptoms of traumai.e. symptoms of trauma

The Victim’s RealityThe Victim’s Reality

Perpetrator Perpetrator may bemay be Living with Living with

victimvictim Familiar with Familiar with

victim’s routinevictim’s routine Have ongoing Have ongoing

accessaccess

The Victim’s Reality (2)The Victim’s Reality (2) Fear may be more than theoretical, Fear may be more than theoretical,

e.g. follow from escalating violencee.g. follow from escalating violence Perpetrator may be maintaining Perpetrator may be maintaining

coercive control: alternating coercive control: alternating affection and threats/violenceaffection and threats/violence

Children in commonChildren in common Ongoing child visitationOngoing child visitation Fear for safety of childrenFear for safety of children Fear of loss of custodyFear of loss of custody

The Victim’s Reality (3)The Victim’s Reality (3)

Economic dependence. I.e. Economic dependence. I.e. incarceration means loss of support.incarceration means loss of support. Lack of employment skillsLack of employment skills Lack of housingLack of housing Inability to pay for civil legal proceedings or Inability to pay for civil legal proceedings or

counselcounsel Victim may be economically or Victim may be economically or

otherwise responsible for otherwise responsible for perpetratorperpetrator


Fear of loss of Fear of loss of community or community or family supportfamily support

Lack of existing Lack of existing support support because of because of isolationisolation


Victim belief Victim belief that system that system will not help to will not help to stop violence stop violence or protector protect Past experiencePast experience Perpetrator Perpetrator

statements and statements and actionsactions

Victims in CourtVictims in Court

Victims look to Victims look to immediateimmediate effect on their effect on their safety and safety and relationshiprelationship

Victim Victim perspective is perspective is day to dayday to day

Victim Victim AmbivalenceAmbivalence Effect of Effect of

proceeding on proceeding on relationship, relationship, family, financesfamily, finances

Success if Success if violence stops violence stops even if no even if no sentencesentence

Victims in Court (2)Victims in Court (2)

Lack of confidence in court system Lack of confidence in court system Procedural delayProcedural delay ComplexityComplexity Discourteous court staffDiscourteous court staff MisinformationMisinformation Court order violationsCourt order violations Failure of system response e.g. no Failure of system response e.g. no

arrest, no prosecution, no court arrest, no prosecution, no court sanctionsanction

So What Should Courts So What Should Courts Do?Do?

If witness was If witness was subpoenaed subpoenaed court may court may considerconsider ContinuanceContinuance Material Material

witness witness warrantwarrant

ContemptContempt

Beware of Beware of revictimizationrevictimization Alternatives Alternatives

e.g. safety e.g. safety assurancesassurances

Negotiating Negotiating solutions short solutions short of jailing the of jailing the victimvictim

Victim Rights

What Do Statutes What Do Statutes Require?Require?

Notice about scheduling, Notice about scheduling, dispositiondisposition

A secure waiting areaA secure waiting area Return of property when no longer Return of property when no longer

neededneeded In violent/sex crimes, advocate or In violent/sex crimes, advocate or

support person to be presentsupport person to be present Right to be present at trialRight to be present at trial Input into sentencingInput into sentencing

Other Statutory RightsOther Statutory Rights

Prosecutor must make Prosecutor must make “reasonable efforts” to notify “reasonable efforts” to notify victim of nature of and reasons victim of nature of and reasons for plea agreement, and obtain for plea agreement, and obtain victim objections/comments on victim objections/comments on pleaplea

Court must be told of crime Court must be told of crime victim’s objections to/comments victim’s objections to/comments on proposed pleaon proposed plea

More Statutory Rights: More Statutory Rights: Child WitnessesChild Witnesses

Explanations in easily Explanations in easily understood languageunderstood language

AdvocateAdvocate Secure waiting areaSecure waiting area Very limited disclosure of name, Very limited disclosure of name,

address, photosaddress, photos Appropriate social service Appropriate social service

referralsreferrals

Other Statutory RightsOther Statutory Rights

Requests for victim counseling Requests for victim counseling recordsrecords

Requests for advocate recordsRequests for advocate records

Requests for medical and Requests for medical and pharmaceutical recordspharmaceutical records

Your Jurisdictions?Your Jurisdictions?

What practices do you What practices do you recommend ?recommend ?

Pro Se DefendantsPro Se Defendants

What do you do if a pro se What do you do if a pro se defendant in a DV case requests defendant in a DV case requests a continuance?a continuance?

Other suggestions on dealing Other suggestions on dealing with pro se defendants in DV with pro se defendants in DV cases?cases?

BEST PRACTICES: BEST PRACTICES: COURTROOM MANAGEMENTCOURTROOM MANAGEMENT

Maintaining Maintaining safety and safety and control:control: Keep parties Keep parties

separated separated Consider court Consider court

securitysecurity Consider using Consider using

advocatesadvocates Control parties’ Control parties’

presentations presentations

Thank you!Thank you!

Documents

Selected Trial Issues in Domestic Violence Cases