Selected Trial Issues in Domestic Violence Cases Judge Victor Reyes Judge Catherine Shaffer

Learning Objectives Obtain tools to plan for pretrial release in DV cases Obtain tools to plan for pretrial release in DV cases Discuss appropriate voir dire approaches in DV cases Discuss appropriate voir dire approaches in DV cases Assess how and whether to issue material witness warrants for alleged victims in DV cases Assess how and whether to issue material witness warrants for alleged victims in DV cases

More Learning Objectives Manage DV trials to accommodate the requirements of victims rights statutes Manage DV trials to accommodate the requirements of victims rights statutes Identify effective techniques for managing pro se defendant requests for continuances Identify effective techniques for managing pro se defendant requests for continuances

Pretrial Release Considerations Identifying IdentifyingLethalityFactors Effect on bail? Effect on bail? Make victim referrals? Make victim referrals? Other measures? Other measures? Bail or alternatives to confinement EHD Day Reporting Work Release GPS Other conditions of release? No contact orders Firearms surrender

LETHALITY FACTORS IN DOMESTIC VIOLENCE CASES

The Most Dangerous Time Separation means greatly heightened risk of violence and homicide

First They Talk the Talk Beware of: Prior threats to kill Threatened or actual Threatened or actual use of firearms Threats of suicide Threats of suicide

And Theyve Walked the Walk Look out for: Prior episodes of strangling aka choking Prior episodes of strangling aka choking Prior forced sex Prior forced sex

Obsession Red flags include: Violently or constantly jealous Violently or constantly jealous Attitudes of ownership Attitudes of ownership Victim is center of abusers world Victim is center of abusers world

More and More Be alert to escalation: In risk-taking In risk-takingor In level of abuse In level of abuse

The Gunman Look out for access to firearms!

Substance Abuse Likelihood of lethality is greater if drug or alcohol abuse is present

Cognitive Problems Homicide risk increases with: History of mental illness History of mental illness Current depression Current depression

Victim Predictions High reliability when predicting danger Low reliability when denying danger

Ripped From the Headlines Mom, Dad and kids (7-16) Mom, Dad and kids (7-16) Dad is strict, controlling : wife must ask him before any decision Dad is strict, controlling : wife must ask him before any decision Dad impregnated mom at 13 Dad impregnated mom at State parenting plan after Dad commits minor assault on child Unreported years of physical, verbal abuse against wife, kids Security guard Dad has rifle.

Ripped from the Headlines (2) Mom tried to leave before, kids said stay Mom tried to leave before, kids said stay Mom doesnt come home from work Mom doesnt come home from work Dad, with eldest child, tracks mom with cellphone GPS Dad, with eldest child, tracks mom with cellphone GPS Mom found with male friend. Mom and Dad fight. Mom says she is leaving Dad Dad begs her to stay, says hell change. She says no.

Spotting Lethality Factors What lethality factors (if any) are present?

PRETRIAL RELEASE IN DV CASE Hypothetical Dave Defendant (DD) is charged with felony violation of a no contact order. Dave Defendant (DD) is charged with felony violation of a no contact order. Based on alleged violation of a no contact order after 2 prior convictions for violation of NCO (VNCO). Based on alleged violation of a no contact order after 2 prior convictions for violation of NCO (VNCO). DD appears before you in custody on the preliminary appearance calendar within 48 hours of his arrest. DD appears before you in custody on the preliminary appearance calendar within 48 hours of his arrest.

PRETRIAL RELEASE IN DV CASE Hypothetical FACTS DDs criminal history: DV Violation of NCO 5/25/09 DV Violation of NCO 5/25/09 Felony Drug 5/1/09 Felony Drug 5/1/09 DV Violation of NCO 8/23/08 DV Violation of NCO 8/23/08 DV Assault 7/7/08 DV Assault 7/7/08 A few prior FTAs A few prior FTAs

PRETRIAL RELEASE IN DV CASE Hypothetical Prosecutor argues: There were at least 2 outstanding NCOs at time of incident and DD surely knew of them. There were at least 2 outstanding NCOs at time of incident and DD surely knew of them. The neighbor who called police fears DD, who she says is a known drug dealer. The neighbor who called police fears DD, who she says is a known drug dealer. Prosecutor has not been able to reach the victim. Prosecutor has not been able to reach the victim.

PRETRIAL RELEASE IN DV CASE Hypothetical Prosecution recommendation: $25,000 bail. $25,000 bail. Maintain treatment at the MH center. Maintain treatment at the MH center. No drugs or alcohol. No drugs or alcohol. No contact order re victim. No contact order re victim. No contact with neighbor as condition of release. No contact with neighbor as condition of release.

PRETRIAL RELEASE IN DV CASE Hypothetical Defense counsel argues: DD is indigent, disabled and unable to work. DD is indigent, disabled and unable to work. He lives with his mother. He lives with his mother. DD diagnosed as having Bi-Polar disorder. DD diagnosed as having Bi-Polar disorder. Started treatment last week at MH center. Started treatment last week at MH center. Jail is not giving him his medications. Jail is not giving him his medications.

PRETRIAL RELEASE IN DV CASE Hypothetical Defense counsel argument continues: DD is on deferred prosecution for his last VNCO conviction. DD is on deferred prosecution for his last VNCO conviction. He is currently clean and sober. He is currently clean and sober. As for this incident, he and girlfriend separated in As for this incident, he and girlfriend separated in He did not know the order was still in effect. He did not know the order was still in effect. He drove by her home wanting to see their child and a neighbor called police. He drove by her home wanting to see their child and a neighbor called police.

PRETRIAL RELEASE IN DV CASE Hypothetical Defense recommendation: PR or EHM release, on condition continued treatment at the MH center. PR or EHM release, on condition continued treatment at the MH center. No drugs or alcohol. No drugs or alcohol. Do not issue a no contact order as two already exist. Do not issue a no contact order as two already exist.

PRETRIAL RELEASE IN DV CASE Hypothetical You order... You order...

Voir Dire Issues in DV Cases Recurring problem – jurors with personal experiences or special training Recurring problem – jurors with personal experiences or special training Juror Questionnaire? Juror Questionnaire? If used, managing juror questionnaire follow up If used, managing juror questionnaire follow up Seal questionnaires? Seal questionnaires?

Voir Dire in DV Cases (2) Juror bias in atypical DV cases Juror bias in atypical DV cases Judge Zides jury: Jury realizes mid trial that case of parent beating child is DV and feels strong bias Judge Zides jury: Jury realizes mid trial that case of parent beating child is DV and feels strong bias DV cases involving LGBT people, differently abled people, people from non US cultures, elder abuse DV cases involving LGBT people, differently abled people, people from non US cultures, elder abuse Your thoughts? Your thoughts?

Material Witness Warrants for Alleged Victims in DV Cases

Why Dont Some Victims Cooperate? Reasons for victim reluctance, refusal to testify, recantation Reasons for victim reluctance, refusal to testify, recantation Fear of retaliation Fear of retaliation Unwillingness to face perpetrator Unwillingness to face perpetrator Shame and/or guilt Shame and/or guilt Desire to forget, move on Desire to forget, move on Denial, withdrawal, emotional mood swings Denial, withdrawal, emotional mood swings i.e. symptoms of trauma i.e. symptoms of trauma

The Victims Reality Perpetrator may be Living with victim Familiar with victims routine Have ongoing access

The Victims Reality (2) Fear may be more than theoretical, e.g. follow from escalating violence Fear may be more than theoretical, e.g. follow from escalating violence Perpetrator may be maintaining coercive control: alternating affection and threats/violence Perpetrator may be maintaining coercive control: alternating affection and threats/violence Children in common Children in common Ongoing child visitation Ongoing child visitation Fear for safety of children Fear for safety of children Fear of loss of custody Fear of loss of custody

The Victims Reality (3) Economic dependence. I.e. incarceration means loss of support. Economic dependence. I.e. incarceration means loss of support. Lack of employment skills Lack of employment skills Lack of housing Lack of housing Inability to pay for civil legal proceedings or counsel Inability to pay for civil legal proceedings or counsel Victim may be economically or otherwise responsible for perpetrator Victim may be economically or otherwise responsible for perpetrator

The Victims Reality (4) Fear of loss of community or family support Fear of loss of community or family support Lack of existing support because of isolation Lack of existing support because of isolation

The Victims Reality (5) Victim belief that system will not help to stop violence or protect Past experience Perpetrator statements and actions

Victims in Court Victims look to immediate effect on their safety and relationship Victims look to immediate effect on their safety and relationship Victim perspective is day to day Victim perspective is day to day Victim Ambivalence Effect of proceeding on relationship, family, finances Success if violence stops even if no sentence

Victims in Court (2) Lack of confidence in court system Lack of confidence in court system Procedural delay Procedural delay Complexity Complexity Discourteous court staff Discourteous court staff Misinformation Misinformation Court order violations Court order violations Failure of system response e.g. no arrest, no prosecution, no court sanction Failure of system response e.g. no arrest, no prosecution, no court sanction

So What Should Courts Do? If witness was subpoenaed court may consider If witness was subpoenaed court may consider Continuance Continuance Material witness warrant Material witness warrant Contempt Contempt Beware of revictimization Alternatives e.g. safety assurances Negotiating solutions short of jailing the victim

Victim Rights

What Do Statutes Require? Notice about scheduling, disposition Notice about scheduling, disposition A secure waiting area A secure waiting area Return of property when no longer needed Return of property when no longer needed In violent/sex crimes, advocate or support person to be present In violent/sex crimes, advocate or support person to be present Right to be present at trial Right to be present at trial Input into sentencing Input into sentencing

Other Statutory Rights Prosecutor must make reasonable efforts to notify victim of nature of and reasons for plea agreement, and obtain victim objections/comments on plea Prosecutor must make reasonable efforts to notify victim of nature of and reasons for plea agreement, and obtain victim objections/comments on plea Court must be told of crime victims objections to/comments on proposed plea Court must be told of crime victims objections to/comments on proposed plea

More Statutory Rights: Child Witnesses Explanations in easily understood language Explanations in easily understood language Advocate Advocate Secure waiting area Secure waiting area Very limited disclosure of name, address, photos Very limited disclosure of name, address, photos Appropriate social service referrals Appropriate social service referrals

Other Statutory Rights Requests for victim counseling records Requests for victim counseling records Requests for advocate records Requests for advocate records Requests for medical and pharmaceutical records Requests for medical and pharmaceutical records

Your Jurisdictions? What practices do you recommend ? What practices do you recommend ?

Pro Se Defendants What do you do if a pro se defendant in a DV case requests a continuance? What do you do if a pro se defendant in a DV case requests a continuance? Other suggestions on dealing with pro se defendants in DV cases? Other suggestions on dealing with pro se defendants in DV cases?

BEST PRACTICES: COURTROOM MANAGEMENT Maintaining safety and control: Keep parties separated Consider court security Consider using advocates Control parties presentations

Thank you!