Selected Trial Issues in Domestic Violence Cases

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

2. Learning Objectives Obtain tools to plan for pretrial release 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

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

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

5. LETHALITY FACTORS IN DOMESTIC VIOLENCE CASES

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

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

8. And They’ve Walked the Walk Look out for: Prior episodes of strangling aka “choking” Prior forced sex

9. Obsession Red flags include: Violently or constantly jealous Attitudes of ownership Victim is center of abuser’s world

10. More and More Be alert to escalation: • In risk-taking or • In level of abuse

11. The Gunman Look out for access to firearms!

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

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

14. Victim Predictions • High reliability when predicting danger • Low reliability when denying danger

15. Ripped From the Headlines • Mom, Dad and kids (7-16) • Dad is “strict,” “controlling” : wife must ask him before any decision • Dad impregnated mom at 13 • 07 State parenting plan after Dad commits “minor assault” on child • Unreported years of physical, verbal abuse against wife, kids • Security guard Dad has rifle.

16. Ripped from the Headlines (2) • Mom tried to leave before, kids said stay • Mom doesn’t come home from work • 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 he’ll change. She says no.

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

18. PRETRIAL RELEASE IN DV CASEHypothetical 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). DD appears before you in custody on the preliminary appearance calendar within 48 hours of his arrest.

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

20. PRETRIAL RELEASE IN DV CASE Hypothetical Prosecutor argues: There were at least 2 outstanding NCO’s 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. Prosecutor has not been able to reach the victim.

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

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

23. PRETRIAL RELEASE IN DV CASE Hypothetical Defense counsel argument continues: • DD is on deferred prosecution for his last VNCO conviction. • He is currently clean and sober. • As for this incident, he and girlfriend separated in 2009. • 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.

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

25. PRETRIAL RELEASE IN DV CASEHypothetical You order . . .

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

27. Voir Dire in DV Cases (2) • Juror bias in “atypical” DV cases • Judge Zide’s 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 • Your thoughts?

28. Material Witness Warrants for Alleged Victims in DV Cases

29. Why Don’t Some Victims Cooperate? • Reasons for victim reluctance, refusal to testify, recantation • Fear of retaliation • Unwillingness to face perpetrator • Shame and/or guilt • Desire to forget, move on • Denial, withdrawal, emotional mood swings • i.e. symptoms of trauma

30. The Victim’s Reality • Perpetrator may be • Living with victim • Familiar with victim’s routine • Have ongoing access

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

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

33. The Victim’s Reality (4) Fear of loss of community or family support Lack of existing support because of isolation

34. The Victim’s Reality (5) • Victim belief that system will not help to stop violence or protect • Past experience • Perpetrator statements and actions

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

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

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

38. Victim Rights

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

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

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

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

43. Your Jurisdictions? What practices do you recommend ?

44. Pro Se Defendants 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?

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

46. Thank you!