Document Sample
Prosecution Powered By Docstoc
					Chapter 5: Prosecution
Appendices and Training Memos
                                            Training Memo: Evidentiary Issues1
         [Section 7 of Appendix from the Second Judicial District Domestic Abuse Guidelines and
                                    Procedures, Updated July 2009]

         Although not necessarily unique to domestic abuse cases, the following issues commonly occur in
         these cases.

         1.     Spreigl evidence. The test for admission of Spreigl evidence was clarified in State v. Ness,
         707 N.W.Second 676 (Minn. 2006). The 5-part test was adopted in Minn. R. Evid. 404 (b) eff.
         9/1/06. See also the Judges’ Criminal Benchbook, Ch. [14], for an excellent discussion of this evidence.)

         2.      Minn. Stat. § 634.20. This statute specifically addresses the issue of similar conduct in
         domestic abuse cases. Evidence of similar conduct by the accused against the victim of domestic
         abuse, or against other family or household members, is admissible unless the probative value is
         substantially outweighed by the danger of unfair prejudice, confusion, undue delay or needless
         presentation of cumulative evidence. "Similar conduct" includes, but is not limited to, any offense
         enumerated in Minn. Stat. § 518B.01, subd. 2 (a) (assault, terroristic threats, criminal sexual conduct
         or interference with an emergency call) as well as violation of an OFP or HRO, harassment or
         harassing phone calls. This is not Spreigl evidence and need not be proved by clear and convincing
         evidence. State v. McCoy, 682 N.W.2d 153 (Minn. 2004).

         3.      History of relationship. A long body of Minnesota case law supports the admissibility of
         relevant evidence of the history of the relationship of the parties, particularly in domestic abuse
         cases. (Appendix 17)

         4.      Hearsay ( Minn. R. Evid. 8). Commonly raised hearsay exceptions in domestic abuse cases
         include: 803(2) [excited utterance]; 803(3) [then existing mental, emotional or physical condition];
         803(4) [statements for purposes of medical diagnosis or treatment] and 807 [catch-all exception].

         Prior consistent statements of a witness testifying at trial are not hearsay and are admissible to assist
         the trier of fact in determining the credibility of the witness. 801(d)(1)(B).

         Prior statements of a recanting victim may be admissible at trial under 801(d)(1)(D) [present sense
         impression], the hearsay exceptions listed above or for impeachment (Minn. R. Evid. 607 and 613).

         Pursuant to the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004),
         admission of any out-of-court statement at trial violates a defendant's Sixth Amendment right to
         confrontation if (1) the declarant does not testify and (2) the statement is testimonial. As long as the
         victim in a domestic abuse trial testifies at trial (even if she recants), there is no Crawford problem.
         The Crawford court did not define "testimonial," leaving this to subsequent decisions and to the
         states. At a minimum, formal police interrogations (such as Scales interviews) are testimonial. In its
         subsequent decisions in Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006), it refined
         Crawford slightly by holding that when a police interrogation is made "under circumstances

             States other than Minnesota have statutes similar to those cited here.

Training Memo: Evidentiary Issues
         objectively indicating the primary purpose…is to enable police assistance to meet an ongoing
         emergency," the statement is nontestimonial. See also State v. Wright, 726 N.W.2d 464 (Minn. 2007)
         (statements by victims to 911 operator not testimonial, statements made to officers in the field after
         emergency had ended were testimonial); State v. Warsame, 735 N.W.2d 684 (Minn. 2007) (domestic
         abuse victim's initial volunteered statement to police about assault, while in obvious distress and
         while defendant was still at large, and her responses to police interrogation about her medical
         condition were nontestimonial responses to ongoing emergency); State v. Krasky, 736 N.W.2d 636
         (Minn. 2007), cert.denied,128 S.Ct. 1223 (2008) (statements made by child abuse victim to MCRC
         nurse, after a joint police and child protection referral, were not testimonial because primary purpose
         was to assess and protect child's health and welfare). Forfeiture by wrongdoing is a specific
         exception to Crawford.

         If the victim testifies but recants and out-of-court statements are admitted substantively under any
         exception to the hearsay rule, the jury may choose to credit an out-of-court statement over the
         sworn trial testimony. See McCoy, supra.

         5.       Enhanced offenses; defense offer to stipulate. Many domestic-related misdemeanor and
         gross misdemeanor offenses are enhanceable. (See Appendix 11) Specifically, a QDVRO ("qualified
         domestic violence-related offense") misdemeanor or gross misdemeanor may be chargeable as a
         gross misdemeanor or felony if the defendant has had the requisite QDVRO past conviction(s) -
         whether misdemeanor, gross misdemeanor or felony - within 10 years of commission of the new
         offense. The enhanceable domestic-related offenses are: assault in the fifth degree, domestic assault,
         malicious punishment, harassment and violation of an OFP, HRO or DANCO. Interference with
         privacy is also an enhanceable offense, regardless of whether domestic-related. The following crimes
         qualify as QDVRO predicate convictions: murder 1 or 2; violation of an OFP, HRO or DANCO;
         assault 1-5; domestic assault; domestic assault by strangulation; CSC 1-4; malicious punishment;
         terroristic threats; harassment/stalking; interference with an emergency call; attempts to commit any
         of these offenses and violations of similar laws of other states or federal law. See Minn. Stat. §
         609.02, subd. 16.

         When charged with an enhanced offense, the defense at trial may offer to stipulate to the prior
         conviction so it is not included as an element of the offense charged. This is the tactic now generally
         accepted in enhanced DWIs and in felon in possession of a firearm cases. See State v. Clark, 375
         N.W.2d 59 (Minn. Ct. App. 1985) (DWI conviction reversed for court's refusal to accept defense
         offer to stipulate to prior DWI); State v. Allen, 375 N.W.2d 82 (Minn. Ct. App. 1985) (reversing
         court's refusal to accept defendant's stipulation to his felony status as element of offense). Unless the
         prior conviction is admissible for other reasons (such as Spreigl or impeachment evidence), these
         cases held the defense offer to stipulate must be accepted because of the great potential for
         improper use (prejudice) as against its probative value. State v. Davidson, 351 N.W.2d 8 (Minn. 1984).

         The general rule of law stated in these and underlying cases is that a defendant's offer to stipulate
         does not take away the state's right to offer evidence, especially when the evidence has relevance
         beyond the stipulation. iThat is, a defendant should not be able to unilaterally control the admission
         of relevant evidence. Davidson, supra; State v. Stillday, 646 N.W.2d 557 (Minn. Ct. App. 2002). But
         relevant evidence must, in turn, be assessed in terms of the balancing test of Minn. R. Evid. 403.
         State v. Berkelman, 355 N.W.2d 394 (Minn. 1984); Clark, supra.

Training Memo: Evidentiary Issues
         No published appellate case has yet expressly ruled that the trial court must accept a domestic abuse
         defendant's offer to stipulate to prior QDVRO convictions used to enhance the current charge.
         However, the competing principles stated above are equally applicable to this situation.

         If the prior QDVRO conviction involved the same domestic abuse victim, or another family
         member, or even a victim of domestic abuse in another relationship, both the offense and the facts
         underlying it may have relevance beyond the stipulation. A defense offer to stipulate to the prior
         conviction to remove it as an element of the offense does not eliminate the potential admissibility of
         the offense under different grounds such as Spreigl, Minn. Stat. § 634.20, history of the relationship
         or, if the defendant testifies, impeachment by prior conviction. If the evidence is admitted for any of
         these other purposes, it is unlikely denial of a defense offer to stipulate to the fact of the prior
         conviction to remove it as an element would be an abuse of discretion. See Davidson and Stillman,

         On the other hand, if the predicate conviction did not arise in a domestic abuse situation and the
         facts are not otherwise relevant, it would likely be an abuse of discretion to refuse a defense request
         to stipulate to the prior conviction in order to remove it as an element. Clark and Allen, supra.

         Note: The defendant personally (not his attorney) must stipulate on the record, either orally or in
         writing, to the waiver of an element. State v. Wright, 679 N.W.2d 186 (Minn. Ct. App. 2004); State v.
         Barker, 705 N.W.2d 768 (Minn. 2005).

         Excellent additional resources on these issues are found in the Judges’ Criminal Benchbook and
         Minnesota Misdemeanor and Moving Traffic Violations.

Training Memo: Evidentiary Issues
             Training Memo: How a Defense Attorney Reads a Domestic Violence–
                                     Related Report

         Defense attorneys’ clients typically provide one of six defenses in domestic violence cases, as
         discussed below. The defense attorney reviews the evidence, primarily by reading the police report,
         to assess whether or not the client has a strong, weak, or no case. The defense attorney evaluates the
         case by looking at the report for evidence that will support the particular defense or evidence that is
         inconsistent with the claim. Here is a list of common defenses their clients offer and what defense
         attorneys are looking for when reading police reports.

         Regardless of the specific defense the client offers, the defense attorney will ask the following kinds
         of basic questions in reading the police report:

                  •    Did the 911 tape support or undermine my clients claim?
                  •    Were there other witnesses at the scene? Were they interviewed and did the information
                       they provided support my client’s claim?
                  •    How fresh are the victim’s wounds?
                  •    What was the victim’s apparent emotional state? What was the defendant’s apparent
                       emotional state?
                  •    Did the defendant have fresh injuries or did the defendant’s clothes show sign of
                       struggle (rips, blood, etc.)?
                  •    Does the defendant have a history of violence against this victim or others?
                  •    Did the defendant make statements inconsistent with this defense?
                  •    Is there physical evidence that undermines defendant’s claim, e.g., broken furniture,
                       broken phones, house in disarray, and so forth?
                  •    Are the officer’s observations at the scene inconsistent with the defendant’s version?
                  •    Are there any signs that either the victim or defendant was high or intoxicated?

         In addition to the above questions, the defense attorney will look for additional information
         depending on which of the following defenses the client has offered:

              1. IT WASN’T ME. The client offers the “OD defense,” as in “…the other dude did it….
                 She got abused but it wasn’t me. It was …”

                  o Was the defendant at the scene or found near the scene?
                  o Does the defendant have an alibi?
                  o Is there evidence of the defendant’s presence at the location of the assault? For example,
                    could the defendant’s voice be heard by the 911 operator or a neighbor? Is there physical
                    evidence of the defendant’s presence?

              2. SHE LIED. The client says, “I never hurt her. She made the whole thing up. She’s pissed
                 because.… She got those injuries when she….”

Training Memo: How a Defense Attorney Reads a Domestic Violence–Related Report
Page 1 of 3
                  o Were the victim’s injuries consistent with the defendant’s version?
                  o Are there inconsistencies between the defendant’s version of events and information in
                    the report? For example: the victim has a forehead wound that is bleeding freely; the
                    defendant says she fell in the shower, but there was no blood in or near the bathroom
                    and no signs of clean up.

              3. IT WAS AN ACCIDENT. The client says, “I never meant to harm or frighten her. …the
                 hammer slipped out of my hand when I was hanging up a picture…”

                  o What are the inconsistencies? For example: the hammer is in the kitchen, the picture’s
                    two rooms away, and there’s no straight path from one to the other; the hammer didn’t
                    have blood on it, but the defendant’s fist did..

              4. IT WAS SELF-DEFENSE. The client says, “she snapped on me because.… I only did
                 what I had to protect myself/protect the kids. She was assaulting me….”

                  o Does the victim admit to using violence?
                  o Does the victim say why he/she used violence? Express fear of imminent harm?
                  o Did police ask the defendant for his or her account of events?
                  o Were the victim’s injuries consistent with the defendant’s version? In particular, does the
                    victim show injuries that could have been the result of my client defending him\herself?
                  o Were the defendant’s injuries consistent with the defendant’s version? Does he/she
                    show defensive injuries?
                  o What are the inconsistencies? For example: the relative size and apparent strength of the
                    victim and defendant; any objects used as weapons; fingerprints on broken objects; hole
                    in the wall is consistent with the defendant’s fist or height and not the victim’s.
                  o Did the defendant make statements inconsistent with a self-defense claim?

                 IT. The client says, “I didn’t do it and in any event she won’t testify.”

                  o Is the victim’s testimony the backbone of the state’s case?
                  o Did the defendant have injuries; if so, were they defensive only?
                  o Did the officer include observations at the scene, such as damage to property, damage to
                    the defendant’s and victim’s property?
                  o Was there physical evidence tending to establish assault by defendant? For example, a
                    broken lamp with the defendant’s fingerprints in a pattern consistent with using it as a
                  o Did the defendant make any statements at the scene or to investigators?
                  o Were there actions/threats by the defendant that might establish forfeiture of the right
                    to confrontation?

              6. I DID IT, BUT HAVE YOU MET HER? The client says: “I did it, but it’s her fault.
                 She’s a drug addict, she’s mentally ill, she’s off her meds, she’s bi-polar, she has a violent
                 temper, she starts ragging on the kids, she calls the police for nothing and then I lose a day’s

Training Memo: How a Defense Attorney Reads a Domestic Violence–Related Report
Page 2 of 3
                  wages ….I just had to keep her in the room because she wouldn’t listen to me….”

                  o Did the arrest report leave the prosecutor with a he said/she said?
                  o Is there corroborating evidence that should have been collected?

              7. I DID IT BUT THE POLICE MESSED UP. The client says, “they can’t get me,

                  o Officers conducted a custodial interrogation and there was no Scales tape.
                  o Officers conducted a custodial interrogation without a Miranda warning or with an
                    incorrect Miranda warning.
                  o The request for counsel was not honored.
                  o Police questioned the defendant after the right to remain silent was invoked.
                  o Police lacked probable cause for a search.
                  o The incident did not include any exigent circumstances allowing a search without a
                  o The officer jumped to conclusions: e.g., did not ask the suspect for an account of events
                    before making the arrest; did not do a good self-defense determination, etc.
                  o The incident involved physical evidence that officers did not collect and properly
                  o There were witnesses at the scene who officers did not question.
                  o The police report does not describe the incident in any detail with supporting

Training Memo: How a Defense Attorney Reads a Domestic Violence–Related Report
Page 3 of 3
            Training Memo: How a Prosecutor Reads a Domestic Violence–Related
             Adapted from Domestic Violence: The Law Enforcement Response, a training curriculum from The
               Domestic Abuse Intervention Project, Duluth, MN (218) 722-2781 (


 INFORMATION                                     PURPOSE: A prosecutor needs…

  • Time of incident                             …the time of the incident and the time the officer arrived to determine
                                                 whether the intervening time is brief enough that the victim may still
                                                 legally be considered to be “under the stress or excitement of the event.”
  • Time of dispatch
                                                 If so, these may be non-testimonial statements and that may allow the
                                                 prosecutor at trial to ask the officer to testify to any excited utterances or
  • Time of first contact with victim            spontaneous statements the victim made.

                                                 …the city and county where the incident occurred to be documented in
  • Location of incident                         order to prove that a particular court has jurisdiction over the matter.

                                                 …the relationship between the victim and suspect documented in order
  • Relationship between victim and              to charge and prove a domestic abuse crime or to label other crimes as
    suspect                                      ones that occurred within the context of domestic abuse; and to argue for
                                                 admission of evidence as part of the “history of the relationship.”


 INFORMATION                                     PURPOSE: A prosecutor needs…

                                                 …to know who was present during the event in order to identify
                                                 witnesses to the elements of the crime charged, which the prosecutor
                                                 must prove at trial.

                                                 The prosecutor needs their names and birthdates in order to run criminal
                                                 history checks and thereby prepare for a defense strategy of attacking
  • Name, birth date and contact                 witness credibility, which can be done by impeaching witnesses with
    information                                  certified copies of their criminal convictions.

                                                 The prosecutor also needs witness contact information to reach them in
                                                 order to prepare for trial and send subpoenas for the trial itself. For
                                                 victims who may move or change phones for safety reasons, contact
                                                 information also includes a person who will know how to reach the

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 1 of 7

 INFORMATION                                     PURPOSE: A prosecutor needs…

                                                 …documentation of the complainant’s emotional state to determine if
                                                 he/she appeared to be “under the stress or excitement of the event.” If
                                                 so, this may allow the trial prosecutor to ask the officer to testify to the
                                                 victim’s excited utterances or spontaneous statements. The prosecutor
                                                 needs documentation of what the officer observed (e.g., “She was crying
  • Emotional state of victims and
                                                 and wringing her hands. When she spoke, her lower lip quivered and her
    their children
                                                 voice trembled.”); not just documentation of the officer’s opinion (“She
                                                 seemed upset.”).

                                                  This documentation also helps a jury picture what it was like during the
                                                 event, as opposed to seeing only how witnesses behave in court.

                                                 …documentation of the suspect’s emotional state in order to be prepared
                                                 to show intent at trial, show motivation (e.g., jealousy) at trial, counter any
  • Emotional state of suspects                  defenses (e.g., accident) at trial, or counter any mitigation (e.g., remorse)
                                                 offered at sentencing.

                                                 …to know if and how a person was impaired by alcohol or drugs.
                                                 Impairment can affect witnesses’ perceptions and thus their credibility at

                                                 Under certain circumstances, alcohol or drug impairment may provide
                                                 somewhat of a defense for the suspect (e.g., he/she admits causing the
                                                 injury, but says it was an accident or he/she was too intoxicated to form
                                                 specific intent, etc.).
  • Alcohol or drug impairment of                Any impairment should be noted so that a prosecutor is aware of it
    the parties                                  before trial. Simply saying that both parties were drinking does not help.
                                                 Was the officer able to obtain a coherent statement? If not and the person
                                                 was unable to track the questions, the prosecutor needs to know that.

                                                 The absence of alcohol or drug impairment can be helpful in countering
                                                 defenses. While the officer is not expected to note the absence of
                                                 impairment (“victim not drunk”), if the officer has a practice of noting
                                                 impairment, he/she can testify that the absence of any information about
                                                 drug/alcohol means there were no signs of impairment observed.

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 2 of 7

                                                 …to know if there was a barrier to clear communication. Language,
                                                 communication, or cognition differences can affect the
                                                 comprehensiveness of the information provided by witnesses and can
                                                 affect how the court may perceive the quality of the interview if the
                                                 interviewer has no skill or ability in these areas. Any potential barrier or
  • Existence of language,
                                                 issue of this type should be noted so that the prosecutor is aware of it
    communication or cognition
                                                 before trial. The prosecutor needs to know if there might be a claim that
                                                 the officer did not get the information correct because the witness did not
                                                 understand what was being said.

                                                 This information may also be helpful in explaining to a jury a statement
                                                 that might otherwise appear to be a prior inconsistent statement.

                                                 …to know the family ties, friendship, and employment connections of
                                                 people present. Such relationships can sometimes bias or prejudice a
                                                 person for or against another. The bias or prejudice of a witness for or
                                                 against one of the parties is something both the prosecutor and defense
  • Connections, if any, between
                                                 attorney are entitled to show at trial.
    parties and witnesses
                                                 Relationships, such as gang affiliations, can also be called upon to
                                                 intimidate witnesses. Therefore, such relationships should be documented
                                                 in police reports so that the prosecutor is aware of them before trial.

                                                 …to know who can testify to what at a trial. The more witnesses, the
                                                 stronger the case. Statements of witnesses other than the victim help a
                                                 prosecutor corroborate the victim’s or suspect’s versions of the event and
                                                 evaluate the strength and seriousness of the case. Such statements can
                                                 address the number one problem in domestic violence cases: the victim
                                                 not wanting to testify.
  • Statements by victims and/or
    witnesses, including children                If the witnesses are children, their statements may help a prosecutor
                                                 determine if any intervention in addition to the criminal process is

                                                 At trial, the prosecutor may be able to use a detailed witness statement to
                                                 refresh the recollection of a forgetful witness or impeach the testimony of
                                                 a witness who is testifying differently than his/her statement to police.

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 3 of 7

                                                 … the suspect’s account of events. The suspect’s statement to police will
                                                 commit him/her to a version of events (e.g., who made first physical
                                                 contact) and to any defenses (e.g., self-defense).

                                                 The suspect’s statement to police will aid the trial prosecutor in showing
  • Statements by suspects                       intent and motivation (e.g., jealousy), countering any defenses (e.g.,
                                                 accident), or countering any mitigation (e.g., remorse) offered at
                                                 sentencing. Statements made by the suspect while still at the scene will
                                                 help the officer to focus the investigation at the scene on
                                                 observations/evidence that supports or refutes the suspect’s version of

                                                 …to know what injuries or signs of impairment the officer observed or
                                                 asked the victim to describe. The description of the victim’s visible
                                                 injuries and physical impairment will (a) help determine the charge; (b)
                                                 help assess heightened risk and thus recommend to the court heightened
                                                 bail; (c) support requests for restitution for medical care, physical therapy,
                                                 and lost wages at sentencing; (d) help a prosecutor corroborate the
                                                 victim’s or suspect’s versions of the event, and help a prosecutor evaluate
                                                 the strength and seriousness of the case; (e) serve as a back-up to injuries
                                                 that may not show up in photos; (f) make the violence more real to the
                                                 court, jury, defendant who tends to minimize the damage, and to a victim
  • Description of visible injuries or           who may be reluctant to testify; and, finally, (g) serve as a reminder to the
    physical impairment                          officer testifying in court as to what he or she observed.

                                                 The prosecutor needs a descriptive account of what the officer observed
                                                 (e.g., “There was a bleeding cut about two inches long along her right
                                                 cheekbone” or “She kept rubbing her throat and when she tried to talk,
                                                 her voice was hoarse. She told me it hurt to talk and that she had
                                                 difficulty swallowing.”); and not just a summary of the observation, such
                                                 as “she had a facial laceration.”

                                                 The description of the injuries can also help to establish whether one of
                                                 the parties was acting in self-defense.

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 4 of 7

 INFORMATION                                     PURPOSE: A prosecutor needs…

                                                 …photos and physical evidence. Photos of a victim’s visible injuries or
                                                 damage to property, and physical evidence (e.g., pulled hair, broken
                                                 picture frames, blood on the floor, etc.) are proof of elements of crimes
                                                 (e.g., an injury, damage to property over a certain dollar amount, etc.).

                                                 Photos also provide the prosecutor one of the bases upon which to assess
                                                 heightened risk and thus recommend to the court heightened bail.

                                                 Photos and physical evidence can support requests for restitution for
                                                 medical care and repair or replacement of damaged or stolen property at

                                                 Photos of both the victim’s and the suspect’s injuries and physical
  • Pictures taken and physical                  impairments will help a prosecutor corroborate the victim’s or suspect’s
    evidence gathered at the scene or            versions of the event, and help a prosecutor evaluate the strength and
    in follow-up investigation                   seriousness of the case. A victim who has been reluctant to testify may be
                                                 more ready to testify when looking at photos of the injuries weeks after
                                                 the event.

                                                 Finally, photos and physical evidence make the incident more real to a

                                                 The name of the officer taking the photos or collecting the evidence
                                                 should be documented, as the prosecutor will need to subpoena that
                                                 officer to trial in order to lay the foundation for the photos or items to be
                                                 admitted into evidence (for example: “Did you take this photo? Does it
                                                 accurately represent Mary Jones’ arm as you observed it that evening?” or,
                                                 “Did you find the hair that had been pulled from Mary Jones’ head? Did
                                                 you collect it?”).

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 5 of 7

 INFORMATION                                     PURPOSE: A prosecutor needs…

                                                 …information to help prioritize GOA cases. Suspects who avoid arrest
                                                 and prosecution by fleeing the scene present more danger to victims, who
                                                 don’t know where the suspect is or when the suspect may accost them
                                                 again. Research indicates that many will soon reoffend. Prosecutors will
                                                 prioritize these cases, as well as those involving violence with injury and
                                                 repeat offenders, for issuing warrants.
  • Suspect’s possible locations and
    if suspect was eventually located,           Additionally, flight can be evidence of guilt. Therefore, details about
    where and when this took places              where the suspect might have gone and where he/she lives or stays when
                                                 not at the address of the incident could be important clues for
                                                 investigators and prosecutors to more quickly locate the suspect at well as
                                                 to provide additional evidence of or additional witnesses to the suspect’s
                                                 guilt. Where and when the suspect was located may tend to negate a claim
                                                 that someone else did it.


 INFORMATION                                     PURPOSE: A prosecutor needs…

                                                 …medical records. Medical records of the victim’s injuries and physical
                                                 impairments help a prosecutor corroborate the victim’s or suspect’s
                                                 versions of the event and evaluate the strength and seriousness of the
                                                 case. These records can back up the officer’s description of injury and
                                                 thus help the prosecutor prove the required element of injury or disprove
                                                 any defenses the suspect may offer.

  • At the scene and at the medical              Medical records of the victim’s injury support requests for restitution for
    facility. NOTE: A medical                    medical care, physical therapy and lost wages at the time of sentencing.
    release without a date and Social
    Security Number will not be                  Statements for purposes of medical treatment or diagnosis are exceptions
    honored by any medical facility.             to the rule of evidence that prohibits the admission of hearsay statements
                                                 into evidence. Whether or not the victim participates in the prosecution, a
                                                 certified copy of her medical record can be admitted into evidence, and a
                                                 medical responder who interviewed the victim in order to provide
                                                 treatment or diagnosis can testify to what the victim said. Thus, a
                                                 prosecutor will need consent from the victim to obtain the record or
                                                 his/her contact information to obtain consent later. The prosecutor will
                                                 also need the names and contact information of medical responders.

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 6 of 7

 INFORMATION                                     PURPOSE: A prosecutor needs…

  • Suspect owns or has access to                …to know the level of danger. An assessment of risk or danger alerts a
    guns                                         prosecutor to the level of danger a case presents. Recent separation, for
                                                 example, is a significant risk factor for homicide and repeat violence. This
  • Suspect likely to use weapon                 information will impact, bail-setting, charging, decisions to dismiss, plea
    against family member or others.             negotiations, and sentencing. It is central to the two key questions facing
                                                 the court: (1) What will it take to stop this person’s violence? (2) What
  • Violence getting more severe or              will it take to protect this victim?
    more frequent. How?
                                                 NOTE: This section of the police report will be used by a number of
  • Suspect has threatened to kill               subsequent interveners.
    victim or others. Who?

  • Victim believes suspect may
    seriously injure or kill her/him.

  • Suspect obsessed or is stalking

  • Separation, OFP, divorce in past
    6 months

  • Suspect appears to be reacting to
    OFP or divorce in dangerous


 INFORMATION                                     PURPOSE: A prosecutor needs…

 Required by law.

Training Memo: How a Prosecutor Reads a Domestic Violence–Related Report
Page 7 of 7
              Training Memo: Implications of Crawford and Davis for Prosecution of
                               Domestic Abuse–Related Cases

         Even if the victim is unavailable for trial, prosecutors should strive to prove a domestic assault case,
         in way that is victim-centered but not victim-dependent. Prosecution can proceed while at the same
         time minimizing the victim’s need to confront the offender.

         One strategy that can help accomplish this goal is the use of exceptions to the hearsay rule, such as
         excited utterances, to admit into evidence the statements of the unavailable victim. In 2004 the
         United States Supreme Court issued a decision in Crawford v. Washington1 that limits a prosecutor’s
         ability to have these statements admitted. Crawford held that in order to satisfy the Confrontation
         Clause of the Sixth Amendment of the U.S. Constitution the statement is admissible only if it is not

         The U.S. Supreme Court did not completely define what a testimonial statement is. However, it did
         indicate that testimonial statements are made in a formal setting or in circumstances in which the
         declarant (the person making the statement) reasonably believed that the statement would be used
         later in trial.3

         Two years later, the Supreme Court in Davis v. Washington refined the standard for admissibility and
         held that statements are “non-testimonial” when made in the course of police interrogation under
         circumstances objectively indicating that the primary purpose of the interrogation is to enable police
         to meet an ongoing emergency. Statements 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 proceedings.”4 In other
         words, statements made in the course of providing information to officials during an ongoing
         emergency are non-testimonial, while statements made in order to prove that certain events occurred
         are testimonial.

         The Davis decision increases the importance of supporting victims so that they are willing and able
         to testify. Such support does not include threatening to place a victim in custody to ensure that she
         or he will be available to testify at trial, or carrying out that threat. Such actions may have serious,
         negative consequences for a victim’s safety and well-being. However, in appropriate cases it may be
         advisable to send a patrol officer or investigator to the victim’s residence to facilitate the victim’s
         appearance at trial. Davis also increases the importance of 911’s documentation of the nature of the
         emergency and request for assistance, and police documentation of statements made initially at the
         scene while the emergent situation is continuing.

           541U.S. 36 (2004)
           If the declarant is unavailable for trial, testimonial statements may be admitted if the defendant had a prior
         opportunity to cross-examine the declarant. Crawford 541 U.S. at 68.
           Crawford, at 51-54.
           Davis v. Washington, 126 S. Ct. 2266 (2006)

Training Memo: Implications of Crawford and Davis for Prosecution of Domestic Abuse–Related Cases
Page 1 of 3
         Because the victim’s availability at trial in domestic abuse cases is a continuing challenge, prosecutors
         should be prepared to assess each case in light of applicable case law and where appropriate, argue
         that the victim’s statements are non-testimonial and thus admissible. 911 calls and initial statements
         at the scene will be primarily for the purpose of assessing an emergency, and securing the safety of
         the victim and the responding police officers. Admissibility of these statements will enhance the
         likelihood of successful prosecution. Concurrent with assessing whether statements are testimonial,
         prosecutors should also be evaluating the circumstances of each case where the victim has become
         unavailable to assess whether the defendant caused the unavailability and thus forfeited his right to
         confront the witness (see Training Memo: Forfeiture by Wrongdoing).

         Many defendants are on probation when they commit a new domestic assault.5 Given the
         prosecution difficulties post-Davis, in some cases a probation violation hearing may provide a more
         successful vehicle for holding defendants accountable for their behavior. The Sixth Amendment
         Confrontation Clause does not apply to violation hearings. Evidence that may not be admissible
         pursuant to Davis in a new prosecution for the new offense should be admissible in the violation
         hearing.6 Another advantage of pursuing a violation of already-imposed conditions of probation is
         that it is likely to be a much faster process than prosecuting a new charge. Swift consequences for
         prohibited behavior may be a more effective deterrent than a long-delayed new prosecution. Also, it
         is well settled that double jeopardy does not attach to revocation hearings and thus there is no bar to
         proceeding with a revocation hearing and also prosecution for the same conduct.7 Revocation of
         probation or parole is considered a continuation of the original prosecution and a reinstatement of
         the original sentence rather than punishment of the more recent misconduct.8 The purpose of the
         violation hearing is to determine whether the conditions of probation have been violated, not to
         convict the defendant of a new crime and thus double jeopardy does not apply.

         Recommendations for practice

               Inform the victim of the risks and benefits of testifying, and the risks and benefits of not
               Do not threaten to or place a victim in custody in ensure witness availability. In appropriate
               cases consider sending a patrol officer or investigator to the victim’s residence to facilitate the
               victim’s appearance at trial.

         5 Matthew Du Rose, et al., Bureau of Justice Statistics, FAMILY VIOLENCE STATISTICS, NCJ 207846 (June 2005), at 47

         (finding that at the time of most recent arrest for family assault, 38.2% of defendants had a criminal justice status
         including 27.9% who were on probation and 4.4 % who were on parole).
         6 The majority view in the federal courts and most state courts have held that Crawford and the Sixth Amendment do not

         apply to revocation hearings. See Tom Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev 311 n.222 (2006).
         With respect to requirements for revocation hearings under the Due Process Clause, the United States Supreme Court
         has permitted the prosecution to introduce reliable hearsay where necessary in the interests of justice. Morrissey v.
         Brewer, 408 U.S. 471, 489 (1972).
         7 Several circuits have held that the Double Jeopardy Clause does not apply to parole or probation revocation

         proceedings. See e.g. Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir. 1986); Thompson v. Reivitz, 746 F.2d 397, 399
         (7th Cir. 1984), cert. denied, 471 U.S. 1103 (1985); United States v. Whitney, 649 F.2d 296,298 (5th Cir. 1981); Dunn v.
         California Dep’t of Corrections, 401 F.2d 340,342 (9th Cir. 1968). Additionally, the United States Supreme Court has
         held that a probation revocation hearing is not a stage in the criminal prosecution of an individual. See Morrissey at 480.
         8 See State v. McKenzie, 542 N.W.2d 616, 620 (Minn. 1996).

Training Memo: Implications of Crawford and Davis for Prosecution of Domestic Abuse–Related Cases
Page 2 of 3
               In the event the victim is reluctant to participate, consider the victim’s safety in addition to the
               other goals of prosecution.
               If the victim is unavailable for trial, evaluate the contents of the 911 call and the description of
               the scene and circumstances in the police reports to determine if a good faith argument may be
               made that victim statements to law enforcement are non-testimonial
               Work in partnership with advocates to support victims through the prosecution process and
               increase the likelihood that victims will be willing and able to testify at trial.
               Review police reports, 911 calls, interviews, statements and the medical condition of the victim
               to assess whether the circumstances objectively indicate that the primary purpose of the 911
               response and the questions at the scene were to enable police assistance to meet an ongoing
               Increase use of violation hearings when new offense presents evidentiary difficulties and
               proceeding with the probation violation will enhance offender accountability and victim safety.
               Supervising attorneys should review random files in which the victim did not appear at trial to
               determine if a Crawford review occurred and if elements were appropriately assessed.
               In cases where the defendant was on probation when new offense occurred, supervising
               attorneys should review files in collaboration with probation to determine if probation
               violations are increasingly being brought forward and utilized to hold defendant’s accountable
               for their actions.
               Train 911 operators in safety-oriented responses.
               Train responding police officers on the decisions in Crawford and Davis and how those decisions
               affect police actions.
               Train probation officers on the increased importance of bringing forward probation violations.

         Case Law

         •   Crawford v. Washington, 541 U.S. 36 (2004)
         •   Davis v. Washington, 126 S. Ct. 2266 (2006)
         •   State v. Wright, 726 N.W.2d 464 (Minn. 2007)
         •   State v. Warsame, 735 N.W.2d 684 (Minn. 2007)

Training Memo: Implications of Crawford and Davis for Prosecution of Domestic Abuse–Related Cases
Page 3 of 3
                  Training Memo: The Implications of Forfeiture by Wrongdoing for
                           Prosecution of Domestic Abuse–Related Cases

         United States Supreme Court Cases

         Both the Crawford and Davis decisions recognize the doctrine of forfeiture by wrongdoing. If the
         defendant obtains the absence of the witness by wrongdoing, the defendant forfeits his
         constitutional right to confront the witness and his constitutional objection to hearsay statements of
         the witness. In domestic violence cases, the victim/witness is especially vulnerable to threats and
         intimidation. Studies suggest that over half of defendants in domestic violence cases issue threats or
         retaliate against accusers.1 The Crawford and Davis decisions, by making the live testimony of the
         victim at trial more important than it had been, also increased the significance of the doctrine of
         forfeiture by wrongdoing. Vigorous pursuit of the forfeiture doctrine will lead to more successful
         prosecutions and discourage defendants from attempting to intimidate victims.

         The U.S. Supreme Court held in Giles v. California, 128 S. Ct. 2678 (2008), that unconfronted
         testimony is not admissible under the forfeiture doctrine without a showing that the defendant
         intended to prevent a witness from testifying. The Court noted that acts of domestic violence are
         often intended to dissuade a victim from resorting to outside help, and that a defendant’s prior
         abuse or threats of abuse, intended to dissuade a victim from resorting to outside help, would be
         highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s
         absence, as would evidence of ongoing criminal proceedings at which the victim would have been
         expected to testify.

         Minnesota Supreme Court Cases—Evaluating the Defendant’s Actions

         Whether a defendant has acted to intimidate a witness with the intent of procuring her/his absence
         is a fact-specific determination. The following cases provide guidance regarding the need for the
         state to demonstrate that the surrounding circumstances that show that the defendant’s actions were
         intended to procure the unavailability of the witness.

         In two companion cases, an accomplice to murder gave statements at her arrest and at her own trial
         but then refused to testify at the defendant’s trial, stating that she feared she or her child would be
         harmed. The Minnesota Supreme Court found that the defendant forfeited his right to
         confrontation even though there was no evidence showing that the defendant threatened the
         accomplice between the time of her grand jury testimony and the time of the trial. The court cited
         the fact that the defendant had repeatedly threatened her to induce her to effectuate his murder plan,
         sent a man who had beaten her who told her to follow defendant’s orders, and that the woman who
         defendant planned to murder was a potential witness, See State v. Olson, 291 N.W.2d 203 (Minn.
         1980), and State v. Black, 291 N.W.2d 208 (1980).

          See State v. Mechling, 633 S.E. 2d311, 324 (W.VA. 2006). See also Randall Fritzler & Lenore Simon, Creating a
         Domestic Violence Court: Combat in the Trenches, 37 Ct. Rev. 28, 33 (2000) (indicating that research shows that batterers
         threaten retaliatory violence in as many as half of all cases and 30 per cent of batterers assault their victims again
         during the predisposition phase).

Training Memo: The Implications of Forfeiture by Wrongdoing for Prosecution of Domestic Abuse–Related Cases
Page 1 of 3
         A year later the Minnesota Supreme Court found that a claim of forfeiture would not be upheld
         when the “state did not show that there was any direct or indirect evidence indicating that
         defendant’s conduct had caused the Fischer’s [the witnesses] silence. . . .” State v. Hansen, 312
         N.W.2d 96, 105 (1981). In Hansen, the court found that while the witnesses may have feared they
         would be harmed, there was no evidence that the defendant or anyone acting on his behalf had
         intimidated the witnesses by general or specific threats.

         In a later case, the Minnesota Supreme Court upheld a finding of forfeiture in which both the
         witness and the defendant were members of the same gang. State v. Byers, 570 N.W.2d 487 (Minn.
         1997). The court in this case found that the gang “conspiracy of silence” implicitly included the
         threat of violence against any member who broke the agreement. The conspiracy of silence in
         conjunction with the defendant’s wearing of gang colors and the entry into the courtroom of several
         other persons attired in gang colors when the witness was called to testify was sufficient to find that
         the defendant had waived his sixth amendment rights to confront the witness. The court stated that
         “if you can intimidate a witness in open court with impunity there is no need to engage in violence
         or threats of violence. . . .[A] witness’ absence and silence may be procured by agreement as
         effectively as it can be by violence or threats of violence.” Byers at 495.

         It is clear from these cases that the court is looking at all of the circumstances in order to determine
         if the defendant, by his actions, forfeited his right to confront a witness. Therefore, prosecutors
         need to undertake a similar evaluative process in domestic violence cases.

         Use in Domestic Violence Cases

         For the forfeiture doctrine to be useful in domestic violence cases, it must be understood within the
         context of the battering relationship. Courts must be educated to recognize that the domestic
         violence case may not follow the typical witness tampering scenario in which a crime is committed,
         and later the defendant engages in specific acts that cause the witness’s unavailability (e.g., the phone
         call from jail threatening to kill the witness if the witness testifies at trial). While such threats may
         occur in battering relationships, a range of other behaviors must be also considered in determining if
         the defendant’s actions caused the unavailability of the victim or witness in a domestic violence case.
         The typical time frame of a criminal act, arrest, and intimidating or threatening behavior toward the
         witness may not be present in the same time sequence in domestic violence cases. Threats directed
         at the victim, her children or other family members may have occurred prior to the current incident
         as a means of controlling her behavior. The patterned nature of domestic violence means that a
         broader time frame should be considered by the court.

         The pattern of behavior present in domestic violence cases also means that the court should be open
         in evaluating what it considers to be misconduct that causes unavailability. It may be extremely
         challenging to separate out those actions that would typically be viewed as “witness tampering” from
         the violent incident that resulted in the arrest. Because a battering relationship is likely to consist of a
         series of abusive actions, it is difficult to divide the defendant’s prior criminal act from the act of
         intimidating the victim or witness. In battering relationships, additional acts to intimidate the victim
         or witness are often not necessary. The acts of domestic violence are sufficient to obtain the victim’s
         unavailability. However, pursuant to the Giles case, the defendant must also have intended that

Training Memo: The Implications of Forfeiture by Wrongdoing for Prosecution of Domestic Abuse–Related Cases
Page 2 of 3
         In domestic violence cases where there has been a long history of violence, the possibility of
         forfeiture should be considered when the victim is unavailable. As with other preliminary evidentiary
         questions, hearsay should be admissible to prove forfeiture and the standard of proof should be
         preponderance of the evidence. 2

         Recommendations for Practice

         The constraints placed on the admissibility of evidence as a result of the Crawford and Davis cases
         mean that prosecutors must be creative in developing new tools and modifying existing ones to
         enhance the likelihood of successfully prosecuting domestic assault cases. In light of the critical role
         the forfeiture by wrongdoing doctrine plays in prosecution as a result of the Crawford and Davis
         decisions, prosecutor’s offices should consider directing resources to assist the actions of
         collaborating agencies and to engage in the following measures:

                 Request review of recorded post-arrest defendant phone calls from jail or prison.
                 Train police, when responding to a domestic violence case, to ask specifically whether the
                 defendant has ever made statements directed toward the victim, her children and other family
                 members threatening harm if the victim contacts the police or participates in the prosecution
                 Train police and investigators to inquire about and gather voice mails, emails, text messages,
                 either prior- or post-arrest sent by the defendant that may include threats.
                 Where appropriate, inquire of advocates working with the victim if statements by the defendant
                 have been made threatening the victim or her family.
                 In collaboration with the police and advocates, institute post-arrest procedures to follow-up
                 with the victim to inquire about post-arrest contact between the defendant and victim.

         2   See Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271 (2006).

Training Memo: The Implications of Forfeiture by Wrongdoing for Prosecution of Domestic Abuse–Related Cases
Page 3 of 3
             Training Memo: Use of Expert Witnesses in Domestic Violence—Related

         The widespread myths surrounding domestic violence lead to a focus on the behavior of the victim
         rather than the behavior of the defendant. Many people, unaware of the effects of trauma, may find
         the victim’s behavior baffling and will have expectations about how a victim “should” behave. When
         the expectation of how a victim should behave conflicts with the victim’s actual behavior, the public
         may find a victim’s behavior to be “counterintuitive,” and therefore, evidence of her lack of
         credibility. However, experts who work with victims of domestic violence recognize that this
         behavior, viewed as counterintuitive by the public, is often a common response to trauma.

         Counterintuitive victim behavior is actions or statements made by victims which seem to be illogical
         or poor decisions by the victim; behaviors that are not what the average person or juror would
         “expect” from a victim. The term “counterintuitive behavior” is not a psychological term nor does it
         define a victim’s behavior. Rather, it defines the public’s perception of the victim’s behavior and the
         disconnect between this perception and the victim’s actual behavior.

         Not surprisingly, defense attorneys will exploit public distrust of domestic violence victims,
         suggesting that the victim’s behavior is not consistent with a “real” victim. The need for the victim’s
         credible testimony is often a cornerstone of the prosecutor’s case. If the perceived counterintuitive
         behavior is not explained, it may become an extremely
         effective defense weapon.

         Traditionally, expert testimony was introduced primarily by attorneys defending
         victims of domestic violence who assaulted their abusers. This kind of testimony often focused on
         explaining Battered Woman Syndrome (BWS) to the jury. However, when explaining common
         victim behaviors, the terms and strategies applicable for a defense case may not be applicable to the
         prosecution. Expert testimony in the prosecution context is to explain to the jury myths about
         domestic violence and the effects of domestic violence on the victim.

         Admissibility of Expert Testimony2

         Battered Woman Syndrome

         In State v. Hennum, 414 N.W.2d 793 (Minn. 1989) the Minnesota Supreme Court held that expert
         testimony on battered woman syndrome is admissible because it would help to explain a
         phenomenon not within the understanding of an ordinary lay person. The Court extended its
         holding in Hennum in the 1997 case of State v. Grecinger, 569 N.W.2d 189 (Minn. 1997) by determining
         that expert testimony was admissible when offered by the prosecution. The Court found that the
         expert's testimony on battered woman syndrome could help the jury understand why the victim

         1 Much of the material in this memo is adapted from “Introducing Expert Testimony to Explain Victim Behavior in Sexual and
         Domestic Violence Prosecutions”, Jennifer Long, Nat’l District Attorneys Assoc., (August 2007).
         2 A detailed explanation of the admissibility of expert testimony is beyond the scope of this memo. The memo outlines

         the basic issues to consider with specific focus on domestic violence cases and use of experts in that context.

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 1 of 6
         returned to the relationship with the defendant after the assaultive incident, told contradictory
         stories about how her injuries were inflicted, waited almost three years to pursue prosecution of
         Grecinger, and recanted statements she made to the police and the district court regarding
         Grecinger's abuse. The Court also found that expert testimony on BWS would help the jury
         understand the behavior of a woman suffering from the syndrome, which might otherwise be
         interpreted as a lack of credibility. Subsequent decisions have held that BWS testimony is admissible
         where the prosecution offered the testimony to explain why the victim recanted her story at trial and
         gave testimony that tended to exculpate the defendant. State v. Vance, 685 N.W.2d 713 (Minn. App.
         2004); appealed after new sentencing hearing State v. Vance, 2008 WL 942553 (Minn. App. Apr 8, 2008),
         affirmed State v. Vance, 765 N.W.2d 390 (Minn. 2009); State v. Plantin, 682 N.W.2d 653 (Minn. App.
         Domestic Violence and Its Effects

         This training memo does not advocate using BWS evidence to explain victim behavior. Rather,
         testimony on domestic violence and its effects is the more effective information that should be
         brought before the fact-finder.

         The above case law serves as a firm foundation for the admissibility of this kind of expert evidence.
         Moreover, the Court has held that the Frye-Mack test for the admissibility of expert testimony does
         not apply to social science evidence that offers an explanation of behavior.3 See State V. MacLennan,
         702 N.W.2d 219 (Min. 2005). Rather, the standard of R. 702, Minn. R. Evid. applies. That rule
         requires that if scientific, technical, or other specialized knowledge will assist the trier of fact to
         understand the evidence, a witness qualified as an expert by knowledge, skill, experience, training or
         education may testify. The Court looks to “whether the testimony will be helpful. If the subject of
         the testimony is within the knowledge and experience of a lay jury and the testimony of the expert
         will not add precision or depth to the jury's ability to reach conclusions about that subject which is
         within their experience, then the testimony does not meet the helpfulness test. In determining
         admissibility, of course, the trial court also may rely on those considerations expressed in Minn. R.
         Evid. 403. Thus, the court may exclude the testimony if the court concludes that it will confuse the
         jury.” Id. at 233.

         In Minnesota, if the witness is qualified as an expert, social science evidence explaining battering and
         its effects and counterintuitive victim behavior is admissible. The Frye-Mack test for admissibility of
         expert testimony does not apply. Rather, the court looks to the helpfulness of the evidence.

         Why Use of Expert Testimony on Domestic Violence and Its Effects is Important

         Myths about Domestic Violence and Why They Matter

         Common myths about domestic violence include:

         3Minnesota adheres to the Frye-Mack standard for the admissibility of expert testimony. This standard requires that
         when novel scientific evidence is offered, the trial court must determine whether it is generally accepted in the relevant
         scientific community and whether the evidence has foundational reliability. See Goeb v. Tharaldson, 615 N.W.2d 800
         (Minn. 2000).

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 2 of 6
                  If it was really that bad, the victim would leave.
                  Victims of domestic violence provoke the violence.
                  Domestic violence is caused by alcohol or drugs.
                  Domestic violence is out-of-control behavior.
                  Domestic violence is caused by stress.
                  Women exaggerate the problem of domestic abuse.
                  Battered women are masochistic and provoke abuse; they must like it or they’d leave.

         It is important to counter these myths because studies have found that belief in the myths of
         domestic violence negatively impacts the evaluation of a victim’s credibility.4

         Victim behaviors may be confusing to jurors. Therefore, jurors may rely on myths or substitute their
         own wrong judgments. Further,“[m]any jurors evaluate a victim’s actions as if she had a wide range
         of options and support resources available to her, and tend to blame her for staying in abusive
         relationships [or for her assault.]”5 Jurors often regard a victim’s behavior as evidence that she is
         unreliable. For example, one case notes, “[to] the average juror untutored in the psychological
         dynamics of domestic violence, the victim’s vacillating behavior towards the defendant—in
         particular her back and forth attempts to end the relationship—might have seemed counterintuitive
         and might have even suggested her version of events was inherently unreliable
         and unworthy of belief.”6 A victim’s recantation is not self-explanatory. Without an explanation for
         it, jurors might substitute their own myths to explain the behavior. Unfortunately, the resulting
         misperception of the victim’s credibility may lead to a “not guilty” verdict.

         Prosecutors need to place a victim’s counterintuitive behavior in context so that jurors do not
         assume that certain conduct is evidence of a victim’s dishonesty and lack of credibility. Prosecutors,
         therefore, should consult an expert—social worker, therapist, counselor, advocate—to explain
         victim behavior to the jury.7

         If the prosecutor does not address and attempt to explain the counterintuitive behavior, either
         through expert testimony or the victim herself, the jury will be left without the proper
         context in which to evaluate her credibility.

         Focus of Testimony

         4 See Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers through Expert Witness

         Testimony of the Common Experiences of Battered Women, 2 S. CAL. REV. L. & WOMEN’S STUD. 219, 235 (1992)
         (stating “studies document the findings that most people maintain misinformation about domestic abuse, which is
         detrimental to their evaluation of the battering victim’s credibility”).
         5 Nancy Lemon, Rhonda Martinson, & Carlose Monagas, Expert Witnesses in Domestic Violence Trials:

         Policy Pros and Cons for Prosecutors, at 11 (2001).
         6 Com. V. Goetzendanner, 679 N.E.2d at 240, 243 (Mass. App. Ct. 1997).
           In some jurisdictions in Minnesota, prosecutors have been successful in qualifying advocates as experts and having
         them testify to explain, based on training and experience, domestic violence and its effects including victims’
         counterintuitive behaviors. Experts do not testify about the particular victim, but rather how victims as a group may
         behave. The testimony has been effective in countering assumptions and myths that may have a negative influence on
         jurors. Experts can be helpful to prosecutors in preparing a case whether or not their testimony is used at trial. Experts
         can provide the benefit of their experience and help prosecutors draft questions on direct examination and may help
         prosecutors to draft questions for a recanting victim.

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 3 of 6
         Expert testimony should focus on descriptions of the myths surrounding domestic violence, the
         dynamics of domestic violence, and common victim behaviors. The testimony would not address
         whether this victim suffers from BWS but rather would address battering and its effects. The use of
         an expert to testify about BWS is both ineffective and vulnerable to attacks that it is unreliable.
         Using syndromes and disorders to describe victim behavior risks making jurors believe that the
         victim suffers from a pathology. Also, because use of this term means that the expert in offering a
         subjective opinion about the victim, either directly or through a hypothetical, his/her opinions can
         be countered by a different expert’s opinion of the same facts.

         This kind of defense counter-attack can be neutralized by focusing the expert testimony on
         observations, experience, and/or review of articles or studies which address: (1) a general discussion
         of domestic violence; (2) the existence and prevalence of common myths surrounding this type of
         violence; and (3) common victim responses to trauma or behaviors in domestic violence cases. This
         approach does not include an expert opinion on whether a victim suffers from a syndrome or
         disorder, whether her behavior is consistent with an individual who suffers from a syndrome or
         disorder, or whether her behavior was caused by a particular event. Rather, it focuses on the
         observed behavior of victims who have experienced battering. Because the content of the testimony
         is objective (facts and observations) rather than subjective (diagnosis and conclusion), it remains
         effective testimony and thus, less vulnerable to defense attack.

         This testimony should be based upon the expert’s own experiences with victims and observations of
         victims’ behaviors. For example, workers at battered women’s shelters and battered women’s
         advocates have qualified as experts and have testified regarding their own observations that most
         women do not report the first assault, even to friends and family, and they rarely report the first
         assault to police. Through hundreds and thousands of contacts with battered women, workers in
         shelters and programs are able to observe the behavior of victims of violence. In addition to
         referring to these observations during testimony, if the expert is familiar with any relevant literature
         or studies addressing victim behavior, they also should refer to them. The expert should also discuss
         his or her training and experiences as well as the public’s belief in myths about domestic violence.
         The expert’s testimony should focus on victim behaviors that are relevant to the case in which they
         are testifying. Experts should not, however, have reviewed the case file, nor should they give an
         opinion about this particular victim’s behavior. Doing so risks exposing the victim to an examination
         by a defense expert. Further, it risks becoming excludable testimony on a victim’s credibility rather
         than admissible testimony about common victim behavior.

         Although expert testimony may include current research or articles related to victim behavior,
         the most effective qualification often will be an expert’s extensive experience working with and
         observing domestic violence victims. The persuasiveness of the expert’s testimony will depend on
         the extent of the expert’s experience as well as his/her ability to articulate the observations and
         knowledge gained in the course of that her experience. Because this type of testimony is an objective
         recitation of observations and experience, cross-examination likely will focus on the expert’s
         credibility, breadth of experience, knowledge of the literature and bias towards victims of domestic

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 4 of 6
         Preparation of Expert

              •     Explain to the expert the necessary qualification requirements.

              •     Prepare the expert for any challenges to their qualification.

              •     Be sensitive to the fact that experts may worry that they will not be qualified.

              •     Never acquiesce to a defense request to stipulate to an expert’s qualifications. It is important
                    for the judge and the jury to understand the breadth of the expert’s qualifications as the
                    expert’s qualifications relate directly to the expert’s credibility.

              •     Discuss the subject on which the prosecutor will seek to offer the witness as an expert.

              •     Although the memo has used the term counterintuitive victim behavior, prosecutors should
                    not offer their expert as an “expert in counterintuitive behavior”. Rather an expert may be
                    qualified in domestic violence, domestic violence myths, common victim behavior in
                    domestic violence cases or domestic violence and its effects.

              •     Meet with the expert to go over the focus of their direct testimony.

              •     Prepare the expert for cross-examination. If possible, preparation should include a mock

         Common Defense Objections

         Defense attorneys commonly object to the introduction of expert testimony on victim behavior on
         the following grounds:

              1.    Relevance
              2.    Admissibility
              3.    Need for the expert testimony (i.e., the issue is not beyond the ken of the ordinary person)
              4.    Qualifications of the expert
              5.    Prejudice
              6.    Improper introduction of a defendant’s uncharged misconduct
              7.    Improper bolstering
              8.    Lack of foundation
              9.    Legal conclusion(i.e., you’re saying that she was a victim of domestic violence)
              10.   Speculation (i.e., you have no personal knowledge of this case, but you are saying she was a
                    victim of domestic violence)

         Recommendations for Practice 8

         8For a list of suggested questions to qualify an expert on victim behavior in domestic violence cases See “Introducing
         Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions” Appendix A, Jennifer Long, National

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 5 of 6
               Consider using expert evidence that focuses on explaining domestic violence and its effects,
               widespread myths about domestic violence, and counterintuitive victim behavior.

               Experts can be qualified based on their experience.

               Consider requesting that an advocate or domestic violence agency staff person serve as an
               expert on domestic violence and victim behavior. Discuss the possibility with the local advocate
               and/or agency staff.

               In Minnesota, the Frye-Mack test does not apply to social science evidence that is offered to
               explain behavior. Rather, the test for admissibility is helpfulness pursuant to R. 702, Minn. R.

         District Attorneys Association, (August 2007). For a list of introductory questions for an expert to educate the jury on
         domestic violence and victim behavior See Id. at Appendix B.

Training Memo: Use of Experts in Domestic Violence—Related Cases
Page 6 of 6
                                Sample Policy Language for Prosecuting Authorities

            When to Compel a Victim to Testify: Using a Witness Warrant When a Victim Fails to
                                         Appear as a Subpoenaed Witness
         The Blueprint authors are constructing a number of policies using samples from other jurisdictions
         and applying them to the integrated Blueprint package. Whether and when to compel a victim’s
         testimony is one such policy. This sample is based on one prepared by Aequitas: The Prosecutors'
         Resource on Violence Against Women, a new technical assistance and training provider created to
         address the needs of prosecutors and allied professionals, particularly OVW grantees, who work on
         issues related to the prosecution of violence against women.1

         “It is the policy of this office that no prosecutor may request a warrant for the arrest of a domestic
         violence victim for non-appearance or for not cooperating in a domestic violence prosecution unless
         said prosecutor has obtained the approval of the supervising prosecutor. As prosecutors are
         considering whether to petition the office for a warrant for a domestic violence victim, the following
         training memo serves to provide a background for this policy and practice recommendations for its

         In domestic violence prosecutions, compelling the testimony of an uncooperative domestic abuse
         victim through a warrant2 or other means is ineffective and may be dangerous. Model prosecution
         and law enforcement programs demonstrate nationally that its widespread use is counterproductive,
         increasing risk to victims and decreasing offender accountability overall. Accordingly, federal
         Violence Against Women legislation and policies have strongly discouraged its use as a direct safety
         risk to victims. Jurisdictions that inappropriately compel testimony risk losing federal funding
         directly and risk the funding of partner agencies by inappropriately coercing victim testimony.
         However, in very rare circumstances, its application to cases with unusually high victim safety risks
         may be appropriate.

         Victims of domestic abuse must be treated differently than other crime victims because they are not
         similarly situated to other crime victims and witnesses. The prospective testimony of victims of
         domestic abuse often places them in imminent danger of future harm by their abusive intimate
         partner.3 Furthermore, victims of abuse commonly experience the justice system at the same time
         that their abusers are re-victimizing them by attempting to prevent them from testifying through
         intimidation, solicitation to commit perjury, bribes, and even threats. Offenders appreciate that they

          Aequitas is a partnership between OVW, the Pennsylvania Coalition Against Rape (PCAR), and the Battered Women's
         Justice Project (BWJP).
             MINN. STAT. § 588.20 (2009).

Training Memo: When to Compel a Victim to Testify: Using a Witness Warrant When a Victim Fails to Appear as a Subpoenaed Witness
Page 1 of 4
         have a constitutional right to confront their accuser and that a victim’s failure to cooperate or appear
         at trial will likely result in a dismissal of their criminal case. This re-victimization is compounded
         when abusers exploit victims’ financial hardships, family or childcare needs, fear, societal norms, and
         isolation. Moreover, victims who are compelled by law enforcement to testify in spite of these risks
         may ultimately have their safety compromised in the immediate future and in the long-term be
         unwilling to disclose future abuse.
         In very rare circumstances, however, it may become necessary for prosecutors to use these extreme
         measures to ensure the immediate safety of the victim or third parties. In these rare circumstances,
         prosecutors must give substantial consideration to potential sanctions, system roles, and best
         practices to improve offender accountability and reduce overall impact on victims and third parties.

         Arresting victims for failing to cooperate in a prosecution not only creates significant safety risks for
         victims, but also may endanger federal funding. VAWA-funded offices4 are “strongly discouraged from
         proposing projects that include any actives that may compromise victim safety such as the following: ...Requiring victims
         to report sexual assault, stalking, or domestic violence crimes to law enforcement or forcing victims to participate in
         criminal proceedings…; and procedures that would force victims of domestic violence to testify against their abusers or
         impose other sanctions on them. Rather, procedures that provide victims the opportunity to make an informed choice
         about whether to testify are encouraged.”5 Moreover, these actions can also endanger VAWA funding of
         partner agencies, regardless of whether they were involved in arresting the victim. When a group of
         agencies works collaboratively on a VAWA grant, the entire grant could be jeopardized, even though
         only one of the partner agencies engaged in the problematic behavior, underscoring the seriousness
         of these decisions and the immediate impact on victims and justice partners.6

         Independent of federal funding sanctions, compelling victim testimony in abuse cases in lieu of
         other law enforcement initiatives is counterproductive. Victims often become uncooperative with
         the criminal prosecution as the direct result of the defendant attempting to intimidate, harass, bribe,
         and even threaten them. Law enforcement, however, often perceives that a victim’s failure to
         cooperate is simply a “choice” because police and prosecutors are unaware of the victim’s reasons
         and are not monitoring for this level of intimidation. When prosecutors simultaneously re-victimize
         victims of abuse through perceived sanctions for their lack of cooperation, such as arrest warrants
         and other punitive measures, it becomes more difficult for law enforcement to monitor, detect, and
         hold offenders accountable for their behavior. Conversely, when prosecutors and police officers
         promote victim education, increase monitoring of offender behavior, and target offenders for
         contributing to a victim’s lack of cooperation, they significantly increase evidence that in many
         circumstances will enable them to proceed to trial without the victim. This in turn re-focuses the
         courts on the offender’s accountability rather than the victim’s.7

           Violence Against Women Act of 1994 (VAWA) P.L. No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 13981 (1994).
             See supra note 2.

Training Memo: When to Compel a Victim to Testify: Using a Witness Warrant When a Victim Fails to Appear as a Subpoenaed Witness
Page 2 of 4
                                                   Recommendations for practice

         GUIDANCE: When a warrant may be necessary
         The following factors should be considered when a prosecutor believes that a warrant or other measure to compel a
         victim’s testimony may be necessary:
                   ο The prosecution must first determine that there is no alternative theory (hearsay
                   exception/independent witness) to proceed to trial without the victim’s in-court testimony.
                   ο The decision to request a warrant to arrest a victim to compel testimony should be
                   considered only well in advance of trial/testimony and should never be decided on the day
                   of trial.
                   ο Warrants should be considered only when the conclusion is reached that the victim, the
                   community and/or a third party is at high risk of serious or lethal harm. and that compelling
                   the victim’s testimony is necessary.
                   ο Warrants should be considered only when the strength of the state’s case is such that in
                   the prosecutor’s judgment a guilty verdict is highly probable with the victim’s in-court-
                   compelled testimony.
                   ο Warrants should be considered only when there is sufficient consequence (potential
                   sentence length) to ensure that the defendant will be subsequently sentenced in a manner
                   that guarantees to a reasonable degree that the victim will be safe from direct harm from the
                   ο The decision to issue a warrant should be approved by a supervising prosecutor.
                   ο The supervising prosecutor who approves the warrant should draft a brief internal memo
                   to the file and to the chief prosecutor documenting the reasons for compelling the witness’
                   testimony, the steps taken to minimize the impact of the decision on the victim and third
                   parties, and an explanation of why the decision is justified as an exception to the office
                   policy of strongly discouraging this practice.

         REQUIREMENTS: What must be done before a warrant is issued
         Once a decision has been made to compel a victim’s testimony through a warrant, the prosecution should follow through
         with the following steps prior to petitioning the court for a warrant:
                  ο The prosecution must first fully investigate to determine whether the defendant attempted
                  to dissuade the victim from attending court and whether forfeiture by wrongdoing can be
                  proven by a preponderance of the evidence.
                            √ Check jail phone calls to the victim and third parties.
                            √ Check all jail US mail correspondence logs.
                            √ Check all jail visitation logs.
                            √ Exhaust all investigation leads concerning any attempt by the defendant to
                            dissuade the victim from testifying, either directly or through a third party.

         PREPARATION: Minimizing the impact
         Prior to obtaining a warrant, the prosecution should follow through with the following level of preparation to ensure
         that the impact of the warrant on the victim and third parties is minimized.

Training Memo: When to Compel a Victim to Testify: Using a Witness Warrant When a Victim Fails to Appear as a Subpoenaed Witness
Page 3 of 4
                   ο Ensure that all efforts have been exhausted to notify the victim that the prosecutor will be
                   requesting a warrant to encourage and enable them appear voluntarily. (This includes
                   assisting in and offering all voluntary means of appearance including a detective picking up
                   victims and bringing them to court.)
                   ο Ensure that the warrant is entered into the system with a requirement that the law
                   enforcement agency that arrests the victim contact the prosecutor and advocate immediately
                   upon arrest.
                   ο Ensure that upon reviewing the warrant, the court also agrees to hear the warrant return
                   as a priority over all other cases to ensure the victim remains in custody for the shortest
                   period of time as is necessary for the court to address conditions of release and cooperation
                   with a future court date.
                   ο Ensure that proper childcare services (through family or victim-approved third parties)
                   and victim advocacy services are contacted and that any other victim and/or third-party
                   needs are met upon execution of the warrant and its duration.
                   ο Ensure that the court prioritizes the case for the earliest possible date for testimony,
                   taking priority over other cases due to the impact that compelling the testimony will have on
                   the victim and third parties.
                   ο WARNING: In instances where the victim cannot be located after the warrant is entered,
                   the prosecutor must have the warrant quashed the moment it is no longer necessary (upon
                   dismissal of the case, etc.)

Training Memo: When to Compel a Victim to Testify: Using a Witness Warrant When a Victim Fails to Appear as a Subpoenaed Witness
Page 4 of 4
             Appendix: Guide to Bail Setting, Conditional Release, and Enforcement

                                                    This appendix is in development.

Appendix: Guide to Bail Setting, Conditional Release, and Enforcement
Page 1 of 1