PROSECUTION

Keep In Mind

A good investigation

is the key to

a successful prosecution!

2

There is no “I” in TEAM

TEAMWORK ISSUES

“Victimless prosecution” is the goal Good working relationship with law

enforcement “Top-Down” change Good social service agency

cooperation to help understand the limitations of our evidence or victims

Prosecution’s Role with Law Enforcement

Thorough investigation/complete police reports = easier prosecution

Appreciate officer’s “window of opportunity” with the victim, suspect and others at the scene

Multiple (Stacking) charges assist with prosecution

Call officer to testify at trial

Thorough victim contact from officers is a necessity

4

Domestic Battery 720 ILCS 5/12-3.2

Domestic Battery is a Class A Misdemeanor if it is committed intentionally or knowingly without

legal justification by any means and:

Causes bodily harm to any family or household members as defined in Subsection (3) of section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

Makes physical contact of an insulting or provoking nature with any family or household members as defined in Subsection (3) of Section 112-3 of the Code of Criminal Procedure of 1963, as amended.

5

Domestic Battery is a Class 4 Felony if the defendant has any prior conviction under this Code for aggravated battery*, domestic battery, unlawful violation of an order of protection, stalking, aggravated stalking, unlawful restraint, or aggravated unlawful restraint when committed against a family or household member

720 ILCS 5/12-3.2 (b)

6

Violation of an Order of Protection 720 ILCS 5/12-30

Violation of an Order of Protection is a Class A Misdemeanor a person commits violation of an order of

protection if:

1) He/she commits an act which was prohibited by a court or fails to commit an act which was ordered by a court in violation of a remedy in a valid order of protection authorized under paragraphs 1, 2, 4, 14, or 14.5

(ii) a remedy, which is substantially similar to the remedies authorized under paragraphs 1, 2, 3, 14, or 14.5

2) Such violation occurs after the offender has been served notice of the contents of the order.

A Violation of an Order of Protection is a Class 4 Felony if the defendant has any prior conviction for aggravated battery*, domestic battery, unlawful violation of an order of protection, stalking, aggravated stalking, unlawful restraint, or aggravated unlawful restraint when committed against a family or household member.

720 ILCS 5/12-30 (d)

Domestic Violence Dynamics

Four Stages Battered Women Go Through:Denial – victim does not admit there is problem and excuses

the violent behavior.

Guilt – victim begins to acknowledge there’s a problem but believes she’s responsible.

Enlightenment – victim realizes no one deserves to be hurt but it still committed to the relationship.

Acceptance – victim accepts that batterer will not change and leaves the relationship.

Domestic Violence DynamicsPhase 1: Tension Building Phase - Victim tries to keep the peace and cover up abuser’s behavior. Abusive behavior begins to escalate and tension builds.

Phase 2: Battering Incident - Violent incident happens. Victim may dissociate to get through incident. Almost always happens in private.

Phase 3: Honeymoon Phase - Abuser promises to change and never hurt victim again. Abuser is loving and kind.

Domestic Violence Dynamics

To get the Victim to stay, the Batterer promises:

to go to counseling

to stop drinking or doing drugs

to become involved in the church

that the abuse will never happen again

Full Faith and Credit

Orders of Protection and Civil No Contact Orders

should be enforced in all jurisdictions no matter

where the original order was issued.

Other Statutes

720 ILCS 5/12-3.3 Aggravated Domestic Battery

720 ILCS 5/12-7.3 Stalking

720 ILCS 5/12-7.4 Aggravated Stalking

720 ILCS 5/32-10 (b) Violation of Bail Bond

(72 hour no contact)

720 ILCS 5/32-10 (c) Violation of Bail Bond

720 ILCS 5/10-3 Unlawful Restraint

Other Statutes

720 ILCS 5/12-1 Assault

720 ILCS 5/12-4 Aggravated Battery

720 ILCS 5/12-11 Home Invasion

720 ILCS 5/12-5 Reckless Conduct

720 ILCS 5/21-3 Criminal Trespass to Real Property

720 ILCS 5/21-1 Criminal Damage to Property

Offense, Statute & Applicable Penalty Chart

Applicable Penalty and Sentence Chart

Bail Bond (1)

72-Hour No Contact Conditions of Bond – DV Specific In place for any defendant who has been charged with

criminal offense in which the victim was a family or household member as defined by the IDVA.

The defendant must “refrain” from contact or communications with the victim, and “refrain” from entering or remaining at the victim’s residence.

72-hours begin when defendant is released from custody.

I prefer a “no contact until further order of court” to attempt to prevent the inevitable pressures on victim to dismiss case.

Bail Bond (2)Special No Contact Condition of Bond – Not DV

Specific A Judge orders a special condition that the defendant

have no contact with a specific person, place, groups of people, etc. as a condition of bond.

If the victim is a family or household member a Violation of Bail Bond (VOBB) charge could be filed by the SA. Class A Misdemeanor.

If the victim is not a family or household member a State’s Attorney has several options (depending on the violation) such as immediately asking for bond to be increased, or asking for the matter to be set for hearing before the judge re-assesses the bond. 720 ILCS 5/32-10

725 ILCS 5/110-6

Bail Bond AssessmentsJudges MUST consider the following when

setting bond (Effective 2007)

History of violence, domestic violence, court order violations

Access to weapons or history of using weapons

History of drug and/or alcohol abuse, mental health issues

Offender and victim have currently separated

Offender stalked, surveilled, or isolated the victim

Offender has expressed suicidal or homicidal ideations

New Bischoff Bail Statute (1)

Effective January 1, 2009

Requires the court to order a risk assessment on any defendant charged with VOOP

Some courts requiring this in 48 hour window before a bond is set

Other courts requiring the assessment to be done as a condition of bond

One of the reasons we need the information requested in the previous slide (history of violence, death threats, etc.)

New Bischoff Bail Statute (2)

Based on information gathered in the risk assessment, the Court can order the defendant to wear a GPS device as a condition of bond.

Also can order the GPS device as a condition of any probation that may be granted.

Good Communication between Social services agencies and Law Enforcement is a MUST.

Developing Evidence

Demonstrative

Corroborative

Competency

Hearsay

Judge Paul Tressler

Demonstrative Evidence

Physical Evidence (photos, x-rays, etc.)

Diagrams & photos of the crime scene

Calendars, letters, gifts

Computer data Other evidence

Judge Paul Tressler

Corroborative Evidence DNA evidence – the Holy Grail of evidence

Other types of medical evidenceE.R. Doc’s not the best in SA casesNeed expert with a “scope” in SA

Expert testimony

Suspect statements

Medical evidence

Hearsay statements

One party consent recordings

Search warrants in extreme casesJudge Paul Tressler

Suspect Statements

Always promote the investigative agency to get the suspect’s statement (even if it is just verbal) and note everything they say

WHY? 1. So they or their defense attorney can’t think of a better lie later.

2. Guidance as to what the defense strategy will be.

Medical Evidence Testimony of wounds, abrasions,

or other injuries

- Seriousness of the injury

- Subpoena hospital/ambulance/

records/x-rays

Expert Opinions

- Injuries consistent with abuse

- Absence of injuries, incl. private parts (certainly in child victims)

- SIDS, shaken baby Judge Paul Tressler

Expert Testimony

Someone with special skill, knowledge, experience or education who is permitted to render an opinion based upon that specialized knowledge, etc.

Testimony must be understandable to the trier of fact.

Judge Paul Tressler

Hearsay

Hearsay is an out of court statement offered to prove the truth of the matter asserted.

The general rule is that hearsay is INADMISSIBLE.

There are exceptions…………

Common Law Exceptions

Admission/Confession

Spontaneous StatementsExcited UtterancesPresent-sense Impression

Statement for Medical DiagnosisStatement as to Physical

ConditionStatement as to Mental

Condition

Excited Utterances (1)

Theory: Statements made while the person is “excited” (while “under the stress of excitement caused by the event”) are less likely to be fabricated, and thus admissible as a hearsay exception.

Note the victim’s emotional state. These statements can only come in IF they were made while the victim was still caught up in the moment. Statement is likely to be admissible if the witness can be described as excited, hysterical, very upset, sobbing, etc.

Excited Utterances (2) Usually statement must be made right after the

incident (ex. 911 call), but sometimes admitted even hours later – may be defined by statute.

Write in quotation marks to indicate they are the victim’s exact words.

Generally, the Judge is more likely to admit the statement if the officer uses the declarant’s exact words in the report.

Note if an interpreter was used.

Present-sense Impressions

Statements made while a person is perceiving an event or condition, or immediately thereafter Neighbor calling 911 while a domestic violence incident

is occurring, and describing the event

Victim describing current/ongoing situation or condition

Statements for Medical Diagnosis

Statements made to medics. Statements made at the emergency room/hospital. If statements happen to be made in front of a

witness (like a law enforcement officer), the witness can testify as to the statements.

Statements as to Physical Condition

If the victim says to the officer, “My stomach hurts so much where he kicked me!” and the officer includes this statement in the report, it should be admissible at trial because it describes the victim’s physical condition at the time of the assault.

Statements as to Mental Condition

If the victim says to the officer, “I’m so terrified of him that I can’t breathe right,” and the officer includes this statement in the report, it should be admissible at trial because it describes the victim’s mental condition at the time of the assault.

Training Exercise

Handling the Call:

Domestic Violence Vignettes

Scene 15

“My Crazy Wife Stabbed Me!”

Legislative Exceptions (1)

Child testimony in sex abuse/assault or even battery cases

Covered by 725 ILCS 5/115-10ONLY children UNDER age of 13 at time of offense

(see statute for applicable rules)Pretrial hearingPreferably your trial judge b/c court’s ruling may

change if victim has problemsChild’s hearsay statements admissible if judge finds

that “time, content, and circumstances” of statement make it reliable

Victim should NOT be called at hearing

Legislative Exceptions (2)

Any corroborative evidence you have should be put on at this hearingMedical from doctor or hospital staffPolice testimony on statements from defendant, even

“half admissions”Unique fact patterns that led to statement itself, e.g.

came out at bath time, after good/bad touch talkConfrontation clause issues

o Crawford v. Washington, 541 U.S. 36 (2004)o Davis v. Washington, 547 U. S. 813 (2006)

Not an issue as long as the child is “available for cross

examination” – what does that mean? Testimonial v. non-testimonial hearsay

Types of Trials Bench trial/Adjudicatory Hearing (juvenile) - the trier of

fact is a judge.

Judges are human, each has their own idiosyncrasies. Know what those are, and be aware when presenting the information in your case.

Jury trial – the trier of fact is a panel of a specific number (usually twelve) private citizens.

What is a Jury Trial?

A battle to control the minds of twelve people

It is conducted under established rules of evidence

This is done in a civilized, but adversarial posture

Jurors expect the prosecutor to be prepared

Judge Paul Tressler

Jurors Preconceived Ideas

Impact of the media, esp. pop cultureLack of medical or scientific evidenceChildren or young witnesses not believable

Bias or Prejudice (anti-police, etc)Even small matters, like DUI’s

Divergence of life experiences and abilities

Inexperience as jurorsInexperienced jurors look for any problem with a story for

reasonable doubtExperienced jurors try to figure out who is truthful

Judge Paul Tressler

Jury Selection (1)

We aren’t looking for fair and impartial – we want jurors that are most likely to be sympathetic to our theory of the case.

Small jurisdictions- Have jurors rated by law enforcement officers

and others likely to know most or all of the persons on the jury panel

- Run criminal history and driving record checks

Victor Vieth, Investigating and Prosecuting Cases of Child Abuse

Jury Selection (2)

1. Consider a jury questionnaire or individual voir dire for sensitive topics pertaining to abuse or you are unlikely to get honest answers.

2. Educate the jury in voir dire, but be careful of indoctrination

*REMEMBER – you are always being watched by potential jurors. You must show your commitment to justice and professionalism at all times!

Victor Vieth, Investigating and Prosecuting Cases of Child Abuse

Keys to a Successful Prosecution

Anticipate defenses

Accurate, reviewed reports

Prepared witnesses

Understandable experts

Judge Paul Tressler

Accurate, Reviewed Reports Primarily with police officers - Do tell them

In cases with minor victims, remind officer to refresh on DOB’s

Various schools of thoughts on witnesses reading or watching their previous statements-Especially with witnesses over the age of 13 or so,

will serve the purpose of having the witness better recall what she told police, and even facts

-Danger in opening us up to allegations of coaching the witness what to say, esp. w/ young

Witness Preparation

The more times you practice, specially with kids, the greater possibility you will suck all emotion out of the testimony at trial

Emotion is good. Jurors expect to see it. They will watch victim intently.

Expert Witnesses In small counties, use local experts In a tough case, especially for hard-to-explain

behavior, it may be necessary to get a conviction

An expert can help with:Lack of medical or scientific

evidenceWhy victim recantedWhy victim delayed reportingWhy victim never left, or

continued to trustWhy victims allow abuse to

go on for years, even when they know it’s “wrong”

Preparing a Witness to Testify (1)

Familiarize with the courtroomLayout – who sits where

○ Deputies there w/guns to protect you○ Position yourself to get witness to look at jury

(and not at the defendant)

ProceduresOathPeople (attorney’s, bailiff’s, court security, etc.)

Witness do’s and don’ts list – type out Motions in limine granted Defendant’s prior bad acts, criminal history

Preparing a Witness to Testify (2) Unless they are necessary for safety of victim, not

a big fan of family in courtroom w/victim – distracts witness from her job

Modify the courtroom if needed

Consider scheduling issues w/witnessIf a sympathetic judge, try to get him to allow you

to call victim first thing in morning

Training Exercise

Handling the Call:

Domestic Violence Vignettes

Scene 15

“My Crazy Wife Stabbed Me!”

Opening Statements

A road map that will invoke a little sympathy, but don’t go overboard

You must “front” the bad parts of your case that you know aboutUnsavory witnessesRecantationsNo medical evidence, if that is the caseDrug or alcohol abuse

I like to acknowledge to jury that I don’t know how victim will react in testimony, e.g., cry, nervous laughter, freeze up, so they have lowered expectations

Propensity Evidence In SA and DV cases, Illinois law now allows you to put on

prior bad sexual or violent acts of defendent to show his propensity to commit SA/DV

Powerful evidence if you can get it in

Don’t be afraid of it – growing line of Illinois cases, incl. Ill.S.Ct., that approve of practice

SA – 725 ILCS 5/115-7.3

DV – 725 ILCS 5/115-7.4

See, P v. Donoho, 204 Ill.2d 159 (2003)

Pretrial notice to the defense, followed by pretrial hearing, required – Prob.val/prejud

Closing Statement

Again must confront the weaknesses in your case, but I love to do so in REBUTTAL – Why? ‘Cause having the last word is a wonderful thing.

Issues instructions best outline to show the jury what we must prove

Refer to points and concerns raised in voir dire, and how they played out at trial, such as witness demeanor

NEVER read your closing

As prosecutors we can’t say “I believe the evidence…” True believers show that in delivery.

Rebuttal

Save all your best stuff, quips, etc. for rebuttal when defense attorney can’t respond

REASONABLE DOUBT ISSUE – Must be approached w/caution, but I am becoming convinced you must talk about it at some point, and here is where I would do it

Acknowledgements

-Judge Paul Tressler, Montgomery County, PA

-Victor Vieth, National Child Protection Training Center, Winona State University

-4th Judicial Circuit FVCC Law Enforcement Committee

-OVW Rural Grant Committee, 4th Judicial Circuit

-Law Enforcement Resource Center & Minnesota Program Development, Inc., 2000

This project was supported by Grant #2011-WE-AX-0055, awarded by the Office on Violence Against Women, U.S. Department of Justice, through the Illinois Violence Prevention Authority.

The original project was supported by Grant # 2008-WR-AX-0016, awarded by the Office on Violence Against Women, U.S. Department of Justice, through the Illinois Criminal Justice Information Authority.

Points of view, opinions, findings, conclusions or recommendations contained within this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice, Office on Violence Against Women, Illinois Violence Prevention Authority, or the Illinois Criminal Justice Information Authority.