selected trial issues in domestic violence cases judge victor reyes judge catherine shaffer
TRANSCRIPT
Selected Trial Issues Selected Trial Issues in Domestic Violence in Domestic Violence
CasesCasesJudge Victor ReyesJudge Victor Reyes
Judge Catherine ShafferJudge Catherine Shaffer
Learning ObjectivesLearning Objectives
Obtain tools to plan for pretrial Obtain tools to plan for pretrial release in DV casesrelease in DV cases
Discuss appropriate voir dire Discuss appropriate voir dire approaches in DV casesapproaches in DV cases
Assess how and whether to issue Assess how and whether to issue material witness warrants for material witness warrants for alleged victims in DV casesalleged victims in DV cases
More Learning More Learning ObjectivesObjectives
Manage DV trials to Manage DV trials to accommodate the requirements accommodate the requirements of victims rights statutesof victims rights statutes
Identify effective techniques for Identify effective techniques for managing pro se defendant managing pro se defendant requests for continuancesrequests for continuances
Pretrial Release Pretrial Release ConsiderationsConsiderations
Identifying Identifying
Lethality Lethality
FactorsFactors Effect on bail?Effect on bail? Make victim Make victim
referrals?referrals? Other measures?Other measures?
Bail or alternatives Bail or alternatives to confinementto confinement EHDEHD Day ReportingDay Reporting Work ReleaseWork Release GPSGPS
Other conditions of Other conditions of release?release? No contact ordersNo contact orders Firearms surrenderFirearms surrender
LETHALITY FACTORS IN LETHALITY FACTORS IN DOMESTIC VIOLENCE CASESDOMESTIC VIOLENCE CASES
The Most Dangerous The Most Dangerous TimeTime
SeparationSeparation means greatly means greatly heightened risk heightened risk of violence and of violence and homicidehomicide
First They Talk the Talk First They Talk the Talk
BewareBeware of: of:
Prior Prior threats to killthreats to kill
Threatened or actualThreatened or actual
use of use of firearmsfirearms
Threats of Threats of suicidesuicide
And They’ve Walked the And They’ve Walked the WalkWalk
Look out for:Look out for:
Prior episodes of Prior episodes of stranglingstrangling aka “choking”aka “choking”
Prior Prior forced sexforced sex
ObsessionObsession
Red flagsRed flags include: include:
Violently or constantly Violently or constantly jealousjealous
Attitudes of Attitudes of ownershipownership
Victim is Victim is centercenter of abuser’s of abuser’s worldworld
More and MoreMore and More
Be alert toBe alert toescalationescalation::
In risk-takingIn risk-taking
oror
In level of In level of abuseabuse
The GunmanThe Gunman
Look out Look out for access for access to to firearms!firearms!
Substance AbuseSubstance Abuse
Likelihood Likelihood of lethality of lethality is greater if is greater if drug or drug or alcohol alcohol abuse is abuse is presentpresent
Cognitive ProblemsCognitive Problems
Homicide risk increases with:Homicide risk increases with:
History of History of mental illnessmental illness
Current Current depression depression
Victim PredictionsVictim Predictions
High reliability High reliability when when predicting predicting dangerdanger
Low reliability Low reliability when denying when denying dangerdanger
Ripped From the Ripped From the HeadlinesHeadlines
Mom, Dad and Mom, Dad and kids (7-16)kids (7-16)
Dad is “strict,” Dad is “strict,” “controlling” : “controlling” : wife must ask wife must ask him before any him before any decisiondecision
Dad Dad impregnated impregnated mom at 13mom at 13
07 State parenting 07 State parenting plan after Dad plan after Dad commits “minor commits “minor assault” on childassault” on child
Unreported years Unreported years of physical, verbal of physical, verbal abuse against abuse against wife, kidswife, kids
Security guard Security guard Dad has rifle.Dad has rifle.
Ripped from the Headlines Ripped from the Headlines (2)(2)
Mom tried to Mom tried to leave before, leave before, kids said staykids said stay
Mom doesn’t Mom doesn’t come home from come home from workwork
Dad, with eldest Dad, with eldest child, tracks child, tracks mom with mom with cellphone GPScellphone GPS
Mom found with Mom found with male “friend.” male “friend.” Mom and Dad Mom and Dad fight.fight.
Mom says she is Mom says she is leaving Dadleaving Dad
Dad begs her to Dad begs her to stay, says he’ll stay, says he’ll change. She says change. She says no.no.
Spotting Lethality Spotting Lethality FactorsFactors
What What lethality lethality factors (if factors (if any) are any) are present?present?
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASEHypotheticalHypothetical
Dave Defendant (DD) is charged with Dave Defendant (DD) is charged with felony violation of a no contact order.felony violation of a no contact order.
Based on alleged violation of a no Based on alleged violation of a no contact order after 2 prior convictions contact order after 2 prior convictions for violation of NCO (VNCO).for violation of NCO (VNCO).
DD appears before you in custody on DD appears before you in custody on the preliminary appearance calendar the preliminary appearance calendar within 48 hours of his arrest.within 48 hours of his arrest.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
FACTSFACTS
DD’s criminal history:DD’s criminal history: DV Violation of NCO 5/25/09DV Violation of NCO 5/25/09 Felony Drug 5/1/09Felony Drug 5/1/09 DV Violation of NCO 8/23/08DV Violation of NCO 8/23/08 DV Assault 7/7/08DV Assault 7/7/08 A few prior FTAsA few prior FTAs
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
Prosecutor argues:Prosecutor argues:
There were at least 2 outstanding NCO’s There were at least 2 outstanding NCO’s at time of incident and DD surely knew at time of incident and DD surely knew of them.of them.
The neighbor who called police fears DD, The neighbor who called police fears DD, who she says is a known drug dealer.who she says is a known drug dealer.
Prosecutor has not been able to reach Prosecutor has not been able to reach the victim.the victim.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
Prosecution recommendation:Prosecution recommendation:
$25,000 bail.$25,000 bail. Maintain treatment at the MH Maintain treatment at the MH
center.center. No drugs or alcohol.No drugs or alcohol. No contact order re victim.No contact order re victim. No contact with neighbor as No contact with neighbor as
condition of release.condition of release.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
Defense counsel argues:Defense counsel argues:
DD is indigent, disabled and unable to DD is indigent, disabled and unable to work.work.
He lives with his mother.He lives with his mother. DD diagnosed as having Bi-Polar DD diagnosed as having Bi-Polar
disorder.disorder. Started treatment last week at MH Started treatment last week at MH
center.center. Jail is not giving him his medications.Jail is not giving him his medications.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
Defense counsel argument continues:Defense counsel argument continues: DD is on deferred prosecution for his DD is on deferred prosecution for his
last VNCO conviction.last VNCO conviction. He is currently clean and sober.He is currently clean and sober. As for this incident, he and girlfriend As for this incident, he and girlfriend
separated in 2009.separated in 2009. He did not know the order was still in He did not know the order was still in
effect.effect. He drove by her home wanting to see He drove by her home wanting to see
their child and a neighbor called police.their child and a neighbor called police.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASE Hypothetical Hypothetical
Defense recommendation:Defense recommendation:
PR or EHM release, on condition PR or EHM release, on condition continued treatment at the MH continued treatment at the MH center.center.
No drugs or alcohol.No drugs or alcohol. Do not issue a no contact order as Do not issue a no contact order as
two already exist.two already exist.
PRETRIAL RELEASE IN DV CASEPRETRIAL RELEASE IN DV CASEHypotheticalHypothetical
You order . . .You order . . .
Voir Dire Issues in DV Voir Dire Issues in DV CasesCases
Recurring problem – jurors with Recurring problem – jurors with personal experiences or special personal experiences or special trainingtraining Juror Questionnaire?Juror Questionnaire? If used, managing juror If used, managing juror
questionnaire follow up questionnaire follow up Seal questionnaires? Seal questionnaires?
Voir Dire in DV Cases (2)Voir Dire in DV Cases (2)
Juror bias in “atypical” DV casesJuror bias in “atypical” DV cases Judge Zide’s jury: Jury realizes mid Judge Zide’s jury: Jury realizes mid
trial that case of parent beating trial that case of parent beating child is “DV’ and feels strong biaschild is “DV’ and feels strong bias
DV cases involving LGBT people, DV cases involving LGBT people, differently abled people, people differently abled people, people from non US cultures, elder abusefrom non US cultures, elder abuse
Your thoughts?Your thoughts?
Material Witness Warrants for Material Witness Warrants for Alleged Victims in DV CasesAlleged Victims in DV Cases
Why Don’t Some Victims Why Don’t Some Victims Cooperate?Cooperate?
Reasons for victim reluctance, Reasons for victim reluctance, refusal to testify, recantationrefusal to testify, recantation Fear of retaliationFear of retaliation Unwillingness to face perpetratorUnwillingness to face perpetrator Shame and/or guiltShame and/or guilt Desire to forget, move onDesire to forget, move on Denial, withdrawal, emotional Denial, withdrawal, emotional
mood swings mood swings i.e. symptoms of traumai.e. symptoms of trauma
The Victim’s RealityThe Victim’s Reality
Perpetrator Perpetrator may bemay be Living with Living with
victimvictim Familiar with Familiar with
victim’s routinevictim’s routine Have ongoing Have ongoing
accessaccess
The Victim’s Reality (2)The Victim’s Reality (2) Fear may be more than theoretical, Fear may be more than theoretical,
e.g. follow from escalating violencee.g. follow from escalating violence Perpetrator may be maintaining Perpetrator may be maintaining
coercive control: alternating coercive control: alternating affection and threats/violenceaffection and threats/violence
Children in commonChildren in common Ongoing child visitationOngoing child visitation Fear for safety of childrenFear for safety of children Fear of loss of custodyFear of loss of custody
The Victim’s Reality (3)The Victim’s Reality (3)
Economic dependence. I.e. Economic dependence. I.e. incarceration means loss of support.incarceration means loss of support. Lack of employment skillsLack of employment skills Lack of housingLack of housing Inability to pay for civil legal proceedings or Inability to pay for civil legal proceedings or
counselcounsel Victim may be economically or Victim may be economically or
otherwise responsible for otherwise responsible for perpetratorperpetrator
The Victim’s Reality (4)The Victim’s Reality (4)
Fear of loss of Fear of loss of community or community or family supportfamily support
Lack of existing Lack of existing support support because of because of isolationisolation
The Victim’s Reality (5)The Victim’s Reality (5)
Victim belief Victim belief that system that system will not help to will not help to stop violence stop violence or protector protect Past experiencePast experience Perpetrator Perpetrator
statements and statements and actionsactions
Victims in CourtVictims in Court
Victims look to Victims look to immediateimmediate effect on their effect on their safety and safety and relationshiprelationship
Victim Victim perspective is perspective is day to dayday to day
Victim Victim AmbivalenceAmbivalence Effect of Effect of
proceeding on proceeding on relationship, relationship, family, financesfamily, finances
Success if Success if violence stops violence stops even if no even if no sentencesentence
Victims in Court (2)Victims in Court (2)
Lack of confidence in court system Lack of confidence in court system Procedural delayProcedural delay ComplexityComplexity Discourteous court staffDiscourteous court staff MisinformationMisinformation Court order violationsCourt order violations Failure of system response e.g. no Failure of system response e.g. no
arrest, no prosecution, no court arrest, no prosecution, no court sanctionsanction
So What Should Courts So What Should Courts Do?Do?
If witness was If witness was subpoenaed subpoenaed court may court may considerconsider ContinuanceContinuance Material Material
witness witness warrantwarrant
ContemptContempt
Beware of Beware of revictimizationrevictimization Alternatives Alternatives
e.g. safety e.g. safety assurancesassurances
Negotiating Negotiating solutions short solutions short of jailing the of jailing the victimvictim
Victim Rights
What Do Statutes What Do Statutes Require?Require?
Notice about scheduling, Notice about scheduling, dispositiondisposition
A secure waiting areaA secure waiting area Return of property when no longer Return of property when no longer
neededneeded In violent/sex crimes, advocate or In violent/sex crimes, advocate or
support person to be presentsupport person to be present Right to be present at trialRight to be present at trial Input into sentencingInput into sentencing
Other Statutory RightsOther Statutory Rights
Prosecutor must make Prosecutor must make “reasonable efforts” to notify “reasonable efforts” to notify victim of nature of and reasons victim of nature of and reasons for plea agreement, and obtain for plea agreement, and obtain victim objections/comments on victim objections/comments on pleaplea
Court must be told of crime Court must be told of crime victim’s objections to/comments victim’s objections to/comments on proposed pleaon proposed plea
More Statutory Rights: More Statutory Rights: Child WitnessesChild Witnesses
Explanations in easily Explanations in easily understood languageunderstood language
AdvocateAdvocate Secure waiting areaSecure waiting area Very limited disclosure of name, Very limited disclosure of name,
address, photosaddress, photos Appropriate social service Appropriate social service
referralsreferrals
Other Statutory RightsOther Statutory Rights
Requests for victim counseling Requests for victim counseling recordsrecords
Requests for advocate recordsRequests for advocate records
Requests for medical and Requests for medical and pharmaceutical recordspharmaceutical records
Your Jurisdictions?Your Jurisdictions?
What practices do you What practices do you recommend ?recommend ?
Pro Se DefendantsPro Se Defendants
What do you do if a pro se What do you do if a pro se defendant in a DV case requests defendant in a DV case requests a continuance?a continuance?
Other suggestions on dealing Other suggestions on dealing with pro se defendants in DV with pro se defendants in DV cases?cases?
BEST PRACTICES: BEST PRACTICES: COURTROOM MANAGEMENTCOURTROOM MANAGEMENT
Maintaining Maintaining safety and safety and control:control: Keep parties Keep parties
separated separated Consider court Consider court
securitysecurity Consider using Consider using
advocatesadvocates Control parties’ Control parties’
presentations presentations
Thank you!Thank you!