December 2012 - Pennsylvania Coalition Against Domestic Violence

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Courtroom Evidence: A Resource for The Prosecution of Domestic Violence Cases Written by: PCADV Legal Department Domestic violence cases present unique discovery and evidence issues. To assist prosecutors in their efforts to hold domestic violence perpetrators accountable by prosecuting domestic violence cases, the Pennsylvania Coalition Against Domestic Violence (PCADV) has developed a new resource, Courtroom Evidence: A Resource for the Prosecution of Domestic Violence Cases. This resource is designed to provide prosecutors with the legal basis for strategies to overcome evidentiary challenges and to more effectively prosecute domestic violence perpetrators through the use of evidentiary rules and relevant statutory and case law. This resource concludes with substantive information about domestic violence, including information about the dynamics of coercive control, separation violence, and the possible use of expert testimony to explain victim behavior. In all, a deeper understanding of victim and perpetrator behavior, coupled with advanced strategies for the admission of evidence, will enable prosecutors to paint an accurate picture of the circumstances surrounding the case and, in turn, will allow the judge or jury to make a more informed decision. Courtroom Evidence focuses on some of the most pressing issues when prosecuting domestic violence cases: the confrontation clause, evidence-based prosecution and social media authentication. This article also summarizes these key topics and explains how the prosecutors’ resource will assist prosecutors faced with complicated domestic violence cases. Confrontation Clause Domestic violence often has only two witnesses: the victim and the perpetrator. But if a victim is unwilling or unable to testify, either because he or she fears retaliation by the perpetrator, was incapacitated or even killed, the prosecution must rely on out-of-court statements to police, family, friends, and others. Unfortunately, the admissibility of such statements is uncertain. Over the last few years, developments in Confrontation Clause jurisprudence have made it increasingly difficult to introduce evidence of domestic violence in cases where the victim is unable to testify. Courtroom Evidence examines the ways in which confrontation case law allows for the admission of outof-court statements made by a victim of domestic violence, and provides strategies that prosecutors can use to overcome confrontation hurdles. Analysis of confrontation case law provides in-depth information about recent legal developments and avenues. For more information about the Confrontation Clause please see: U.S. Supreme Court Decision Giles v. California, STOP Newsletter, Spring 2008 available at http://pubs.pcadv.net/palegal/STOPnewsletterSpring08.pdf. Crawford-Hammon-Davis: Trio of Supreme Court Opinions Impact Evidence-Based Prosecutions, STOP Newsletter Winter/Spring 2007, available at http://www.pcadv.org/Resources/WinterSpring_07.pdf
Evidence-Based Prosecution Victims of domestic violence often are reluctant to testify against a perpetrator. Many factors, such as fear of retaliation, stress, trauma, economic necessity, and cultural considerations may motivate their reluctance. Unlike cases where the victim and perpetrator are unrelated, victims of domestic violence are intimately connected to their perpetrators, so their decision to testify is often extremely complex and necessitates compassion and understanding. Fortunately, prosecutors can use evidence-based trial tactics to successfully prosecute domestic violence cases even without the victim’s testimony. Thoughtful preservation of evidence, thorough investigations, and use of non-hearsay and non-testimonial victim statements can aid the prosecution in meeting its burden without compelling a victim’s testimony. Moreover, careful utilization of the primary purpose test and/or the doctrine of forfeiture by wrongdoing may even allow prosecutors to successfully introduce testimonial statements notwithstanding confrontation challenges. Courtroom Evidence discusses how to employ these evidence-based tactics to prosecute domestic violence cases. Using these tactics avoids the need to compel a victim to testify, thus protecting the victim from further trauma. Social Media Social media is now a primary form of communication and, as a result, people are sharing personal information, photos, and conversations on a scale that has never been seen before. Thus, social media has become a repository of information that can be used as evidence in criminal and civil cases. Perpetrators of domestic violence, for instance, regularly use social media as a means to control, threaten, stalk, and harass their victims – either by making direct threats, starting malicious rumors, monitoring the victim’s activity and whereabouts, or creating fraudulent postings in the victim’s name. Courtroom Evidence provides tips and information about how to discover and preserve evidence on social media sites. It further provides a comprehensive analysis of relevant case law on the admissibility of social media evidence, particularly with regard to authentication. For more information about social media, please see: Recent Pennsylvania Criminal Cases Involving Stalking and Technology, STOP Newsletter, Spring 2010, available at http://www.pcadv.org/Resources/STOP%20Newsletter%20spring%2010%20web.pdf Using Technology to Stalk and Harass, STOP Newsletter, Summer 2009, available at http://www.pcadv.org/Resources/STOP_newsletter_Summer09.pdf To obtain a copy of Courtroom Evidence: A Resource for the Prosecution of Domestic Violence Cases, please contact the PCADV Legal Department at 1-888-235-3425 or email sshoop@pcadv.org
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December 2012 - Pennsylvania Coalition Against Domestic Violence

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