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Pennsylvania’s New Victim Behavior Expert Testimony Statute Upheld: Commonwealth v. Olivo

On November 18, 2015, the Pennsylvania Supreme Court decided Commonwealth v. Olivo, upholding, against state constitutional attack, the new Pennsylvania evidentiary statute permitting expert testimony to explain victim behavior in the prosecution of crimes of sexual violence. Previously, the courts of Pennsylvania had steadfastly resisted admission of such testimony, despite the widespread acceptance of such evidence by other courts across the country. This article reviews the facts of the case and discusses its implications for highlighting the important role of expert testimony in aiding juries to reach just verdicts, unhindered by myths and misconceptions about how “real” victims would behave. Pennsylvanias-New-Victim-Behavior-Expert-Testimony-Statute-Upheld-Commonwealth-v.-Olivo-SIB25

 

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The Prosecutors’ Resource on Crawford and its Progeny

There are many barriers to victims’ participation in the prosecution of their abusers. When prosecuting a domestic violence case with a non-participating victim (one who either is not in court, or who is in court but is unavailable by reason of refusal to testify, exercise of a privilege, illness, or incompetency) the prosecutor must anticipate a challenge under Crawford v. Washington to the introduction of the victim’s out-of-court statements. Crawford and its progeny are landmark cases that address the admissibility of out-of-court statements in light of an accused’s Sixth Amendment right to confrontation. This Resource focuses on interpretations of the Sixth Amendment’s Confrontation Clause under Crawford. The prosecutor must be aware, however, of the simultaneous need to satisfy state evidence rules concerning hearsay. This paper places Crawford in its historical context, presents a framework for analyzing admissibility of out-of-court statements under the Crawford rules, and provides resources, sample questions, and strategy suggestions to assist the prosecutor in satisfying the confrontation requirements under the Sixth Amendment.

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The Prosecutors’ Resource on Witness Intimidation

This resource outlines effective prosecution strategies for cases where witness intimidation is, or may be, a factor. It provides guidance for prosecution practices that will enhance the safety of victims and witnesses. The paper discusses the first steps a prosecutor should take upon being assigned a case in which witness intimidation is, or may be, an issue. It then discusses strategies for the various phases of a criminal prosecution, from pretrial through the final pretrial conference. Finally, the paper discusses sentencing considerations, including the need for appropriate post-release conditions that enhance the ongoing safety of victims and witnesses.

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Ohio v. Clark: A Bit of Confrontation Clarification, A Few Tantalizing Hints

The United States Supreme Court decision in Ohio v. Clark has been heralded by many prosecutors and legal scholars as significantly broadening the admissibility of evidence under the Confrontation Clause, as interpreted by Crawford v. Washington and its progeny. The decision does not break startling new ground, however; rather, the Court’s decision is one that flows more or less naturally from the Court’s previous pronouncements about what it is that makes a hearsay statement testimonial, and therefore inadmissible at trial unless the witness is subject to cross-examination, either at trial or (in the case of a witness unavailable for trial) at a prior proceeding. This article reviews the opinion’s direction and guidance to trial courts (and prosecutors) about the admissibility of statements made to individuals not affiliated with law enforcement, as well as statements made by children or others who may be limited in their ability to grasp the notion of potential future prosecution. The article discusses the importance of the opinion’s deviation from the language used in previous decisions—a distinction that promises to fuel the ongoing debate about the future of Confrontation Clause jurisprudence.

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A Prosecutor’s Reference – Medical Evidence and the Role of Sexual Assault Nurse Examiners in Cases Involving Adult Victims

Prosecutors should consider the potential testimony that can be provided by Sexual Assault Nurse and Sexual Assault Forensic Examiners (SANEs/SAFEs). This monographs evaluates studies that show connections between medical-forensic examination and evidence collection and more positive criminal justice outcomes, leading prosecutors to consider the potential testimony that can be provided by these kinds of medical experts.

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Intimate Partner Violence Victims Charged with Crimes – Justice and Accountability for Victims of Battering who use Violence Against their Batterers

There are many dilemmas facing police, prosecutors, and allied professionals who deal with domestic violence, especially in cases where battered women have been charged with crimes. This monograph focuses on cases involving victims of battering who were charged with crimes against their abusers. These cases are particularly challenging to prosecute because they usually involve prosecuting someone whose actions derive from the complaining witness’s ongoing abuse. The paper examines strategies for dealing with these cases is ways that are just and safe for the parties involved.

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Witness Intimidation – Meeting the Challenge

Witness intimidation can hinder the investigation and prosecution of any criminal case, but it presents predictable challenges in certain categories of crime. Where the defendant has a pre-existing relationship with the victim, or in cases involving gangs or organized crime, the defendant often has the ability, directly or indirectly, to continue to inflict harm upon, or to exercise influence over, the victim or witness long after the precipitating criminal act. This monograph explores the form of witness intimidation, offers strategies to prevent and minimize its effects, suggests trial strategies for cases involving witness intimidation, including the use of forfeiture by wrongdoing as a means of admitting hearsay statements where a defendant has caused a witness’s unavailability for trial.

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Maryland Lawmakers Call for Uniform Police Standards on Rape Kits

Congress unanimously passed legislation in September creating a similar Survivors Bill of Rights in federal cases. “I am hopeful that we can garner the same kind of bipartisan support for this issue” in Maryland, Hettleman said. More than half of the states have laws mandating a minimum time period to retain evidence in sexual assault cases, according to research by AEquitas, an organization that offers support and training to prosecutors who handle cases of sexual and domestic violence.

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NYPD Captain Suggests ‘True Stranger Rapes’ are More Serious than Others

Jennifer Gentile Long, the CEO of AEquitas, a group that advises prosecutors in sex crime cases, noted that research consistently shows that the overwhelming majority of sexual assaults are perpetrated by someone the victim has met. “Very few rapes are by strangers dragging people off the streets,” she said. “One of the best weapons a rapist has is to get a victim in a position where they may be trusting, feeling like they know this person.” She added that many serial rapists commit assaults against both strangers and acquaintances. Recent movements to test large backlogs of rape kits have found many serial rapists that were identified to police in the past but allowed to go free because the accuser was an acquaintance, and her report was dismissed or minimized. “If you’re missing those cases where people know each other, it’s problematic for capturing serial rapists” who frequently target strangers.

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State Considers Requiring Corroboration in Sex Assault Cases

New Hampshire lawmakers are considering a sexual assault bill that police and prosecutors warn would protect pedophiles and sexual predators but proponents say would prevent wrongful convictions. Thirty-six states don’t require corroboration and most of the remaining states that do require it in limited circumstances, said Jennifer Long, chief executive officer of AEquitas, a group that provides resources for prosecutors on violence against women.