AEquitas - Champions for Justice

September 30, 2018

Williams v. Illinois and Forensic Evidence – The Bleeding Edge of Crawford

The application of Crawford principles in the context of forensic evidence continues to plague the criminal justice system. The United States Supreme Court’s decision in Williams v. Illinois raises more questions than it answers about when and how an expert may testify to conclusions based upon the opinions or work of other (non-testifying) experts or technicians. This article reviews the relevant case law, and explores how trial prosecutors can present a case involving forensic testing conducted by a multitude of technicians and experts. It also addresses Williams’ impact on cold cases, in which original experts who performed autopsies and other forensic examinations and testing are no longer available for trial. The author provides practical suggestions to trial prosecutors who must balance limited resources against the need to secure convictions that will withstand confrontation challenges on appeal.

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September 30, 2018October 2, 2018

Integrating a Trauma-Informed Response in Violence Against Women and Human Trafficking Prosecutions

This Strategies Newsletter describes a trauma-informed approach to responding to these crimes and discusses practices where such an approach has already been incorporated, highlighting areas where continued, additional integration is necessary. This article also identifies gaps in the application of the approach, specifically in reference to other co-occurring, violence against women and human trafficking crimes, and suggests strategies to more effectively integrate trauma-informed investigative and prosecutorial practices.

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September 30, 2018September 30, 2018

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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September 30, 2018September 22, 2021

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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September 30, 2018March 27, 2024

Evidence of Other “Bad Acts” in Intimate Partner Violence, Sexual Violence, Stalking, and Human Trafficking Prosecutions

In proving a case of intimate partner violence, sexual violence, stalking, or human trafficking, it is often crucial to introduce evidence that the defendant has committed some other crime or bad act—usually before or after the charged crime. Such evidence is often viewed with caution by trial and appellate courts, because of the perceived risk that juries will convict the defendant based upon evidence that they committed some crime other than the one charged or that the defendant is a bad person and therefore probably guilty of the charged crime. Prosecutors should file pretrial motions in limine any time they anticipate introducing evidence of a defendant’s crimes or other bad acts, regardless of whether such a motion is required by law. It is important to identify, and to argue, any potentially applicable grounds for admission. This article describes the theories under which evidence of other bad acts might be admissible, depending on the law of the jurisdiction, gives examples, and offers further resources to help prosecutors overcome specific objections.

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September 30, 2018June 7, 2021

Williams v. Illinois and Forensic Evidence: The Bleeding Edge of Crawford

The application of Crawford principles in the context of forensic evidence continues to plague the criminal justice system. The United States Supreme Court’s decision in Williams v. Illinois raises more questions than it answers about when and how an expert may testify to conclusions based upon the opinions or work of other (non-testifying) experts or technicians. This webinar reviews the relevant case law, and explores how trial prosecutors can present a case involving forensic testing conducted by a multitude of technicians and experts. It also addresses Williams’s impact on cold cases, in which original experts who performed autopsies and other forensic examinations and testing are no longer available for trial. The presenter provides practical suggestions to trial prosecutors who must balance limited resources against the need to secure convictions that will withstand confrontation challenges on appeal.

This webinar recording should qualify prosecutors for 1.5 hours of continuing legal education (CLE) credits. Prosecutors are encouraged to contact their state bar association in reference to application requirements and related fees.

September 30, 2018May 14, 2021

Safeguarding Victim Privacy: A Plan of Action for Prosecutors

Prosecutors have an obligation to provide to the defense all evidence in the government’s possession or control that is material to a defendant’s guilt or punishment. How can we fulfill that obligation, while at the same time safeguarding victim privacy against unnecessary disclosure? Filing motions for protective orders and vigorously opposing defense demands for irrelevant private information is an important part of trial practice for any prosecutor responsible for these sensitive cases. This webinar identifies categories of confidential and/or privileged victim information and records, discusses threshold requirements for defense attempts to obtain such information or for in camera review of records, and suggests pretrial and trial strategies that support the protection of victim privacy, including collaboration with allied professionals to safeguard private information.

This webinar recording should qualify prosecutors for 1 hour of continuing legal education (CLE) credits. Prosecutors are encouraged to contact their state bar association in reference to application requirements and related fees.

September 30, 2018April 29, 2021

Safeguarding Victim Privacy in a Digital World: Ethical Considerations for Prosecutors

Prosecutors have an obligation to provide to the defense all evidence in the government’s possession or control that is material to a defendant’s guilt or punishment. How can we fulfill that obligation, while at the same time safeguarding victim privacy against unnecessary disclosure? In the digital age, these cases present unique ethical challenges related to privacy and confidentiality, prosecutorial discretion, recantation, and disclosure of evidence. This presentation uses hypothetical case scenarios to: address ethical considerations in the context of the investigative function of prosecutors, digital evidence, discovery obligations, and immunity; identify confidential, privileged, non-material, and/or irrelevant victim information and records; discuss threshold requirements for defense attempts to obtain information or for in camera review; introduce pretrial and trial strategies that support the protection of victim privacy, including collaboration with allied professionals.

September 30, 2018December 29, 2020

Responding to Intimidation in Human Trafficking Cases

Intimidation or the threat or use of force or other forms of coercion is the keystone of human trafficking. Traffickers rely on intimidation to prevent victims from reporting and ultimately participating in the justice process by exploiting their vulnerabilities. As a result of exploitation and intimidation, victims may not self-identity and may even appear “uncooperative” during the investigation and prosecution of their traffickers. Maintaining victim safety and achieving justice in these cases relies on collaboration among criminal justice professionals and the community-based programs that provide services to victims. This webinar raises awareness, for prosecutors and other criminal justice professionals, about the dynamics and indicators of human trafficking and intimidation. The presenters challenge participants to reevaluate their approach to detecting and prosecuting these crimes while balancing offender accountability against the impact of criminal prosecution on victims.

September 30, 2018May 24, 2021

Making it Stick: Protecting the Record for Appeal

Obtaining a conviction in a sexual assault, domestic violence, or human trafficking case is usually a hard-won victory, whether by guilty plea or by trial. Having a case reversed on appeal can result in a re-trial with stale evidence, reluctant witnesses, and a victim who is forced to relive the case when she is finally beginning to heal. Though the appellate process is unavoidable, a prosecutor can bring a measure of finality to the criminal justice process by carefully building a strong trial court record that supports the conviction and the sentence imposed and withstands appeal challenges. This webinar discusses the proper creation and protection of the record during all phases of a criminal case, focusing on investigation, charging, plea agreements, trial preparation and strategy, summation, and sentencing. It addresses pretrial motions, and trial briefs on anticipated trial problems, and demonstrates how strategic charging decisions can result in admission of evidence that might otherwise be excluded.