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Making It Stick: Protecting the Record for Appeal

Having a sexual assault, domestic violence, or human trafficking 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 appellate challenges. This article 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, recommends the use of trial briefs on anticipated trial problems, and explains how strategic charging decisions can result in admission of evidence that might otherwise be excluded.

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Absence of Anogenital Injury in the Adolescent Adult Female Sexual Assault Patient

Rates of sexual assault injury vary widely in published reports and may be impacted by a variety of issues, including the types of techniques used to assess the patient and the amount of time between the assault and the exam. This article discusses how documentation from sexual assault medical-forensic examinations often notes that no injury was found to the female genitalia or anus. The absence of anogenital injury does not mean that a sexual assault didn’t occur. Anticipating the circumstances when injury will be identified is a challenge.

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Routine Strip-Searches Upheld for Intake into Jail’s General Population

In Florence v. Board of Chosen Freeholders, the Court held that correctional institutions may conduct routine strip-searches of all detainees upon admittance to the general population of the institution, even those arrested for the most minor offenses. The decision also concluded that such searches do not violate the Fourth Amendment. However, the Court’s decision did not address the question of whether such searches would be constitutionally justifiable without reasonable suspicion if the detainee were not to be admitted to general population, leaving open the possibility of limitations on such searches where alternatives to placement in the general population exist. This article reviews the facts of the case and analyzes the Court’s opinion. It highlights the need for clear legislative or regulatory guidance delineating the circumstances under which strip-searches may be conducted. The article emphasizes the need for a solution that will provide institutional security crucial to the safety of all inmates and staff, while minimizing the need to conduct searches that may traumatize detainees.

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Presence of Victim Advocate During Sexual Assault Exam Summary of State Laws

Following a sexual assault report, victims are propelled into the criminal justice system and faced with an array of strangers, each with his or her own role in the response, investigation, or prosecution of the crime. Victims are often interviewed by multiple people, including police officers, doctors, nurses, social workers, and prosecutors. To help victims cope with these challenges, some state legislatures have passed laws providing them with the right to have a victim advocate or personal representative present during such interviews to offer support. This article focuses specifically on the victim’s right to have an advocate present during a medical forensic exam.

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Supreme Court Upholds DNA Collection of Arrestees

In Maryland v. King, the U.S. Supreme Court held that states may obtain and test DNA samples of defendants arrested for violent crimes. This decision resolved conflicting holdings in state and federal courts and clarified that this procedure does not violate the Fourth Amendment to the United States Constitution. It also sanctioned the expanded use of arrestee DNA profiles to solve cold cases in which there is DNA evidence that can prove the identity of a perpetrator. This article reviews the case facts and its impact on DNA collection laws.

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“I Hear You Knockin’ But You Can’t Come In [At Least While I’m Here]” Fernandez v. California: Third-Party Consent Search After Arrest of Objecting Suspect-Occupant

Does a suspect’s refusal of entry prevent the police from later, in the absence of the objecting occupant, obtaining the consent of an adult co-occupant to enter and search the premises without a warrant? In its recent decision in Fernandez v. California, the United States Supreme Court answered that question in the negative—at least where the police have, in good faith, removed the objecting suspect by arresting him or her. This article reviews the facts of the case, state court proceedings, the US Supreme Court’s opinion, and the gang connection and witness intimidation involved. The article ultimately concludes that the Fernandez decision will facilitate prompt and efficient evidence collection in many crimes involving domestic violence while simultaneously empowering victims to consent to reasonable investigative requests that will facilitate holding their abusers accountable.

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Establishing Penetration in Sexual Assault Cases

Criminal acts of sexual violence generally fall into three categories: exposure, contact, and penetration. While prosecutors introduce evidence to establish the statutory elements at trial, defense strategies focus on targeting any vulnerability in that evidence. Where the charged offense includes an element of penetration, defenses may also include specific challenges to the prosecution’s ability to prove that penetration occurred. If the prosecution is unable to prove the element of penetration beyond a reasonable doubt, the accused will be acquitted or convicted of a less serious offense. This Strategies in Brief explains the legal requirements for establishing penetration in sexual assault prosecutions and offers strategies for effectively identifying, evaluating, and presenting evidence of penetration. The article: summarizes the categories of criminal sex offense statutes and outlines the legal requirements to establish penetration; provides strategies to prepare for and try sexual assault cases involving penetration; identifies and offers guidance for responding to common defense challenges to establishing penetration in sexual assault cases.

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Identifying, Investigating, and Prosecuting Witness Intimidation in Cases of Sexual Abuse in Confinement

Regardless of the setting in which it occurs, witness intimidation is a chronic problem with devastating implications for victims and for the prosecution of crimes. Victims of sexual abuse in confinement are especially vulnerable to intimidation because they typically have fewer opportunities to escape from (or even avoid) their abusers. This article identifies strategies for investigations and prosecutions that build trust in the criminal justice system and provide multiple, safe, and confidential points of entry for potential reporters. It also discusses victim and witness safety, retaliatory violence, verbal and physical intimidation, and financial and emotional manipulation. The author also examines the potential for intimidation and violence over the course of multiple cases and across time in a single case, as well as policies and protocols that promote effective prosecution of these cases.

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The Prosecutors’ Resource on Elder Abuse

This Prosecutors’ Resource is designed to assist with investigating and prosecuting cases involving abuse, neglect, and financial exploitation of an older victim. It includes foundational knowledge on the various forms and co-occurrence of elder abuse crimes, the characteristics of victims and perpetrators, the aging body, and issues of competency and capacity that will all inform prosecutors’ decision-making in cases and interactions with victims. This Prosecutors’ Resource also provides prosecution strategies for working with older victims and addresses the individual steps and considerations for prosecuting elder abuse cases from the initial interview and investigation through sentencing.

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The Internet & Intimate Partner Violence: Technology Changes, Abuse Doesn’t

Although intimate partner abuse and harassment perpetrated through technology can look different than in-person abuse or harassment, the goals and motives are still the same: power and control. Technology allows an abuser to assert that power and control by keeping tabs on their partner – by knowing who the survivor talks to, what they do, and where they go. This is a key aspect of control. Because so many people live their lives on the Internet, it is a treasure trove of information, allowing abusers to stay informed and in control of their victims. This Strategies Newsletter provides an overview of online abuse and offers solutions for documenting the abuse, supporting survivors, and holding offenders accountable.

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