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.
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.
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.
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.
Field Guide to Witness Intimidation
Witness intimidation affecting the criminal justice system can take many forms and arise in many contexts. Its presence and effects are not always self-evident, either to professionals working in the system or to the witnesses themselves. While overt threats may be easily recognized and categorized, other forms of intimidation may be subtle or disguised, or too easily overlooked in the course of responding to what has been identified as the primary criminal offense. This Field Guide to Witness Intimidation is intended to be a convenient reference to assist professionals in identifying acts of witness intimidation that may affect their work with victims and witnesses vulnerable to such pressures.
Federal Firearms Prohibition Extends to Persons Convicted of Reckless Misdemeanor Crimes of Domestic Violence: Voisine v. United States
The United States Supreme Court has held that the federal firearms prohibition for individuals convicted of misdemeanor crimes of domestic violence applies even to convictions having recklessness as an element of the offense. In Voisine v. United States, the Court rejected the petitioners’ argument that the prohibition was inapplicable where the predicate offense could have been based upon a finding of reckless conduct, as opposed to purposeful/intentional or knowing conduct. This article outlines how the Voisine decision has definitively settled the question of whether convictions under statutes that include the reckless infliction of injury qualify as misdemeanor crimes of domestic violence for purposes of the federal firearms prohibition. It also provides suggestions for prosecutors about how to best leverage this decision in domestic violence cases in ways that keep victims—and communities—safe.
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.
The ABCs of BAC: Toxicology for Prosecutors and Investigators
Alcohol’s unique toxicological effects, widespread use, and ease of access render it the ideal substance to facilitate sexual assault. The same factors that make alcohol such a perfect weapon also present unique challenges for investigators, prosecutors, and other allied professionals in alcohol-facilitated sexual assault (AFSA) cases. An understanding of basic toxicology principles is critical for investigators and prosecutors handling these challenging cases from investigation through sentencing to be able to hold offenders accountable for their criminal behavior. This webinar explains the toxicology of alcohol, as well as drugs, in lay terms that will help you understand how alcohol affects the body. Topics include alcohol metabolism, the disproportionate effect of alcohol on women and men, the mechanism of intoxication, an explanation of blackouts vs. pass outs, and other common toxicological issues. It also explores common issues and challenges related to the investigation and prosecution of sexual assault cases where alcohol is present.
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.
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.
