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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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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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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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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.

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Under the Radar: Prosecuting Intimate Partner Sexual Violence

The majority of sexual violence victims know their assailants, a fact that can greatly affect and complicate the reactions that victims experience during and after an assault. Intimate partner sexual violence usually co-occurs with other forms of physical and psychological violence and may indicate a greater lethality risk than with other victims of sexual violence. Criminal justice, advocacy, and health care professionals must consider these and other complexities as they seek to create a victim-centered response. This webinar describes the common dynamics, prevalence, perpetrators, and victims of intimate partner sexual assault, examines ways in which allied professionals may need to expand their practices to adequately and holistically care for these victims, and summarizes the legal issues relevant to the prosecution of intimate partner sexual violence.

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.

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Technical Evidence in Stalking Prosecutions: Where to Get It and How to Get It In

The use of personal computers, mobile devices, and other technology in stalking activity presents challenges for the prosecutor who must connect the activity to the defendant. Prosecutors must be familiar with the sources of available evidence, how to obtain it from technology providers, and how to present it effectively to a jury. This webinar covers the applicable rules of evidence and relevant case law associated with proving a technology-facilitated stalking case. The presentation provides strategies for introducing technical evidence and for responding to common objections at trial.

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.

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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.

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.