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.
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.
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.
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.
Disarming the Batterer: Intimate Partner Violence and Firearms
Firearms are the most frequently used weapons in intimate partner homicide, eclipsing all other weapons combined. As prosecutors, it is our responsibility to make the most of the available tools at our disposal to disarm violent offenders and increase the safety of victims and our communities. This webinar discusses: the danger posed by firearms in the hands of batterers; firearms prohibitions for domestic violence offenders under federal or state law; recent U.S. Supreme Court decisions interpreting federal firearms prohibitions; the importance of firearms surrender protocols.
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.
The Prosecutors’ Resource on Forfeiture by Wrongdoing
Forfeiture by wrongdoing is a longstanding exception to a defendant’s Sixth Amendment right to confront the witnesses against him. If a defendant causes a witness to be unavailable for trial through his wrongful acts, with the intention of preventing that witness from testifying, then the introduction of the witness’s prior testimonial statements is not barred by the Confrontation Clause of the Sixth Amendment of the United States Constitution. This resource will review the origins and requirements of forfeiture by wrongdoing, examine its utility in domestic violence cases, outline trial strategies, and provide a checklist for hearings on forfeiture.
Betraying the Badge: Officer-Involved Domestic Violence
Batterers who wear a badge can misuse their professional training and authority as weapons against their victims. Officers who are victims of intimate partner violence may be reluctant to identify as victims and may face negative professional consequences for reporting, or failing to report, the abuse. This webinar addresses: the complex dynamics of violence when one or both parties are in law enforcement; effective management of simultaneous administrative and criminal proceedings; provision of appropriate services for victims; and the mitigation of consequences for victim-officers who recant, fail to appear, or otherwise decline to participate.
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.
