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.
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.
Prosecuting Strangulation Injury
Strangulation is one of the most lethal forms of violence employed by perpetrators of intimate partner violence. Nonfatal strangulation often results in little or no visible injury to the victim, despite the fact that the victim has been placed at risk of death or serious injury that may not manifest until much later. But in the absence of visible injury, other telltale symptoms may be present. It’s critical for law enforcement officers and other first responders to identify these symptoms of strangulation, document the indicators, and offer and encourage appropriate medical evaluation and treatment. This presentation addresses common misconceptions about strangulation injury and focuses on the real signs and symptoms, medical evaluation and documentation, risk factors, and trial strategies.
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.
Making Your Case: Evidence-Based Prosecution
A recurring concern in domestic violence cases is whether and how the victim will testify at trial. Many victims are subject to intense pressures—including intimidation and manipulation—that discourage them from participating in a criminal prosecution. When victims do participate, they may minimize the level of violence or the defendant’s culpability, recant prior statements, or testify for the defense. While these cases present unique challenges, they can still be prosecuted successfully. This webinar focuses on: evidence-based considerations that enable prosecutors to remain victim-centered and to try cases where the victim is an absent or reluctant witness; investigative techniques that support a comprehensive approach to the identification and documentation of evidence, including evidence of intimidation and manipulation; trial strategies, including the use of expert testimony to explain victim behavior, that will enable the jury to return a guilty verdict regardless of whether or how the victim testifies.
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.
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.
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.
Keep Calm and Understand Elonis v. U.S.
The decision of Elonis v. United States, 135 S.Ct. 2001 (2015), in which the United States Supreme Court reversed the defendant’s conviction for posting on Facebook threats to harm his wife and others, has caused a good deal of concern among prosecutors, civil attorneys representing victims in protective order proceedings, law enforcement, and advocates. The webinar analyzes the Court’s opinion, breaks down its meaning for the investigation and prosecution of cases involving online threats and stalking, and explains why the Elonis decision is not cause for alarm. The presenters, one of whom authored an amicus brief in the Elonis case, suggest strategies for charging and presenting evidence in cases involving threats or stalking on public forums, such as Facebook, to maximize the likelihood of a conviction that will stand up on appeal.
This webinar recording should qualify prosecutors for 1.25 hours of continuing legal education (CLE) credits. Prosecutors are encouraged to contact their state bar association in reference to application requirements and related fees.
It’s About Context, Not Character: Admitting Evidence Under R. 404(b)
Proving a crime of intimate partner violence challenges prosecutors to place the criminal act in the context of the relationship’s dynamic of ongoing power and control, with various forms of abuse that may span years or decades. The fullest possible picture of the relationship better enables the jury to understand the defendant’s motive and intent to inflict harm upon the victim. This can be done through admission of other crimes, wrongs, or acts under Federal Rule of Evidence 404(b) and equivalent state or tribal evidence rules or statutes. This webinar identifies types of evidence that may be admissible for purposes permitted under the Rule, suggests ways in which admissibility under the Rule can be argued, and discusses important considerations to avoid reversible error on appeal.
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.
