This article provides an overview of Bullcoming v. New Mexico, a case holding that the Confrontation Clause prohibits the prosecution from introducing a forensic laboratory report through the testimony of an analyst who did not personally perform or observe the testing. The authors discuss the impact of the case on domestic violence prosecutions to the extent that it expands defendants’ rights under the Confrontation Clause in the area of required live testimony and appears to limit the prosecution’s ability to present physical evidence when laboratory analysis is involved.
Supreme Court Clarifies the “Ongoing Emergency” in Michigan v. Bryant
This article provides an overview of Michigan v. Bryant, a case involving the admissibility of a dying victim’s statements to responding police in view of the Sixth Amendment right to confrontation. The Court held that the statements were made to meet an ongoing emergency and were therefore nontestimonial, making them admissible under the principles of Crawford v. Washington. The authors conclude that Bryant gives criminal justice practitioners expanded guidance on what constitutes an ongoing emergency, which enhances the prosecution’s ability to prove a case when the victim is not available to testify.
Supreme_Court_Clarifies_Ongoing_Emergency_in_Michigan_v_Bryant_Issue_9
Prosecuting Intimate Partner Violence and Animal Cruelty
While control of the victim is the ultimate goal of perpetrators of intimate partner violence, victims themselves are not the only targets of these tactics. Abusers may also threaten and commit acts of violence against the victim’s children, family members, and even their pets. This article discusses strategies for protecting victims of abuse and their pets and holding offenders accountable for their actions. The author encourages prosecutors and allied professionals to work together in a coordinated fashion to better identify, investigate, and prosecute acts of animal cruelty. A coordinated community response to co-occurring animal abuse and domestic violence, together with the effective use of strategies to permit successful prosecution in the absence of active participation by the victim, will promote the safety and well-being of victims and their pets while holding the offender accountable for the abuse of all victims in the household.
SIB_Issue_14_Prosecuting_Intimate_Partner_Violence_and_Animal_Cruelty
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.
Routine_Strip_Searches_Upheld_for_Intake_into_Jails_General_Population_Issue_15
Hitting Them Where It Hurts – Strategies for Seizing Assets in Human Trafficking Cases
Human trafficking is a lucrative business that is extremely difficult to identify, investigate, and prosecute, and there are still significant barriers to a successful outcome in these cases, including, among other things, limited resources. Even where offenders are prosecuted and convicted, victims are often left shattered physically, emotionally, and financially by their experiences. Asset forfeiture laws provide for the seizure of property that is a fruit of – or was used to further – the criminal enterprise. Utilizing these laws is one effective way to deter and disrupt traffickers while providing trafficking victims with the monetary means to rebuild their lives. This Strategies in Brief discusses civil and criminal asset forfeiture as a tool in prosecuting cases of human trafficking and related crimes.
Hitting-Them-Where-it-Hurts-Strategies-for-Seizing-Assets-in-Human-Trafficking-Cases
“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.
Disarming the Batterer: United States v. Castleman
The 2014 United States v. Castleman decision ensures that individuals who have been convicted of misdemeanor crimes of domestic violence—even those that include as an element “offensive touching”—will be subject to the federal prohibition on possession of firearms. This article includes analysis and prosecution strategies for domestic violence cases in response to the decision. It ultimately concludes that the effectiveness of the federal statute as a means of disarming such offenders will depend upon the care and diligence of prosecutors who must correctly identify and prosecute those offenders so that professionals having the responsibility for enforcing that prohibition can accurately and easily determine their ineligibility to possess a firearm.
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.
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. This article 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 article suggests 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.
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.
