Sexual abuse in confinement has persistently presented tremendous challenges to investigators and prosecutors because of internal and external barriers to reporting, including the behaviors, actions, and decision-making power of first responders that may result in the failure to make an official report to law enforcement. Additional challenges include issues related to evidence collection and retention, identification of witnesses, and multi-level biases against inmates. This article examines the Prison Rape Elimination Act and national standards related to a victim-centered, offender-focused investigation and prosecution of a sexual abuse in confinement. The issue discusses detailed strategy for prosecuting these cases, including investigation, dealing with gang involvement, and trial testimony.
Walking A Tightrope: Balancing Victim Privacy and Offender Accountability in Domestic Violence and Sexual Assault Prosecutions Part I
Domestic violence and sexual assault crimes are among the most sensitive and challenging cases to investigate and prosecute. They involve extremely personal information, which the prosecution needs and the defense may demand, and which victims are understandably reluctant to share. The purpose of this article is to help criminal justice professionals understand what kinds of information victims generally consider to be private and to facilitate their ability to explain—to victims and other professionals—what information is legally protected as private. This Strategies article is Part I of a two-part series addressing two types of legally protected information: confidentiality and privilege. Part I provides an overview of confidentiality to assist prosecutors in balancing offender accountability with the safety needs and expectations of victims during criminal investigations and prosecutions.
Walking A Tightrope: Balancing Victim Privacy and Offender Accountability in Domestic Violence and Sexual Assault Prosecutions Part II
Part II of this series on protecting victim privacy in domestic abuse and sexual assault cases discusses common statutory or evidentiary privileges and the scenarios in which conflicts with these privileges may arise. The article also provides prosecutors with strategies to protect privileges when the privacy interests of victims may outweigh the obligation to disclose.
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 article 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’ impact on cold cases, in which original experts who performed autopsies and other forensic examinations and testing are no longer available for trial. The author provides practical suggestions to trial prosecutors who must balance limited resources against the need to secure convictions that will withstand confrontation challenges on appeal.
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Prosecuting Image Exploitation
Image exploitation involves the non-consensual creation, possession, or distribution of an image or images depicting victims engaged in consensual sexual activity or being sexually assaulted. As technology continues to evolve more quickly than the law, image exploitation crimes are being addressed by a patchwork of criminal laws. This Strategies Newsletter gives prosecutors insight on how to respond to this complex crime and to hold offenders accountable under imperfect or untested laws. The article explores the various forms of image exploitation and the types of statutes under which this abuse can be prosecuted.
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
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.
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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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.
