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Making It Stick: Protecting the Record for Appeal

Having a sexual assault, domestic violence, or human trafficking 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 appellate challenges. This article 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, recommends the use of trial briefs on anticipated trial problems, and explains how strategic charging decisions can result in admission of evidence that might otherwise be excluded.

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Evading Justice: The Pervasive Nature of Witness Intimidation

Acts of witness intimidation range from the crude to the complex and, when successful, evade the purview of the justice system, which allows the criminal behavior to continue unchecked. The pervasive nature of these crimes is devastating to victims and to community confidence in the justice system’s ability to keep victims safe and hold offenders accountable. Criminal justice professionals, community leaders, and researchers have declared witness intimidation a national concern and a challenge to the administration of justice. This article discusses how to recognize intimidation and reduce its impact on the criminal justice system through education, documentation and other preventive measures. The authors also offer effective investigation and prosecution strategies.

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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.

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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.

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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.

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The Prosecutors’ Resource on Elder Abuse

This Prosecutors’ Resource is designed to assist with investigating and prosecuting cases involving abuse, neglect, and financial exploitation of an older victim. It includes foundational knowledge on the various forms and co-occurrence of elder abuse crimes, the characteristics of victims and perpetrators, the aging body, and issues of competency and capacity that will all inform prosecutors’ decision-making in cases and interactions with victims. This Prosecutors’ Resource also provides prosecution strategies for working with older victims and addresses the individual steps and considerations for prosecuting elder abuse cases from the initial interview and investigation through sentencing.

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Protecting Children of Domestic Violence Victims with Criminal No-Contact Orders

Prosecutors should understand the legal avenues for keeping children safe throughout the course of a domestic violence case and be prepared to avail themselves of social science research to support their legal arguments. Prosecutors may also need to determine whether they should bring additional charges, argue to increase bail or sentences based on aggravators, and/or file forfeiture by wrongdoing motions to address any ongoing intimidation and harassment by a defendant. This article provides an overview of the legal authority for including children in no-contact orders or for filing additional charges based on threat to their safety. It also provides social science research to support legal arguments to extend no-contact orders to the offender’s children, along with other prosecution strategies to protect children who may be at risk.

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10 Strategies for Prosecuting Child Sexual Abuse at the Hands of a Family Member

The impact of sexual assault on a victim is devastating and the effects are long lasting. Victims of child sexual abuse may suffer physical injury, depression, self-destructive behavior, anxiety, feelings of isolation and stigma, shame, poor self-esteem, difficulty in trusting others, a tendency toward re-victimization, substance abuse, and sexual maladjustment. When the perpetrator is a family member, victims often suffer the emotional scars of guilt, betrayal and fear as well. Judges and juries unfamiliar with the dynamics of sexual assault may overlook offenders’ grooming tactics or misperceive common victim reactions to abuse as evidence of the victim’s lack of credibility. Prosecutors handling these cases face unique challenges. This article outlines ten strategies that will help prosecutors prepare and litigate cases of sexual abuse perpetrated against a child by a family member.

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Enhancing Prosecutions of Human Trafficking and Related Violence Against Sexually Exploited Women

A strong response to violence against sexually exploited women is critical to closing existing gaps and enhancing community safety and offender accountability. Collaboration among prosecutors and allied professionals with relevant expertise (e.g., organized crime, narcotics, and gangs) enhances the identification of victims and perpetrators and the effectiveness of the response to these crimes. This article outlines seven strategies to help prosecutors develop or refine their response to recognize and respond to the interconnected sexual and physical violence perpetrated against trafficking victims and individuals who experience violence as a result of their exploitation.

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No Victim? Don’t Give Up: Creative Strategies in Prosecuting Human Trafficking Cases Using Forfeiture by Wrongdoing and Other Evidence-Based Techniques

The challenges presented in the course of investigating and prosecuting human trafficking cases can be daunting. Among the most common and difficult of these obstacles is the inability or unwillingness of victims to participate in the process. This reluctance may be based upon a variety of factors, including the victims’ fear, shame, distrust of law enforcement, and a real — or perceived — lack of alternatives to trafficking as a way of life. Sometimes the unwillingness of victims to participate arises from their relationships with their traffickers, who may exploit love and intimate relationships to recruit their victims. These challenges are significant but not insurmountable. Prosecutors and allied professionals can employ strategies to enhance the willingness of victims to participate in the prosecution of their traffickers and to enhance the success of the trafficking prosecution even without their participation. When victims do not participate, however, preparing and litigating forfeiture by wrongdoing motions is critical to the successful prosecution of these cases. This article discusses several key investigative and prosecution strategies.

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