Transcript PROSECUTION - Criminal justice

PROSECUTION
Keep In Mind
A good investigation
is the key to
a successful prosecution!
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There is no “I” in TEAM
TEAMWORK ISSUES
 “Victimless prosecution” is the goal
 Good working relationship with law
enforcement
 “Top-Down” change
 Good social service agency
cooperation to help understand the
limitations of our evidence or victims
Prosecution’s Role
with Law Enforcement

Thorough investigation/complete police reports =
easier prosecution

Appreciate officer’s “window of opportunity” with the
victim, suspect and others at the scene
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Multiple (Stacking) charges assist with prosecution

Call officer to testify at trial
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Thorough victim contact from officers is a necessity
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Domestic Battery
720 ILCS 5/12-3.2
Domestic Battery is a Class A Misdemeanor if
it is committed intentionally or knowingly without
legal justification by any means and:

Causes bodily harm to any family or household
members as defined in Subsection (3) of section 112A-3
of the Code of Criminal Procedure of 1963, as amended;

Makes physical contact of an insulting or provoking
nature with any family or household members as defined
in Subsection (3) of Section 112-3 of the Code of
Criminal Procedure of 1963, as amended.
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Domestic Battery is a Class 4 Felony
if the defendant has any prior conviction
under this Code for aggravated battery*,
domestic battery, unlawful violation of an
order of protection, stalking, aggravated
stalking, unlawful restraint, or aggravated
unlawful restraint when committed against a
family or household member
720 ILCS 5/12-3.2 (b)
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Violation of an Order of Protection
720 ILCS 5/12-30
Violation of an Order of Protection is a Class A Misdemeanor
a person commits violation of an order of protection if:
1)
He/she commits an act which was prohibited by a court
or fails to commit an act which was ordered by a court in
violation of a remedy in a valid order of protection
authorized under paragraphs 1, 2, 4, 14, or 14.5
(ii) a remedy, which is substantially similar to the
remedies authorized under paragraphs 1, 2, 3, 14, or
14.5
2)
Such violation occurs after the offender has been served
notice of the contents of the order.
A Violation of an Order of Protection is a
Class 4 Felony if the defendant has any prior
conviction for aggravated battery*, domestic
battery, unlawful violation of an order of
protection, stalking, aggravated stalking,
unlawful restraint, or aggravated unlawful
restraint when committed against a family or
household member.
720 ILCS 5/12-30 (d)
Domestic Violence Dynamics
Four Stages Battered Women Go Through:
Denial – victim does not admit there is problem and excuses
the violent behavior.
Guilt – victim begins to acknowledge there’s a problem but
believes she’s responsible.
Enlightenment – victim realizes no one deserves to be hurt
but it still committed to the relationship.
Acceptance – victim accepts that
will not change and leaves
relationship.
batterer
the
Domestic Violence Dynamics
Phase 1: Tension
Building Phase - Victim
tries to keep the peace
and cover up abuser’s
behavior. Abusive
behavior begins to
escalate and tension
builds.
Phase 2: Battering
Incident - Violent
incident happens.
Victim may dissociate
to get through
incident. Almost
always happens in
private.
Phase 3: Honeymoon
Phase - Abuser
promises to change and
never hurt victim again.
Abuser is loving and
kind.
Domestic Violence Dynamics
To get the Victim to stay, the Batterer promises:
 to go to counseling
 to stop drinking or doing drugs
 to become involved in the church
 that the abuse will never happen
again
Full Faith and Credit
Orders of Protection and Civil No Contact Orders
should be enforced in all jurisdictions no matter
where the original order was issued.
Other Statutes
 720 ILCS 5/12-3.3 Aggravated Domestic
Battery
 720 ILCS 5/12-7.3 Stalking
 720 ILCS 5/12-7.4 Aggravated Stalking
 720 ILCS 5/32-10 (b) Violation of Bail
Bond
(72 hour no contact)
 720 ILCS 5/32-10 (c) Violation of Bail
Bond
 720 ILCS 5/10-3 Unlawful Restraint
Other Statutes
 720 ILCS 5/12-1 Assault
 720 ILCS 5/12-4 Aggravated
Battery
 720 ILCS 5/12-11 Home Invasion
 720 ILCS 5/12-5 Reckless
Conduct
 720 ILCS 5/21-3 Criminal
Trespass to Real Property
 720 ILCS 5/21-1 Criminal
Damage to Property
Offense, Statute &
Applicable Penalty Chart
Applicable Penalty
and Sentence Chart
Bail Bond (1)
72-Hour No Contact Conditions of Bond – DV Specific

In place for any defendant who has been charged with
criminal offense in which the victim was a family or
household member as defined by the IDVA.

The defendant must “refrain” from contact or
communications with the victim, and “refrain” from
entering or remaining at the victim’s residence.

72-hours begin when defendant is released from
custody.

I prefer a “no contact until further
order of court” to attempt to prevent
the inevitable pressures on victim
to dismiss case.
Bail Bond (2)
Special No Contact Condition of Bond – Not DV Specific

A Judge orders a special condition that the defendant
have no contact with a specific person, place, groups of
people, etc. as a condition of bond.

If the victim is a family or household member a
Violation of Bail Bond (VOBB) charge could be filed by
the SA. Class A Misdemeanor.

If the victim is not a family or household member a
State’s Attorney has several options (depending on the
violation) such as immediately asking for bond to be
increased, or asking for the matter to be set for hearing
before the judge re-assesses the bond.
720 ILCS 5/32-10
725 ILCS 5/110-6
Bail Bond Assessments
Judges MUST consider the following when
setting bond (Effective 2007)

History of violence, domestic violence, court order violations
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Access to weapons or history of using weapons
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History of drug and/or alcohol abuse, mental health issues
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Offender and victim have currently separated
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Offender stalked, surveilled, or isolated
the victim

Offender has expressed suicidal or
homicidal ideations
New Bischoff Bail Statute (1)
Effective January 1, 2009
Requires the court to order a risk assessment on any
defendant charged with VOOP
 Some courts requiring this in 48 hour window before a bond is
set
 Other courts requiring the assessment to be done as a
condition of bond
 One of the reasons we need the information requested in the
previous slide (history of violence, death threats, etc.)
New Bischoff Bail Statute (2)

Based on information gathered in the risk assessment,
the Court can order the defendant to wear a GPS
device as a condition of bond.

Also can order the GPS device as a condition of any
probation that may be granted.

Good Communication between
Social services agencies and
Law Enforcement is a MUST.
Developing Evidence

Demonstrative

Corroborative
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Competency
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Hearsay
Judge Paul Tressler
Demonstrative Evidence
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Physical Evidence
(photos, x-rays, etc.)
Diagrams & photos of
the crime scene
Calendars, letters,
gifts
Computer data
Other evidence
Judge Paul Tressler
Corroborative Evidence

DNA evidence – the Holy Grail of evidence

Other types of medical evidence
 E.R. Doc’s not the best in SA cases
 Need expert with a “scope” in SA
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Expert testimony
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Suspect statements
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Medical evidence
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Hearsay statements
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One party consent recordings
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Search warrants in extreme cases
Judge Paul Tressler
Suspect Statements
Always promote the investigative agency to
get the suspect’s statement (even if it is
just verbal) and note everything they say
WHY?
1. So they or their defense attorney can’t think of
a better lie later.
2. Guidance as to what the defense strategy will
be.
Medical Evidence

Testimony of wounds,
abrasions, or other injuries
- Seriousness of the injury
- Subpoena
hospital/ambulance/
records/x-rays
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Expert Opinions
- Injuries consistent with abuse
- Absence of injuries, incl.
private parts (certainly in child
victims)
- SIDS, shaken baby
Judge Paul Tressler
Expert Testimony

Someone with special skill, knowledge,
experience or education who is permitted to
render an opinion based upon that
specialized knowledge, etc.

Testimony must be understandable to the
trier of fact.
Judge Paul Tressler
Hearsay
Hearsay is an out of court
statement offered to prove
the truth of the matter
asserted.
The general rule is that hearsay
is INADMISSIBLE.
There are exceptions…………
Common Law Exceptions

Admission/Confession

Spontaneous Statements
 Excited Utterances
 Present-sense Impression

Statement for Medical
Diagnosis
 Statement as to Physical
Condition
 Statement as to Mental
Condition
Excited Utterances (1)
Theory: Statements made while the person is
“excited” (while “under the stress of excitement
caused by the event”) are less likely to be
fabricated, and thus admissible as a hearsay
exception.
 Note the victim’s emotional state. These
statements can only come in IF they were made
while the victim was still caught up in the
moment. Statement is likely to be admissible if
the witness can be described as excited,
hysterical, very upset, sobbing, etc.
Excited Utterances (2)

Usually statement must be made right after the
incident (ex. 911 call), but sometimes admitted
even hours later – may be defined by statute.
 Write in quotation marks to indicate they are the
victim’s exact words.
 Generally, the Judge is more likely to admit the
statement if the officer uses
the declarant’s exact words
in the report.
 Note if an interpreter was
used.
Present-sense Impressions
Statements made while a person is perceiving an
event or condition, or immediately thereafter
 Neighbor calling 911 while a domestic violence incident
is occurring, and describing the event
 Victim describing current/ongoing situation or condition
Statements for Medical Diagnosis
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Statements made to medics.
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Statements made at the emergency room/hospital.
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If statements happen to be made in front of a
witness (like a law enforcement officer), the witness
can testify as to the statements.
Statements as to
Physical Condition
If the victim says to the
officer, “My stomach hurts
so much where he kicked
me!” and the officer
includes this statement in
the report, it should be
admissible at trial because
it describes the victim’s
physical condition at the
time of the assault.
Statements as to
Mental Condition
If the victim says to the officer, “I’m so terrified
of him that I can’t breathe right,” and the officer
includes this statement in the report, it should
be admissible at trial because it describes the
victim’s mental condition at the time of the
assault.
Training Exercise
Handling the Call:
Domestic Violence Vignettes
Scene 15
“My Crazy Wife Stabbed Me!”
Legislative Exceptions (1)

Child testimony in sex abuse/assault or even
battery cases
 Covered by 725 ILCS 5/115-10
 ONLY children UNDER age of 13 at time of offense
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(see statute for applicable rules)
Pretrial hearing
Preferably your trial judge b/c court’s ruling may
change if victim has problems
Child’s hearsay statements admissible if judge finds
that “time, content, and circumstances” of statement
make it reliable
Victim should NOT be called at hearing
Legislative Exceptions (2)
Any corroborative evidence you have should be
put on at this hearing
 Medical from doctor or hospital staff
 Police testimony on statements from defendant, even
“half admissions”
 Unique fact patterns that led to statement itself, e.g.
came out at bath time, after good/bad touch talk
 Confrontation clause issues
o Crawford v. Washington, 541 U.S. 36 (2004)
o Davis v. Washington, 547 U. S. 813 (2006)
 Not an issue as long as the child is “available for cross
examination” – what does that mean?
 Testimonial v. non-testimonial hearsay
Types of Trials

Bench trial/Adjudicatory Hearing (juvenile) - the trier of
fact is a judge.

Judges are human, each has their own idiosyncrasies.
Know what those are, and be aware when presenting
the information in your case.

Jury trial – the trier of fact is a panel of a specific
number (usually twelve) private citizens.
What is a Jury Trial?

A battle to control the minds of twelve people
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It is conducted under established rules of
evidence
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This is done in a civilized, but adversarial posture
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Jurors expect the prosecutor to be prepared
Judge Paul Tressler
Jurors
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Preconceived Ideas
 Impact of the media, esp. pop culture
 Lack of medical or scientific evidence
 Children or young witnesses not believable
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Bias or Prejudice (anti-police, etc)
 Even small matters, like DUI’s
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Divergence of life experiences and abilities
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Inexperience as jurors
 Inexperienced jurors look for any problem with a
story for reasonable doubt
 Experienced jurors try to figure out who is truthful
Judge Paul Tressler
Jury Selection (1)

We aren’t looking for fair and impartial – we
want jurors that are most likely to be
sympathetic to our theory of the case.

Small jurisdictions
- Have jurors rated by law enforcement officers
and others likely to know most or all of the
persons on the jury panel
- Run criminal history and driving record checks
Victor Vieth, Investigating and
Prosecuting Cases of Child Abuse
Jury Selection (2)
1. Consider a jury questionnaire or individual voir
dire for sensitive topics pertaining to abuse or
you are unlikely to get honest answers.
2. Educate the jury in voir dire, but be careful of
indoctrination
*REMEMBER – you are always being watched by
potential jurors. You must show your commitment
to justice and professionalism at all times!
Victor Vieth, Investigating and
Prosecuting Cases of Child Abuse
Keys to a
Successful Prosecution

Anticipate defenses
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Accurate, reviewed reports

Prepared witnesses
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Understandable experts
Judge Paul Tressler
Accurate, Reviewed Reports

Primarily with police officers - Do tell them

In cases with minor victims, remind officer to
refresh on DOB’s
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Various schools of thoughts on witnesses
reading or watching their previous statements
-Especially with witnesses over the age of 13 or so,
will serve the purpose of having the witness better
recall what she told police, and even facts
-Danger in opening us up to allegations of coaching
the witness what to say, esp. w/ young
Witness Preparation

The more times you practice, specially
with kids, the greater possibility you will
suck all emotion out of the testimony at
trial

Emotion is good. Jurors expect to see it.
They will watch victim intently.
Expert Witnesses

In small counties, use local experts
In a tough case, especially for hard-to-explain
behavior, it may be necessary to get a conviction

An expert can help with:
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 Lack of medical or scientific
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evidence
Why victim recanted
Why victim delayed reporting
Why victim never left, or
continued to trust
Why victims allow abuse to
go on for years, even when
they know it’s “wrong”
Preparing a Witness to Testify (1)

Familiarize with the courtroom
 Layout – who sits where
○ Deputies there w/guns to protect you
○ Position yourself to get witness to look at jury
(and not at the defendant)
 Procedures
 Oath
 People (attorney’s, bailiff’s, court security, etc.)

Witness do’s and don’ts list – type out
 Motions in limine granted
 Defendant’s prior bad acts, criminal history
Preparing a Witness to Testify (2)

Unless they are necessary for safety of victim, not
a big fan of family in courtroom w/victim – distracts
witness from her job

Modify the courtroom if needed

Consider scheduling issues w/witness
 If a sympathetic judge, try to get him to allow you
to call victim first thing in morning
Training Exercise
Handling the Call:
Domestic Violence Vignettes
Scene 15
“My Crazy Wife Stabbed Me!”
Opening Statements

A road map that will invoke a little sympathy,
but don’t go overboard

You must “front” the bad parts
of your case that you know about
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Unsavory witnesses
Recantations
No medical evidence, if that is the case
Drug or alcohol abuse
I like to acknowledge to jury that I don’t know
how victim will react in testimony, e.g., cry,
nervous laughter, freeze up, so they have
lowered expectations
Propensity Evidence

In SA and DV cases, Illinois law now allows you to put on
prior bad sexual or violent acts of defendent to show his
propensity to commit SA/DV
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Powerful evidence if you can get it in
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Don’t be afraid of it – growing line of Illinois cases, incl.
Ill.S.Ct., that approve of practice
SA – 725 ILCS 5/115-7.3
DV – 725 ILCS 5/115-7.4
See, P v. Donoho, 204 Ill.2d 159 (2003)

Pretrial notice to the defense, followed by pretrial
hearing, required – Prob.val/prejud
Closing Statement

Again must confront the weaknesses in your case,
but I love to do so in REBUTTAL – Why? ‘Cause
having the last word is a wonderful thing.

Issues instructions best outline to show the jury
what we must prove

Refer to points and concerns raised in voir dire, and
how they played out at trial, such as witness
demeanor
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NEVER read your closing

As prosecutors we can’t say “I believe the
evidence…” True believers show that in delivery.
Rebuttal

Save all your best stuff, quips, etc. for
rebuttal when defense attorney can’t
respond

REASONABLE DOUBT ISSUE – Must be
approached w/caution, but I am becoming
convinced you must talk about it at some
point, and here is where I would do it
Acknowledgements
-Judge Paul Tressler, Montgomery County, PA
-Victor Vieth, National Child Protection Training
Center, Winona State University
-4th Judicial Circuit FVCC Law Enforcement
Committee
-OVW Rural Grant Committee, 4th Judicial Circuit
-Law Enforcement Resource Center & Minnesota
Program Development, Inc., 2000
This project was supported by Grant #2011-WE-AX-0055, awarded
by the Office on Violence Against Women, U.S. Department of
Justice, through the Illinois Violence Prevention Authority.
The original project was supported by Grant # 2008-WR-AX-0016,
awarded by the Office on Violence Against Women, U.S.
Department of Justice, through the Illinois Criminal Justice
Information Authority.
Points of view, opinions, findings, conclusions or recommendations
contained within this document are those of the author and do not
necessarily represent the official position or policies of the U.S.
Department of Justice, Office on Violence Against Women, Illinois
Violence Prevention Authority, or the Illinois Criminal Justice
Information Authority.