Public Awareness
OPDV Bulletin:
From Where I Sit - The Judge's View
By Penelope D. Clute, Plattsburgh City Court Judge
At the conclusion of a criminal domestic violence case where the defendant was acquitted, I have sometimes been told by jurors that they felt the defendant was guilty, but there just was not enough evidence. These jurors are sending an important message about the nature and weight of the proof presented to them.
The burden of proof lies with the prosecutor who must prove the guilt of the defendant beyond a reasonable doubt. This makes evidence gathering and witness preparation key factors in presenting the winning case. The fact-finders - the Judge or Jury - know nothing about the case, nothing is obvious or taken for granted. Their final decision must be based solely on the evidence produced in the courtroom.
It is entirely within the power of the prosecutor to determine whether or not a particular case goes to trial, since nothing can be tried unless it is prosecuted. Before trial, the prosecutor needs to evaluate the witnesses to determine, among other things: (1) Are you convinced your witnesses are telling the truth? (2) If so, how will they appear to others? (3) Do you have credible proof of each element of the crime charged? The case must be proven by presenting facts, not conclusions.
Almost all domestic violence cases come down to questions of credibility: who to believe. Since the Judge and Jury know only what they are hearing in Court, it will usually take more than the victim simply describing the incident for the fact-finder to accept that version.
Remember, in a criminal case, the standard of proof is "beyond a reasonable doubt." If the prosecution witness's version is contradicted by the defendant, there can easily be reasonable doubt. If the complaining witness is believable and so is the defendant, there is often reasonable doubt. Maybe they cannot both be true, but if the Judge/Jury cannot tell who is truthful, there is reasonable doubt.
To render a verdict, the fact finders try to make sense of what is presented and look for reasons to believe or disbelieve particular testimony. Usually, the prosecution witnesses are held to a very high standard, and their testimony "picked apart" by jurors during deliberations.
It is not simply a comparison of the victim's testimony versus the defendant's. Even if the Jury believes the defendant is lying, it usually must be convinced that the victim is telling the truth before finding a defendant guilty. If the Judge or Jury concludes that both of them have lied to some extent, or that the victim has left out information, leaving nagging questions, it is unlikely they will be persuaded beyond a reasonable doubt that the defendant is guilty.
Many times, if there is no context for the alleged criminal conduct, it makes no sense to the Judge/Jury and gives them doubt as to what happened. When the defense attorney or defense witness raises questions, the prosecutor must follow-up with redirect or rebuttal. This requires adequate preparation by counsel.
Witnesses should testify about what happened, giving such detail that the Judge or Jury should reach the same conclusion that the police and prosecutor did. The Judge/Jury are also interested in the feelings and thought processes of the witnesses. This does not mean their opinions about whether the defendant is guilty or speculation about why he or she did something. It means what were the witnesses experiencing at the time of the incident – what was going through their minds? This may also be documented in police reports or medical records.
Support the witness's testimony through as much hard evidence and illustrations as possible. Use maps and photographs to make it easy for the jury to get a picture of what the witness is describing. They will be better able to pay attention to important aspects of the testimony if they are not distracted wondering what a house or room looked like. Introduce objects that illustrate the witness's testimony. If the defendant was allegedly threatening with a knife, the Judge and Jury expect to see the knife, or at least one that looks like it.
In summary, the prosecutor must remain aware that the Judge and Jury start the trial as blank slates; they know nothing of the facts of the case. Evidence necessarily is introduced piecemeal, one witness at a time. Reduce the confusion and help set the scene for the Judge and Jury by illustrating witness testimony.
Let the witness tell the story. Do not lead, and do not limit the witness to only the key elements. Present the context through the witness; what happened immediately before the incident? How did it start? How did it end? The Judge/Jury wants to hear from the witness, not the lawyer. The fact-finder tries to understand how and why the event happened. If the witness doesn't say much, the Judge and Jury will have little basis for evaluating credibility, and will not get a feel for whether the witness is telling the truth.
Make every effort to present the case so the Judge and Jury can make a decision based on the evidence, instead of rendering a verdict founded on the lack of it.
