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OPDV Bulletin:
Evidence-Based Prosecution of Domestic Violence Cases

By Arlene M. Markarian, Bureau Chief, Domestic Violence Bureau/Elder Abuse Unit
Kings County District Attorney's Office • Copyright, 2003, By Arlene M. Markarian, All Rights Reserved

Many times in domestic violence cases, the trials become a "he said/she said." This is because all of the available evidence is not collected or obtained which can prove and/or corroborate the allegations. If the victim testifies, the prosecution must have evidence to corroborate her testimony so the jury will feel we met our high burden of "beyond a reasonable doubt." If she does not testify for the prosecution, then we need independent evidence to prove each and every element of the crimes charged, as well as the identity of the perpetrator. (Remember, if the victim does not testify for the prosecution, we will need evidence to prove that it was the defendant who committed the crime.) Therefore, a domestic violence case must be investigated as if it was a homicide case – presume the victim will not testify for the prosecution at trial. In other words, we must try to prove the charges without the victim's testimony. Below are some examples of the types of evidence which can be used to successfully prosecute a domestic violence offender.

Investigation of a domestic violence case is aided by evidence such as photographs, physical evidence, eye witnesses, "excited utterances," abuser's statements, expert medical opinion and evidence of animal abuse. Following is a more detailed description of each. [NOTE: Although there are both female and male defendants and victims in domestic violence, defendants will be referred to in the masculine and victims in the feminine for the purposes of this article.]

1. PHOTOGRAPHS

• VICTIM's INJURIES
  Include photos of scratches, bruises, "grab marks," lumps or lacerations anywhere on body.
• DEFENDANT's INJURIES OR LACK OF INJURIES
  This is especially important if the abuser later claims self-defense.
• ALL BLOODY/BLOOD-STAINED ITEMS
• PROPERTY DAMAGE
  This can show a struggle or the use of intimidation. Include photos of telephones ripped out of the wall to prevent a 911 call.
• MESSAGE/NUMBERS ON BEEPERS AND CALLER ID BOX
  This can be evidence of stalking or of violating an Order of Protection.
• ENTIRE HOME/CRIME SCENE
  Photos of broken property and overturned furniture can be used to show signs of a struggle. This is especially significant where defendant claims "we only had an argument" or "she just fell."

2. PHYSICAL EVIDENCE

• WEAPONS
  Not just guns and knives, a weapon can be any item used to injure or threaten the victim including spearguns, explosives, scissors, spatulas, clothing iron, shoes, boots, etc. Don't forget about non-traditional weapons, for example, frozen turkeys (I'm not kidding!) or canned foods. Also, look for evidence that the defendant owns or has access to weapons including holsters, cartridges, clips, firearm cleaning items, knife sheaths, etc.
• EVIDENCE OF ALCOHOL/DRUG ABUSE
  Evidence of drug use is especially relevant to prove the abuser's motive to commit the crimes. It also can explain the nature of their relationship, e.g., he beats her every time he gets drunk or high or threatens her for drug money.
• ALL DAMAGED PROPERTY
  This includes telephones ripped out of the wall and damaged personal property, as well as property damaged during a struggle or as a means of intimidation ITEMS USED TO RESTRAIN, GAG OR TORTURE VICTIM
  These items can includes belts, rags, socks, electrical cords, razors, etc.
• LETTERS WITH ENVELOPES
  Ask victim for everything she has. Many people save letters and notes. They may contain threats, apologies or evidence of defendant's motive, jealousy and/or stalking behavior.
  
• VICTIM'S DIARY/CALENDAR DOCUMENTING ABUSE
  Affirmatively ask victim if she has documented the abuse.
• ANSWERING MACHINE/VOICE MAIL MESSAGES AND/OR TAPES
  They may contain threats, apologies or evidence of stalking.
• CLOTHING, SHEETS, BLANKETS OR OTHER ITEMS WITH BLOOD STAINS
• BLOODY/TORN CLOTHING
• MARTIAL ARTS PARAPHERNALIA
  Defendant's knowledge and proficiency in the martial arts, boxing or other type of combat training can be highly relevant in assault cases.
• EVERYTHING!
  A jury needs to see everything. It brings them back to the time of the crime and corroborates the witnesses.

3. EYE WITNESSES, EAR WITNESSES & NOSE WITNESSES
Remember, walls are thin! Did anyone see, hear or smell anything relevant to the crime?

4. "EXCITED UTTERANCES" BY VICTIM
Generally, this refers to when a victim is crying/shaking/injured/upset and tells someone what happened to her or tells them about the abuse soon after it occurred or as soon as possible. Since excited utterances are an exception to the "hearsay" rule, whoever heard the victim make these statements may be permitted to testify as to what the victim said. This can be very important in cases where the victim is not testifying for the prosecution because it can be evidence of the identity of the abuser, as well as to what happened. Check for excited utterances to: friends/neighbors or other people at the scene or who the victim immediately called; EMS; first police officers to arrive at scene; nurses/doctors.

5. ABUSER'S STATEMENTS
These are more than classic "confessions." Any statement an abuser says to anybody concerning the incident could be important, no matter how insignificant it may seem. Whoever the abuser spoke to may be permitted to testify. For example, if the abuser claims that an injury was the result of an accidental fall but a doctor later concludes that the injury is inconsistent with a fall, the abuser's claim can be used against him at trial. Check for statements made to not only police but to neighbors, landlord, friends/family, employer, EMS, hospital personnel, police dispatcher or parole/probation officer.

6. EXPERT MEDICAL OPINION
Try to obtain a "release" from the victim so you can speak with her doctor(s) and obtain medical records. A medical expert can explain the force required to inflict injury and give expert opinion as to whether injury is consistent with the way defendant (or recanting witness) claims it was sustained.

7. ANIMAL ABUSE
Animal abuse is an effective way to terrorize a victim. If the defendant did injure or kill a pet, contact the ASPCA Police or Humane Society. Photograph the injuries. Many times an abuser will admit to injuring the pet but deny hurting the victim. If so, he may be prosecuted under the applicable animal abuse statute and face possible incarceration. Keep in mind, injuring or killing a pet is proof of the message the abuser is sending to the victim: "If I could do this to an animal, imagine what I can do to you!"

Bottom line – Anyone who has contact with the victim or the defendant is a potential witness and is in a position to preserve evidence. It doesn't matter if you are a friend, relative, social worker or health care provider. If you think you have evidence that can help prosecute a domestic violence offender, please let law enforcement know. You may save a life.