Putting the Forfeiture by Wrong- doing Doctrine to Work Jon Eliason Bureau Chief Family Violence Bureau Maricopa County Attorney’s Office OBJECTIVES – At the end of this presentation you should have greater understanding of the following: 1. Why DV cases are extremely vulnerable to witness intimidation / influence. 2. What happens to DV cases when the victim does not appear for trial. 3. Confrontation Clause challenges in DV cases. 4. History of Forfeiture by Wrongdoing. OBJECTIVES – At the end of this presentation you should have greater understanding of the following: 5. Case-law on FBW. 6. How to put on a FBW Hearing in Court. 7. Using FBW evidence in your case in chief. VICTIM INTIMIDATION IS BOTH A LEGAL AND FACTUAL PROBLEM FOR THOSE WHO WANT TO HOLD THE DOMESTIC VIOLENCE OFFENDER ACCOUNTABLE. LEGAL PROBLEM BECAUSE THE LEGAL rules BAR MOST STATEMENTS WHEN THE DV VICTIM DOES NOT APPEAR AT TRIAL. FACTUAL PROBLEM, BECAUSE JURY FAILS TO HEAR FACTS OF THE DV CRIME from the victim One way to address both the legal and factual HURDLES COMMON IN DV CASE is the doctrine of forfeiture by wrongdoing PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION To solve the problem one needs to understand both the LEGAL and FACTUAL obstacles. PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION 80-90% of domestic violence victims do not cooperate with the prosecution (likely higher). » Bridging the Gap between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale JL & Feminism 359, 367 (1996) PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION POWER AND CONTROL does not end with the defendant being arrested. In fact, it tends to continue and increase after arrest and until the termination of the case. TRADITIONAL VISUAL OF DV CYCLE TOO SIMPLISTIC 1. Victim calls 2. Defendant 911 arrested and Police Charges filed / gather Trial set. evidence 3. Victim recants and / or refuses to appear for trial Domestic violence isn’t a once only crime. Oprah: “He will hit you again.” DOMESTIC VIOLENCE IS NOT A ONE-TIME EVENT Multiple Prior incidents of DV Reported DV Event Victim willing and able to testify Witness Intimidation continues Apologies, threats, promises, Jail calls, financial uncertainty, assaults family concerns / comments Victim no longer willing and able to testify Avoids service, recants prior Minimizes DV Event statement VICTIM INTIMIDATION BEGINS BEFORE POLICE ARE CALLED Phoenix PD’s 4 Questions (excellent for developing 404(b), impeachment, and forfeiture material): 1. How frequently and seriously does your partner intimidate you? Describe. 2. How frequently does your partner demand you do things and verify you did them? Describe. VICTIM INTIMIDATION BEGINS BEFORE POLICE ARE CALLED Phoenix PD’s 4 Questions (excellent for developing 404(b), impeachment, and forfeiture material): 3. Describe the most frightening or worst event involving your partner. 4. Have you ever made it known to your partner that you wanted to leave? How did your partner react? PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • What are the factual reasons that a victim or witness refuse to appear at trial? • In DV cases you must think past traditional mobster or gangster witness threats intimidation. PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Common Misconception: • Media has done a great job illustrating victim intimidation by mobsters and gangsters. • There is a lack of understanding regarding victim intimidation in DV cases. • Criminal Justice system uses great resources to protect witnesses in gang / organized crime cases. PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • CURRENT HELLS ANGELS CASE IN MARICOPA COUNTY SUPERIOR COURT • Facts: Hells Angels killed woman in Mesa. • At least one witness is in the Federal Witness Protection Program. • Armed guards protect the witnesses in the Federal Witness Protection Program. • Deputies outside the courtroom hold AR 15 assault rifles. • Anyone who wishes to enter courtroom is searched. • Criminal Justice system uses great resources to protect witnesses in gang / organized crime cases. PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • We can do a better job at recognizing witness intimidation in DV cases. • Right now we usually only know about intimidation when the intimidation isn’t successful! PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • The person (victim) most likely to be in possession of evidence of witness tampering / intimidation may not know it! • Because of this, many victims never report the illegal activity. PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION Most explicit acts of intimidation take place where police exert little control; at the witness’s home, school, or work or while the witness is running errands or socializing. Fyfe & McKay 2000 PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Recognize these common methods and modes of witness intimidation in DV cases: • Custody of children • Child Support • Threat of protracted litigation PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Factors Related to Increased Risk of Intimidation – The violent nature of the initial crime. – Previous personal connection to the defendant. – Geographical proximity to the defendant. – Cultural vulnerability – membership in easily victimized groups, such as the elderly, children, or recent or illegal immigrants. • National Institute of Justice, Victim & Witness Intimidation, 1995 PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Recognize these common methods and modes of witness intimidation in DV cases: • Stalking • Homicide PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • Common methods and modes of witness intimidation in DV cases: • Threats -- prior and subsequent • Assaults – prior and subsequent • Criminal Damage PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • Common methods and modes of witness intimidation in DV cases: • Jail calls • Immigration • Flowers Jail Tapes JAILHOUSE PHONE CALLS REVEAL WHY DOMESTIC VIOLENCE VICTIMS RECANT “The existing belief is that victims recant because the perpetrator threatens her with more violence. But our results suggest something very different,” said Amy Bonomi, lead author of the study and associate professor of human development and family science at Ohio State University. http://researchnews.osu.edu/archive/vicrecant.htm JAILHOUSE PHONE CALLS REVEAL WHY DOMESTIC VIOLENCE VICTIMS RECANT “Perpetrators are not threatening the victim, but are using more sophisticated emotional appeals designed to minimize their actions and gain the sympathy of the victim. That should change how we work with victims.” http://researchnews.osu.edu/archive/vicrecant.htm PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • Common methods and modes of witness intimidation in DV cases: • Plea for forgiveness • “Keeping the family together” • If you tell, it will ruin my career. • Social media and text messages PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • Common methods and modes of witness intimidation in DV cases: • Court manipulation • 3rd party interference • Loss of home PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION • Witness tampering is most common DV & Child Abuse crime – yet it is hardly ever recognized, raised, or charged. • Common methods and modes of witness intimidation in DV cases: • Loss of income • Loss of what’s familiar • Divorce PROBLEM IN DOMESTIC VIOLENCE CASES: VICTIM INTIMIDATION Police and prosecutors needs to prepare each case as if the victim will not appear for trial because of witness tampering / intimidation. WHAT HAPPENS WHEN DV VICTIM DOES NOT APPEAR FOR TRIAL? Unable to proceed without victim statements --case gets dismissed – offender not held accountable. Offenders who are successful become more bold and more sophisticated. WHAT HAPPENS WHEN DV VICTIM DOES NOT APPEAR FOR TRIAL? • V likely still in danger (offender empowered), victim further defeated. • V loses faith in the criminal justice system. WHAT HAPPENS WHEN DV VICTIM DOES NOT APPEAR FOR TRIAL? • When and if there is an admissible statement then the case may still go forward without the victim with the use of a hearsay and Confrontational Clause exception. HEARSAY! WHAT HAPPENS WHEN DV VICTIM DOES NOT APPEAR FOR TRIAL? • Specter of missing victim without forfeiture evidence leaves impression that V doesn’t care about case, why should court? CONFRONTATION CLAUSE CHALLENGES IN DV CASES The Sixth Amendment’s Confrontation Clause provides that, “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” CONFRONTATION CLAUSE CHALLENGES IN DV CASES History -- 6th Amendment right to confrontation was first found to apply to the States via the 14th Amendment in 1965 (Pointer v. Texas) CONFRONTATION CLAUSE CHALLENGES IN DV CASES Right to confront one’s accuser is a concept that dates