The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Prosecution Strategies in Domestic Violence Felonies: Anticipating and Meeting Defense Claims, Final Report Author(s): Carolyn C. Hartley ; Roxann Ryan Document No.: 194075 Date Received: April 2002 Award Number: 95-WT-NX-0003 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. ded3f /~97j Prosecution Strategies in Domestic Violence 1 Prosecution Strategies in Domestic Violence Felonies: Anticipating and Meeting Defense Claims Final Report April, 1998 Revised, October 1998 A project conducted by: Carolyn Copps Hartley, Ph.D. University of Iowa, School of Social Work Roxann Ryan, J.D., Ph.D. State of Iowa Attorney General’s Office for the: National Institute of Justice of the Office of Justice Programs U.S. Department of Justice This project was funded under Grant Number 95-WT-NX-0003 from the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Prosecution Strategies in Domestic Violence 2 1. PROJECT DESCRIPTION 1.1 Background and Purpose The criminal justice system has only recently begun to respond to domestic violence as a public offense. Under common law, a man could lawfully beat his wife because he was legally responsible for her actions and therefore could “correct” her behavior through chastisement.’ Although wife beating was declared illegal in all states in 1920; domestic violence was largely ign~red.~Domestic violence historically has been viewed as a family matter, out of the purview of the criminal justice system. It was dealt with primarily through attempts at mediation or reconciliation, rather than through puni~hment.~ Attention to battered women in the U.S. did not become widespread until 1975 and early 1976, with the beginning of the Battered Womenk Movement? The roots of the movement saw the establishment of the first shelters for battered women in St. Paul, Minnesota and Boston, Massachusetts. Since that time, services for battered women have expanded through the establishment of additional support organizations such as state and national coalitions against domestic violence and court advocacy programs. Police response to domestic violence has changed dramatically. From 1984 to 1988, policing moved kom a view of domestic violence as a family dispute that did not justifjr arrest, to mandatory arrest laws in a dozen states.6 Police have been increasingly educated and trained to treat dome& v/oli;n.;e as P pb1k :*ffesseziz$!~- to violence between stranger^.^ Although there is some disagreement about the effectiveness of mandatory arrest policies,8 there is little e doubt that the number of arrests have increased -- to between two and eight million arrests each This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Prosecution Strategies in Domestic Violence 3 year.' In addition to increased arrests, the definition of domestic violence has broadened to include not only serious assaults, but also physical attacks that do not result in any injury." A higher number of arrests have naturally increased pressure on prosecutors and judges to process those criminal defendants through the court system. In turn, this increased pressure has resulted in a dramatic rise in prosecutions in some jurisdictions, and strong resistance toward prosecution in other jurisdictions." And despite these various policy changes, many police officers and prosecutors still believe that iritervention in domestic violence is warranted only in cases of extraordinary violence. l2 Prosecuting attorneys possess almost complete discretion to set priorities for the use of court resources to try criminal cases.I3 While some prosecutors may make their decisions about charging based on the likelihood of con~iction,'~attorneys are bound by their ethical obligation to file only those charges, which can reasonably be substantiated by admissible evidence at trial? To date, studies of the prosecution of domestic violence cases are limited to charging decisions. No study has examined prosecution or defense strategies in domestic violence cases. Thus, the purpose of this study was to conduct an in-depth, qualitative analysis of the trial strategies used by both the prosecution and defense in domestic violence-related felony cases. 1.2 Difficulties Prosecuting Domestic Violence-Related Cases Domestic violence-related cases are often viewed as notoriously difficult to prosecute. l6 This is in part because our criminal justice system is not structtired to respond well to domestic violence-related crimes. Some of the reasons for this difficulty in responding have to do with: (1) how our laws and rules of evidence are written; (2) a lack of understanding of domestic abuse This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Prosecution Strategies in Domestic Violence 4 dynamics of the part of fact finders; and (3) the perceived lack of credibility of women as witnesses. 1.2.1 Limitations in Our Laws and Rules of Evidence Our legal system is based on charging individuals for "discrete events.'' A batterer may abuse a partner for years, but is often charged for only one abuse event. Thus, the legal process takes the assault out of the context of the larger abusive relationship. Our criminal justice system is not geared to the presentation of evidence about relationship violence. In presenting evidence of the context of a violent relationship, prosecutors must comply with the rules of evidence. For example, the judge may limit the type and amount of evidence of previous violence between the domestic partners, or may disregard the reputation for violence by the defendant or victim. 0 However, many domestic violence experts and prosecutors agree that evidence of prior domestic violence plays an important role in the prosecution of these cases.17 1.2.2 Specific Evidentiary Constraints in Domestic Violence Cases The primary limitation to presenting evidence of prior relationship violence is Rule of Evidence 4O4(b),l8 which limits evidence of "other acts" to "proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence about prior violence may influence the jury's decision and therefore be "prejudicial" to the defendant. However, social science research suggests that the ongoing violent relationship is essential to understanding an individual event of violence. Thus, the history of violence in the abusive relationship may be necessary to prove that a given assault occurred and to support the seriousness of that assault. This context or history may be highly "probative" evidence. Under the rules of evidence, the judge at trial must decide whether evidence is more probative than This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Prosecution Strategies in Domestic Violence 5 e prejudicial. More specifically, Rule of Evidence 403 provides that a judge must decide whether the "probative value" of the evidence outweighs "the danger of unfair prejudice, confusion of the issues, or misleading the jury." Evidence of a defendant or a victim's violent nature is also limited under Rule 404(a). This rule provides that first, evidence about a defendant's character trait can be presented only if it is put in issue by the defendant; and second, evidence about a victim's character trait can be presented only if the defendant puts it in issue or if the victim has died and the victim's nonviolent or peaceful character is relevant. The limitations on other-act and character evidence can have a significant impact in domestic violence prosecutions. Jurors may not be able to hear the evidence that gives context, to the violent relationship. 1.3 Fact Finder's Lack of Understanding of the Dynamics of Domestic Violence Prosecutors report anecdotally that in using the traditional measures of "success," conviction on the offense as charged, domestic violence cases often are not %ucces~ful."~~There are several likely reasons for this lack of success. One of the most important seems to be a lack of understanding of the dynamics of domestic violence on the part of the fact finders. In our legal system the fact finder is usually the jury, although, in some cases the judge sits as fact finder. The jury makes all decisions about the nature of the evidence presented and the credibility of witnesses. Thus, it is the jury's responsibility to evaluate the evidence presented and determine if the prosecution has successhlly proven the elements of a given crime.20 Many prosecutors have emphasized the need to understand the dynamics of an abusive relationship both when setting prosecution policies for domestic abuse cases, and when providing This document is a research report submitted to the U.S.