Recanting Victims 7/19/2018. Goals of Presentation. Give effective ways of dealing with recanting victims pre-trial

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1 Recanting Victims SIMONE HYLTON SENIOR ASSISTANT DISTRICT ATTORNEY STONE MOUNTAIN JUDICIAL CIRCUIT Goals of Presentation Give effective ways of dealing with recanting victims pre-trial Give tools to use pre trial and during trial to get the evidence needed for successful prosecution Give you the confidence that you will be able to handle a recanting victim 1

2 What does recantation mean?? Recantation means to take back or to withdraw a statement that has been made, to repudiate. Victims recant by minimizing, by denying it happened, saying the violence was their fault, or simply stop participating with prosecution. Types of cases where you will find recanting victims Domestic Violence Cases Human Trafficking Cases Sexual Assault Cases Child Molestation Cases Gang Cases Why do victim s recant? 2

3 Why do victim s recant???? Fear of Retaliation Financial Reasons Love Manipulation Victim Blaming Labeled as a snitch Having to go back to the community Expect your witness to RECANT!!! When you know they are getting ready to recant! 3

4 Preparation is Key! Pre trial/investigation Case Preparation Forfeiture by Wrongdoing Material Witness Warrant Interstate compact Preparation is Key! Trial Voire Dire Opening Statements State s Case in Chief Impeachment Prior Inconsistent Statements Hostile Witness Residual Hearsay Marital Privilege Expert Witness Pre Trial/Investigation 4

5 Goal Build an independent evidence case that is strong enough to withstand a recanting victim or witness. So how do we do this??? Case Preparation Case Preparation Collect the 911 Calls (In all cases, but very important in the DV cases) Get the CAD report, so you can get the contact information for the 911 caller Pull jail calls (as soon as you can) Pull jail visitation logs Pull jail reports 5

6 Case Preparation Pull social media Get phones Get phone dumped! (Want text messages.. Very crucial evidence) Speak with family members (DV /HT cases) Get statements transcribed Communicate often with your Victim/Witness Advocate Case Preparation Meet with victim and witnesses early with your Investigators. Consider recording your interviews, Investigators note every time that you attempted to contact victim/witness Pull all prior hearings (Bond, preliminary, motions) Keep separate orders Recording 6

7 Forfeiture By Wrong Doing Forfeiture By Wrongdoing O.C.G.A (b)(5) The following shall not be excluded by the hearsay rule if the declarant in unavailable as a witness: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness O.C.G.A (a)1-5- Definition of Unavailability Exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant s statement Persists in refusing to testify despite a court order Testifies to lack of memory of the subject matter of the declarant s statement Unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or Absent from the hearing and the proponent of the statement has been unable to procure the declarant s attendance or testimony Forfeiture By Wrongdoing Procedure The proponent (the State) must show both exhaustion of each statutory provision authorizing a subpoena and a good faith effort to obtain the declarant s voluntary appearance Investigators Document (TLO, Lexis, Accurint etc, social media etc) Three part test to admit evidence via Forfeiture by Wrongdoing. Preponderance of the Evidence standard Hendrix v. State, 2018 Ga. Lexis 2007 (2018) That the defendant engaged in or acquiesced in wrong doing The wrongdoing was intended to procure the declarant s unavailability The wrongdoing did procure unavailability Confrontation Clause In a Forfeiture by Wrongdoing case, there is NO confrontation issue. One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation Hendrix 7

8 Forfeiture By Wrongdoing Procedure This should be addressed in a pretrial motion Statements that you wish to enter Address the actions causing the witnesses unavailability Then the documented efforts used to secure the witness. Material Witness Warrant Material Witness Warrant O.C.G.A No judicial officer except a judge of the superior court shall issue a special warrant for arrest returnable only before himself; nor shall any superior court judge issue such warrant outside his own judicial circuit. If issued outside the judicial circuit, the warrant shall be treated as a general arrest warrant O.C.G.A A court of inquiry shall have the same power to compel the attendance of witnesses as in other criminal cases, as set forth in and subject to all of the provisions of Chapter 13 of Title 24, at any location where the court shall conduct a hearing provided that notice is given at least 24 hours prior to the hearing. A court of inquiry may order the arrest of witnesses if required to compel their attendance O.C.G.A In the event of a commitment of the accused person, the court in its discretion may require the witnesses, on behalf of the state or others, to give suitable bonds to secure their appearance at court with or without sureties, as the circumstances seem to demand 8

9 Material Witness Warrant Procedure File an Ex Parte Application for Detention of Material Witness In the application you need to explain why the witness is material Steps that your investigator used to secure the witness and anything that the witness may have said to indicate they were not going to appear in court Attach any documents to the application that will support the need for the warrant to be issued Interstate Compact Interstate Compact O.C.G.A through Uniform Act to Secure The Attendance of Witnesses From Without the State This entire article addresses how to secure a witness from out of state Procedurally Your investigator needs to take best efforts to locate an address or the best address for your witness. If the witness hangs up or is uncooperative, then you need to document it. You need to complete a Petition for Certification that a Witness is needed in this State In this petition, you will put information on why the witness is material, the location where you believe the witness to be, how long you expect the witness to be present in court Also, want to do a template order for the receiving jurisdiction 9

10 Interstate Compact Information that should be in your petition How long they will be needed in our jurisdiction The State of Georgia will cover reasonable travel expenses the laws of this State shall give the witness protection- from arrest or service of civil or criminal process, regarding matters which arose before his entrance into those That the State you are seeking the witness has adopted the Uniform Act to Secure the Attendance of Witness Trial Goal Get out the truth and be able to explain to a juror why the victim s testimony is changing at trial. How do we do this??? 10

11 Voire Dire Voire Dire REMEMBER.TRIAL BEGINS THE MOMENT THE JURY WALKS THROUGH THE DOOR!!! ** Tip**- Some questions to ask during voire dire Domestic Violence/Human Trafficking case Anyone ever been hurt by someone but still wanted to protect them? Anyone know someone that has loved someone so much, that they felt that they had to protect them? Ever felt the need to protect someone that can t protect themselves? ** In these cases, you may want to really think about the type of juror you want Consider having Interpreters on your jury Voire Dire REMEMBER.TRIAL BEGINS THE MOMENT THE JURY WALKS THROUGH THE DOOR!!! ** Tip**- Some questions to ask during voire dire Gang case How many jurors are familiar with the term snitching?- (General Question) In individual voire dire- you will want to follow up with those jurors to have them educate the rest of the jury Is there anyone here that didn t go forward and tell something because they were afraid of harm or retaliation? ** In these cases, you may want to really think about the type of juror you want Consider having Interpreters on your jury 11

12 Opening Statement MANGAE THE JURY S EXPECTATIONS!!!! Embrace the recanting or reluctant witness in opening statement!!! Don t be afraid, because if you don t bring it up, the defense WILL!!!! State s Case in Chief 12

13 State s Case in Chief Hostile Witness Impeachment Residual Hearsay Marital Privilege Expert Testimony Toolbox Questions Hostile Witness Hostile Witness When a witness demonstrates reluctance to testify about a crime, a trial court has great latitude to permit the [prosecutor} to treat [the witness] as a hostile witness and propound leading questions. McNair v. State, 330 Ga. App. 478 (2014) 13

14 Impeachment- Prior Inconsistent Statements Impeachment- Prior Inconsistent Statements Impeachment- Prior Inconsistent Statements Things to remember about Prior Inconsistent Statements A party can impeach their own witness O.C.G.A Under Georgia Law, A prior inconsistent statement comes in both for impeachment purposes and as substantive evidence Unlike the Federal Rules of Evidence, OCGA (b) allows a testifying witness s prior inconsistent statements to be admitted for both impeachment purposes and as substantive evidence. McNair v. State, 330 Ga. App. 478 (2014) Prior inconsistent statement of a witness who takes the stand and is subject to crossexamination is admissible as substantive evidence, and is not limited in value only to impeachment purposes Robbins v. State, 300 Ga. 387 (2016) I don t remember is grounds to start impeaching The failure of a witness to remember making a statement may provide the foundation for offering extrinsic evidence to prove the statement was made Brewer v. State, 302 Ga. 6 (2017) The prior inconsistent statement does not have to be made under penalty of perjury at a trial, hearing or other proceeding or in a deposition McNair v. State, see footnote 10 14

15 Residual Hearsay Residual Hearsay O.C.G.A A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded from the hearsay rule, if the court determines that: The statement is offered as evidence of a material fact The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts The general purposes of the rules of evidence and the interests of justice will best be served by admissions of the statement into evidence. Residual Hearsay O.C.G.A Procedure Have to give notice to the adverse party, sufficiently in advance of the trial or hearing Have to give the intention to offer the statement and the particulars of the statement, including the NAME and ADDRESS of the Declarant. Rule applies only when exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present. Allows for the admission of non-testimonial hearsay statements, that is, statements that are not made for the purpose of possible criminal prosecution, regardless of the availability of the witness. 15

16 Marital Privilege Marital Privilege O.C.G.A (a) A husband and wife shall be competent but shall not be compellable to give any evidence in any criminal proceeding for or against each other (b) The privilege created by subsection (a) of this Code section or by corresponding privileges..shall NOT apply in proceedings in which The husband or wife is charged with a crime against the person of a child under the age of 18, but such husband or wife shall be compellable to give evidence only on the specific act for which the accused is charged The husband or wife is charged with a crime against his or her spouse The husband or wife is charged with causing physical damage to property belonging to the husband and wife or to their separate property; or The alleged crime against his or her current spouse occurred PRIOR to the lawful marriage of the husband and wife Expert Testimony 16

17 Consider Expert Testimony O.C.G.A In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. Williams v. State, 254 Ga. 508 (1985) To be admissible, expert opinion must be beyond the ken of the average layman. Toolbox Questions These are some questions that you want in your tool box to ask a recanting victim/reluctant witness Domestic Violence Case (Always be aware of the surroundings in the Courtroom) Who pays all of the bills in the home? Who brought you to court this morning? Who do you live with? Do you still love the defendant? Toolbox Questions These are some questions that you want in your tool box to ask a recanting victim/reluctant witness Sexual Assault case(always be aware of the surroundings in the Courtroom) Tell me how did the sexual assault make you feel? What were your concerns with coming forward? 17

18 Toolbox Questions These are some questions that you want in your tool box to ask a recanting victim/reluctant witness Gang Case (Always be aware of the surroundings in the Courtroom) When we met last week, was the defendant with us? Were all of the people in the gallery wearing Red with us? Do you still live in that community? What is a snitch? Why do we still do this, when victim s are recanting? Because we have to protect those that do not have the strength to protect themselves. If we don t do fight in cases for the one victim that doesn t want to court in a DV case, we don t want to see the other end which unfortunately is a DV homicide case This is why we continue the fight! 18

19 QUESTIONS Notice This presentation may contain materials created by others. Such material is used under a claim of fair use pursuant to the Fair Use guidelines in face to face-to-face instructional education activities. Additional use or distribution of that material is prohibited. 19

20 Simone N. Hylton Senior Assistant District Attorney DeKalb County District Attorney s Office Stone Mountain Judicial Circuit snhylton@dekalbcountyga.gov 20