Protective Order Violations and Felony Stalking in Kansas

Transcription

1 FOR Protective Order Violations and Felony Stalking in Kansas Kansas Coalition Against Sexual and Domestic Violence

2 A Prosecutor s Guide for Protective Order Violations and Felony Stalking in Kansas Copyright 2012 Kansas Coalition Against Sexual and Domestic Violence 634 SW Harrison St., Topeka, KS The contents of this guide may be photocopied without permission but must credit the Kansas Coalition Against Sexual and Domestic Violence. Any adaptation must receive permission and must credit the Kansas Coalition Against Sexual and Domestic Violence. The information in this manual is based upon the laws in effect at the time of publication. However, laws are subject to change by the courts and the Legislature. For advice about a specific legal problem or for more in-depth information, you should contact an attorney. This grant project is supported by subgrant number 12-VAWA-27 awarded by the Kansas Governor s Grants Program for the Federal S.T.O.P. Violence Against Women Act Grant Program. The opinions, findings and conclusions, or recommendations expressed in this publication, program, or exhibition are those of the author(s) and do not necessarily reflect the views of the Office of the Kansas Governor or the U.S. Department of Justice, Office on Violence Against Women.

3 A Prosecutor s Guide for Protective Order Violations and Felony Stalking in Kansas I. The Importance of Prosecuting Protective Order Violations and Felony Stalking... 4 A. Domestic Violence Dynamics... 4 B. Stalking Dynamics... 5 C. Protection Order Benefits... 5 II. What is a Violation?... 6 A. Violation of a Protective Order Elements of a Violation a. Showing of Fear not Necessary... 6 b. Consent Not a Defense... 6 c. Violations and Arresting the Protected Party... 7 B. Felony Stalking and Protective Order Violations Elements of Felony Stalking... 7 a. Existence of a Protective Order... 8 b. Reckless Conduct in Violation of a Protective Order: K.S.A (f)(1)... 8 c. Establishing Reasonable and Actual Fear... 8 III. Evidentiary Issues... 9 A. Expert Witnesses Admissibility Test... 9 a. Testimony in the form of Opinion... 9 b. Preparing an Expert Witness... 9 B. Technology and Electronic Communications Admissibility a. Relevance b. Authentication c. Original Document Rule d. Hearsay e. Probative Value Electronic Evidence, Collection and Preservation a. Electronic Communications Privacy Act (ECPA) b. Preservation Letters and the ECPA c. Subpoenas, 2703(d) Court Orders and the ECPA d. Search Warrants and the ECPA C. Unavailable Witnesses and the Confrontation Clause The Confrontation Clause a. Testimonial vs. Nontestimonial Exceptions to the Confrontation Clause a. Dying Declaration b. Forfeiture by Wrongdoing IV. Case Law Summaries A. Kansas Cases Regarding Protective Order Violations and Felony Stalking B. Arresting and Charging the Protected Party for Violation of a Protective Order C. Kansas Case Law and Expert Witness Qualifications D. Kansas Case Law and Authentication of Evidence of Communication E. Kansas Case Law and the Confrontation Clause F. Kansas Case Law and Unavailable Witness

4 I. The Importance of Prosecuting Protective Order Violations and Felony Stalking Prosecutors play a critical role in a community s response to domestic violence. At least one study has shown that in urban areas proactive strategies by law enforcement and prosecutors in regards to protective order violations reduced domestic violence homicide rates. 1 A prosecutor can set the tone for how the community responds to domestic violence and stalking and the seriousness with which protective order violations are viewed. Victims face many barriers and difficulties when they decide to leave an abusive partner. Separating from and leaving an abusive partner can be the most dangerous time for a victim of domestic violence. Protection orders are often one of the first steps a victim takes when separating from an abusive partner. In a recent decision, the Court of Appeals of Kansas said, [protection] orders are serious business, and Kansas law provides criminal penalties for the violation of a civil protection order. 2 For these orders to be taken seriously by defendants, violations must not only lead to arrest, but also prosecution. This guide is intended to provide prosecutors with a basic and compact reference regarding issues unique to protection order violations. A. Domestic Violence Dynamics In the Kentucky Civil Protective Order Study (Kentucky Study), many individuals in the protection order system failed to recognize that partner violence is a systematic and deliberate set of tactics designed to control another person and that level of control erodes victims freedoms. 3 This study concluded that in order to understand and appreciate the importance of prosecuting protective order violations, one must understand the dynamics of domestic violence and stalking. 4 Domestic violence is a pattern of coercive behaviors used to gain power and control. Physical abuse is only one tactic among many used by batterers to enforce their control over a victim. Other methods include emotional abuse, psychological coercion, isolation, economic control, immigration status, sexual assault, and stalking or harassing behavior. 5 Further, [t]he vast majority of batterers are physically and emotionally controlling of their intimate partners... 6 PHYSICAL VIOLENCE SEXUAL These tactics are illustrated by the Power and Control Wheel : The Power and Control Wheel was developed by Ellen Pence and Michael Paymar and is a visual illustration of domestic violence dynamics. This wheel, developed after interviewing hundreds of victims of domestic violence, shows common tactics experienced by the participants. 7 PHYSICAL VIOLENCE SEXUAL The individual spokes of the wheel represent the most common abusive behaviors used by batterers against the victims interviewed. The outside of the wheel represents the violence, both physical and sexual, which holds it all together. The violence need not be a regular occurrence, but rather, the combined experience of the physical violence with the regular and systematic coercive behaviors within the wheel often result in the victim becoming isolated and unsafe. The result is that the 4

5 perpetrator of abuse ends up with all the power and control in the relationship. 8 Most often, the violent and coercive behaviors used by the batterer continue even after the victim has attempted to end the relationship, has fled, or has petitioned for a protection order. B. Stalking Dynamics Stalking is a pattern of behavior directed at a specific person that would cause a person to feel fear for their safety. 9 Stalking does not have to include a specific relationship. Stalkers can be strangers but do not have to be, and in fact, most stalkers know their victims. 10 Many stalkers have been in an intimate relationship with their victims. 11 Abusers may stalk victims during a relationship involving domestic violence or stalking may begin after separation. 12 There is also a high correlation between stalking and sexual assault. One study found that thirty-one percent (31%) of women stalked by an intimate partner were also sexually assaulted. 13 The United States Department of Justice has estimated that 3.4 million persons age 18 or older were stalked in a 12 month period. 14 Around half of these victims experienced at least one unwanted contact per week. 15 Further, the risk of stalking was highest for those who were divorced or separated. 16 Studies have shown that stalkers are more likely to be violent if they had an intimate relationship with the victim. 17 When occurring together, domestic violence and stalking indicate a high risk for lethality or severe violence. 18 Even when stalking does not turn deadly, victims of stalking often suffer major life disruptions and serious psychological effects including anxiety, depression, and symptoms of trauma. 19 The Kentucky Study revealed that partner stalking is a significant factor associated with violations of protective orders as well as an increase in the victim s fear of future harm. 20 One noted reason for this increase in fear is that stalking is often an extension of partner violence, therefore the context of the relationship provides the perpetrator a wider array of tactics based on their intimate knowledge of the victim and makes their threats more meaningful to the victim. 21 Another reason noted is that partner stalkers are more likely to follow through with threats and show a disregard for court intervention. 22 This makes it even more important that violations are treated as a serious indication of escalating violence by the stalker/abuser. Stalking Behavior and Context Perpetrators of sexual and domestic violence and stalking can be very conscious of how their actions are perceived by those around them and will accordingly act in ways that appear to fall within a grey area of criminal conduct. Actions that are looked at without the surrounding context and history may seem like harmless or even welcomed behavior to the average person. However, these behaviors may have a completely different and very specific meaning for the victim. For example, a certain look, flower arrangement, or song may have been incorporated in previous violence or threats. Even a hello can be threatening and can signal to the victim that the perpetrator has located the victim or that he is not intimidated by the court order. The entire context of the relationship must be considered when assessing stalking behavior. Law enforcement, prosecutors, and courts must have a complete picture in order to understand stalking. The perpetrator s specific acts may not be criminal, however, collectively and repetitively these behaviors may cause a victim to fear for his or her safety or the safety of a family member. 23 C. Protection Orders are Effective When a victim obtains a protection order, it does not guarantee that the perpetrator s behaviors will stop. Likewise, when an order is violated, seeking enforcement of a protective order take[s] courage and persistence to overcome obstacles... women consider a variety of factors in deciding whether to report violations, including the seriousness of the violation, level of proof and perceived potential outcomes of reporting the violation. 24 Despite these obstacles, protection orders do work. In the Kentucky Civil Protective Order Study, only half of the victims disclosed protective order violations to the interviewer in the first 6 months of the order. 25 Further, there were significant reductions in abuse and fear during that period. And the benefits of protection orders are not limited only to the victim s feeling of safety but also include cost savings to the community. 26 When including the victim s quality of life, the estimated savings from protection orders to the state of Kentucky over the year-long study was $85 million dollars. 27 5

6 II. What is a Violation? A. Violation of a Protective Order 1. Elements of a Violation The elements of a protective order violation are: the existence of a protective order (including a PFA, PFS, a criminal no contact order, a CINC order, or a divorce restraining order); the defendant violated the order; and the act in violation of the order was done knowingly. 28 A defendant violates a protective order when he or she knowingly fails to comply with the provisions included in the order. 29 A protective order often makes actions that would otherwise be legal, such as calling someone, illegal when that someone is the protected party. The reason these acts are illegal is because a judge has determined the defendant has more likely than not abused, threatened to abuse, stalked or committed some crime against the protected party. The purpose of these orders is to increase the safety of the victim. 30 Therefore, the history between the parties is crucial to understanding the context of what otherwise may seem to be innocent acts undeserving of arrest or prosecution. The defendant is not being punished for calling or texting the protected party, but for doing so in spite of a judge ordering him or her not to contact that person. Specifically, K.S.A states: (a) Violation of a protective order is knowingly violating: (1) A protection from abuse order issued pursuant to K.S.A , and , and amendments thereto; (2) a protective order issued by a court or tribunal of any state or Indian tribe that is consistent with the provisions of 18 U.S.C. 2265, and amendments thereto; (3) a restraining order issued pursuant to K.S.A Supp , , and , and amendments thereto, and K.S.A , and amendments thereto prior to its transfer; (4) an order issued in this or any other state as a condition of pretrial release, diversion, probation, suspended sentence, postrelease supervision or at any other time during the criminal case that orders the person to refrain from having any direct or indirect contact with another person; (5) an order issued in this or any other state as a condition of release after conviction or as a condition of a supersedeas bond pending disposition of an appeal, that orders the person to refrain from having any direct or indirect contact with another person; or (6) a protection from stalking order issued pursuant to K.S.A a05 or 60-31a06, and amendments thereto. 31 a. Showing of Fear Not Necessary Violation of a protective order does not require a victim to be in fear for her/his safety. If he or she were placed in fear, the act may constitute stalking. In a string of unpublished decisions 32, the Kansas Court of Appeals has consistently held that the difference between criminal stalking and violating a protective order is that stalking requires a showing of the impact of the contact on the victim. 33 This is not the case for protection order violations. Even a mere hello at Wal-Mart when a protection order was in place has been upheld by the Kansas Court of Appeals as sufficient to affirm a conviction for violation of a protective order. 34 b. Consent Not a Defense: There are many legitimate reasons for a victim to consent to contact from the abuser. The dynamics of domestic and sexual violence and stalking do not disappear with the issuance of a protective order. Abusers often continue to use children or shared finances to exert power and control over victims. Abusers manipulate and misrepresent information to victims. For example, an abuser may tell the victim that if she/he consented or acquiesced to the contact, the victim could be charged with a criminal violation. In State v. Branson, the appellate court held that the consent of the protected party is not a defense to violating a protective order. 35 A protection order is owned by the court that issues the order, not the protected 6

7 party, and therefore the protected party s consent is not sufficient to modify the provisions of the order. In Branson, the protected party had not called the police earlier to report the violation because she believed she could be in trouble for consenting to the contact with the defendant. 36 c. Violations and Arresting the Protected Party A commonly held belief related to protection orders is that protected parties in PFA or PFS orders can be held criminally liable for violating their own protection orders, for aiding and abetting the violation of their own protection orders, or for conspiring to violate their own protection orders. First, such interpretations would seem to contradict the legislative intent of the Protection from Abuse Act (PFAA), which says that the act shall be liberally construed to promote the protection of victims of domestic violence Though there is no Kansas case law directly on point, in State v. Lucas, the Supreme Court of Ohio persuasively applied the United States Supreme Court holding in Gebardi v. United States to the application of protection orders, ultimately finding that protected parties cannot be punished based on violations of their own orders. 38 Second, the Kansas PFAA does not criminalize any behaviors of the protected party. Specifically, the Act authorizes the court to grant orders restraining the defendant from abusing, molesting or interfering 39 and restraining the defendant from entering or remaining upon or in such residence. 40 Further, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act defines respondent as the individual against whom enforcement of a protection order is sought. 41 The failure of the legislature to include punishments for the protected party as well as its definition of respondent suggests that it was the intent of the legislature that protected parties not be held criminally liable under protection orders issued on their behalf. Third, if a protection order is enforceable against a protected party, there would be no need for the legislature to have created a procedure for issuing a mutual protection order. The Kansas legislature specifically created a process that must be followed for the court to have the authority to issue a mutual protection order enforceable against either party: No protection from abuse order shall be entered against the plaintiff unless: (1) The defendant properly files a written cross or counter petition seeking such a protection order, (2) The plaintiff had reasonable notice of the written cross or counter petition by personal service as provided in subsection (d) of K.S.A , and amendments thereto; and (3) The issuing court made specific findings of abuse against both the plaintiff and the defendant and determined that both parties acted primarily as aggressors and neither party acted primarily in selfdefense. 42 Finally, a Tenth Circuit case has also addressed the culpability of a protected party. 43 In Shroff v. Spellman, Officer Spellman arrested Ms. Shroff for violating her own protection order. The court denied the officer qualified immunity in a 42 USC 1983 claim because he had violated Ms. Shroff s constitutional rights by arresting her for violating her own order. 44 B. Felony Stalking and Protective Order Violations When a protective order is violated and the violation places the victim in fear for her/his safety, the defendant may be charged with felony stalking under K.S.A (a)(3). 45 Felony stalking, in addition to reckless conduct and violation of a protective order, requires that the victim be placed in reasonable fear for his or her safety Elements of Felony Stalking The elements of felony stalking in violation of a protective order include: the existence of a protective order that prohibits the defendant from having contact with the targeted person (including a PFA, PFS, a criminal no contact order, a CINC order or a divorce restraining order); the defendant recklessly engaged in at least one act listed in K.S.A (f)(1); that act was in violation of the judge s order; the act would cause a reasonable person to fear for her/his safety; and the targeted person was placed in actual fear. 47 7

8 Specifically, K.S.A (a)(3) states: after being served with, or otherwise provided notice of, any protective order included in... K.S.A [Violation of a Protective Order]...that prohibits contact with a targeted person, recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person s safety, or the safety of a member of such person s immediate family and the targeted person is actually placed in such fear. 48 a. Existence of a Protective Order A protective order can include: a PFA or PFS, whether issued by a Kansas court or by a court or tribunal of any state or Indian tribe which meets the full faith and credit requirements set out in 18 USC 2265; a no-contact order related to a criminal case; a restraining order out of a divorce; or a no-contact order related to a CINC case. 49 The existence of a protective order must be established in a protective order violation or a felony stalking case under K.S.A (a)(3). 50 This element can be proven by submitting the order into evidence. This also allows the prosecution to highlight the judge s order and the warnings provided to the defendant within that order. b. Reckless Conduct in Violation of a Protective Order: K.S.A (f)(1) The defendant must have recklessly engaged in at least one act included in K.S.A (f)(1) that violates the order, which include: (A) Threatening the safety of the targeted person or a member of such person s immediate family. (B) Following, approaching or confronting the targeted person or a member of such person s immediate family. (C) Appearing in close proximity to, or entering the targeted person s residence, place of employment, school or other place where such person can be found, or the residence, place of employment or school of a member of such person s immediate family. (D) Causing damage to the targeted person s residence or property or that of a member of such person s immediate family. (E) Placing an object on the targeted person s property or the property of a member of such person s immediate family, either directly or through a third person. (F) Causing injury to the targeted person s pet or a pet belonging to a member of such person s immediate family. (G) Any act of communication. 51 c. Establishing Reasonable and Actual Fear The final element in a felony stalking case is that the act would cause a reasonable person to fear for such person s safety, or the safety of a member of such person s immediate family and the targeted person is actually placed in such fear. 52 This element has two parts: 1) that the fear is reasonable; and 2) that the person actually is placed in fear. Reasonable Fear When determining if the act would cause a reasonable person to fear for such person s safety, the Kansas Court of Appeals has consistently held in unpublished decisions that the reasonableness of the fear should be considered in light of the prior acts the defendant committed against the protected party. 53 Whether it was reasonable to expect that the victim would be placed in fear by the act is dependent on the history between the defendant and the victim. 8

9 Actual Fear Besides using the testimony of the victim to establish that she/he was placed in actual fear by the violation, these same cases 54 also show a consistency in allowing the use of testimony from witnesses or law enforcement about the demeanor of the victim as they perceived it at the time of the violation. 55 III. Evidentiary Issues Protective order violations and stalking cases, similar to domestic violence and sexual assault cases, often involve evidentiary issues that do not arise as often in other types of criminal cases. A. Expert Witnesses The unique and intimate nature of domestic violence, sexual assault and stalking cases and the myths that surround them can make the prosecution of these crimes more difficult. Jurors carry these myths with them into the courtroom, often leading them to focus on the victim s behavior and to perceive that behavior as evidence of the victim s unreliability. 56 Because these cases can come down to the credibility of the victim versus the credibility of the defendant, addressing these myths and biases is critical to the prosecution. Individual victims respond differently to trauma and some responses may be different than how the general public believes victims should respond. 57 Expert witnesses can provide the jury context to these responses. 58 Also, this type of expert testimony can be used to explain why some victims may have inconsistent statements, recantations or even delayed reporting of abuse or a violation. 59 This testimony is particularly relevant to protection order and stalking cases because the victim s credibility is inextricably linked to her behavior Admissibility Test Though expert testimony in Kansas is generally subject to the Frye test 61, Kansas courts have allowed expert opinions generated solely on the basis of training, experience or education rather than the application of a specific technique or theory. 62 The Kansas Supreme Court has held that the Frye test does not apply to this type of expert testimony. 63 The credibility of the expert witnesses and their opinion testimony is instead weighed by the jury through cross-examination. 64 a. Testimony in form of Opinion K.S.A (b) states: If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. 65 First, the statute requires the testimony of an expert witness be based on facts or data perceived personally or made known to the witness at the hearing. Perceived facts or data are knowledge acquired through one s own senses, and made known refers to facts put in evidence. 66 An expert can only testify about facts placed into evidence, but is not required to have worked with the victim directly. Expert witnesses generally should not be professionals who are currently working with the victim. Victims may have privileges with these professionals that should be guarded. 67 Second, the statute requires the testimony of the expert to be within the scope of the special knowledge, skills experience or training possessed by the witness. In one Kansas case, for an expert to testify on child sexual abuse, the expert was required to have direct experience working with diagnosed trauma victims. 68 In a protective order violation or stalking case, therefore, the training and direct experience of the potential expert witnesses should be specific to working with domestic violence, sexual violence and stalking victims. b. Preparing an Expert Witness This knowledge, experience, training or education of the expert witness must be established through testimony by the expert witness of his or her background and experience which qualifies them as someone with 9

10 special knowledge or skills. 69 The foundation questions will vary depending on the expert and their background. Experts should be prepared for challenges to their qualifications from opposing counsel, as well as making sure the expert s Curriculum Vitae (CV) is updated and thorough. 70 It is also vital to prepare the expert witness by meeting ahead of time to discuss the purpose of the expert s direct testimony, as well as to prepare them for potential cross-examination. 71 B. Technology and Electronic Communication Electronic communication has become a major component of our everyday lives. This technology has also become a major tool for intimate partners and stalkers to keep track of and continue to harass their victims. Further, the speed and widespread availability of technological advances makes it difficult for the legal system to keep up with these advances. 72 Unfortunately, these difficulties are also what make electronic communications enticing to defendants. Many violations of protective orders and stalking cases include some, if not exclusively, electronic communication. For prosecutors and law enforcement, considering options for collecting appropriate evidence and getting that evidence admitted into the record is important to the successful prosecution of protective order violations and stalking. 1. Admissibility Admitting electronic communication into evidence can be a challenging task. Technology keeps evolving at an ever-increasing rate, and the law has a hard time keeping up. 73 Courts have been applying the same rules and standards for presenting written documents but have faced some complications. 74 Given the lack of current precedent as to the treatment of many forms of electronic communication and their admissibility, many local courts vary on the level of foundation required. 75 The main issues that must be addressed are: a. Relevance; b. Authentication; c. Best evidence rule/original writings rule; d. Hearsay; and e. Whether the probative value substantially outweighs any unfair prejudice. 76 a. Relevance K.S.A (b) defines relevant evidence as evidence having any tendency in reason to prove any material fact. 77 When prosecuting either protective order violations or stalking based on a violation of a protective order, the electronic communication is the act that violates the order. Because it is a material element of the crime, relevance should not be a problem as long as the fact that there was a communication in violation of the order has been placed into evidence. b. Authentication Electronic communication, such as text messages and , could at the discretion of the court 78 be considered a writing under Kansas statute. Writing is defined by K.S.A (m) as handwriting, typing, printing, photostating, photographing, and every other means of recording upon any tangible thing any form or communication or representation, including letters, words, pictures, sounds, or symbols or combination thereof. 79 In order for a writing to be received into evidence, it must be authenticated. 80 Authentication is addressed in K.S.A , stating that [a]uthentication may be by evidence sufficient to sustain a finding of its authenticity or by any other means provided by law. 81 The Kansas Supreme Court has found that [a]uthenticity or genuineness of a writing may be proved not only by establishing the genuineness of the writer s signature or identity of the handwriting contained in the instrument, but also, under proper circumstances, by indirect or circumstantial evidence without resort to proof of handwriting. 82 Specifically, [p]roof of genuineness of a letter may be established when the contents themselves reveal knowledge peculiarly referable to a certain person or the contents are of such nature that the letter could not have passed between persons other than the purported writer and the person to whom it was delivered. 83 Generally, a combination of circumstantial evidence can be used to establish authorship and authenticity of 10

11 electronic communications. 84 Text messages, s, social networking sites, among other types of electronic evidence, do not include handwriting that can be identified. Though there is no published case law in Kansas on authentication of text messages, the Kansas Court of Appeals has considered circumstantial evidence sufficient to authenticate text messages even when the phone had been lost. 85 Similarly, a Kansas court held that there was sufficient foundation to identify the specific sender of a text message (based on their texting style) on a phone which multiple people had access to and used the phone. 86 When authenticating s, some examples of circumstantial evidence might be: The chain of custody following the route of the message [metadata], coupled with testimony that the alleged sender had primary access to the computer on which the message originated. The content of the refers to matters of which the writer would have been aware. The recipient used the reply function to respond to the ; the reply may include the sender s original message. After receiving the , the sender takes actions consistent with its content. 87 The amount of foundation required to authenticate electronic communications will vary from judge to judge. Being prepared to make as many circumstantial links to the authentication of the communication as possible can improve the chances of having the evidence admitted. Further, the party offering the evidence for admission is not required to rule out all other possibilities of who may have sent the communication. 88 The finder of fact determines the weight of the evidence. 89 c. Original Document Rule As discussed above in section (b), it is unsettled in Kansas whether an electronic communication is a writing as defined by K.S.A (m). 90 If a court determines it to be a writing, the next hurdle to admissibility may be K.S.A , which requires the original document as evidence. The applicable parts of this statute state: (a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible except otherwise provided in these rules, unless a judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) 1 and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2)(A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent... (D) the writing is not closely related to the controlling issues and would be inexpedient to require its production... (b) If the judge makes one of these findings specified in subsection (a), secondary evidence of the content of the writing is admissible Comparison to the Federal Rules of Evidence The Federal Rules of Evidence (FRE) contemplate the unique nature of electronically stored information and the difficult application of the original document rule to its admissibility. FRE 1001(d) states,... [f]or electronically stored information, original means any printout- -or other output readable by sight- -if it accurately reflects the information. 92 Because the computer stored record is technically a string of 1s and 0s instead of a tangible writing, and because of the demands of practicality and common usage, an accurate duplication of the information should be admissible as the original, even if separate duplications display the same information but with a different appearance (such as font or margins). 93 This logic is consistent with the technological exception found in K.S.A regarding facsimiles, or the use of electronic equipment to send or transfer a copy of an original document via telephone lines. 94 The K.S.A. definition of a writing has not changed since 1989, but comparing the exception for facsimiles and the means of today s electronic communications, the argument for the adoption of the FRE treatment of electronic communications is not without merit. These duplications include print-outs of s, texts or social media pages, screen shots, photographs taken of the screen, and other methods of accurately displaying electronic communication. Electronic Communications Not Offered for Content of the Communication The Best Evidence Rule does not apply when the electronic communication is not offered for the substance of its content. This would be true when prosecuting a violation of a protective order, where the mere fact 11

12 that there was an electronic communication is the material fact in issue. In these situations, content may fall within the subsection (d) exception to the Best Evidence Rule, as the content would merely lay the foundation that the electronic communication came from the defendant. 95 d. Hearsay The communication can also be argued as admissible under the hearsay exception under KSA (g) Admission by parties. 96 Further, when prosecuting a violation of a protective order, the violation is that the communication took place; therefore, the communication is not offered for the truth or falsity of the statement and is not hearsay. 97 e. Probative value The probative value of electronic communications in violation of a protective order and stalking cases is high. These communications are a material element of the crime, as they are the criminal act itself. Further, when prosecuting stalking, the content of these messages is also material as it goes to establishing another material element - fear. 2. Electronic Evidence, Collection and Preservation: The internet and cell phones are commonly misused to violate protective orders and to stalk victims. Much of the evidence may come from the victim, and therefore constitutional and privacy considerations of the defendant will not be an issue. Other evidence may be obtained from the defendant and his or her computer or cell phone, either through warrants issued pursuant to K.S.A and the Fourth Amendment of the United States Constitution or a recognized exception. 98 Search warrants seeking digital evidence from computers or cell phones should be specific regarding what information is being sought. 99 Actual searching of electronic devices is complex and should be done by someone qualified to do so. 100 Sometimes, however, corroborating evidence may need to be located elsewhere. When information is held by a third party internet or cellular phone service provider, federal laws prescribe procedures which must be followed to protect the privacy interest of customers. a. Electronic Communications Privacy Act (ECPA) Both internet service providers (ISP) and cellular phone providers are subject to the Electronic Communications Privacy Act (ECPA). 101 This act sets out the privacy protections that must be afforded customers of these providers. 102 Most important to the criminal justice system, the ECPA sets out the legal process required for the collection of different levels of information. As discussed under admissibility, circumstantial evidence can be very important in authenticating print outs or copies of electronic communications. Though the ECPA is a federal statute, the act provides for its use by state and local governmental agencies as well. 103 Further, major ISPs are less likely to comply with a process that does not follow the ECPA as they may be subjected to civil liability. 104 The ECPA only applies to providers that offer their services to the public. When the service provider is a private entity, such as an employer with a private server, 105 the provider may voluntarily comply with governmental requests for information on the electronic communications of an employee or may choose to require compliance with the ECPA. 106 b. Preservation Letters and the ECPA ISP and cellular phone providers deal in large volumes of information. The length at which a company keeps records varies depending on the company. 107 When electronic evidence is essential to a prosecution, it is critical to act quickly in issuing a preservation letter pursuant to 18 U.S.C. 2703(f). 108 This section states that [a] provider of wire or electronic communication services or a remote computing service, upon request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. 109 A preservation letter pursuant to this section, however, only requires the company to preserve the records for 90 days. 110 Therefore, time is still an important factor even after a preservation letter has been issued. This time can be extended upon additional requests, but a preservation letter does not cover future communications. 111 Many of these providers are global companies and have a special contact procedure to connect with the proper department in an expedient manner. Formal process should also be sent to the company s agent of record within the state of Kansas. 12

13 c. Subpoena, 18 U.S.C. 2703(d) Court Orders and the ECPA A subpoena issued by an administrative, federal or state court, can compel a provider to disclose information about the identity of a customer as well as basic-use information, including: (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of services utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such services (including any credit card or bank account number) 112 Under the ECPA, a court of competent jurisdiction may issue an order pursuant to 2703(d) to compel additional information if the governmental entity offers specific and articulable facts showing that there is a reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. 113 This information may include account activity logs and IP addresses used, as well as addresses of others with whom the customer exchanged s. 114 d. Search Warrants and the ECPA The ECPA also requires the disclosure of the contents of a customer-defendant s wire or electronic communication from a provider when a governmental entity issues a search warrant pursuant to the Federal Rules of Criminal Procedure or comparable state statutes, such as K.S.A Content is defined by Section 2510 as any information concerning the substance, purport, or meaning of a communication. 116 Further, with a search warrant, unlike some content released under limited circumstances based on a subpoena or a 2703(d) order, there is no requirement of notification to the customer. 117 C. Unavailable Witnesses and the Confrontation Clause The nature of domestic violence, sexual violence and stalking involves the use of coercion in order to gain and/ or maintain power and control over the victim. Threats to safety and victim isolation are common tools perpetrators use to continue their control and to evade punishment. Victims may be too scared for their safety or the safety of their loved ones to testify if they believe the defendant will likely end up back in their community or even their home. 118 They may even determine that it is safer for them and their children if they go into hiding to escape the defendant instead of testifying against him. 119 In Giles v. California, the United States Supreme Court contemplated this dynamic and its effect on witness unavailability. The Court recognized that in the context of domestic violence, [a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal proceedings. 120 In a concurring opinion, Justice Souter identified the intent of an abuser s actions in classic domestic violence cases is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. 121 It is understandable that victims would feel trepidation towards facing their perpetrators in court. This can be very frustrating for prosecutors trying to enforce the law and seek justice for victims unwilling to testify. Unfortunately, many protective order violation and stalking cases involve very little evidence. The loss of the victim as a witness can seem an insurmountable obstacle. The Kansas Court of Appeals, however, has noted that [t]he protection of victims of domestic abuse is an issue of statewide interest. Furthermore, it is of statewide interest to ensure that a crime may be prosecuted even when a victim recants his or her original statement, especially where other evidence supports the charges. 122 Navigating the law around the admissibility of statements made by an unavailable witness and its application to the Confrontation Clause of the 6 th Amendment of the United States Constitution can be a difficult task. Though the following discussion is not exhaustive, it provides some basic information pertaining to unavailable witnesses, the Confrontation Clause, and the use of forfeiture by wrongdoing in the setting of protective order violations and stalking cases. 1. The Confrontation Clause The Confrontation Clause of the United States Constitution requires, [i]n all criminal prosecutions, the ac- 13

14 cused shall enjoy the right... to be confronted with the witnesses against him. 123 Further, 10 of the Kansas Bill of Rights states, [i]n all prosecutions, the accused shall be allowed... to meet the witness face to face. 124 Although the language may be different, the Kansas Supreme Court has chosen to find the protections given under both constitutions with regard to confronting witnesses are the same. 125 The landmark United States Supreme Court case, Crawford v. Washington, 126 held that out-of-court statements fall into two categories, those that are testimonial and those that are nontestimonial. 127 A string of subsequent decisions by the Court have attempted to clarify factors to consider in determining if Crawford, and therefore the Confrontation Clause applies. 128 a. Testimonial vs. Nontestimonial Testimonial statements are statements that the witness would reasonably expect to be used prosecutorially. 129 Because [a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not, these testimonial statements must be subject to the Confrontation Clause. 130 This requires that for the out-of-court statements to be admissible without the witness testifying the witness must be found to be unavailable for trial and the defense must have had prior opportunity to cross examine them. 131 Statements nontestimonial in nature, though still subject to local hearsay rules, are not statements governed by the Confrontation Clause. 132 Primary Purpose Test Not all statements made to a government officer are testimonial. These statements depend on the purpose for which they are made. If the primary purpose of the witness s statement is to meet an ongoing emergency, the statements are not testimonial. 133 But, when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution the statements are testimonial. 134 Statements made to assist in an ongoing emergency include both the safety of the victim as well as the potential threat to the responding police and the public at large. 135 This is referred to as the primary purpose test and is used to determine whether statements are testimonial or nontestimonial in nature. 136 Statements helpful for resolving an ongoing emergency are different than statements that merely describe past events. 137 Statements may, however, involve mixed purposes or may evolve from nontestimonial into testimonial in purpose. 138 Because of this, trial court judges need to objectively determine the portions of the statement that are nontestimonial and therefore admissible from those portions which are testimonial and therefore subject to the Confrontation Clause. 139 Factors in Kansas The Kansas Supreme Court considers the debate in determining which statements are testimonial and which are not to be a continuing and unsettled area of law. 140 However, the Court in State v. Brown set out what it perceived to be the factors to consider when determining if hearsay is testimonial. 141 (1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? (2) Was the statement made to a law enforcement officer or to another government official? (3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (d) the interview was part of a governmental investigation; and (4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the 14

15 statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building? 142 Though the United States Supreme Court and the Kansas Supreme Court have provided some considerations and factors useful in determining when statements are nontestimonial or testimonial and therefore subject to the Confrontation Clause, there is not one definitive test that can be applied. Each case comes down to an analysis of the circumstances and purposes of the individuals involved in the interaction. Nonetheless, if a hearsay statement is found to be testimonial, in order for it to be admissible, the Confrontation Clause requires that the witness either be unavailable to testify or that the defendant has had a previous opportunity to cross examine the witness. There are two narrow exceptions to this rule. 2. Exceptions to the Confrontation Clause The Supreme Court has recognized two exceptions to the Confrontation Clause. 143 These are dying declarations and forfeiture by wrongdoing. a. Dying Declaration Dying declarations include declarations made by a speaker who was both on the brink of death and aware that he was dying. 144 If the statement made was determined to be testimonial, but made when the victim was about to die and knew so, the statement should be admissible. b. Forfeiture by Wrongdoing The second exception, which has particular relevance to stalking and protective order violations, is to allow testimonial statements to be admitted into evidence when the defendant forfeited his right to confrontation by procuring the unavailability of the witness for trial, commonly known as forfeiture by wrongdoing. 145 The Court noted that this common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe and kill the witnesses against them. 146 The rule is codified in Kansas at K.S.A (g)(5) which states that...a witness is not unavailable (1) if the judge finds that his or her disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party Elements of Forfeiture by Wrongdoing There are three elements that must be established in order to have testimonial statements admitted under forfeiture by wrong doing: A statement is testimonial in nature; The declarant of the testimonial statement is not available to testify at the trial; and The declarant s unavailability was procured intentionally by the defendant to prevent the testimony. 148 Testimonial in Nature Forfeiture by wrongdoing is an exception to the confrontation clause. As discussed above, the confrontation clause only applies to statements that are testimonial in nature. Unavailability of the Declarant/Witness K.S.A (g) defines unavailable witness to include: situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental 15