A Prosecutor s Hail Mary in Domestic Violence Cases. FORFEITURE BY WRONGDOING

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1 A Prosecutor s Hail Mary in Domestic Violence Cases. FORFEITURE BY WRONGDOING

2 A DAY IN THE LIFE OF A DV PROSECUTOR

3 GILES V. CALIFORNIA 128 S.CT (2008) Giles was charged with murder after shooting his girlfriend six times in the chest Giles claims self-defense Prosecutors introduced statements at trial from girlfriend made 3 weeks before murder about a previous act of violence and threats the defendant made to kill her

4 GILES V. CALIFORNIA California Supreme Court found that Giles had forfeited his right to confrontation by killing his girlfriend and admitted the statements No proof was offered at trial that Giles had killed her to prevent her from testifying

5 GILES V. CALIFORNIA United States Supreme Court reversed and remanded. Prosecutors must show that the defendant engaged in or encouraged wrongdoing with the intent to make the witness/declarant unavailable. History of domestic violence or a domestic violence murder in and of itself is insufficient.

6 WHERE DOES THIS LEAVE US?? Prosecutors must prove that the defendant committed a wrongful act by which they intended to make, and successfully succeeded in making the declarant/victim unavailable thwart the judicial process But if we can.

7 ALL HEARSAY STATEMENTS OF VICTIM ARE ADMITTED!!!!

8 BIRTH OF THE GILES HEARING

9 WHAT CONSTITUTES WRONGDOING?? Both Souter and Ginsburg admit that the traditional domestic violence relationship involves isolation including the aid of law enforcement and the judicial process Therefore it should follow that a domestic violence homicide would also be partially for that reason.

10 WHAT CONSTITUTES WRONGDOING?? Prosecutors are allowed to put into evidence history of the abusive relationship. This alone will not meet the burden but is relevant in the determination. What more is needed is still undecided.

11 BEHAVIORS TO EMPHASIZE -- Past conduct both charged and uncharged -- Threats all but especially around calling police or cooperation. -- Prior non-appearances, memory loss, and recantations -- Violation of bond conditions / protective orders -- Timing of events

12 ILLEGAL BEHAVIOR NOT REQUIRED Coercive behavior is sufficient. Encouragement to not testify is sufficient. (If you love me.) Acquiescence in other s wrongdoings Sending another to persuade the victim (positive or negative) not to testify

13 MIXED MOTIVES ARE OKAY Prosecutors do not have to show that the defendant s sole motivation was to procure the victim s absence need only show that this was in part the motivation US v. Dhinsa 243 F3rd 635 (CA 2001)

14 FINAL THOUGHTS Forfeiture by Wrongdoing not limited to domestic violence murder cases same analysis applies to all crimes Standard of proof not clear. US Supreme Ct. has acknowledged Federal standard is preponderance of the evidence - but be aware that 5 th Circuit, CA and NY have applied a clear and convincing analysis 28 States, 10 Federal Appellate Courts, 12 states have codified version No jurisdiction has refused to adopt the principle of forfeiture by wrongdoing in some form

15 TAKE THE CHANCE..

16 Saving Your Sanity Nancy Oglesby Deputy Commonwealth s Attorney Goochland County

17 I CAN T DO IT ALONE.. First responding officer is the key Only witness in most cases Recreate facts, scene and emotion ALWAYS ASSUME THE VICTIM WILL NOT COOPERATE

18 It can be done Documentation Hearsay Exceptions Evidence Collection

19 And the winner is. How long does it take to get from arrest to trial? How many reports in between?

20 Documentation Thorough Reports Bring it to Life Emotional state of victim, defendant and kids All physical injuries (or lack of) on both parties always ask the question. Condition of crime scene

21 LOCK THEM IN!!! All statements of defendant even those that are not full admissions/confessions. Even if they are vague - ask the questions. Have them demonstrate (within reason of course ) DV Forms are GREAT!!

22 Evidence Collection Photographs (Accurately Depict) Injuries (everyone) proportional nature crime scene, evidence of drug/alcohol abuse ID photo of victim Kids Follow up photos A picture is worth

23 Follow-Up Photographs

24 1 Week Later

25 Bring me the Blood! All corroborating physical evidence recreate scene All weapons regardless Clothing (torn, stained, saturated) Clumps of Hair???????

26 Hearsay Exceptions Statements Excited Utterances, Spontaneous Statements Descriptive Quotations Don t interrupt with?s Lower Threshold for Kids Crawford Proof

27 Confessions or not ID Family Relationship Written Statements

28 911 Calls Business Record Excited Utterance, Present- Sense Impression For statements and Reality Check

29 Murphy s Law of Domestic Violence Cases!

30 Case Example

31 Case Example