Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

3.ASSESSMENT & INVESTIGATION

3.1.OVERALL STRATEGY

From the first moment you become involved in a case, apply three general principles, especially when investigating a case and assessing its strengths and weaknesses:

1. Maintain an “Offender Focus.”

Traditionally, in both sexual assault and domestic violence cases, assessment and investigation efforts focused on the victim, treating her testimony as the primary evidence and putting little effort into providing corroborating evidence. Work to maintain an “offender focus”: prove the offender’s conduct; move the investigation beyond the victim’s testimony.

2. Prepare for the victim’s absence -- even if she is enthusiastically cooperating at the moment.

Investigate domestic violence incidents with the assumption that the victim will be unable to participate in the prosecution. Make your case as strong as possible by using your first, best opportunity to collect and corroborate all evidence. (For example, immediately document all excited utterances.) Swift, thorough, preventive investigative work will eliminate having to play catch up should the victim decide not to participate in a trial -- just as your jury is being impaneled.

Similarly, with sexual assault cases, aggressively seek corroborative evidence. Although it is impossible to go forward in most rape cases without the victim’s testimony, don’t sit back just because you have the victim’s statement. Follow-up photos, witness statements, first complaint testimony, spontaneous utterances, and physical evidence will have a tremendous impact on the judge or jury. Knowing that the case is not exclusively based on “her testimony against his” may encourage a victim to continue in the court process. While you must carefully evaluate whether to share with the victim the details of any evidence you possess in order not to influence her testimony, it is certainly permissible to tell her that evidence other than her statement exists.


3. Investigate, assess, and present the “Big Picture.”

You will gather more corroborative evidence if you look for more pieces of the puzzle -- the “Big Picture”. Don’t just confine your queries to the physical struggle between the parties. Look for patterns of abusive conduct. Look for past incidents. Look for past 209As and get the related affidavits. Look for and obtain past police reports. Investigate the effects of violence on all persons around the couple: children, parents, neighbors, friends, employees. The greater the effort you put into illustrating a complete picture of the dynamics of the abusive relationship, and into showing the far-reaching effects of the abuse, the better your chances of convincing a judge or jury that the contested criminal activity occurred.

3.2. INITIAL REVIEW AND ACTION

3.2.1.Urgent Tasks to be Done Immediately

Perform these time sensitive tasks as soon as you join an investigation

or receive a new case:

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  PRESERVE
  

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  Computer records and other electronic evidence (e-mail, chat room log-ons, voice mail, pagers, etc.): send a preservation record ASAP; critical records may be expunged by the Internet Service Provider in a matter of hours.
  
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  911 tapes
  
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  Recorded lines (non-911 police, fire, ambulance, etc.)
  
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  Answering machine tapes
  
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  Security camera tapes (stores, banks, government buildings, etc.)
  
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  Any other audio or video
  

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  VERIFY
  

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  All appropriate physical evidence has been seized; determine if follow up warrants/searches are required.
  
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  Photos were taken of victim, scene, and defendant.
  
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  Follow up photos of victims are scheduled (later photographs often reveal bruising more clearly).
  
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  Rape kit was executed at the hospital (for sexual assault victims) and submitted to the crime laboratory.
  
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  Excited utterances, declarations of physical and mental state, and potential first complaint testimony are recorded in police reports and/or witness statements.
  

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  REQUEST
  

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  The court impound the victim’s present address, if it is unknown to the defendant.
  
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  Certified copies of any and all protective orders.
  
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  Copies of all photographs of the victim, suspect and scene.
  

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  MEET
  

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  The investigating and/or arresting officers.
  
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  The victim. It is often appropriate to have a brief preliminary interview and an in-depth follow-up interview.
  

3.2.2.Assess if Additional Police Work is Needed

You should review any and all police reports, and any other investigative or agency reports, as soon as possible in order to evaluate the nature of the case and to assess the investigative efforts to date. If the case is assigned to you before you have received any reports, call the arresting or investigating officer and discuss – in detail – what has been done.

You should learn whether or not the police officer did and/or recorded the following, and take steps to correct any omissions or oversights:
I. VICTIM INFORMATION

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  Described the victim’s location upon arrival.
  
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  Administered first aid to the victim.
  
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  Noted if first aid was sought.
  
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  Noted the time she/he (police officer) was dispatched and arrived; what time the victim spoke.
  
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  Recorded any spontaneous statements made by the victim.
  
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  Described the victim’s emotional condition.
  
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  Described the victim’s physical condition, including height and weight.
  
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  Documented the victim’s injuries in detail: size, location on the body, coloration.
  
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  Documented the particulars if medical treatment was sought.
  
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  Noted the victim’s relationship with the suspect.
  
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  Recorded any information about a history of abuse.
  
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  Noted any restraining orders or other court orders.
  
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  Gave the victim information about rights and services.
  
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  Made note of any temporary address/phone number of victim (for safety reasons, police officer should not include this in the report).
  

II. SUSPECT/DEFENDANT INFORMATION

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  Described the suspect’s location upon arrival.
  
• 
  Administered first aid to the suspect.
  
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  Noted if first aid was sought.
  
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  Recorded any spontaneous statements made by the suspect.
  
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  Described the suspect’s emotional condition.
  
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  Described the suspect’s physical condition, including height and weight.
  
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  Described the suspect’s injuries in detail: size, location on the body, coloration.
  
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  Documented evidence of substance/chemical abuse by the suspect.
  

Following Miranda, if applicable,

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  Asked the suspect if he or she wanted to make a statement,
  
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  Asked the suspect if he or she knew of restraining order and/or understood the order.
  
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  Asked the suspect for a detailed description of the incident.
  
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  Noted any history of abuse in any relationship.
  
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  Fingerprinted.
  
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  Checked _____LEAPS, _____WMS, _____BOP.
  

III. CHILDREN

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  Interviewed each child alone (unless it is determined the interview should be conducted later, by a child interview specialist).
  
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  Listed the names, ages, school and teacher for each child present.
  
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  Noted whether children live in the home, whether or not they are present at the scene.
  
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  Recorded any spontaneous statements made by the children.
  
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  Described each child’s emotional state.
  
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  Described each child’s injuries, if any.
  
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  Took a photo of every child.
  
• 
  
  

IV. WITNESSES

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  Identified the reporting party.
  
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  Interviewed the reporting party.
  
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  Documented the names, date of births, addresses and phone numbers of all witnesses.
  
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  Interviewed all witnesses, separately.
  
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  Recorded the names and addresses of emergency personnel.
  
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  Identified the hospital, treating physician(s), and treating nurse(s).
  
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  Identified the desk officer / dispatcher.
  
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  Recorded the “911” number and incident number.
  

V. EVIDENCE

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  Photographed the crime scene.
  
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  Took full body picture of the suspect.
  
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  Took full body picture of the victim.
  
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  Photographed the victim’s injuries.
  
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  Photographed the suspect’s injuries.
  
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  Seized all items used as weapons.
  
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  Seized items thrown, broken, or used in the incident.
  
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  Seized firearms for safekeeping.
  
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  Requested medical records.
  
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  Requested 911 tape.
  

A worksheet may be of use in keeping track of the assessment/investigation stage of your new cases. Two versions follow here as protoypes:

DOMESTIC VIOLENCE and/or SEXUAL ASSAULT CASE

PROSECUTION WORKSHEET
File or Case Name: Assistant District Attorney: Date:


1. ARRAIGNMENT:

G.L. c. 276 s. 58A Hearing Notice Filed? Yes No N/A

Detained? Yes No

Conditions of Release?

Bail: Personal Recog._______________Amount_______________

Conditions?

Bail Warning Given? Yes No N/A

Victim Present? Yes No
2. PHOTOS:

Photographed by Police?

Victim Yes No N/A

Suspect Yes No N/A

Scene Yes No N/A
Follow Up Photos of Victim Scheduled? Date: No N/A

Completed? Yes No

Photos Requested? Date: From:
3. MEDICAL RECORDS:

Was victim transported for medical care? Yes No

records of emergency personnel summonsed? Yes No

medical records summonsed? Yes No

treating physician, nurses interviewed? Yes No

rape kit submitted to lab? Yes No N/A

4. RECORDINGS and ELECTRONIC EVIDENCE:

911 tapes or recorded police line used? Yes No

preserved and requested? Date: From:

Answering Machines, E-Mail, Surveillance Cameras? Yes No

preserved and requested? Date: From:

5. PHYSICAL EVIDENCE:

items thrown, broken, bloodied, or torn seized? Yes No N/A

all firearms known of seized? Yes No

need for further search/search warrant? Yes No
6. VICTIM INFORMATION

Address impounded? Yes No

Special Safety Considerations:

Page 1 of 2

CASE CHECKLIST

Commonwealth v. _______________________________

Docket/Indictment Number: ________________________________

Victim: Defense Attorney:

DOB: Phone:

Address: Address:

Phone: Fax:

Charges and Statutes:


Summary of Facts:

Arresting Officers:

Investigating Officers:

Witnesses:

Page 2 of 2

EVIDENCE:
51A and B

911 Tape

Email

Booking Video

Certified 209A

Certified Convictions

Ambulance Records

Medical Records

Phone Records

Photos

Rape Kit

Videos

Other:
MOTIONS IN LIMINE:
Excited Utterances

First Complaint

Prior Bad Acts
Other