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

7.TRIAL STRATEGIES

7.1.DEVELOPING THE THEME OF THE CASE

Try to prioritize and condense the issues in each case into a short “theme,” which you can repeat throughout your opening and closing arguments, and which you may occasionally be able to work into your questions on direct or cross. The theme will not only help get the message across to the jury by virtue of sheer repetition, but also by virtue of the clarity and simplicity the practice provides: you will be able to tie in each bit of testimony, each exhibit, and each argument to the theme. The theme provides the jury with a means to organize the mass of information before them.

Providing useful examples without the context of a particular case is difficult. Your theme must reflect the nature of the offense, the circumstances of the offense, and most often, what you consider to be the most critical issue of proof.
The theme could be as concise as “he watched her, he sought to control her, and when she tried to leave the relationship, he attacked her,” or longer, such as “This case is not a type of divorce trial; this case is not a trial judging the worth or merits of the relationship between the defendant and the victim; this case is not a case brought by the victim. This is a criminal trial, brought by the District Attorney’s Office on behalf of the people of Massachusetts, to prove that this defendant committed the violent crime of assault and battery .”
You may choose to emphasize the one element you feel may be most at issue: “When this defendant pushed the victim against the table and forced her clothes off, bringing the full power of his two hundred pound physique to bear, confining her, forcing his body into hers, causing her to cry out in pain and to fear for her life, there was no consent. There was only forced sexual intercourse, against her will -- the crime of rape.”
Or, you may choose to emphasize the jury’s need to overcome an improper attitudinal obstacle: “This defendant selected this victim -- targeted this victim -- counting on her lack of resources and standing in the community to shield him from being held accountable for his violent sexual assault. But our criminal laws are not designed to protect only certain classes and certain types of people.”
You may have to adjust your “theme” to unexpected events at trial, or to answer assertions by the defense. For example, you may start out with a cooperative domestic violence victim, thinking the line to repeat will be “This victim endured cycles of abuse from the defendant: periods of tension and argument, culminating in violence, followed by apologies. When she applied for a restraining order and sought to break free from the abusive cycle, the defendant exploded and viciously attacked her, beating her face, beating her body, and berating her as she pled for him not to kill her.” At trial, should that victim succumb to the defendant’s pressures not to testify or to testify for the defense, you may have to segue into “Her focus at this stage is on her relationship with the defendant in the future; your focus should be on the vicious beating she suffered last fall, leaving her dazed, bleeding and, as she told the EMTs, in fear for her life.”

Of course, when you offer themes such as the above examples to the jury, you must be careful to use appropriate language: “the Commonwealth suggests,” or “you might find that” or “I submit” (See infra section 7.12 for further discussion of appropriate language in closing argument.)

Once you discern which lines go to the very heart of your case, practice them over and over -- in front of colleagues, in your head, in your car, in your sleep -- so that at trial your choice of words and phrases will be smooth and consistent

7.2. PREPARING FOR ISSUES OF PROOF

• 
  List and review the elements you are required to prove with respect to each charge the defendant faces. (see section 1.4, Domestic Violence and Sexual Assault Statutes)
  

• 
  Review model jury instructions (see section 7.13, below, and the model jury instructions included in the appendices, section 9.7) and case law pertaining to each element of a statute in order to refresh your understanding of the courts’ interpretation of key words and phrases. Incorporate the courts’ phrases into your questions on direct and cross. Examples of important words:
  

“bodily injury”

“fear”

“dangerous weapon”

“indecent”

“penetration”

“possession”

“repeatedly”

“reasonable apprehension of an immediate battery”

“substantive dating relationship”

“vacate”

“willful and malicious”

• 
  Review issues which may seem obvious but may not be proven at trial unless you are careful to ask the correct questions of witnesses, e.g.:
  

certification

identity

intent

notice

service

• 
  Review and determine which testimony or physical evidence you expect will address each and every element and issue of proof.
  

• 
  Consider drawing up a checklist, to use at trial, of each element of proof in your case, and which witness is expected to provide the relevant testimony.
  

7.3. ANTICIPATING DEFENSES

In sexual assault cases three basic defense strategies are:
It never happened. (fabrication)

She was willing. (consent)

It wasn’t me. (identification)

In acquaintance rape cases and in domestic violence cases the defense will almost always attack the veracity, character and credibility of the victim. Every element of the victim’s account will be picked apart for inconsistencies and falsehoods.

Try to anticipate all of the specific defense theories that may be employed. Review and consider the various examples listed below. Imagine how adverse testimony, inconsistencies, or innuendo could be used to piece together arguments supporting each of them. Once you narrow down the possibilities, be sure you are fluent with respect to the relevant facts, and confident of the applicable legal standards.
I. Defenses which you are entitled to be notified of, pursuant to Mass. R. Crim. Proc. 14:
ALIBI
INSANITY

II. Defenses based on challenging the Commonwealth’s evidence or interpreting / weighing the evidence differently:
“ACCIDENT”
“CONFUSION WITH ANOTHER ABUSER”
“CONTACT WAS BENIGN/INNOCENT”
CONSENT
CREDIBILITY OF VICTIM
DELAY BY VICTIM IN REPORTING
DEFENDANT WAS DRUNK OR ON DRUGS

see below: Mental Health of Defendant: “Diminished Capacity”
ELEMENTS NOT PROVEN TO THE REQUISITE STANDARD
“FABRICATION”/”FANTASY”
IDENTIFICATION (“WRONG GUY”)
INCONSISTENT ACTIONS BY THE VICTIM
INCONSISTENT STATEMENTS
MENTAL HEALTH OF DEF.: “DIMINISHED CAPACITY”

General Intent

Defense counsel may appeal to the jury’s sympathies, beyond the boundaries of the law, to hold the defendant not accountable because he was intoxicated at the time of the offenses. You will have to educate the jury to the contrary. Relevant case law is excerpted here from Stearns’ District Court Prosecutors’ Guide:

Voluntary consumption of drugs or alcohol does not justify or excuse a criminal act. Commonwealth v. Sama, 411 Mass. 293, 299 n.3 (1991); Commonwealth v. Knight, 37 Mass. App. Ct. 92, 102 n. 6 (1994). Intoxication (diminished capacity) is thus not an affirmative defense that the Commonwealth must disprove beyond a reasonable doubt. Commonwealth v. Purcell, 423 Mass. 880, 882 (1996), Commonwealth v. Costello, 392 Mass. 393, 405 (1984) ...Cf. Commonwealth v. Parker, 420 Mass. 242, 245 n.3 (1995) (“There is no ‘diminished capacity’ defense in this Commonwealth”). Intoxication and impairment “are mere subsidiary facts that a jury may consider in sifting the circumstantial evidence as to [a defendant’s] mental state.” Commonwealth v. Waite, 422 Mass. 792, 805 (1996). ... Intoxication has no mitigating effect on general intent crimes. Commonwealth v. Troy, 405 Mass. 253, 263 (1989) ...See Commonwealth v. Mello, 420 Mass. 375, 387 (1995) (“One may be perfectly unconscious of what he is doing and yet be responsible for his conduct during drunkenness”).
Stearns, The Massachusetts Criminal Law: A District Court Prosecutor’s Guide, 364-65 (2000-2001 ed.).
Specific Intent

The issue of “diminished capacity” is more complicated in crimes for which specific intent is a necessary element. Whether a cause for diminished capacity is innate (such as mental illness or mental retardation) or self-induced (such as intoxication), it may negate mens rea where specific intent must be proved by the Commonwealth (in crimes such as burglary, assault with intent to commit a felony, kidnapping, mayhem and murder). Commonwealth v. Henson, 394 Mass. 584 (1985).

In Henson, despite Massachusetts’ long history of precluding a defendant from relying on voluntary intoxication as evidence of incapacity to form a specific intent, see Commonwealth v. Loretta, 386 Mass. 794, 800 (1982), the Supreme Judicial Court said it was:
time to announce that where proof of a crime requires proof of a specific criminal intent and there is evidence tending to

show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant’s intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt ... [H]e should further instruct the jury that, if they find ... that the defendant had the required specific intent, the defendant’s intoxication, if any, is not an excuse or justification for his actions.

Henson, 394 Mass. at 593-94. The Henson holding, which was an assault with intent to murder case, was extended to a second degree murder case in Commonwealth v. Grey, 399 Mass. 469, 470-471 (1987), (Just as we permit evidence of a defendant’s alleged intoxication to be considered when his specific intent to kill is in issue [citing Henson], we should permit the jury to consider evidence of mental impairment at the time of the crime in deciding whether the Commonwealth has proved the defendant’s specific intent) and to first degree murder involving the third prong of malice in Commonwealth v. Sama, 411 Mass. 293, 296-299 (1991) (The defendant was entitled to a requested instruction that if the jury found the defendant was intoxicated at the time of the murder, they could consider that fact when determining what he “knew” for purposes of finding malice aforethought under the third prong of malice.)
MENTAL HEALTH OF DEF.: “TEMPORARY INSANITY”
The standards for an insanity defense are set forth in Commonwealth v. McHoul, 352 Mass. 544 (1967): the defendant must lack substantial capacity either to (1) appreciate the wrongful nature of his conduct or (2) conform his conduct to the requirements of the law. Absent a legal basis, the defense may try to suggest an ‘ad hoc’ version of insanity -- something short of criminal responsibility -- by claiming the defendant temporarily lost control, in heated, emotional contexts. If the defense starts using phrases like “he lost it” or “he went nuts” or “that drove him crazy” be sure the court provides adequate instructions regarding responsibility in its charge. And be sure you focus the jury’s attention on the defendant’s choice in responding the way he did, the defendant’s decision to use violence, the defendant’s responsibility for his actions.
Many abusers actually have more presence of mind than they (and the defense) may want the jury to believe. The defense may assert that an abuser “temporarily lost control,” when in fact, often the abuser chooses exactly how much pain to inflict, and when to stop. Detail how the defendant’s actions exhibit his control over the victim, and deflate claims of an inability to control himself (e.g. taking a ring off before beating the victim, hitting only certain parts of the victim’s body so as to minimize bruising, planning the violence by threatening -- and later carrying out-- specific acts of violence, or waiting until no one else was present before becoming violent).
MENTAL HEALTH OF VICTIM
The defense may try to admit evidence or inferences regarding a victim’s prior psychiatric treatment or her history of substance abuse. Make sure the defense complies with the evidentiary rules regarding character and reputation evidence and/or the privileges surrounding psychologist and psychotherapist-patient relationships. Consider filing motions in limine to preclude any improper references by the defense. (see section six).
“NOT IN THE POLICE REPORT”
The defense may try to focus the jury’s attention singularly on police reports, arguing that because certain facts are not included in a report or because there are inconsistencies, the Commonwealth’s case is flawed and unworthy.

Distinguish your case from Commonwealth v. Ortiz, 39 Mass. App. Ct. 70 (1995), a drug case which, in certain circumstances, adds weight to such defense efforts: if a police officer neglects to include “important details” of an incident in his police report but testifies to those details at trial, the trial judge must, upon the defendant’s request, instruct the jury that it may use prior inconsistent statements in determining the witness’s credibility. The Court reasoned that “an omission from the earlier statement is inconsistent with a later statement of fact when it would have been natural to include the fact in the initial statement.” Id, at 72, citing Foster v. Worthing, 146 Mass. 607, 608 (1888).

SELF-DEFENSE also see section 4.1 regarding self-defense

The issue of self-defense is not raised in the absence of evidence either that (1) the alleged victim, by an overt act, threatened immediate harm to the defendant, or (2) the defendant reasonably believed that the alleged victim, by an overt act, was threatening immediate harm to him. See Commonwealth v. Glass, 401 Mass. 799, 808 (1988); Commonwealth v. Weichel, 403 Mass. 103, 108 (1988).

One may use reasonable force to defend his person. Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966). Whether force used in self-defense is reasonable is decided by an objective standard. Id. In assessing a claim of self-defense the jury should consider the relative size and capabilities of the combatants, the respective weapons used, and any opportunities for retreat. Id. at 212. Evidence that a less drastic means of self-defense was available to a defendant is admissible on the issue of the reasonableness of his actions. See Commonwealth v. Oram, 17 Mass. App. Ct. 941, 943 (1983).
The right to claim self-defense may be forfeited by one who commits a violent crime, even if excessive force is used by the intended victim. Commonwealth v. Maguire, 375 Mass. 768, 773 (1978). Self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless he makes known his intention to retire and withdraws in good faith. See Commonwealth v. Evans, 390 Mass. 144, 153 (1983).
“WOUNDS SELF-INFLICTED BY VICTIM”


III. “Defenses” appealing to emotions or sentiments:
“DEFENDANT IS SUCH A GOOD GUY”
“(this is just a) FAMILY MATTER”
“(this is just a ) GIRLFRIEND-BOYFRIEND THING”

“His only crime was loving her too much”

HOMOPHOBIC/ANTI-HOMOSEXUAL THEMES
MISOGYNIST THEMES

Defense counsel may direct innuendo or descriptive words, such as “hysterical,” “anti-male” or “male-hating,” at a female victim, female investigator, or female prosecutor.

SYMPATHY FOR DEFENDANT

History of psychiatric treatment

History of substance abuse

History of physical, sexual, or psychological abuse

“WITCH-HUNT,” “EPIDEMIC”

Defense counsel may cross police officers about allegedly unusual increases in the number of domestic violence cases investigated or the number or restraining orders issued. A comparison may be offered between the case at hand and some unrelated, controversial case which has generated a lot of publicity. The cross examination may be spiced with improper side comments. (“Well, that’s the investigative flavor of the month, isn’t it?” or “Well, these cases just seem to be popping up everywhere now, don’t they.”)

Be vigilant in immediately objecting -- don’t let these down-putting comments pass, as it encourages further comments. Keep the court and jury focused on the merits of the case before them.


The way to deflate many types of defenses, especially those “defenses” appealing to the jury’s emotions and possible prejudices, is to educate the jury.

• 
  Where the defense tries to convince the jury the case is “just a girlfriend-boyfriend thing,” or a “family dispute,” have a police officer spell out the complaint process on direct, emphasizing that it is the Commonwealth’s role to press charges, not the victim’s.
  

• 
  When the defense emphasizes the time between an assault and the victim reporting the assault, or emphasizes contact between the defendant and the victim after the alleged crime, you need to educate the jury about victim and offender dynamics, and related syndromes. Consider using expert testimony.
  

• 
  When the defense argues the victim shouldn’t be believed because she waited to go to authorities and report a rape, relive what the victim did and felt during that period of time. Recreate the emotions, the fear, the confusion. Make her behavior understandable.
  

• 
  When the defense highlights a civil or even tender time the defendant and victim had together after the alleged crimes had occurred, show the jury how the defendant’s moods and actions in the months surrounding the crimes reveal a cyclical pattern of tension building, followed by violence, followed by remorseful reconciliation. Repeat the same pattern of questions as they pertain to different time frames in order to reveal the pattern of the defendant’s behaviors; then discuss the pattern in your closing argument. Don’t just ask the victim about the abuse she suffered; rather, elicit testimony about the relationship itself, in order to give the jury a complete picture of the relationship. Then, in closing argument, you will be able to discuss the fact that there were aspects of the defendant’s personality that the victim loved, as well as behaviors which she feared -- behaviors which are in violation of our state laws.