7.5. PREPARING POLICE OFFICERS AND EXPERT WITNESSES
1. Police Officers
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remind them to use lay terminology
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familiarize them with reports, recorded testimony, exhibits
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review the chain of evidence for all physical evidence
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discuss the benefits of immediately admitting mistakes or shortcomings in an investigation
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review the procedure for refreshing recollection
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review the difference between reciting what was seen or done and reciting legal conclusions or opinions
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discuss whether they have testified before, and how it went; if they are new to the process, prepare them as if they were a civilian witness (above)
2. Experts and Medical Professionals (Chemist, Serologist, Physician, RN, etc.)
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remind them to use lay terminology
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explain the importance of their role in educating the jury
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go over their curricula vitae (consider whether you want to stipulate to their qualifications or present them to the jury)
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review the guidelines for preparing the victim and other witnesses, section 7.4, nos. 1-3, above
7.6.DEALING WITH UNCOOPERATIVE WITNESSES AT TRIAL
Review section 2.4, Addressing Victims’ Reluctance to Prosecute
When a victim recants, “reconciles” with the defendant, claims to no longer remember the incident, or doesn’t show up, you must reorganize your approach. Hopefully you planned for these possibilities (see supra Section 3.8, Corroborative Evidence); if not, reconsider the evidence you have, even without the victim’s full cooperation, and adjust your focus.
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Continue to offer victim services, safety planning, referrals and your support.
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Refrain from using a hostile, exasperated or sarcastic tone of voice with her -- outside as well as within the courtroom.
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You need to preserve the chance for the jury to sympathize with the victim about her dilemma, not give them a reason to condemn her for it. Try to view her actions as an opportunity for the jury to be educated, first hand, about the complex nature of abusive relationships, and victim and offender dynamics.
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Though she has made your job as a trial lawyer more difficult, your purpose in that job, and your obligations to her, remain unchanged.
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Keep the door open. If you don’t antagonize her and don’t give her a reason to stay away the next time she is hurt, you may have another chance to break the cycle of violence. In doing so, you may be doing nothing less than saving her life.
1. Victim/Witness Will Not Testify
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Reconsider all other types of evidence which can best make up for the loss of the victim’s testimony. Review supra section 3.8’s list of potential corroborative evidence, particularly
Declarations of Physical Condition,
Declarations of Mental Condition,
Descriptions of the Victim’s Appearance and Demeanor,
Excited Utterances,
Expert Testimony on Battered Woman Syndrome or Rape Trauma Syndrome,
Former Testimony/Use of Prior Recorded Statements,
First Complaint,
Medical Records/Medical Opinion, and
Technological Recordings.
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Emphasize to the jury the Commonwealth’s role in bringing charges, on behalf of all people of the Commonwealth of Massachusetts (you may bring this out on direct through your police witnesses; you may then discuss it during closing argument).
2. Victim/Witness Has Contact With the Defendant During Trial
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It is the victim’s choice to respond to the defendant’s and/or defense counsel’s request to meet, or to initiate contact. (Though of course, the parties are bound to obey any protective order in effect at the time.) Should such contact occur, defense counsel may subsequently attempt to paint it as reason for the jury to acquit. Having elicited detailed testimony about the nature of the relationship on direct and cross, you will argue in your closing that the nature of the relationship not only reveals the abuse at issue in the case, but also explains the victim’s behavior in later contacting the defendant. Remind the jury its focus should be on whether the criminal incident at issue occurred, not whether the victim has at any point in time “forgiven” the defendant.
3. Victim/Witness Wants to Exercise a Fifth Amendment Privilege
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A victim may refuse to testify by asserting her Fifth Amendment right, on the basis that were she to testify that she “lied” in reporting the alleged offenses, she would be subjecting herself to perjury charges. This issue must be raised outside of the jury’s presence. The judge can examine the witness in camera to see if there is a legitimate fifth amendment privilege, and make the determination whether the witness can be compelled to testify
under the particular circumstances. See Liacos, Handbook of Massachusetts Evidence § 13.14, at 843 (7th ed.1999):
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The privilege against self-incrimination is available only when
three conditions exist: First, the person claiming the privilege must be under governmental compulsion to furnish evidence. Commonwealth v. Harvey, 397 Mass. 351 (1986); Malloy v. Hogan, 84 S. Ct. 1489 (1964). Second, the evidence required must be testimonial. Commonwealth v. Hughes, 380 Mass. 583 (1980). Third, the evidence must have a reasonable possibility of incriminating the witness in criminal proceedings. Lefkowitz v. Turley, 414 US 70, 77, 84 (1973) Cf. Commonwealth v. Johnson, 365 Mass. 534 (1974) (witness cannot refuse to testify on ground that answer might cause embarrassment or place him or others in danger).
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The claim of the Fifth Amendment privilege should be evaluated in the setting of each case. Powers v. Commonwealth, 387 Mass. 563 (1982).
4. Victim/Witness is in Court, But is Reluctant and/or Refuses to Testify
You will have to choose whether to compel a reluctant or refusing witness to the stand. You may decide not to call her at all, for a number of reasons. First, forcing a victim to testify may complicate a precarious relationship with an abuser and increase the risks to her safety. Second, forcing a victim to testify may hinder her recovery and/or further traumatize her. Third, forcing a reluctant victim to testify at a time when she is minimizing or denying the abuse she has suffered may result in recorded testimony, under oath, of lies which may come back to haunt you when she is ready, at a later time, to pursue another crime the defendant commits against her. The prior testimony will be a rich source of impeachment for the defense in the future.
However, after thinking long and hard about the options and ramifications, in certain situations you may decide to call a reluctant or refusing witness to the stand. You may decide to do so in order to inquire and ascertain, on the record and in front of the jury, that the victim has been coerced or intimidated. You may even decide to ask the Court to use its contempt powers. You may decide the case is best served, and the victim’s safety best protected, by calling her to the stand despite her reluctance: perhaps the danger is so great you and the advocate feel you must prosecute now as best you can.
Above all else, remember that scenarios involving reluctant and refusing victim-witnesses require the best victim advocacy, victim services, victim counseling, and referrals you can muster.
The following sample questions may assist you in talking to the victim and attempting to discern if she has been threatened or intimidated. The questions may also help you to prepare for direct examination of a reluctant witness, when you do choose to call a reluctant witness to the stand.
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Why do you feel reluctant to testify?
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When did you become reluctant to testify?
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Were you living with the defendant when the incident happened?
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Are you living with the defendant now?
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If not, does the defendant know where you are staying?
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Are you financially dependent on the defendant?
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Do you and the defendant have children together?
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Have you discussed the case with the defendant?
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Has the defendant made any promises to do something for you if you do not testify?
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Is that promise to do something the reason you do not wish to testify?
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Has the defendant or anyone else threatened you, your children or your family and told you not to testify?
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Is there some other reason you are afraid of the defendant?
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Are you aware that this court can issue an order telling the defendant to stay away from you and have no contact with you or your family?
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Are you aware that if the case is prosecuted the defendant could be required to get counseling, pay for your damages, and stay away from you and your family?
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How did you receive the injuries (refer to police reports, medical records, photos, or injuries still visible)?
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Are you aware that the Commonwealth --the people of Massachusetts -- are bringing these charges, and that the decision to prosecute the defendant is up to the District Attorney’s Office?
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Are you aware that the fact you have been subpoenaed means that the Commonwealth decided to call you as a witness, that you must testify, and that you may be held in contempt if you do not do so?
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Would you like to have a court officer to escort you from the building when you leave today?
5. Victim/Witness Recants on the Witness Stand and/or Testifies for the Defense
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If she is your witness, lay the proper foundation to show the court she is now an adverse witness, which will allow you to employ leading questions (questions that suggest to the witness the answer desired by the examiner):
Mass. Gen. Laws ch. 23,3 § 23, impeachment of party’s own witness:
“The party who produces a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them.”
If she claims to have no memory of making the prior statements, use the statements to refresh her recollection. See Commonwealth v. Hartford, 346 Mass. 482, 487(1963) (leading questions were not impeachment but rather refreshed witness’s recollection), and Commonwealth v. Reddick, 372 Mass. 460 (1977) (cross-examiner not barred by series of answers of “I don’t remember”; prior written statements were used to refresh recollection).
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Impeach her and/or refresh her recollection with her grand jury testimony and her witness statement.
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Confront her (gently!) with relevant physical evidence which supports her original account (pictures of her bruises, her torn clothing, damaged items from the scene of the assault, etc.)
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At all times, on and off the stand, treat her respectfully. She may be acting with her own personal safety foremost in her mind. It is not our role to be judgmental of her personal choices.
Consider the sample included in the appendices (section 9.6.3), entitled “Cross-Examination Questions for a Recanting, Minimizing, and/or Reluctant Victim.” This resource was prepared by the San Diego City Attorney’s Office.
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