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



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MDAA

Massachusetts District Attorneys Association

THE MASSACHUSETTS

PROSECUTORS’ MANUAL:

DOMESTIC VIOLENCE

& SEXUAL ASSAULT
THIRD EDITION
(Original Edition 1997)

(Includes Updates Through July, 2010)


Written by

Lisa S. McGovern



Third Edition: Updated and Revised by

Kim Aliprantis



Staff Attorney, Domestic Violence/Sexual Assault
The Massachusetts District Attorneys Association

One Bulfinch Place, Suite 202

Boston, Massachusetts 02114

THE MASSACHUSETTS

PROSECUTORS’ MANUAL:

DOMESTIC VIOLENCE

& SEXUAL ASSAULT
THIRD EDITION
(Original Edition 1997)

(Includes Updates Through July, 2010)

Written by

Lisa S. McGovern



Third Edition: Updated and Revised by

Kim Aliprantis



Staff Attorney, Domestic Violence/Sexual Assault

THIS MANUAL WAS FUNDED BY A VIOLENCE AGAINST WOMEN ACT STOP GRANTS 2005-XO749-MA-WF and 2006-XO163-MA-WF, AWARDED BY THE VIOLENCE AGAINST WOMEN PROGRAMS OFFICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, THROUGH THE MASSACHUSETTS EXECUTIVE OFFICE OF PUBLIC SAFETY.


POINTS OF VIEW IN THIS DOCUMENT ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REPRESENT THE OFFICIAL POSITION OR POLICIES OF THE U.S. DEPT. OF JUSTICE OR THE MASSACHUSETTS DISTRICT ATTORNEYS ASSOCIATION.



Purpose & Scope
In 1996 several Massachusetts agencies received funding under the federal Violence Against Women Act after having outlined in their grant proposals plans to develop a training manual for the prosecution of domestic violence and sexual assault cases. The Massachusetts District Attorneys Association proposed that a collaborative effort, including all Massachusetts District Attorneys offices and the Attorney General’s Office, combine resources and produce a single manual for statewide application. The original manual was funded by the Offices of former Attorney General Scott Harshbarger, former Norfolk District Attorney Jeffrey Locke, and former Norfolk District Attorney William Delahunt. The manual was written by Lisa McGovern, formerly an Assistant District Attorney in Middlesex County, and was reviewed by an editorial board comprised of representatives from the offices of Massachusetts’ eleven District Attorneys and the Attorney General. The manual was distributed in November 1997 to all Massachusetts prosecutors handling domestic violence and sexual assault cases.
In 2000 the Violence Against Women Grant Office awarded the Massachusetts District Attorneys Association a grant to update the manual in 2001. The manual was significantly expanded and revised, and supplanted the original edition. In 2005 and 2006 the VAWA STOP Grant program again awarded the Massachusetts District Attorneys Association with grant funding to update the manual. The manual has again been significantly revised and replaces the second edition.
The manual covers domestic violence and sexual assault cases simultaneously because they involve similar victim dynamics, and present prosecutors with similar complex challenges. The crimes of domestic violence and sexual assault are also all too often inextricably intertwined.
Cases involving child abuse, including child victims of sexual assault are not within the scope of this work.
A Note On Language
Throughout the manual, victims are often, though not exclusively, referred to in the feminine gender. This reflects the fact that in the overwhelming majority of domestic violence cases and sexual assault cases, the victim is female and the offender male. However, where applicable, the contents are intended to pertain equally to male victims, and/or to victims who are the same gender as their assailants or abusers.
In the past decade rape crisis center advocates have deliberately adapted use of the term “survivor” in place of “victim,” particularly with respect to the crime of rape. Due to the statutes, cases and legal authorities that use and define the term “victim,” the manual introduces “survivor” but also retains “victim.”

Acknowledgements
Without the support of the Executive Office of Public Safety, and the VAWA STOP Grant program, this 3rd edition of the Massachusetts Prosecutors’ Manual: Domestic Violence & Sexual Assault would not have been produced. The Massachusetts District Attorneys Association especially thanks Diane DeAngelis, Grant Administrator for the VAWA STOP Grant Program, for her steadfast support.

All of the District Attorney’s offices and many in the criminal justice community contributed to this new edition, and we especially thank:




  • Janet Berkenfield, Director, MA EMSC Project, MA Department of Public Health

  • Maryann Brennan, Disabled Persons Protection Commission (DPPC)

  • Courtney Cahill, Assistant District Attorney, Plymouth County District Attorney’s Office

  • Jeanmarie Carroll, Assistant District Attorney, Norfolk County District Attorney’s Office

  • Diane Coffey, SAFEPLAN Program Manager, Massachusetts Office for Victim Assistance

  • Layla D’Emilia-Shepherd, Senior Policy Analyst, Jane Doe Inc.

  • Janet Fine, Executive Director, Massachusetts Office for Victim Assistance

  • Deborah Fogarty, Director, Victim Compensation Division of the Office of the Attorney General

  • Gregory Giuliano, Director of Elder Protective Services, Massachusetts Executive Office of Elder Affairs

  • Susan Goldfarb, Executive Director, Children’s Advocacy Center of Suffolk County

  • Marguerite Grant, Senior Appellate Counsel, Middlesex District Attorney’s Office

  • Betsy Groves, LICSW, Director, Child Witness to Violence Project

  • Rev. Dr. Anne Marie Hunter, Safe Havens Interfaith Partnership Against Domestic Violence

  • Elizabeth Katz, District Court Chief, Northwestern District Attorney’s Office

  • Dee Kennedy, Site Operations Director, Family Justice Center of Boston

  • Brooke Kinniburgh, Division of Violence and Injury Prevention, Massachusetts Department of Public Health

  • J. Thomas Kirkman, Director of the Domestic Violence Prosecution Unit, Cape & Islands District Attorney’s Office

  • Mary Kociela, Director, Domestic Violence Projects, Northwestern District Attorney’s Office

  • Suzanne Kontz, Assistant District Attorney, Middlesex County District Attorney’s Office

  • Dana Leccese, Assistant Attorney General, Office of the Attorney General

  • Daniel Less, General Counsel, Sex Offense Registry Board

  • Susan Loehn, Chief, Domestic Violence Unit, Northwestern District Attorney’s Office

  • Kate MacDougall, Director, Family Crimes and Sexual Assault Unit, Essex County District Attorney’s Office

  • Jennifer Meade, Research and Evaluation Manager, Jane Doe, Inc.

  • Erin Miller, SAFEPLAN Program Coordinator, Massachusetts Office for Victim Assistance

  • Sgt. Thomas Neff, Massachusetts State Police, Essex County District Attorney’s Office

  • Kristen Palma, Director of Public Affairs and Field Services, Massachusetts Office for Victim Assistance

  • Gwen Pino, Forensic Case Manager, Massachusetts State Police Crime Lab

  • Gina Rippel, Chief of the Domestic Violence Unit, San Diego District Attorney’s Office

  • Curt Rogers, Gay Men’s Domestic Violence Project

  • Hema Sarangapani, Staff Attorney, Immigration Unit, Greater Boston Legal Services

  • Afton Templin, Deputy General Counsel, Massachusetts Parole Board

  • Cheryl Watson, Chief, Victim Witness Services, Essex County District Attorney’s Office

  • Lucia Zuniga, Director, Adult and Pediatric SANE


(These titles reflect positions held at the time of the publication of the 3rd edition.)


A number of people were generous in sharing their expert advice with the author for the second edition, including:


  • Esther Bixler, Assistant District Attorney, Middlesex District Attorney’s Office

  • Marci Diamond, Director, Sexual Assault Prevention and Survivor Services, Massachusetts Department of Public Health

  • John Grossman, Chief, and Julie Ross, Assistant Attorney General, of the High Tech and Computer Crimes Division of the Office of the Attorney General

  • J. Thomas Kirkman, Director of the Domestic Violence Prosecution Unit, Cape & Islands District Attorney’s Office

  • Mary Lee, Deputy Chief of Appeals and Legal Adviser to the High Tech Unit, Plymouth County District Attorney’s Office

  • Sgt. John J. McLean, of the Medford Police Dept. and NEMLEC

  • Thomas O’Reilly, Assistant District Attorney, Middlesex District Attorney’s Office

  • Judy Norton Senfleben, Deputy Director, and Karen Dempsey, Community Education Coordinator, Massachusetts Office for Victim Assistance

  • Susan H. Vickers, Esq., Victims Rights Law Center, Boston Area Rape Crisis Center

  • Jay Wallace, Chief Executive Officer, The Developers Collaborative, Inc.


(These titles reflect positions held at the time of the publication of the 2nd edition.)


Editorial Board for the Original 1997 Edition
(These titles reflect positions held at the time of the original publication.)


Office of the United States Attorney

District of Massachusetts:

Marianne Hinkle

Assistant United States Attorney

(formerly Chief, Domestic Violence Unit, Norfolk District Attorney’s Office)
Office of the Attorney General

Commonwealth of Massachusetts:

Joseph F. Whalen

Assistant Attorney General
Amy Sharff

Assistant Attorney General
Kathy Morrissey

Victim-Witness Advocate
Janine Gannon

Project Coordinator, Child Witness to Violence

(formerly Victim Witness Advocate,

Norfolk District Attorney’s Office)
Berkshire County District Attorney’s Office

Pittsfield, Massachusetts:

Anne M. Kendall

Second Assistant District Attorney
Elizabeth A. Keegan

Director, Victim-Witness Assistance Program
Bristol County District Attorney’s Office

New Bedford, Massachusetts:

Michele Stanton

Director, Victim-Witness Assistance Program
District Attorney for the Cape & Islands

Barnstable, Massachusetts:

J. Thomas Kirkman

Chief, Domestic Violence Unit

Essex County District Attorney’s Office

Salem, Massachusetts:

Mary Alice Doyle

Assistant District Attorney
Hampden County District Attorney’s Office

Springfield, Massachusetts:

Maria F. Rodriguez

Assistant District Attorney

Chief, Family Protection Bureau
Middlesex County District Attorney’s Office

Cambridge, Massachusetts:

Beth Merachnik

Director, Domestic Violence Unit
Norfolk County District Attorney’s Office

Dedham, Massachusetts:

Jeanmarie Carroll

Chief, Domestic Violence Unit
Northwestern District Attorney’s Office

Greenfield, Massachusetts:

Laurie McLeod

Assistant District Attorney
Plymouth County District Attorney’s Office

Brockton, Massachusetts:

Sheila M. Calkins

Chief, Family Protection Unit
Suffolk County District Attorney’s Office

Boston, Massachusetts:

Andrea Cabral

Chief, Domestic Violence Unit
Worcester County District Attorney’s Office

Worcester, Massachusetts:

Anthony J. Pellegrini

Director, Victim-Witness Assistance Program


1. FOUNDATIONS 1

1.1. BACKGROUND INFORMATION ON DOMESTIC VIOLENCE & SEXUAL ASSAULT 1

1.2. BACKGROUND INFORMATION ON RESTRAINING ORDERS 25

1.3. BACKGROUND INFORMATION ON STALKING AND CRIMINAL HARASSMENT 47

1.4. BACKGROUND INFORMATION ON NON-CRIMINAL LEGAL OPTIONS FOR VICTIMS 57

1.5. DOMESTIC VIOLENCE & SEXUAL ASSAULT STATUTES: ELEMENTS, PENALTIES, and SELECTED ANNOTATIONS 62

1.6. PROCEDURAL STATUTES AND ISSUES 102

Definitions are included in 18 U.S.C. § 921: 107

“Intimate partner” means the spouse, former spouse, parent of a common child, or person who has cohabitated or cohabitates with the person in question. 107

To be considered “to have been convicted,” a person must have been represented by counsel or knowingly and intelligently waived counsel, and if entitled to a jury trial must have had the case tried by a jury or must have knowingly and intelligently waived the jury right. 107

A “misdemeanor crime of domestic violence” means an offense that: (1) is a misdemeanor under Federal or State law; and (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Thus, any misdemeanor which involves the use or attempted use of physical force, committed by one of the defined parties, would constitute a “crime of domestic violence” under the statute, whether or not a state statute or local ordinance defines it as domestic violence; e.g., a conviction for an assault against a spouse prohibits the offender from receiving or possessing firearms or ammunition. 108

The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law’s effective date of Sept. 30, 1996. 108

A conviction is not disabling if it has been expunged, set aside, pardoned, or if the person has had his or her civil rights restored, and the person is not otherwise prohibited from possessing firearms and ammunition. 108

18 U.S.C. § 1201 Kidnapping 108

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when -- 108

the person is willfully transported in interstate or foreign commerce; 108

any such act against the person is done within the special maritime and territorial jurisdiction of the United States; 108

any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49; 108

the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or 108

the person is among those officers and employees designated in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties, 108

shall be punished by imprisonment for any term of years or for life, and, if the death of any person results, shall be punished by death or life imprisonment. 108

With respect to subsection (a)(1) above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce. 109

If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life. 109

Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than 20 years. 109



2. VICTIM ADVOCACY 110

2.1. YOUR RELATIONSHIP WITH THE ADVOCATE 110

2.2. YOUR RELATIONSHIP WITH THE VICTIM 114

2.3. VICTIM RIGHTS 118

2.4. ADDRESSING VICTIMS’ RELUCTANCE TO PROSECUTE 125

2.5. RAPE CRISIS CENTERS AND DOMESTIC VIOLENCE SHELTERS 132

2.6. FACTUALLY SPECIFIC VICTIM ISSUES 135

2.7. SAFETY PLANNING 167



3. ASSESSMENT & INVESTIGATION 171

3.1. OVERALL STRATEGY 171

3.2. INITIAL REVIEW AND ACTION 173

3.3. INTERVIEW THE VICTIM 178

3.4. REVIEW THE PERPETRATOR’S STATEMENT 186

3.5. ASSESS TECHNICAL AND SCIENTIFIC EVIDENCE 187

3.6. ASSESS ALL OTHER PHYSICAL EVIDENCE 239

3.7. ASSESS ALL POTENTIAL WITNESSES 243

3.8. ASSESS THE BASIS FOR ADMISSIBILITY OF ALL TESTIMONY 253

4. INITIATING THE PROSECUTION 282

4.1. RESOLVE DUAL ARRESTS AND DUAL RESTRAINING ORDERS 282

4.2. THE CHARGING DECISION 289

4.3. BAIL/ PRETRIAL DETENTION 292

4.4. PROBABLE CAUSE HEARING and GRAND JURY PRACTICE 304

4.5. NO DISMISSAL OVER COMMONWEALTH’S OBJECTION 305



5. DISCOVERY 309

5.1. WHAT YOU ARE ENTITLED TO FROM THE DEFENSE 309

5.2. WHAT TO PROVIDE THE DEFENSE AS A MATTER OF ROUTINE 312

5.3. POTENTIALLY CONTESTED DISCOVERY ISSUES 316

5.4. ACCESS TO PRIVILEGED RECORDS AND COMMUNICATIONS 323

6. MOTIONS 336

6.1. TACTICS 336

6.2. MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION 338

6.3. MOTIONS REGARDING DISCOVERY 346

6.4. OTHER PROCEDURAL MOTIONS 355

6.5. MOTIONS TO ADMIT EVIDENCE 362

6.6. MOTIONS TO PRECLUDE EVIDENCE 393

7. TRIAL STRATEGIES 408

7.1. DEVELOPING THE THEME OF THE CASE 408

7.2. PREPARING FOR ISSUES OF PROOF 409

7.3. ANTICIPATING DEFENSES 410

7.4. PREPARING THE VICTIM (AND OTHER LAY WITNESSES) FOR TRIAL 417

7.5. PREPARING POLICE OFFICERS AND EXPERT WITNESSES 420

7.6. DEALING WITH UNCOOPERATIVE WITNESSES AT TRIAL 421

7.7. PREPARING EXHIBITS 426

7.8. IMPANELING THE JURY; VOIR DIRE 427

7.9. OPENING 435

7.10. DIRECT EXAMINATION 435

7.11. CROSS EXAMINATION 437

7.12. CLOSING ARGUMENT 439

7.13. JURY INSTRUCTIONS 443



8. POST-CONVICTION 446

8.1. THE RIGHT TO BE HEARD 446

8.2. PROBATION REVOCATION HEARINGS 447

8.3. SENTENCING OPTIONS 449

8.4. FORMULATING YOUR SENTENCING RECOMMENDATION 454

8.5. POST-TRIAL COMMUNICATIONS 456

8.6. CIVIL COMMITMENT OF A SEXUALLY DANGEROUS PERSON 456

8.7. THE SEX OFFENDER REGISTRY BOARD AND PROSECUTING “FAILURE TO REGISTER” CASES 458



9. APPENDICES 463

9.1. APPENDICES TO SECTION ONE, “BACKGROUND INFORMATION” 463

9.2. APPENDICES TO SECTION TWO, “VICTIM ADVOCACY” 464

9.3. APPENDICES TO SECTION THREE, “ ASSESSMENT & INVESTIGATION” 464

9.4. APPENDICES TO SECTION FOUR, “ INITIATING THE PROSECUTION” 465

9.5. APPENDICES TO SECTION FIVE, “ DISCOVERY” 465

9.6. APPENDICES TO SECTION SEVEN, “TRIAL STRATEGIES” 466

9.7. APPENDICES TO SECTION EIGHT, “POST-CONVICTION” 466






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