April 1996

                      Focus on Domestic Violence
                          Prosecuting Cases 
                      Without Victim Cooperation

                       by George Wattendorf, J.D.

_____________________

Lieutenant Wattendorf serves as a legal advisor to the
Dover, New Hampshire, Police Department on liability and
labor issues.

_____________________

The scenario plays out innumerable times in jurisdictions 
across America. In response to a 911 call, officers rush 
to the site of a domestic disturbance, where they 
encounter the suspect and his girlfriend. The sobbing 
victim holds an ice pack to her swollen face and claims
that her boyfriend struck her during an argument. When an
officer asks for the offender's account, he replies that 
a disagreement had "gotten out of hand" but that 
everything is fine now.

The officers arrest the offender and call for a unit to 
transport him to a holding center. An officer then 
photographs the victim's injuries and obtains a written 
statement from her, requesting that she report to the 
police station the following day for additional 
photographs. Other department personnel arrive and 
provide the victim with the telephone number of a local 
shelter and with information on securing a protective
order against her boyfriend. They also suggest that the 
victim have a doctor examine her injuries.

Three days after the assault, the victim calls the station
to inform one of the arresting officers that she wishes
to drop the assault charge. She tells the officer that 
the dispute had been her fault and that her boyfriend was
merely defending himself when he struck her. Although the
victim did not admit to it, the officer had an idea of 
what actually had led to her change of heart:  The 
defendant had returned with the rent money, a bouquet of 
flowers, and a promise that "nothing like this will ever 
happen again."

But to the victim's surprise, the officer calmly advises 
her that the evidence collected in the case will enable
prosecution efforts to proceed despite her lack of 
cooperation. Like a growing number of domestic abuse 
victims who decide to disavow statements and drop charges 
against their abusers, this victim has discovered that the
criminal justice system may not be as willing to forgive 
and forget. In fact, with the right evidence, prosecutors 
can gain a conviction, even if the victim testifies on the
abuser's behalf.

Aside from protecting victims from further abuse, law 
enforcement agencies have a vested interest in pursuing
such cases. Departments often respond to repeated 
domestic disturbance calls from the same address. A
manipulative offender who can convince a frightened and 
vulnerable victim to drop her charges may be deterred 
from violence if he knows that the police and prosecutors
can pursue the case without the victim's testimony.

Law enforcement agencies can obtain sufficient evidence 
to secure convictions without the assistance of victims
by carefully prioritizing evidence collection in domestic
assault cases. In a case like the one described above, 
evidence collected by police officers enabled prosecutors
in New Hampshire to win a conviction without calling the
victim as a witness.


EVIDENCE COLLECTION

The Dover, New Hampshire, Police Department began
prioritizing evidence collection for domestic assault
cases in June 1993. Since implementation of the policy 
based on a similar approach used in San Diego the
conviction rate for domestic violence assault cases has
increased significantly.

As part of the policy, officers use a checklist to ensure
that all evidence is preserved for later use by the
prosecution. Together, the different types of evidence 
can more than compensate for the lack of a victim's 
testimony. However, the fact that conviction may depend 
solely on this evidence underscores the need for officers
to collect and save all relevant documentation regarding
the case.

Secure Emergency 911 Tape

Investigating officers should secure a recording of any
911 call made by the victim. Calls to the 911 dispatcher
reporting the assault can be presented at trial under the
hearsay exception or as impeachment. Often, these tapes
will include the defendant in the background, yelling or
threatening the victim.


Record Excited Statements by the Victim

Any statement made while the victim is still under stress
from the assault can be admitted into court through
responding officers as a hearsay exception. It is 
important that officers document the victim's condition
and note her exact statements concerning the assault.
Officers can testify to such remarks as, "He punched me!"
under the excited utterance exception.


Take Photographs

Photographs are critical pieces of evidence. In court,
pictures truly do say a thousand words, and two or three
photographs can have more impact than hours of testimony
from officers describing a victim's condition after an
assault. 

Recent advances in instant camera technology allow for
highly detailed close-up shots. Instant photographs also
reveal immediately any problems in focusing or lighting,
so that corrections can be made before the opportunity is
lost. Because full bruising coloration may take at least
24 hours, responding officers should encourage the victim 
to report to the police station the day after the assault
for followup photographs.

Officers also should photograph the crime scene to provide
a record of damaged property or to show evidence of a
struggle. If the defendant pleads self-defense in court,
prosecutors may choose to introduce booking photographs 
in court to rebut such claims.

Request a Statement from the Victim

While a victim is cooperating, responding officers should
request that she provide a detailed, written account of 
the assault. If the victim appears too traumatized to
write, an officer should transcribe her exact words as she
dictates the statement. Officers should make sure that the
victim's statement references any prior abuse. The
victim also should be encouraged to file a petition for a
protective order.

If the victim later becomes uncooperative, the written
statement can be used to refresh her memory or to impeach
her testimony. If the victim has indicated past instances
of abuse, prosecutors can request that the court admit
the prior acts as character evidence. Prosecutors can
even file additional charges if corroborating evidence 
supports the claims. The victim's sworn petition for a 
protective order can be used to impeach her testimony if
she becomes a hostile witness.

Interview the Offender 

Officers should record all spontaneous remarks the
offender makes at the scene. While the officers are 
conducting their probable cause investigation, they should
request that the offender provide his version of the 
incident. Such noncustodial interviews do not require a
Miranda warning. However, even when officers issue a 
Miranda warning upon arrest, offenders usually respond to 
questions. Admissions by the offender are the best type of
evidence.

Interview Other Witnesses

Unlike some other crimes, domestic violence is difficult
to hide. Unfortunately, children often are the primary 
witnesses. Officers should not overlook taking statements
from children who were present during the assault. 
Neighbors also can provide statements that could be 
introduced later by prosecutors to rebut claims of 
accidental injury or self-defense.

Secure Medical Records

Responding officers should request that the victim sign a
medical records release. If she later proves
uncooperative, the prosecution can still obtain medical
records relevant to the case.


Similarly, officers should not overlook reports made by
the emergency medical team. These reports generally
contain very detailed information regarding the victim's
injuries and can provide necessary documentation that
confirms the assault.

Seize Plain-view Evidence

Responding officers should seize any evidence in plain
view, such as blood-stained or torn clothing, and look 
for indications of a struggle, such as hair clumps, 
bloodstains, torn buttons, etc. Officers also should seize
as evidence any weapon used in the assault.


CONCLUSION

Domestic violence represents one of the most vexing
problems facing law enforcement agencies. Domestic
disturbance calls are especially stress-inducing for
responding officers, not only because of the potential for
violence but also because officers know their efforts
on behalf of the victim will probably prove futile. After
a cooling down period, battered victims often
reconcile with their abusive partner and refuse to support
prosecution efforts. The cumulative effect of responding
to repeated calls involving the same parties also takes a
considerable toll on officers' morale.

But, law enforcement agencies do not need to be passive
players in a cycle of violence. By collecting sufficient
evidence, law enforcement officers can help prosecutors
prove assault, even if the victim testifies on the
assailant's behalf. Such proactive efforts on the part of
the criminal justice system send a clear message to 
potential abusers. At the very least, the real threat of
prosecution may deter some offenders. At best, courts can
use the threat of jail time to divert abusers into 
treatment programs.


The more evidence that officers collect, the better the 
chance that prosecutors can prove assault. Not every case 
can be won. But by collecting the right evidence and using
it wisely, law enforcement officers and prosecutors
can take a more active role in curbing domestic violence.


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