The author(s) shown below used Federal funds provided by the U.S.

Department of Justice and prepared the following final report:

Document Title: Prosecution Strategies in Domestic Violence

Felonies: Anticipating and Meeting Defense

Claims, Final Report

Author(s): Carolyn C. Hartley ; Roxann Ryan

Document No.: 194075

Date Received: April 2002

Award Number: 95-WT-NX-0003

This report has not been published by the U.S. Department of Justice.

To provide better customer service, NCJRS has made this Federallyfunded grant final report available electronically in addition to

traditional paper copies.

Opinions or points of view expressed are those

of the author(s) and do not necessarily reflect

the official position or policies of the U.S.

Department of Justice.
ded3f /~9

j 

Prosecution Strategies in Domestic Violence 1 

Prosecution Strategies in Domestic Violence Felonies: 

Anticipating and Meeting Defense Claims 

Final Report 

April, 1998 

Revised, October 1998 

A project conducted by: 

Carolyn Copps Hartley, Ph.D. 

University of Iowa, School of Social Work 

Roxann Ryan, J.D., Ph.D. 

State of Iowa Attorney General’s Office 

for the: 

National Institute of Justice 

of the 

Office of Justice Programs 

U.S. Department of Justice 

This project was funded under Grant Number 95-WT-NX-0003 from the National Institute of 

Justice, Office of Justice Programs, U.S. Department of Justice. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 2 

1. PROJECT DESCRIPTION 

1.1 Background and Purpose 

The criminal justice system has only recently begun to respond to domestic violence as a 

public offense. Under common law, a man could lawfully beat his wife because he was legally 

responsible for her actions and therefore could “correct” her behavior through chastisement.’ 

Although wife beating was declared illegal in all states in 1920; domestic violence was largely 

ign~red.~ Domestic violence historically has been viewed as a family matter, out of the purview 

of the criminal justice system. It was dealt with primarily through attempts at mediation or 

reconciliation, rather than through puni~hment.~ 

Attention to battered women in the U.S. did not become widespread until 1975 and early 

1976, with the beginning of the Battered Womenk Movement? The roots of the movement saw 

the establishment of the first shelters for battered women in St. Paul, Minnesota and Boston, 

Massachusetts. Since that time, services for battered women have expanded through the 

establishment of additional support organizations such as state and national coalitions against 

domestic violence and court advocacy programs. 

Police response to domestic violence has changed dramatically. From 1984 to 1988, 

policing moved kom a view of domestic violence as a family dispute that did not justifjr arrest, to 

mandatory arrest laws in a dozen states.6 Police have been increasingly educated and trained to 

treat dome& v/oli;n.;e as P pb1k :*ffesse ziz$!~- to violence between stranger^.^ Although 

there is some disagreement about the effectiveness of mandatory arrest policies,8 there is little 

doubt that the number of arrests have increased -- to between two and eight million arrests each e 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 3 

year.' In addition to increased arrests, the definition of domestic violence has broadened to 

include not only serious assaults, but also physical attacks that do not result in any injury." A 

higher number of arrests have naturally increased pressure on prosecutors and judges to process 

those criminal defendants through the court system. In turn, this increased pressure has resulted 

in a dramatic rise in prosecutions in some jurisdictions, and strong resistance toward prosecution 

in other jurisdictions." And despite these various policy changes, many police officers and 

prosecutors still believe that iritervention in domestic violence is warranted only in cases of 

extraordinary violence. l2 

Prosecuting attorneys possess almost complete discretion to set priorities for the use of 

court resources to try criminal cases.I3 While some prosecutors may make their decisions about 

charging based on the likelihood of con~iction,'~ attorneys are bound by their ethical obligation 

to file only those charges, which can reasonably be substantiated by admissible evidence at 

trial? To date, studies of the prosecution of domestic violence cases are limited to charging 

decisions. No study has examined prosecution or defense strategies in domestic violence cases. 

Thus, the purpose of this study was to conduct an in-depth, qualitative analysis of the trial 

strategies used by both the prosecution and defense in domestic violence-related felony cases. 

1.2 Difficulties Prosecuting Domestic Violence-Related Cases 

Domestic violence-related cases are often viewed as notoriously difficult to prosecute. l6 

This is in part because our criminal justice system is not structtired to respond well to domestic 

violence-related crimes. Some of the reasons for this difficulty in responding have to do with: 

(1) how our laws and rules of evidence are written; (2) a lack of understanding of domestic abuse 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 4 

dynamics of the part of fact finders; and (3) the perceived lack of credibility of women as 

witnesses. 

1.2.1 Limitations in Our Laws and Rules of Evidence 

Our legal system is based on charging individuals for "discrete events.'' A batterer may 

abuse a partner for years, but is often charged for only one abuse event. Thus, the legal process 

takes the assault out of the context of the larger abusive relationship. Our criminal justice system 

is not geared to the presentation of evidence about relationship violence. In presenting evidence 

of the context of a violent relationship, prosecutors must comply with the rules of evidence. For 

example, the judge may limit the type and amount of evidence of previous violence between the 

domestic partners, or may disregard the reputation for violence by the defendant or victim. 

However, many domestic violence experts and prosecutors agree that evidence of prior domestic 

violence plays an important role in the prosecution of these cases.17 

0 

1.2.2 Specific Evidentiary Constraints in Domestic Violence Cases 

The primary limitation to presenting evidence of prior relationship violence is Rule of 

Evidence 4O4(b),l8 which limits evidence of "other acts" to "proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence about prior 

violence may influence the jury's decision and therefore be "prejudicial" to the defendant. 

However, social science research suggests that the ongoing violent relationship is essential to 

understanding an individual event of violence. Thus, the history of violence in the abusive 

relationship may be necessary to prove that a given assault occurred and to support the 

seriousness of that assault. This context or history may be highly "probative" evidence. Under 

the rules of evidence, the judge at trial must decide whether evidence is more probative than 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 5 

prejudicial. More specifically, Rule of Evidence 403 provides that a judge must decide whether 

the "probative value" of the evidence outweighs "the danger of unfair prejudice, confusion of the 

issues, or misleading the jury." 

e 

Evidence of a defendant or a victim's violent nature is also limited under Rule 404(a). 

This rule provides that first, evidence about a defendant's character trait can be presented only if 

it is put in issue by the defendant; and second, evidence about a victim's character trait can be 

presented only if the defendant puts it in issue or if the victim has died and the victim's 

nonviolent or peaceful character is relevant. The limitations on other-act and character evidence 

can have a significant impact in domestic violence prosecutions. Jurors may not be able to hear 

the evidence that gives context, to the violent relationship. 

1.3 Fact Finder's Lack of Understanding of the Dynamics of Domestic Violence 

Prosecutors report anecdotally that in using the traditional measures of "success," 

conviction on the offense as charged, domestic violence cases often are not %ucces~ful."~~ There 

are several likely reasons for this lack of success. One of the most important seems to be a lack 

of understanding of the dynamics of domestic violence on the part of the fact finders. In our 

legal system the fact finder is usually the jury, although, in some cases the judge sits as fact 

finder. The jury makes all decisions about the nature of the evidence presented and the credibility 

of witnesses. Thus, it is the jury's responsibility to evaluate the evidence presented and 

determine if the prosecution has successhlly proven the elements of a given crime.20 

Many prosecutors have emphasized the need to understand the dynamics of an abusive 

relationship both when setting prosecution policies for domestic abuse cases, and when providing 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 6 

training for police.21 Just like police,22 prosecutors2' and others,24 courts have begun to recognize 

the need for a multi-disciplinary approach to domestic violence.25 Recently, educational efforts 

have targeted criminal justice system participants (police, judges and prosecutors).26 None of 

this training, however, addresses the misconceptions held by individuals who are selected as 

jurors in domestic violence cases. 

Myths and misconceptions about domestic violence abound in the general p~pulation.~~ 

Domestic violence victims are perceivsd % weak women who 'lseek out" batterers, or are 

responsible for the abuse (i.e., "She must have done something to provoke him"). Many people 

have a very difficult time understanding why battered women do not leave the relationshp when 

the violence begins. Those unfamiliar with the dynamics of domestic violence are unable to 

comprehend the power and control a batterer exerts over his victim. In addition to a lack of 

understanding of the victim's plight, batterers typically seek and are given sympathy by the 

uninformed. A batterer's violence sometimes is seen as justified force (Le., his wife was nagging 

him, so he had a right to hit her), or as something out of the batterer's control &e., caused by 

stress or brought on by alcohol and drug use). Often, judges and jurors uneducated in the 

underlying theories of domestic violence misperceive the seriousness of the assault, or excuse the 

abuser's behavior because the victim remained in the relationship.28 Also, the public often 

misconstrues the ongoing nature of domestic violence. They fail to understand that a single 

incident of abuse is one part of a longstanding pattern of psychological control and physical 

~iolence.~' In general, individuals without personal experience with domestic violence have a 

very difficult time conceiving of violence by intimate others. In addition, many people still hold 

0 traditional values of the privacy and primacy of individual family members over family matters?' 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 7 

It is from this uninformed group of individuals that a prosecutor will seat a jury. In fact, 

any potential juror who has personal knowledge of or experience with domestic violence, and 

therefore has some understanding of the dynamics of domestic violence, is often struck for cause. 

The defense counsel also may use a peremptory strike to remove that juror. Thus, jurors selected 

in a domestic violence trial may have traditional attitudes about family relationships or 

misconceptions regarding domestic violence that may interfere with their ability to decide the 

case. 31 

1.4 Witness Credibility 

Assessing witness credibility is an important part of the trial process. The term 

“credibility” encompasses many meanings: truthful, believable, trustworthy, convincing, 

someone to be taken seriously.32 Yet women, who make up the majority of domestic violence 

victims, are often seen as “less credible” witnesses in the criminal justice system.33 According to 

S~hafran,~~ women lack credibility in three arenas. Women lack collective credibility, meaning 

that they belong to a group that society generally perceives as less credible. For example, women 

are less likely to be used as ‘authority figures’ in the media or advertising. Society in general 

admires male role models more than female role models. 

a 

Women, and domestic abuse victims in particular, lack contextual credibility, which 

Schafian describes as “credibility that depends upon understanding the context of the claim.”35 

Contextual credibility depends on being able to put oneself in the other person’s shoes. When a 

specific domestic assault is taken out of the context of the larger abusive relationship, fact finders 

0 are in the position of evaluating the victim’s testimony in a vacuum. Domestic violence victims 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 8 

indicate, anecdotally, that a person who has not been a victim of domestic abuse often has 

difficulty conceiving that such violence occurs. They also underestimate the devastating impact 

of the abuse and dismiss the victim’s fear of her abuser as unreasonable or unwarranted. 

a 

Finally, women lack consequential credibility. According to Schafran, “part of having 

credibility is being seen as someone of consequence, someone who matters, someone to be taken 

seriously. Part of being taken seriously is having your harms and injuries taken seriously -- not 

devalued and tri~ialized.”~~ Domestic violence victims’ injuries are typically trivialized. Oftea 

heard justifications include “he only hit her once;” or “ he only hit with an open hand, never a 

fist.” Abuse victims’ experiences often are minimized or they are somehow blamed for the abuse 

-- “if she would just stop nagging him, he wouldn’t have to hit her.” 

The jury, or judge sitting as fact finder, evaluates the credibility of ~itnesses.3~ Factors to 

be used in assessing credibility include “whether the testimony is reasonable and consistent with 

other evidence, whether a witness has made inconsistent statements, the witness’s appearance, 

conduct, memory and knowledge of facts, and the witness’s interest in the trial.”38 Assessing 

victidwitness credibility in domestic violence-related cases presents a difficult challenge. 

Domestic violence typically is a hidden crime. Batterers often isolate their victims from others, 

and are not likely to batter the victim in front of witnesses. Because of this isolation and 

manipulation, victims are unlikely to have told anyone else about the abuse. Therefore, the 

victim’s testimony about abuse would be inconsistent with testimony of others who did not 

witness any violence in the relahirsnip. Coping behaviors of abuse victims, such as not resisting 

a 

when the batterer forces sex, when taken out of context, or when evaluated by someone who does 

0 not understand the dynamics of domestic abuse may appear strange or unexplainable. Thus, the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 9 

credibility of the victim’s testimony is likely to be significantly undermined when presented 

without the context of the larger abusive relationship and an understanding of abuse dynamics. 

A woman’s credibility as a witness can also be called in to question if she is reluctant to 

e 

cooperate in the prosecution of her offender. Women are less likely to cooperate in the 

prosecution process if still in a relationship with the abuser.39 There may be a host of legtimate 

reasons why a woman is reluctant to testify, but probably the most compelling is fear of further 

abuse at the hands of the batterer. However, conclusions drawn by the prosecutor or jury might 

be that if she is reluctant to cooperate, or recants her allegation of abuse, then the abuse must not 

have really happened. 

0 1.5 Summary and Objectives 

The evidentiary constraints of prosecuting domestic violence cases, myths and 

misconceptions about domestic violence in the general population and women’s perceived lack 

of credibility all present significant challenges in the prosecution of domestic violence related 

cases. The original purpose of this study was to identify prosecution strategies of domestic 

violence related felony cases through a qualitative analysis of trial transcripts. The actual 

findings of this study encompass strategies used by both the prosecution and the defense, and 

therefore can be considered an analysis of trial strategies in domestic violence cases. Trial 

strategies were identified by examining the trial transcripts of a sample of 40 domestic violencerelated murder4’ and non-murder felonies in the state of Iowa. Cases were analyzed ’io determine 

general prosecution and defense strategies. Also examined was the extent to which prosecutors 

a were able to present evidence of the context of the abusive relationship and history of prior 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 10 

violent acts, in helping the fact finders understand the current charge. An original objective of 

this grant was to analyze the outcomes of prosecution by comparing cases convicted on original 

versus lesser charges, and cases with cooperative and uncooperative witnesses. These 

comparisons were not made because of an insufficient number of cases with lesser charge 

convictions or uncooperative victims. 

The research objectives addressed in the study were to: 

Identify the evidentiary constraints in domestic violence related cases, specifically the 

types of character evidence and prior acts of the defendant allowed during trial. 

Describe how the prosecution presents its case in domestic violence trials by identifylng 

the key prosecution themes and strategies. 

Identify the specific evidence used by the prosecution to prove the elements of the case. 

Identify and describe the themes and strategies used by the defense to counter the 

prosecution’s case. 

1. 

2. 

3. 

4. 

0 

1.6 Significance of this Study for the Criminal Justice System 

Criminal cases are tried not as an academic exercise, but in an effort to adjudicate guilt 

and thereafter mete out appropriate punishment to the guilty. The adjudication of guilt involves a 

“search for the truth,” with disputes about the facts resolved by the jury or judge sitting as fact 

finder. Thus, the prosecution and defense focus their efforts on persuading fact finders to accept 

a particular portrayal of the events that occurred. 

Most of the work related to trial strategies has not been academically based, but rather is 

purely anecdotal, practice-oriented “tips” on how to prosecute. Many prosecutors have 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 11 

developed trial techniques based on this anecdotal information or training, or based on simple 

“trial and error” techniques. Trial advocacy41 has long been viewed as an “art” rather than as a 

“science” by many trial lawyers, including prosecutor^.^^ No systematic research has been 

conducted on trial strategies in domestic violence ~ases.4~ Some prosecutors suggest that 

research on strategies is non-existent, because true strategies have not yet been formulated. 

Many social scientists have conducted research on jurors and jury decision malung that may be 

helpful to prosecutors in developing effective prosecution strategies. An in-depth examination of 

trial strategies can combine the findings of jury research with practical applications in the context 

of domestic violence. To date, no such study has been done. 

Domestic violence advocates also may find information provided in this study useful. 

I) Advocates play an important role in supporting and assisting battered women through the 

criminal justice system. The descriptions of the prosecutorial process provided by this study can 

assist advocates and victims in better facilitating this process. 

1.7 Focus on Felony Cases 

Many scholars have been critical of prosecutorial charging decisions, arguing that 

prosecutors minimize the violence if the victim is a battered woman. This disparity in charging 

has been attributed to sexist views by criminal justice oficials.44 

Sexist views may play a role in criminal justice decision making. Police or prosecutors 

who accept stereotypical views of women as complainers, prevaricators or malingerers may 

minimize the violence. Certainly, abusers minimize the violence they inflict on their victims, 

0 and refke to take responsibility for the actions that have caused harm. Victims also may 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 12 

minimize the violence, either because they are habituated to accepting the abuser’s view of the 

world as a survival technique or because they find the reality of their injuries too traumatizing to 

acknowledge. 

0 

This may explain why, a decade ago, Langen and Innes found that one third of domestic 

violence cases that were classified as misdemeanors, if committed by strangers, would have been 

classified as felonies.45 Langen and Innes further found that many of the domestic simple 

assaults, classified as misdemeanors, actually involved relatively serious injuries. Injury to the 

victim in the misdemeanor cases occurred almost as frequently as injury in the felony cases 

classified as rape, robbery and aggravated assault, and “in terms of actual bodily injury, as many 

as half of all incidents of domestic violence that police would classify as misdemeanors are as 

serious as or more serious than 90% of all the violent crimes that police would classify as 

felonies. *‘ 

0 

In addition to the possibility of sexism in decision making, however, criminal statutes 

also may make it difficult for a prosecutor to charge a felony offense in a domestic violence case. 

In Iowa, for example, a simple misdemeanor assault involves no injury; a serious misdemeanor 

assault involves intentional infliction of bodily injury, which means “physical pain, illness or any 

impairment of physical condition.”47 An aggravated assault involves the use of a dangerous 

weapon or assault with intent to commit serious injury, which results in a bodily injury.48 

“Serious” injury is defined as “disabling mental illness, or bodily injury which creates a 

substantial risk of death or which causes serious permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ, and includes but is not limited to 

skull fkactures, rib fkactures, and metaphyseal fractures of the long bones of children under the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
age of four 

e Prosecution Strategies in Domestic Violence 13 

Only when “serious injury” occurs is an assault elevated to a felony offense (called 

“Willful Injury”) in Iowa.” This is a high threshold of proof of injury, and often, domestic 

violence cases do not rise to the level of a felony assault as it is defined in Iowa. 

Previous research suggests that prosecutors take into account a wide variety of factors in 

making charging decisions, including the physical evidence available, the number of witnesses 

who can testify, the offender’s prior record, tke gender of offender and victim, victim 

characteristics (including both credibility and the victim-offender relationship), whether the 

offender is out on bail, whether the defendant was apprehended at the scene, and the potential for 

harm to the victim or others.’l In a study of domestic abuse cases, the primary reasons for 

rejecting a case included the victim’s wishes, victim provocation issues, whether the offender 

was being held on another case, and whether the evidence was sufficient to result in a 

con~iction.~~ 

0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 14 

2. SCOPE AND METHODOLOGY 

2.1 Overview of Methodology 

This study involved a qualitative analysis of domestic violence-related trial transcripts. 

The study was exploratory in nature, emphasizing the identification of patterns in prosecution 

and defense strategies. The study entailed an analysis of felony trials in Iowa, occurring between 

I389 and 1995, in which the defendant and victim were involved in a domestic relationship. 

Although we anticipated that many of the cases would involve prior incidents of violence, it was 

not a requirement of case selection. The goal was to identify and catalogue trial strategies used 

in these cases with a specific focus on the admission of evidence of other acts of violence, or 

a “context” evidence about the violent relationship between the defendant and victim. 

2.2 Focus on Iowa 

The study focused on criminal trials occurring in Iowa between 1989 and 1995. There 

were several reasons for selecting cases fiom a single jurisdiction. First, each jurisdiction has 

different laws, making equivalent comparisons between jurisdictions difficult. Thus, an 

exploratory study of prosecution strategies is most valuable if it focuses on a single jurisdiction. 

Second, Iowa prosecutors developed the first prosecution manual on domestic abuse 

prosecutions in the country in 1990. Since then, Iowa prosecutors have received regular training 

on domestic violence. Third, Iowa is a relatively homogenous jurisdiction, with a tight-knit 

prosecutor ~rganization.’~ All Iowa prosecutors receive unified training through the Prosecuting 

0 Attorney Training Coordinator’s office in the Iowa Department of Justice. Finally, it is a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 15 e 

challenging task to identifl and to obtain all of the necessary documents for a study of domestic 

violence felonies, which generally are not separately identified in court records. Roxann Ryan 

has been an Iowa prosecutor for 17 years and was able to solicit the cooperation of prosecutors 

and court officials. 

2.3 Qualitative Research 

Academic study of domestic violence has included both quantitztive and qualitative 

research. This study involved primarily qualitative research. The decision to employ qualitative 

techniques was motivated by a number of considerations. First, there is a theoretical basis for the 

use of qualitative analysis in the context of domestic violence. The predominant theory about 

domestic violence, with its feminist basis, suggests that quantitative research is of limited value 

because of the hidden nature of the phenomenon. Most domestic violence victims are isolated 

fi-om others and reluctant to report their experiences out of fear of retaliation fi-om the abuser, 

making it difficult to measure a hidden phenomenon. Thus, qualitative study of domestic 

violence has shaped the understanding of domestic violence in important ways.54 

Second, quantitative research may have a limited impact on the lawyers and judges 

involved in criminal prosecutions. Trial lawyers insist that each case stands on its own merit, and 

that individual cases cannot be compared. Even sophisticated quantitative information may not 

be persuasive to the court. For example, research on capital cases demonstrates that, regardless 

of the rigorousness and vitality of an empirical, quantitative study, the courts may reject the 

conclusions of these studies out of hand.55 

a Third, few systematic studies of trial strategies in domestic violence have been 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 16 

undertaken. This is an exploratory study of these cases. Systematic review of felony trials, which 

generate more issues and more difficult issues than simple misdemeanor cases, can reveal 

patterns that were not recognized in anecdotal discussions of domestic violence prosecutions. 

Prosecutors dealing with misdemeanor domestic violence prosecutions opined that the study of 

felony trials might be more useful, because felonies are treated more seriously within the system. 

More issues are litigated fully in felony trials, and felonies carry more severe consequence^.^^ 

According to Marshall and Rossman, “the qualitathe qxoach to research is uniquely suited to 

uncovering the unexpected and exploring new avenue^."'^ Qualitative research also can help 

isolate variables for further study. 

e 

One form of qualitative research involves archival studies, based on written records of 

 proceeding^.^' In a criminal trial the proceedings are reported and transcribed when a criminal 

defendant appeals a conviction. It is possible, therefore, to systematically examine the 

proceedings at a trial and analyze the content of the proceedings. The transcript of a criminal 

trial is a relatively good measure of the evidence made available to jurors in the case. It also 

reflects the formal arguments presented by the prosecution and defense, as well as the judge’s 

rulings regarding the evidence made available to the jurors. 

0 

2.4 Identification and Selection of Cases 

One of the greatest challenges in researching domestic violence trials is the difficulty in 

identifying domestic violence-related cases. In this study, only felony cases were studied. 

However, there is no crime specifically designated as “felony domestic violence” in the Iowa 

Criminal Code. Police do not routinely note whether a case involves a domestic relationship. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 17 

The Uniform Crime Report (UCR) does not require such a designation, nor does the Iowa 

Department of Public Safety, the agency that gathers UCR statistic^.^' In addition the recordkeeping limitations of Iowa courts made it difficult to obtain court transcripts. Only about 40% 

of the 99 Iowa counties were automated at the time of ths study!’ 

e 

2.4.1 Rationale for Case Selection 

The decision to study only felony cases was based on the assumption that criminal justice 

officials and jwors treat felony cases more seriously than misdemeanor domestic violence cases. 

In addition, felony cases are likely to yield trial strategies that are more defined and more 

complex than misdemeanors. Murder cases are likely to be the most complex cases. 

The rationale for studying only cases in which convictions were obtained was based on 

0 several factors. First, there is no centralized repository to search to identify cases, either 

convictions or acquittals. Given the difficulty in identifylng cases in which convictions were 

obtained (discussed below), it is even more difficult to identify cases involving acquittals. Most 

felony convictions are appealed, meaning that two prosecutorial offices (the county attorney and 

the attorney general) and one of the two appellate courts are involved in the case, increasing the 

likelihood that a case could be identified. The cost of obtaining transcripts of trials involving 

acquittals generally is substantially greater than the cost of transcripts of trials involving 

convictions. 

2.4.2 Identifying Cases 

Identification of cases involved a multi-step process. Initially, a description of a 

“qualifjmg” case was developed. The case had to meet all of the following criteria to qualify: 

0 (1) the crime was charged as a felony, as defined in Iowa law62; (2) involved a “domestic” 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 18 

relation~hip~~ between a male offender and a female victim; (3) a trial occurred between 1989 

and 1995 in Iowa; (4) a conviction was obtained; and (5) the transcript of the trial was prepared. 

Since the purpose of the study was to explore strategies used to prosecute batters, and given the 

qualitative nature of the study, we chose to look only at cases involving a male offender and a 

female victim, as these constitute the majority of domestic violence related cases. We did not 

consider cases where the victim was male and the defendant female, same-sex relationships, or 

cases where the battered woman killed her partner. 

e 

The first step in identifjmg cases involved the Crime Victim Assistance Division 

(CVAD) of the Attorney General’s office. This office maintains computerized information about 

crime victims seeking victim compensation.@ The CVAD tracks cases based on whether they 

involve a domestic relationship, and also maintains a list of murder victims killed by an intimate 

partner. CVAD information is readily accessible, and the staff provided a printout of felony 

cases classified as domestic, sorted by county. 

@ 

The second step was to send the county-based CVAD list to every county attorney (99 

counties in Iowa), asking them to note whether the cases listed were appealed or whether a 

transcript was prepared. The attorneys also were asked to identi@ any other qualifylng domestic 

cases not included on the CVAD list. In addition, cases were solicited from prosecutors at one 

of their regular training sessions in 1995. About half of all prosecutors, representing 80-90% of 

all county attorney offices in the state, attend these training sessions. 

The third step was to review all official case summaries issued by the Iowa Supreme 

Court and the Iowa Court of Appeals from 1990 to 1995. This review was done to identify any 

0 cases that appeared to involve domestic violence. Because few cases were identified in this step, 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 19 a 

the search was expanded to include cases from 1989. 

The fourth step was to write to each court reporter in the state, providing them with a list 

of cases already identified, and asking them whether they were aware of any other cases that 

might fit the criteria. Court reporters were told that this request was being made in connection 

with a federal grant, which included funding to pay for copies of transcripts. Finally, appellate 

attorneys identified several additional cases that qualified for the study. 

2.4.3 Gathering Transcripts 

Gathering transcripts was more complicated than anticipated. After identifyrng cases that 

qualified as “domestic violence felonies,” it was necessary to identify the court reporter from 

whom a transcript could be ordered. Cooperation of the Iowa Attorney General’s office was 

essential. In Iowa, the Attorney General has sole jurisdiction to litigate all appeals of criminal 

cases. The Attorney General’s office, therefore, is a central repository of information about 

cases appealed. Staff at the Attorney General’s office provided assistance, allowing us access to 

records to identify county court numbers for the qualifyrng cases. The county clerks of court 

were then contacted to find out the name of the court reporter for the cases. 

Once the court reporter for a case was identified, the court reporter was contacted to order 

the transcript. When available, transcripts on a computer diskette were requested. If the 

transcript was not available on a diskette, a paper copy was ordered. Some court reporters 

provided a diskette of the transcript at no charge, or for a nominal fee. Others charged the 

maximum cost per page of a transcript. 

If there was no paper copy of the transcript available from the district court, or if it was a 

particularly long transcript, the Attorney General’s office was contacted to see whether the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 20 

prosecution’s copy of the transcript could be located. Again, the cooperation of the Attorney 

0 

General’s office was critically important. About 20 transcripts were borrowed from the Attorney 

General’s office, with an estimated total length in excess of 25,000 pages. A total of 45 

transcripts were obtained, however only 40 cases were analyzed. The five cases dropped either 

had incomplete transcripts, or after further review, were determined to not involve a domestic 

relationship as defined for the study. 

2.4.4 Preparation of Transcripts 

Paper transcripts were scanned into computer files and saved in an ASCII format. All 

computer files of the transcripts were then edited to meet the requirements for the 

HyperResearchTM qualitative text analysis 

2.5 Focus Groups 

While identifying cases and gathering transcripts, we conducted several focus groups, two 

with prosecutors, and two with domestic abuse victims. The original intent of these focus groups 

was to use the findings solely for the purpose of developing analysis strategies for the court 

transcripts. However, the findings from these groups proved to be very rich and informative. 

Thus, a summary of these findings is presented in the Detailed Findings section of this report. 

2.5.1 Focus Groups with Prosecutors 

Two focus groups, with a total of 13 Iowa prosecutors were conducted. The focus group 

members attended by invitation and the discussions lasted 90 minutes. The goal of the focus 

group was to ask prosecutors about their experiences with domestic violence prosecutions, with 

an emphasis on the introduction of “other acts” evidence. Also included was a discussion of 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 21 

prosecution strategies and themes, and fnrstrations that prosecutors experience in prosecuting 

domestic violence cases. 

Participants were chosen on the basis of a combination of factors, including geographlc 

area (judicial districts), years of experience, gender, and population of the county. Other factors 

included, number of employees in the prosecutor’s office, employment of a victim-witness 

coordinator in the prosecutor’s office, and whether the prosecutor was the elected county attorney 

or an appointed assistant.66 

The intentional mixture of these factors was designed to gather a cross-section of Iowa 

prosecutors in each of the focus groups. There are variations among judicial districts as to 

prevailing procedures and, to some degree, substantive law. Many prosecutors in Iowa are 

“career” prosecutors, with many years of experience, but some prosecutors are relatively 

inexperienced. Legal resources vary across counties by the number of prosecutors and available 

support staff and victim services. A secondary selection consideration was the availability of 

victim services. The judicial districts in Iowa vary widely as to the availability of a battered 

woman’s shelter or a domestic violence program. Finally, selection also took into consideration 

individualized experiences of counties, including disputes between prosecutors and victim 

services agencies; public criticism of police or prosecution policies; and personalities of the 

prosecutors in each group. 

a 

The discussion began by asking prosecutors to describe the themes they used in domestic 

violence prosecutions, including strategies and techniques for making opening statements and 

introducing evidence. Prosecutors were then asked to address the issue of witness order, how 

they dealt with victims who do not want to testify and strategies they used to introduce evidence 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 22 

of “other acts” or to explain the context of the violent relationship. They were also asked about 

their experiences using expert witnesses, how the defense commonly responded to their case, and 

about the reactions of judges and jurors to the evidence presented. The prosecutor focus groups 

were tape recorded and transcribed for later analysis. 

2.5.2 Focus Groups with Victims 

Two focus groups involving victims were conducted. The victim focus groups were 

convenience samples. The first focus group consisted of 2 group of battered women who 

belonged to an established support group that met weekly at a domestic violence shelter. The 

second focus group consisted of a group of women who were charged as perpetrators and were 

attending a weekly “batterer program” sponsored by the local domestic violence shelter. 

Although they were classified as perpetrators, this group of women.had been repeatedly 

victimized by their partners. Their experiences were similar to the women in the first focus 

group. 

The outline of proposed questioning for these groups was abandoned when it became 

clear that the victims were interested in sharing their experiences in a narrative fashion, rather 

than responding to a structured set of questions. The facilitators of both groups would not permit 

the meetings to be tape-recorded. A research assistant took extensive notes during these 

discussions. Participants in both the prosecutor and victim focus groups were assured of 

anonymity, to protect the privacy of victims and to encourage forthright discussions by elected 

and appointed officials. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
0 2.6 Data Analysis Procedures 

Prosecution Strategies in Domestic Violence 23 

While all of the transcripts were being prepared for the HyperResearchTM program, we 

developed the analysis strategies. The coding of the transcripts involved a two-step process: 1) 

the recording of descriptive information on a summary survey; and 2) coding each transcript 

using HyperResearchTM text analysis software ~rogram.~’ 

2.6.1 Summary Survey 

A summary survey was developed to document descriptive information about the cases. 

As each transcript was read and coded in HyperResearchTM, various descriptive information 

about the case was recorded on the summary survey. The summary surveys included 

demographic information about the defendant and victim, such as name, age, type and length of 

relationship, and whether the victim and defendant were living together at the time of the offense. 

General information about the case, including offense date and trial date was recorded, as well as 

the county in which the charges were brought, the formal charges brought by the prosecutor, and 

the offenses for which the defendant was convicted. Also, the names of the judges, the 

prosecutors and the defense attorneys involved in the trial were included on the survey. 

0 

Information about the circumstances of the offense, including whether the case was a 

murder or non-murder case, if the incident involved property damage or theft, or physical injury 

was recorded. The use of a weapon was noted, along with the use of drugs at the time of the 

offense, and the criminal history of both defendant and victim. 

Finally, the survey noted whether a case was tried to a judge or jury, included pretrial 

motions, and whether jury selection was reported. The survey included information about 

evidence of prior acts of violence, and character evidence as it related to either the defendant or 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 24 

victim, as well as the number and type of witnesses who testified. 

2.6.2 Procedures for Coding the Transcript Text 

The trial transcripts were qualitatively analyzed using the principles of grounded theory. 

Data analysis in grounded theory involves generating concepts and themes that emerge directly 

from the data, rather than from preconceived ideas being applied to the data.68 In keeping with 

the principles of grounded theory, we utilized the following data analysis procedures that allowed 

the major themes to emerge from the data. 

2.6.2.1 Development of the coding categories. We began by reading two cases 

chosen at random, one murder, one non-murder, from the transcripts received. These transcripts 

were reviewed to get a sense of the structure and substantive content of the trials. After this 

review, we began to generate a list of preliminary codes to be used in the text analysis. During 

this preliminary stage, we had several conversations about the evolving code list, and wrote 

numerous and frequent memos to each other via electronic mail to discuss further refinements of 

the list. Once a preliminary list of codes was developed, we separately coded the two transcripts 

reviewed. We then met to discuss how well the code list fit the data. Some additional codes 

were added and others were dropped. We also discussed the definitions of the codes to be sure 

we were applying them in a similar fashion to the text. 

e 

The coding categories are designed to capture a flavor for the type of strategies used, not 

only in the prosecution’s case in chief:’ but in the prosecution’s response to the defense. These 

categories included themes and distinctive langaage used by prosecutors or defense attorneys, 

evidence regarding the dynamics of domestic violence, evidence that contributes to the “story” 

0 that is told (elements of the crime, dynamics of abuse, prior violence, etc.), hearsay or other 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 25 a - evidentiary objections, and strategies to disrupt the flow of the story being presented. The final 

list of codes developed is described below: 

0 defense language - used to indicate any interesting use of language by the defense 

attorney (calling a police officer by his first name, use of language when describing the 

offense) or just an interesting cadence of questioning. 

0 defense themes - anything related to the defense’s themes or their attempts to counter the 

prosecution’s proof of elements. 

0 dynamics of abuse - any description by the victim or offender or other witnesses that 

relates to the dynamics of domestic violence. 

0 elements - any testimony that appears related to the elements of the offense, or where it is 

specifically stated that it is related to elements - what the prosecution brings out in an 

attempt to show the various elements. 

0 hearsay objection defense - all hearsay objections made by defense, including the 

surrounding content and the judge’s ruling. 

0 hearsay objection prosecution - all hearsay objections made by prosecution, including the 

surrounding content and the judge’s ruling. 

0 interesting - anything we found interesting in the transcripts. This was a catchall code 

used to mark a segment of text that did not fit in the other code areas, but that might prove 

interesting during later analysis. 

0 judge language - used to indicate any interesting use of language by the judge. 

0 motion in limine - used to code any pretrial motions to limit evidence, as well as motions 

to limit evidence that are discussed during trial. 

0 objection by defense - all non-hearsay objections by the defense. 

objection by prosecution - all non-hearsay objections by prosecution. 

0 afiizder language - any interesiing langaage the defendant uses during hs testimony. 

past history of abuse - testimony that directly or indirectly indicates a past history of 

abuse. 

prior acts evidence defendant - any discussion of prior acts committed by the defendant, 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 26 

even if only alluded to subtly. 

0 prior acts evidence victim - any discussion of prior acts bad committed by the victim, 

even if only alluded to subtly. 

0 prosecution language - any use of interesting language by prosecutors. 

0 relationship history - information on past history of relationship between the victim and 

defendant not related to prior abuse. 

2.6.2.2 Coding of the transcripts. We assigned cases randomly, dividing nonmurder and murder cases roughly equally between us. Then, we coded the transcripts using the 

summary survey and the list of codes, comparing notes regularly to assure that cases were coded 

reliably. A significant amount of the text in each transcript was coded and some segments of text 

were assigned more than one code. For example, a block of text might involve both a defense 

e theme and dynamics of abuse so it was assigned both codes. 

2.6.3 Sorting and Summarizing the Text Data 

After coding all the transcripts, HyperResearchTM was used to sort the transcripts by code 

word, resulting in a file for each code containing all the references for that code for all cases. 

For example, one file contained all the segments of text coded as defense themes for each case. 

Using this file, we were able to identify the different types of defense themes and strategies used 

in a particular case, then compare the themes identified across all cases. After sorting the text for 

each code into separate files, these files were analyzed, identifylng and summarizing the major 

themes emerging from the data. Rather than deciding wki the thhe~nes or patkms were d:d of 

time and looking for their occurrence in the transcripts, this coding, sorting and summarizing 

procedure allowed the patterns and themes to "emerge" systematically from the data.70 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 27 

3. DETAILED FINDINGS 

The research objectives addressed in the study were to: (1) identify the evidentiary 

constraints in domestic violence related cases; (2) describe the key prosecution themes and 

strategies; (3) identify the specific evidence used by the prosecution to prove the elements of the 

case; and (4) identify and describe the themes and strategies used by the defense to counter the 

prosecution’s case. A summary of findings from the prosecutor and victim focus groups, and 

demographic characteristics of the cases are also described. 

3.1 Focus Groups 

Several focus groups were used to guide the research. Two focus groups with prosecutors 

and two focus groups with victims provided anecdotal insight into perceptions of domestic 

violence cases and the criminal justice system response. 

3.1.1 Prosecutor Focus Groups 

Thirteen prosecutors provided the following information: 

3.1.1.1 Charging decisions. Most prosecutors had a presumptive no-drop 

prosecution policy, that is, they presumed that domestic abuse assaults would be prosecuted. 

However, charges could be dropped in cases in which the prosecutor deemed such action 

appropriate. They reported that victim input on prosecution decisions often is sought, but they do 

not feel bound by the victim’s preference to proceed or to drop the charges. Prosecutors reported 

that they sought no-contact orders regularly, if not automatically. 

3.1.1.2 Prosecution trial themes. Prosecutors identified several themes that they 

0 use during domestic violence prosecutions: (1) the offender controlled virtually all of the victim’s 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 28 

life; (2) children must be protected fiom violence; (3) assault is a crime, and domestic violence 

victims simply fall into a special category of that crime; and (4) assault is a serious crime, 

regardless of the severity of injuries. 

Prosecutors said that in opening statements, they include only those things that they are 

certain they can prove during trial. Generally, they present evidence in chronological order to 

help “tell the story,” but they try to begin and end with strong witnesses. They prove the case 

with the witnesses who are available (neighbors, eyewitnesses, police, chi!&ez, medical 

personnel), or victim statements, recordings of 91 1 emergency calls, and weapons used during 

the offense. They use physical evidence, such as photographs, maps or diagrams, to hold the 

jury’s attention and to make the case seem more real. 

Prosecutors said that they try to introduce “other acts” evidence because jurors are more 

likely to take the case seriously if this is not the defendant’s first offense. However, the 

a 

experience of most prosecutors was that judges were reluctant to admit “other acts” evidence. 

The court typically limited the use of expert testimony to medical experts, although a few 

prosecutors used other experts to discuss the dynamics of domestic violence. 

Prosecutors described several strategies commonly used by defendants, including: 

“she staped it” 

“she was out of control” 

“I was drunk and didn’t know what I was doing” 

the victim has now recanted 

the evidence is weak and there is a reasonable doubt of guilt 

the victm desenea it, often Lecaclse she was t1.1 mlthe victim fell down 

the victim is simply lying 

defendant claimed the victim could always go out in public, meaning there were no 

visible injuries 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 29 

3.1.1.3 The victim’s role in prosecution. Some prosecutors said they operate on 

the assumption that the victim would not cooperate with the prosecution, but they felt that victim 

cooperation was the key to successful prosecution. Prosecutors encouraged victim cooperation 

by meeting with the victim early and often, by listening to the victim’s story, and by avoiding 

victim-blaming pitfalls. Prosecutors devised several strategies to encourage “uncooperative” 

victims to cooperate, including getting their statement on record as early as possible, “threatening 

victims about the seriousness of lying in court,” talkifig to the victim about the impact of the 

violence on the children, and stating a clear expectation that she would testify. 

3.1.1.4 Jurors and jury selection. Prosecutors said that they used jury selection 

to educate jurors about domestic violence. They tried to identify jurors who are potential 

“teachers” for the other jurors. Some prosecutors felt that jurors often had a certain distrust of 

victims, and that jurors sometimes held the prosecution to a standard of proof that was 

0 

unreasonably high. 

3.1.1.5 Prosecutor knowledge about domestic violence. Most prosecutors had 

received domestic violence training in the previous two years, and many prosecutors reported 

that police and judges also had received training. Prosecutors said that judges generally were 

fairly well educated about domestic violence statutes, but some judges did not understand the 

dynamics of an abusive relationship. Prosecutors generally felt jurors knew that domestic 

violence occurs, but like the judges, lacked an understanding of the dynamics of abuse. They 

also felt that jurors took severe injuries much more seriously than minor injuries. 

.* 

3.1.2 Victim Focus Groups 

The discussions with these victim focus groups can be summarized as follows: 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 30 

3.1.2.1 Dynamics of abuse. The women in both groups described abuse 

dynamics that are consistent with the empirical research on domestic violence. The women in 

the batterer program described experiences where they were clearly the victim in an abusive 

relationship. Their accounts of the crimes they were charged with, for which they were ordered 

to batterer treatment, indicated that their assaults were in response to assaults by their partners. 

3.1.2.2 Criminal justice response. The participants generally viewed the 

criminal justice response to domestic violence negatively, and felt powerless to use the criminal 

justice system effectively. Many victims felt that they were not being heard knowledgeably by 

police, prosecutor or judges. Victim experiences with police were mixed: generally, police 

responded to calls promptly, but some women felt that the police response was inadequate and 

that the police were intimidating or condescending; other victims, however, described police as 

supportive and sympathetic. A few women commented on prosecution response. They said the 

prosecutor did not listen to them, seemed too busy to talk with them, and failed to explain the 

decisions that were made. The women said that many, but not all, of the judges failed to take the 

case seriously, failed to listen to the victim, misunderstood the dynamics of abuse, never 

explained the system to them, failed to provide any type of support, and facilitated the abuser’s 

manipulation of the system by failing to note the abuser’s intimidation tactics in the courtroom. 

Many of the group members felt bitter and said that they would never resort to using the criminal 

justice system again because it was another opportunity for the abuser to manipulate the system 

. 

0 

to his advantage. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 31 

3.2 Descriptive Characteristics of the Cases 

A total of 40 transcripts were analyzed in the study. Twenty-one involved a 

homicide/murder, 19 were non-murder felonies. Table 1 presents a summary of demographic 

characteristics for cases in both the murder and non-murder groups. Specific demographic 

information about the defendant and victim was not available in some cases. Table 2 presents 

information on the characteristics of the offense for both groups. 

3.2.1 Description of Murder Cases 

The age of the murder defendant ranged from 20 to 54, with a mean of 33.7. The age 

range of the murdered victim was 16 to 49, with a mean of 31.5. Nineteen defendants were 

Caucasian, one was Afiican-American, and one was Hispanic.71 The length of the relationship 

between the defendant and victim ranged ii-om four months to 16 years. The majority of 

defendants (N=17) had lived together with the victim at some point. Only 11 (52.4%) were 

living with the victim at the time of the offense. 

a 

Table 1: Summary of Demographic Characteristics 

Age range of victim 

Mean age of victim 

Age range of defendant 

Mean age of defendant 

Length of relationship, raqc 

Race of defendant 

Caucasian 

African American 0 Hispanic 

Murder (N=21) Non-Murder (N=19) 

16 - 49 19 - 43 

31.5 28.4 

20 - 54 26 - 64 

33.7 37.4 

4 rim: !A years 2 mos - 20 years 

N- % N- % 

19 90% 15 79.0% 

1 5% 2 10.5% 

1 5% 2 10.5% 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 32 

Table 1 : Summary of Demographic Characteristics, continued 

Murder (N=21) Non-Murder (N=19) 

DefendantNictim Relationship Characteristics N - % N- % 

Dated, did not cohabitate 4 19% 2 10.5% 

Dated, did cohabitate 9 42.9% 10 52.6% 

Married 4 19% 2 10.5% 

Divorced or separated 4 19% 5 26.3% 

Lived together at some point 17 80.9% 17 89.5% 

Living together at time of offense 11 52.4% 8 42.1% 

Nineteen of the murder defendants had been charged with first degree murder, one with 

second degree murder, and another with involuntary manslaughter. Three offenders were 

charged with an additional count of first-degree murder. In two cases the defendants killed the 

victim’s current boyfhend, in the third case the offender killed his former girlfriend’s mother. 

This defendant was also charged with first-degree burglary. A fourth defendant was charged 

a with two additional counts of attempted murder against police officers attempting to apprehend 

him. The majority of cases (N=l8) were jury trials. Half the murder defendants were 

represented by private counsel.72 

Three of the defendants originally charged with first-degree murder, were found guilty of 

a lesser-than-charged offense, one of involuntary manslaughter, two of voluntary manslaughter. 

While the majority of cases involved a physical assault during the commission of the 

offense, only a few of the murder offenses involved any property damage or theft of property. 

Eighteen of the cases involved the use of a weapon; six involved a knife, eight a gun, and three a 

A little less than half of the defendants and victims had a substance abuse history that 

emerged at trial. Nine defendants had confirmed substance use at the time of the offense. Seven a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 33 e 

victims were reported or alleged to have been using substances at the time of the offense as well. 

Nine defendants had a known criminal history that was admitted at trial. Prior-acts evidence 

was admitted in 14 of the 21 cases. 

Table 2: Summary of Offense Characteristics 

Murder (N=2 1) Non-Murder (N=19) 

Substance Abuse History N- % N- % 

Substance abuse history defendant 9 42.9% 10 52.6% 

Substance abuse history victim 8 38.1% 6 3 1.6% 

Circumstances of Offense 

Property damage 

Theft 

Physical assault 

Sexual assault 

Weapon used 

Knife 

GUn 

Alcohol or drug use by defendant alleged or 

confirmed at time of offense 

Alcohol or drug use by victim alleged or 

confirmed at time of offense 

Blunt object/other weapon 

Nature of Injuries Sustained 

Bruises/contusions . 

Cuts/lacerations 

Internal injuries 

Skull fracture 

Torso injuries 

Burns 

Broken ribs or bones 

Loss of limb 

- N- % 

5 23.8% 

2 9.5% 

14 66.7% 

0 0.0% 

18 85.7% 

7 33.3% 

8 38.1% 

3 14.3% 

8 38.1% 

7 33.4% 

N 

9 

12 

4 

5 

3 

0 

3 

0 

- % 

42.9% 

57.1% 

19% 

23.8% 

14.3% 

0.0% 

19.1% 

0.0% 

- N- % 

12 63.2%** 

3 15.8% 

17 89.5% 

7 36.8 /o 

7 36.8%** 

3 15.8% 

4 21.1% 

4 21.1% 

13 68.4%* 

0 ** 

10 52.6% 

- N 

14 

15 

0 

1 

6 

2 

6 

1 

- % 

73.7%" 

78.9% 

0.0% 

5.3% 

31.6% 

10.5% 

3 1.6% 

5.3% 

Defendant Evidence Admitted N- % H- % 

Criminal history of the defendant admitted 9 32.9% 10 52.6% 

Prior acts of the defendant admitted 14 70% 16 84.2% 

* = chi-square significant at .05 level 

** = chi-square significant at .01 level 0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 34 

3.2.2 Summary of Murder Cases 

Many of the characteristics of these murder cases in this study are similar to known 

characteristics of cases involving murder by intimate partners. Women are at much greater risk 

of intimate partner homicide than men,73 and more recent studies show that the risk for women in 

unmarried relationships is in~reasing.~~ A woman’s risk of being killed may increase if she 

leaves or threatens to leave the relati~nship.~~ This increased risk was apparent in the murder 

cases in this study. Nine of the victim were making plans to leave the relationship, had recently 

left, or had recently begun a new relationship, which the defendant had learned about prior to the 

murder. 

Several authors describe homicide in intimate partner relationships, particularly in 

estranged-partner homicides, as the abuser’s ultimate effort to reassert power and control, often 

in response to the victim’s assertion of autonomy.76 Intimate partner murders differ from nonintimate homicides in other ways. Intimate partner murders are typically “expressive,” meaning 

the offender’s immediate and primary motive was to hurt the other person?7 The majority of 

femicide also involves “excessive violence,” wherein the offender uses a level of force (multiple 

gunshots or stabbings, or beating to death) that demonstrates a conscious determination to kill, 

e 

rather than a momentary loss of control (a single shot or stab wound).78 Twelve of the 21 murder 

cases (57%) in this study involved excessive violence, including multiple gunshot or stabbings, 

and manual strangulation. Femicide cases are also more likely to involve multiple victims and 

particularly cruel actions, including sadism, than cases where a female kills her male partner.79 

Three murder cases involved multiple victims (victim’s mother, two cases were new partners of 

a the female victim), but only one murder cases involved particularly sadistic actions (the victim 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 35 

was gagged and hog tied on a bed). 

3.2.3 Description of Non-Murder Cases 

Table 1 also presents a summary of demographc and offense characteristics of the 19 

non-murder defendants. The age of the defendant in these non-murder cases ranged from 26 to 

64, with a mean of 37.4. The age range of his victim was 19 to 43, with a mean of 28.4. Fifteen 

defendants were Caucasian, two were African-American, and two were Hispanic. A little over 

half the defendants had a dating relationship with the victim, with only one third of the 

defendants having been married to the victim at some point. The length of the relationshps 

varied from two months to 20 years. The majority of defendants had lived with the victim at 

some point, but only 42% were living with the victim at the time of the offense. 

The nature of the charges in the non-murder cases varied. There were attempted murder, 

kidnapping, physical and sexual assault, burglary, terrorism and theft charges. Most charges 

involved a physical assault and 16 defendants were charged with more than one offense. The 

majority of defendants (89.5%) were found guilty of at least one count charged, although not all 

offenders were found guilty on the original charge. There were five cases involving particularly 

sadistic actions, including a bombing, torture, confinement, and sexual assault with a beer bottle. 

a 

Half the defendants and a third of the victims in the non-murder cases had a substance 

abuse history that emerged at trial. Half of both the defendants and victims had confirmed or 

alleged substance abuse at the time of the offense. Ten defendants had a known criminal hstory 

that was admitted at trial. While few of the murder cases involved property damage, over half 

(63.2%) of the non-murder cases did. Eighty-four percent of the cases involved a physical 

assault, 40% a sexual assault. Fifty-three percent of the cases involved the use of a weapon. The 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 36 

most common injuries suffered by victims were bruises and lacerations. While prior acts of the 

defendant were admitted in the murder trials 70% of the time, non-murder defendants had prior 

acts admitted 85% of the time. 

e 

3.2.4 Case Characteristic Differences Between Murder and Non-Murder Cases 

A series of Chi-square and t-tests analyses were performed to test for differences in 

demographic and case characteristics between the murder and non-murder cases. No significant 

differences were found between the tw types of cases on defendant or victim age, length of 

relationship, whether the victim and defendant had ever been married at some point or lived 

together at the time of the offense. There were also no differences between cases on the 

substance abuse history of the victim or defendant. 

Regarding the circumstances of the offense and nature of the injuries, the significant 

differences found were: 1) more property damage in the non-murder cases, (chi-square = 6.32, p 

= .012); 2) more sexual assault in the non-murder cases, there was no sexual assault apparent in 

any of the murder cases (chi-square = 9.38, Fisher’s p = .003); 3) more bruises and contusions in 

the non-murder cases (chi-square = 3.88, p = .049); 4) a weapon was used more frequently in 

murder cases (chi-square = 5.199, p = .023); and 5) more substance abuse by the defendant was 

reported or alleged in the non-murder cases (chi-square = 3.68, p = .055). 

a 

3.3 Evidentiary Constraints in Domestic Violence Felony Trials 

Prosecutors and defense attorneys litigated evidentiary issues before and during trial. In 

this study, only a few pretrial motion hearings were included with the trial transcripts, and in 

some cases, a reference was made to a pretrial motion. Thus, the data are not sufficiently 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 37 

complete to make any conclusions regarding the frequency with which pretrial motions are filed. 

The data did indicate some commonalities among pretrial motions. A brief summary of 

evidentiary issues is presented below. The Appendix includes more detailed findings of the 

specific types of evidence the prosecution or defense sought to limit through both pretrial 

motions and objections during trial. 

3.3.1 Pretrial Motions 

Pretrial motions were of two types: motions to suppress and motions in limine. Under 

Iowa law, a motion to suppress is filed pretrial, when the defense challenges a search or seizure 

or interrogation of the defendant. In this type of motion, the defendant alleges a violation of the 

fourth, fifth or sixth amendments to the United States Constitution, or some related state 

constitutional or statutory claims. A motion in limine refers to a motion, made pretrial or during 

trial, to ask for a ruling on the admissibility of other types of evidence." 

When pretrial motions to suppress were mentioned in the cases in this study, they 

generally involved fourth amendment search and seizure issues, or fifth amendment Miranda or 

voluntariness issues. One motion to suppress was filed during trial, when the prosecution 

discovered, the day before trial, some poetry contained in the wallet seized from the defendant. 

Defense motions in limine and prosecution motions in limine were made before and 

during trial, on a variety of issues. Generally, defense motions in limine sought to (1) exclude 

evidence about the defendant's prior convictions; (2) exclude character or other-acts evidence 

against the defendant, such as drug dealing, history of violence, or sexual history; (3) exclude 

demonstrative evidence such as 91 1 tapes or photographs of the victim; (4) exclude confidential 

or privileged information such as doctor-patient communications; (5) exclude expert witness 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 38 

testimony, such as a domestic violence expert; or (6) exclude incriminating statements that the 

defendant made to police or to others. 

0 

Prosecution motions in limine often involved the admissibility of prior convictions or 

“other acts” evidence against the defendant. Evidence of a defendant’s prior conviction was 

admitted in 9 murder cases (43%) and 10 non-murder cases (53%). “Other acts” besides prior 

convictions were admitted in 14 murder (70%) and 16 non-murder cases (84%). In addition, 

prosecutors often asked for evidentiary rulings on character evidence about the victim, such as 

her drug history, mental health history, sexual history, or recantations. Prosecutors also asked for 

rulings on the admissibility of expert witness testimony, such as domestic violence experts. 

On the whole, defense attorneys filed more motions in limine on a broader range of topics 

0 than the prosecution. Often, prosecution motions dealt with other-acts issues and victim 

character issues. Defense motions usually dealt with other acts and character evidence issues, as 

well as the admissibility of physical evidence; hearsay exceptions; defendant’s statements; issues 

of privilege or confidentiality; and the use of expert testimony. Judges often seemed willing to 

allow both other-acts evidence that was adverse to the defendant, and character evidence that was 

adverse to the victim. 

3.3.2 Objections at Trial 

Objections by defense counsel and prosecutors covered a range of topics that might be 

expected in any criminal trial. As others have noted,** character and other-acts evidentiary 

objections are likely to arise in domestic violence cases. The frequency and variety of character 

evidence objections was noteworthy. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 39 

3.4 Prosecution Themes 

Prosecution themes fell into three general categories: (1) proof of the elements - “this was 

a crime”; (2) proof of identity - “the defendant is responsible”; and (3) proof of credibility - “the 

State’s evidence is credible.” To some degree, every case contained all three of these themes. 

In every criminal case, the State must prove the elements of the crime. In addition, the 

State must prove identity in every case, that is, the prosecution must prove that it was the 

defendant who committed the acts constituting the elements of the crime.82 Finally, the issue of 

credibility arises in every case. The fact finder must decide which testimony and which 

evidence to credit in determining whether the prosecution has proven its case beyond a 

reasonable doubt. 

Although the prosecution must prove the elements, identity and credibility in every case, 

the circumstances of the offense and the type of defense presented may affect which prosecution 

theme to emphasize. 

3.4.1 Proof of the Elements: “This was a crime. ” 

In some cases, the prosecutor sought not only to prove the elements of the crime, but also 

to persuade the jury that these actions were worthy of traditional criminal sanctions. Ths theme 

was designed to reach those jurors who adhere to centuries-old beliefs that domestic violence is a 

private matter; that the government should stay out of private matters; that private violence does 

not have an impact on the public at large; and that victims who remain in a relationship deserve 

whatever comes their way. There were two variations on this theme. 

a 

3.4.1.1 Domestic violence is a significant public offense. In some cases, the 

victim’s injuries were so severe83 that it would be difficult to view the assault as anythmg less 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 40 

than a public offense. In cases in which the injuries were not as severe, prosecutors sought to 

show that other people (neighbors, children, relatives) witnessed the events, or that other people 

(neighbors, children, relatives, co-workers, medical personnel, police) witnessed the aftermath of 

the events. In other words, the violence was not just a private matter, affecting only the two 

parties. 

For example, in a felony assault and burglasy case in whch the victim was a reluctant 

witness, the prosecutor emphzsized the impact of the crime on the neighbors who witnessed the 

defendant dragging the victim to the car by her hair. The prosecutor in this case argued in his 

closing rebuttal argument: 

[PROSECUTOR] I submit to you that the victim in this 

case is [the neighbor] and her children. They lived up on a 

peaceful street. She’s telling you how her kids are outside 

playing, she’s in the lutchen. And you heard her describe 

the panic when her child came in, how excited she was. Domestic violence affects others. 

A man out in front, right out in the front lawn beating on a 

woman. And she goes and she’s observing that. She sees 

the slapping. She sees the kicking. And you heard the 

panic -- or heard her describe her panic as she went and 

tried to account for each one of her children, make sure safely of her children. 

they didn’t get caught up in this violence. We would 

submit that she and her children, people of [this] County, Thepeople are the victims. 

are the victim here. 

The neighbor worried about the 

Some prosecutors also sought to illustrate the significance of the offense through police 

officer or medical testimony. An “official” person who conveys to the jury that the case is 

viewed by officials as a serious offense, can thereby influence the jurors’ views of the case. For 

example, this paramedic testimony illustrates the seriousness of the victim’s condition after the 

offender’s attack. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 41 

A. I turned my attention towards the victim and tried to Victim was apparently in bad 

determine if there was any signs of life. I checked her shape. 

artery in her neck for a pulse. I didn’t get any, and I 

checked her pupils to determine extent of dilation, and at 

that time they were not dilated. 

Q. What does that indicate to you, the fact that her pupils 

were not dilated? 

A. That there was still enough oxygen to the brain to 

sustain the muscles that constrict the pupils. 

Q. How did she appear to you, [the victim]? 

A. I guess basically at that time I thought she was dead. 

Q. What injuries did you notice? Paramedic thought the victim 

A. I really didn’t notice any at that time. There was blood was dead. 

on the side of the garage so I assumed that there was 

injuries, but I didn’t see any initially. When we began our The extent of the injuries 

efforts at resuscitation, that’s when the injuries became became more apparent over 

apparent. time. 

Victim might still have brain 

function, but her condition 

was serious enough that 

there was a need to check. 

3.4.1.2 The defendant’s actions constitute a crime. Some prosecutors 

emphasized the seriousness of the offense by presenting circumstantial evidence of the 

a 

seriousness of the crime. This included testimony regarding details about the events, the victim’s 

response to the violence, or the victim’s injuries. For example, a victim who testifies that she 

went to the emergency room for treatment of her injuries may convey to the jury that she deemed 

this to be a serious offense. Similarly, a doctor who testifies about the severity of the injury or 

the force required to inflict such an injury, helped to demonstrate that the defendant’s actions 

were serious. In one such case, the prosecutor sought to show that the victim’s injuries were 

serious in direct examination of the physician who attended the victim in the emergency room: 

Q. Is there any correlation, do you find, between the 

amount of force used and the amount of bruising to soft 

tissue? 

A, Amount of force and/or number of repetitions; Amount of force and number 

both would be factors. of repetitions aflect 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 42 

Q. You indicated that [the victim] gave you a history and seriousness of injury 

Q 

then showed you injuries to her head and neck area, is that 

right? 

A. Correct. 

Q. Is there any greater risk on a long-term basis to a 

person if they sustain soft tissue injuries to that part of their 

body as compared to an arm or a leg? 

A. There’s a much greater risk. Greater risk of long-term 

Q. Why is that? eflects from facial injuries 

A. Because of the sensitivity of the facial bones. Even a 

mild blow to the face, if properly placed, can result in eye 

damage. And any blow to the head and neck area could 

result in a concussion or brain injury. It’s not necessarily 

related to the severity. 

3.4.2 Proof of Identity: “The Defendant is responsible for this. ” 

Often in domestic violence cases, there is no question that the defendant was present at 

the time the injuries occurred, and many times there is no dispute that the defendant is the one 

who inflicted the injuries. Nonetheless, the defendant often tries to deflect blame to the victim. 

This deflecting is consistent with the usual pattern of abusers to blame victims for “causing” their 

violent behavior. In the cases analyzed, some prosecutors emphasized that it was the defendant, 

not the victim, who was responsible for the injuries inflicted. There were four variations of this 

theme. 

3.4.2.1 The defendant committed the acts. When the defendant did not admit 

the commission of the acts, circumstantial evidence was used to point to the defendant as the 

perpetrator. More often, the defendant claimed that the crime was not planned or was an 

accidmt. In response, prosecxters introduced testimony about statements or threats the defendant 

made before the crime, indicating his intent to commit the offense. In addition, some prosecutors 

proved through circumstantial evidence or by the defendant’s own testimony that the defendant e 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 43 

deliberately or knowingly took each and every step necessary to put hm in a place where he 

could commit the crime. 

In a case where the defendant claimed that his actions were either accidental or 

unintended the prosecution, in its case in chief, provided considerable circumstantial evidence 

about the crime. Then on cross-examination of the defendant, the prosecutor took the defendant, 

step by step, through the entire crime. The questioning technique forced the defendant to 

describe, in minute detail, how he loaded his car with numerous firearms and ammunition; drove 

to the victim’s home; parked his car 100 yards down the road; changed his clothes and shoes; 

climbed over a fence; walked up to the house through a field; shot the victim’s boyfhend in his 

car; ran around the house to the back door; shot through the glass patio door; entered the home; 

and shot the victim to death. The clear implication in this cross-examination was that the 

defendant’s actions were intentional, not inadvertent or accidental. 

Some prosecutors also proved intent through the victim’s testimony, specifically showing 

how the defendant isolated the victim fiom others or created in the victim a fear of the 

defendant’s wrath. In the example below, the victim testified that earlier in the day, the 

defendant had blamed her when his fishing pole fell over and the bobber broke, and hit her in the 

head during the altercation. As a result of this interaction, she knew that more violence was 

imminent: 

* 

Q. He hit you for staring at him? 

A. Yes. Xe did not like that look on my face. 

Q. Did he say anything else to you other than he didn’t 

A. He pointed his finger at me and told me not to give 

Sequence leading up to 

further vidmce 

Defendant’s wrath - making 

victim fearful, defendant’s 

like your look? 

him any reason to kick my ass. 0 intent do further harm. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 44 

To further support the argument that the defendant committed the offense, the prosecutor 

a!l 

might portray the defendant as simply making excuses after the fact to justify his violence. In 

one felony assault prosecution, the defendant admitted that he may have called the victim in 

violation of a no-contact order, but it was accidental: 

Q. So if there is a mechanical computer listing that 

shows that a phone call was made to a specific time and the defendant dialed the 

place and the operator identified you as the caller of 

[the victim], that's just insanity? That couldn't 

happen? 

A. Well, if there is, if I ever dialed her number, it 

wasn't on purpose. There is more than -- all the numbers Defendant's excuse was that 

I know in that jail I know by heart. You know, 'cause we 

don't have a phone book. And I push numbers. Like I have intentional. 

called [fiiend's] house accidentally when trying to call my 

dad's house 'cause I called her house one time, and then as 

soon as I hung up the phone talking with her, I turned 

around and dialed her number right back, and I was trying 

to call my dad's house. So if I ever did dial [the victim]'^ 

number, it wasn't intentional. 

Q. What you are telling the Court now is there is a 

possibility you did dial that number? Defendant's excuse - he 

A. I might have dialed it. I never talked to her, and I called the victim but he did 

never meant to dial her number. If I did, it was on not mean to. 

accident. I don't even recall ever dialing her number. 

Prosecution hasproof that 

victim 's number 

it was accidental, not 

0 

In another case, the prosecution portrayed the defendant as a dangerous liar who would do 

anything to avoid responsibility for his actions. The prosecution focused on the changing 

accounts the defendant gave police as each piece of incriminating evidence was discovered, and 

the prosecutor called several of the defendant's friends, who all said that they specifically did not 

ask the defendant about the idling or they told hi.sr fit!', to iaL! 9mut it, because they did not want 

him to tell them. 

3.4.2.2 The defendant was uncaring. The prosecution would sometimes try to 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 45 

prove that, although not demented or evil, the defendant nonetheless was uncaring about the 

victim. This was proven through testimony about the defendant’s derogatory remarks towards 

the victim, or his minimization of obviously serious injuries, which showed his potential for 

violence against the victim. The following example shows how the defendant minimized the 

incident when he was asked to describe it on cross-examination by the prosecutor: 

Q. Sir, you’re not denying that [the victim] was hurt that 

evening; is that correct? 

A. Well, she obviously got hurt from falling down, you Defendant minimizing what 

know, her arm. She bumped into something with her occurred. 

arm. 

Q. Well, sir, you were the cause of her going to the floor; is 

that correct? 

A. Well, we both fell to the floor. Further minimization - “We 

Q. This was caused because you ran up and tackled her; is both fell to thefloor. ” 

that right? 

A. Yes. @ Q. And [the victim] was hurt as a result of your actions; is 

that right? 

A. That’s correct. 

Q. Now, sir, when you were on the floor with [the victim], 

you knew that -- you knew that she was hurt; is that right? 

A. No. 

Q. Well, you said you heard her screaming; is that 

right? 

A. She was yelling at me. 

Q. Well, you had tackled her and taken her to the floor, 

but you didn’t think she was hurt? 

A. No. cause injury. 

*** 

Minimizing victim j. injury or 

the possibility that she could 

be injured. 

Tackling the victim did not 

In some cases, the prosecution simply proved the depraved nature of the acts. For 

example, in a kidnapping and willful injury case, the defendant had tortured the victim over a 12- 

hour period. The prosecution introduced testimony describing the motel room where the offense 

occurred as covered in blood. The prosecution also had an experienced police officer who c) 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 46 

investigated the case, describe the motel room as "the worst crime scene he had ever 

0 

encountered." 

In another kidnapping case, the prosecutor summarized in opening statements the 

systematic, on-going torture of the victim: 

And they go inside and talk and basically at that 7he on-going torture and 

moment began the hell that [the victim] would abuse of the victim began. 

experience at the hands of [the defendant]. [The 

defendant] became incredibly angry; he became violent: he 

became aggressive. He was incensed over the fact that [the 

victim] had cheated on him and slept with other men, men 

he knew. And at that point in time, he began choking her; Thefirst incident ofphysicaZ 

he threw her up against a wall. He put his hands around abuse. 

her neck. He was angry. 

And during the course of that day after receiving the 

letter [about her sleeping with other men], he would choke lkxwutor summarizes all 

her; he would hit her with a rope and cause welts on 

her body; he would hit her with a belt causing more 

injuries on her body; he would at some point in time 

knock her down to the floor and then put cigarettes on 

her body and hold her down and take lit cigarettes and 

extinguish them on her body, all over her legs and her 

feet. And at the same time while holding her down, he 

would take those same lit cigarettes and put them in her abuse. 

vagina while they were lit and burn her skin. 

He would also take those lit cigarettes and put them 

in her mouth and put them out while they were burning 

inside her mouth. He would also on occasion that night 

take cigarettes -- take matches and hold those lit matches More examples of torture. 

against her body and burn her skin. He would burn her 

pubic hair with those lit matches and on one occasion he 

basically said something to the effect when he had her 

down on the floor, "You're never going to use your 

vagina again," and took hot chili powder and inserted 

ihat in kr vagina causing incredible burning and pain. more sadistic. 

And she begged him to let her go to the bathroom and 

rinse it off and he said, "No, you're just going to have to 

take it." 

That night he would choke her to near 

unconsciousness, so that she passed out. She would try 

the abuse the victim SufFered 

thefirst day. a 

fie sadistic nature of the 

ne defendant's torture grew 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 47 

to defend herself by putting her arms up and keeping him 

from hitting her, but that would do no good. He would 

continue to hit her and just her arms would get hit then if 

that was all she put up. She tried to fight back, but she 

couldn't. She was smaller than him. She was also 

terrified. [The victim] will tell you that night was probably The abuse continued after 

the worst abuse she suffered at [the defendant's] hands, but thatfirst night. 

it wasn't the last thing or the last night. 

The only thing that became clear that day was that 

[the defendant] was mad that she had cheated on him and 

he was going to take care of one thing, he was going to 

keep her from ever being able to cheat on him again. 

And if that meant he had to keep her under his 

observation, under his control, under his thumb, that's 

what it was going to take. And it also became clear that 

any time he thought about the fact that she had cheated on 

him, he got mad again and at that point in time he would 

abuse her again and he would hurt her in a multitude of 

ways. 

day in and day out, mind games, telling [the victim] that weeks. 

she had cheated on him, that she had done him wrong, 

that she had violated him and she deserved to be beat 

like she was being beat; and on top of those mind games 

and mind tactics, the physical abuse went on. 

The victim could notfight 

back 

Hepunished her by 

controlling her. 

And it continued on over a several-week period, The abuse continued for 

0 

3.4.2.3 The defendant was in control. The prosecution attempted to show the 

power and control that the defendant exerted over the victim in a variety of ways. Prosecutors 

described the differential size and strength of the parties to demonstrate that it was the defendant 

who was in control and the victim who was controlled; the fact that the defendant had a gun or 

other weapon and showed it to the victim in order to coerce compliance; or the victim's genuine 

fear of the defendant. The following exmple ill-~actes ho.z.r rhe proaecAon showed the size 

differential between the victim and defendant. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 48 

Defendant’s height and 

weight (victim ’s height and 

weight had been established 

Q. Mr. [defendant] what’s your height and weight? 

A. About five 10,165. 

Q. And you’re right-handed; is that right? 

A. Yes, sir. earlier) 

Q. You were a wrestler in high school? A. Yes, sir. 

Q. Pretty good wrestler? 

A. Yes, sir. 

Q. You’re able to, I take it -- through wrestling, you’re 

able to control people pretty well through moves, aren’t 

you? people. ’’ 

0 

The defendant had the ability 

to physically “control 

A. Yes, sir. 

Q. What weight did you wrestle at? 

A. One hundred fifty-five. 

Q. Did you wrestle against people about 155 pounds; is Defendant could easily 

A. Yes, sir. 

that right? restrain a person weighing 

less than him. 

In another case, the prosecutor asked several witnesses to describe the relative size and 

strength of the defendant and the victim he murdered. The victim was described as “very 

8 slender” or “frail” by some witnesses. The defendant’s fkiends minimized the size disparity, so 

the prosecutor took a different tact: 

Q. At any time did you feel afraid for [defendant]? 

A. No. the victim would attack the 

Q. Whynot? defendant. 

A. Because he was big. 

Q. Howbig? 

A. Big enough. Defendant was not at risk on 

Q. Was he bigger than [the victim]? 

A. Yeah. 

The defense had alleged that 

injury by the victim. 

In those cases in which the victim did not seek help immediately, the prosecution would 

show that she sought help when it was safe for her to do so, that is, when the defendant’s control 

was reduced or when she was around people that she felt she could trust to help her. A victim 

held hostage for weeks described the following: 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 49 

Q. At that point in time, did you try to get out of the 

house to run away from him when he was doing those 

things to you? 

A. No. 

Q. Why not? 

A. 'Cuz I was afraid he would hurt me more if I tried tofurther abuse. 

run for it like -- 'cuz he had the doors locked. He had 

Q. Don't trail off at the end of your sentence there, keep 

talking loud. 

A. Well, I was -- like if I made a run for it, he could 

catch me. I mean, he could catch me before I 

unlocked the doors. I didn't have -- I wouldn't have 

enough time, I knew that. 

0 

The victim did not attempt to 

escape because she feared 

both -- 

The victim did not try to 

escape because she believed 

rziz attempt would be 

unsuccessful. 

When the defense sought to show that the victim had several opportunities to escape but 

did not (implying that the offense never happened), the prosecution countered, showing that she 

I) told someone about her abduction only when she felt safe to do so. 

3.4.2.4 Verbal provocation is not enough. Under Iowa law, the defendant 

cannot use physical force in response to only verbal provocation. In cases where the defendant 

was arguing self-defense, the defense was required to show that the defendant faced an 

immediate threat of physical harm. In these cases then, the prosecution sought to prove that the 

victim did not strike any blows, that she only responded to violence initiated by the defendant, or 

that the defendant's actions were truly unprovoked. 

In a case where the defendant raised a claim of self-defense to an assault on his exgirlfkiend that resulted in her hospitalization, the prosecutor tried to show on cross-examination 

that the defendant's actions were neither self-defense nor an accident, but rather were the result 

of an intentional, vicious attack: 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 50 

Q. So it's basically your position, if you can't control 

her, that entitles you to do whatever it takes to get her 

out of the house? 

Defendant feels he had a 

right to 'get her out of &S 

house. " 

A. Out of my house, yes. 

Q. If you'd had a gun, would you have shot her? 

A. No. Q. Why? 

A. Well, I don't know. She ain't that big, you know. Prosecution attempts to show 

Q. You weren't scared of her, were you? that the defendant had no 

A. Oh, yeah. She's been known to throw ashtrays, reason to fear the victim. 

huge ashtrays and stuff at me in my house and bust my 

things up in my house. She's come close to causing me Defendant claims that the 

some bad injuries, you know. victim had been violent in the 

Q. She's come close to causing you injuries? past. 

A. That's right. 

Q. She's never injured you, has she? 

A. No. I've been lucky. 

Q. In all the years you've been with her, she's never 

injured you, has she? 

A. I can't say that. 

Q. Well, you just did. You said you've been lucky. 

A. She never injured me seriously that I've had to go to 

Q. Nothing that required any medical attention? 

A. No. 

Q. In terms of your testimony today, wouldn't it be in 

your best interests to say that [the victim] fell and hurt 

herself? 

Prosecution shows that the 

defendant was never injured; 

or if he was, the injuries were 

not serious. 

e the hospital or anything. 

*** 

A. I ain't saying she fell and hurt herself. Defendant admits the 

Q. What are you saying? victim 's injuries were not 

A. I'm saying I was trying to get her out of my house, accidental, but claims his 

and I fell on her, and I hit her a few times to try to get actions were in self-defense. 

her to let go of my hair. I I took her out the door, and I 

gave her a shove off my porch, and she fell over the The defendant describes 

bicycle and landed on a log out there on my yard. actions that appear in excess *** of his claim of self-defense. 

Q. Did you ever kick her? 

A. Not that I recall. I don't believe so. 

Q. Ever kick her in the head? 

A. No. 

Q. Ever kick her in the chest? 

A. No. 

Q. Okay. No, or you don't recall? 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 51 

A. No, I never kicked her in the head or the chest. The 

only time I would have kicked her would be when -- 

like, when I had her down, she had a hold of my hair. I The defendant is continuing 

was trying to get her to let go. She was kicking at me. I to claim self-defense. 

might have kicked her to keep her from kicking at me. 

I know I never kicked her in no upper parts of her 

body. 

Q. Never have? 

A. No. 

Q. She’s just dreaming that? 

A. Yes. Prosecution gets the 

Q. Like she’s dreaming up the other assaults that you defendant to admit to prior 

assaults upinst the victim. 

A. No, I didn’t say she was dreaming them up. 

had on her? 

3.4.3 Proof of Credibility: “The State’s evidence of guilt is believable. ” 

In domestic violence cases, it is especially important for the prosecution to show that the 

0 State’s evidence is credible. More than in almost any other type of case (except perhaps 

acquaintance rape) domestic violence cases involve a challenge to the victim’s credibility. This is 

especially true when the existence of an ongoing relationship seems to blur distinctions between 

consent and coercion. 

3.4.3.1 The victim is credible. When the victim’s credibility was attacked, the 

prosecutors responded by providing corroboration of the victim’s testimony with other physical 

evidence and statements. For a victim who was an exotic dancer with a history of substance 

abuse, the prosecution presented strong testimony from the examining physician about the 

victim’s injuries and her statements regarding the injuries. Also presented was testimony fi-om 

others who heard the victim’s account of the events after they happened. 

In another case, the prosecutor established during cross-examination of the defendant that 

most of the victim’s account was consistent with the defendant’s own testimony. The prosecutor 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 52 a 

used the cross-examination technique of leading questions that the defendant regularly answered, 

“Yes, sir,” without further explanation. This served to bolster the victim’s account of the events. 

Q. You wanted to hurt her. That’s what you just 

A. Yes, sir. her. 

Q. You wanted to punish her; is that right? 

A. Yes, sir. 

Q. For what you believed she did the night before? 

A. Yes, sir. 

Q. And that was your motivation for doing that? 

A. Yes, sir. 

Q. And you just testified to the jury that you don’t 

Defendant admits he wanted 

said? to hurt the victim, or punish 

Defendant disputes this 

recall whether you stuck your hand inside [the victim’s] portion of the victim ’s 

vagina; is that right? testimony. 

A. Yes, sir. 

Q. But you’ve also testified about a great number of 

details, very specific details. Do you still specifically 

recall hearing a button fall on the floor? 

the buttons come at me fiom me grabbing the shirt. 

A. No. I said I felt them. When I pulled her shirt, I felt 

Q. You felt that? 

A. Yeah, one hit me right here. 

Q. I believe you said that when you yanked on her Theprosecution shows that 

pants, you heard the button from her pants fall on the the defendant’s testimony is 

floor. very similar to the victim’s 

testimony about this portion 

of the assault. 

A. Yes,I did. 

Q. You remember that specific detail? 

A. I remember it because I heard them when I yanked 

Q. Sure. But you don’t remember whether you stuck He remembers very specific 

detail about this part of the 

A. No, sir, I did not. assault, but does not recall 

Q. Do you agree with that one exception your the more serious part of the 

statement that you’re giving us here is almost virtually assault, the sexual assault. 

entirely consistent with what [the victim] has testified 

b? 

them. 

your hand inside her vagina? 

A. I don’t understand what you mean. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 53 a 

3.4.3.2 The Defendant is lying. Some prosecutors focused on inconsistent 

statements fiom the defendant, or produced physical evidence to rebut the defendant's claims of 

what occurred, or presented other evidence to show that the defendant was not a truthfill person. 

This prosecutor impeached the defendant's claim of intoxication and substance abuse by 

showing that the defendant did not disclose this history when asked at the jail: 

Q. Now, it's my understanding that you believe that you Defendant claims long-term 

have, on this date, a serious and long-term alcohol 

problem. 

A. From the last three years I've gotten one, yes. 

Q. And on this date you think you have a serious and 

A. Been involved all my life, yes. 

Q. Do you remember when you were checked in, 

signed in over at the jail you were asked, "Have you 

ever taken narcotics", and you said "No"? 

long-term drug problem? 

A. I don't recall that question, no. 

Q. Do you recall being asked if you had ever had any 

A. I've never been dizzy or fallen down if I wasn't on 

Q. Do you recall being asked if you had alcoholism 

A. I don't remember that question either, no. 

(Whereupon, State's Exhibit Number 11 was marked for 

BY [PROSECUTOR]: 

Q. Let me show you what I've just had marked State's 

e 

problems with dizziness or fainting and you said no? 

drugs or alcohol. 

and you said, "NO?" 

identification.) 

alcohol and drug abuse. 

Defendant denied substance 

abuse when booked at the 

jail. 

Defendant does not recall 

question about alcoholism 

Exhibit 1 1. Is that your signature down there at the bottom 

left? 

A. Yes, and he asked -- he says, "I want to go over your 

history." And I said, "Well, if you are going to ask me if 

I've had heart attacks and stuff like that, you can mark them 

aii," And t3at's what he done. 

Q. You were given an opportunity to right then say 

that you had a problem with drugs and alcohol. 

A. He didn't ask me that question. He says, "Have 

you had emphysema, stomach trouble," and stuff like 

that. I said, "You can mark them all: no," and he did. 

Defendant had the 

OPPortuniV to report 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 54 

Q. Did you read it before you signed it? 

A. No, because I just assumed he was asking those 

Q. Big assumption, isn’t it? 

A. Yes. It is just a standard practice that you do when 

substance abuse and did not - 

the defendant lied about his 

questions. substance abuse history. 

you go to jail. 

3.5 Specific Evidence Used to Prove the Elements of the Case 

Prosecutors and defense attorneys certainly must address the adequacy of proof for every 

element of the crime. Thus, it is of only limited use to examine the specific statutory elements of 

the crimes involved in the cases in this study. Rather, it is more instructive to examine themes 

and strategies used to prove the cases. 

3.5.1 Telling the Story of Domestic Violence 

0 In proving the elements of the crime, prosecutors generally seemed to “tell the story” of 

the violence. Sometimes the story included a history of abuse; other times the story involved 

only the incident of violence that was charged. Regardless of the scope, however, prosecutors 

used storytelling techniques to present the evidence. 

The “story” often began with a witness who could give a graphic account of the events 

surrounding the crime charged. Sometimes it was the victim, sometimes it was an eyewitness, 

sometimes it was an investigating officer, and occasionally it was an examining physician. The 

witnesses who followed then filled in more details about the story. In having the witness “tell the 

story,” prosecutors followed a pattern. T?vy bega:? ~y ~e:lk.v,q ti‘tr i’cer~z, hy establishing the 

physical setting: the location, the time of day, the type of weather, the lighting. 

Then prosecutors elicited a step-by-step replay ofevents, rich in detail, about what 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 55 a 

occurred. The prosecutors asked a series of questions that drew out the story of the events: what 

the witness saw, heard and felt, including the witness’s emotional reaction to the events. In this 

step-by-step replay of events, many prosecutors focused on the language used by the witness. If 

the witness used a particularly graphic or descriptive word or phrase, the prosecutor reinforced 

the testimony by repeating the words when asking another question, or by making reference to 

the powerfid description later in the testimony. For example, in one case, the prosecutor elicited 

the following testimony from the victim: 

Q. During the course of the marriage, besides what we 

are here for today, but just during the course of the 

marriage, how many times was he physically abusive, 

approximately? 

Prosecution establishes that 

the defendant hadphysically 

abuse the victim in the past. 

A. Four times. 

Q. What sorts of physical abuse did he inflict on you? 

A. He would punch me or kick me. He has grabbed me Descriptions of abuse - 

by my neck and held me down. He’s sexually assaulted punched, kicked, grabbed by 

me. neck, held down, sexually 

you? 

in the leg. 

grabbed you and put your face in the pillow? 

the room. And I was crying and I said I hated him. And he ofphysical abuse. 

came back in the room and jumped on top of me and 

grabbed me by the back of the neck and shoved my face 

into a pillow. 

Q. All right. When he kicked you, where did he kick assaulted 

A. He has kicked me in the back and he has kicked me Pvosecution elicits SpeciJics 

about one type of abuse. 

Q. All right. And describe what happened when he 

Prosecution asks victim to 

A. He -- That was after he had kicked me. He had left ekhrate on another incident 

Many prosecutors focused on descriptive terms like “jerked,” “slammed,” “punched,” 

‘‘T?”,. ua-h 7.. hzldeil,” “thG5brilg,” ’‘saiul u -t- G: with blood,” “temfied,” or “hysterical.” They also 

elicited testimony to describe the weapon that was used in the assault and how it was used; 

whether blows were struck with an open hand or closed fist; the types of injuries that were a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 56 

inflicted and the pain the victim felt. Also elicited were statements that the defendant made to 

the victim or others, before, during or after the crime; how the victim felt before, during and after 

the crime; and what the victim did to seek help after the assault. 

In addition, prosecutors often “illustrated” the testimony with physicd evidence. For 

example, when the witness described the weapon used, the prosecutor produced the weapon as an 

exhibit and asked the witness to identifL it and describe or demonstrate how it was used. 

Prosecutors also brought the story to life by using photographs of the victim or the scene, 

diagrams of the scene, and tangible objects, like bloody clothing, seized at the scene or fiom the 

defendant or victim. 

Many prosecutors would use these “illustrations” to tell the story a second time. First, a 

0 witness would describe the story in words, then the prosecutor would lead the witness through 

the story again, using physical evidence to bring the story to life or to corroborate the witness’s 

account. Some prosecutors would ask the witness to tell the story of violence several times, 

using the various types of physical evidence to illustrate the story differently with each telling. 

The stories also included discussion of motives. Usually, the prosecutor tried to show 

what motivated the defendant to act --jealousy, rage, or a need to control. Sometimes the 

prosecutor would address the victim’s motive in telling the police, or the victim’s decision to 

report the incident regardless of any adverse reaction by the defendant. 

Several of these concepts were illustrated in a closing argument in a murder case in which 

the prosecutor summarized the testimony and illustrated it with the physical evidence that had 

been admitted. The prosecution began by describing the course of the relationship between the 

0 defendant and the victim, focusing on the defendant’s motive to kill the victim; then, the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 57 a 

prosecutor recapped the eyewitness testimony and circumstantial evidence that linked the 

defendant to the crime: 

And then she told the defendant about [the new Motive: The victim found a new 

boyfriend]. [The victim’s son] told you it was shortly boyfriend and defendant was angry 

before she was killed, within a few days or the weekend 

before. She told him that there was another man in her 

life. And it was at that moment -- common sense tells us 

-- it was at that moment this man who was willing to 

verbally abuse her before, lost control because he knew victim 

[the victim] was out of his life now and she was with 

somebody else. 

And that’s when his loss of control and his anger 

begin to reach a crescendo. He began with the calls. And stalking. 

[the victim’s son] told you about that. Again, the 

continuous calling, the abusiveness. She wouldn’t take 

the calls. His rage builds. His frustration builds. She 

won’t deal with him. 

night of Wednesday, [date] he is needing to control her to 

the degree that he goes to her home and he parks back 

here sometime before 9:00, because that is what [an 

eyewitness] tells us. And he goes through the alley. And it 

is at that point, he watches and stalks her and he 

watches. Further motive: inter-racial 

And I submit to you it is at that moment that he 

saw her with [the new boyfriend] and that is when he 

realized [the new boyfriend] was black. That was the 

straw that broke that camel’s back. It pushed him off 

the cliff because at that very moment he decided he was decision to 

going to go home, get his gun, go to his storage locker, 

get his ammunition and come back and kill her. And 

kill him if he needed to. 

The defendant lost control Over the 

The defendant’s behavior began to 

escalatefi-om harassment to 

She won’t acknowledge hm until finally on the 

Stalking 

relationsh@ ‘Pushedhim o?the 

CZz? ” 

Defendant’s intent - he made the 

the victim. 

The prosecutor then goes on to describe the physical evidence and testimony presented at 

trial that supports the prosecution’s story of the crime: the defendant was seen near the victim’s 

residence 13 minutes before the shooting; the defendant had time to get from his storage locker 

(where he kept his ammunition) to his home to get his gun, to the location where the shooting 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 58 

occurred; a box of ammunition was found in his home with 20 missing rounds, along with an 

empty gun case; the defendant was known to own the type of gun believed to have been used in 

the shooting; the cigarettes found at the scene are the kind of brand the defendant smokes; the 

victim had defensive injuries which indicates she knew her attacker; the defendant was stopped 

for speeding shortly after the shooting; and there was time to drive the distance he drove at the 

time he was stopped by police. This closing argument presented to the jury a plausible story, 

which explained the events surrounding the murder, as well as the defecdmt’s motivations, and 

wove together the bits of evidence provided by a wide variety of witnesses during the trial. It is a 

“story” that the jury can believe. 

Sometimes the prosecutor also tried to show the victim’s motive in reporting the abuse. 

Highlighting the victim’s motive usually was in response to or in anticipation of a defense 

strategy painting the victim as a liar who was out to get something (often, the claim involved 

gaining an advantage in a child custody or divorce action), or a vengeful person. Many 

prosecutors tried to establish that the victim had little to gain from the criminal justice system, or 

that the victim’s primary motivation was simply to see justice served through the court system. 

a 

3.5.2 Corroboration of the Victim’s Account 

Most prosecutors sought to present some form of corroboration of the victim’s account. 

This corroboration might come through physical evidence consistent with the victim’s account, 

through the accounts by other witnesses, or through other statements that the victim made shortly 

after the encounter. Obviously, corroboration of the victims account in murder cases was not 

possible. There were, however, cases where the prosecution attempted to corroborate a murder 

victim’s reports of threat or past history of violence by the defendant through witness testimony. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 59 

3.5.3 Physical Evidence 

Physical evidence comes in many forms, from many sources. In most cases analyzed, 

identification technicians gathered physical evidence at the scene, including photographs or 

diagrams of the scene, or the area surrounding the scene. Weapons used during the attack, 

fingerprints, fiber or hair found at the scene that would link the defendant to the scene, and 

clothing worn by the victim or the defendant at the time of the assault also were offered as 

evidence. The quality and quantity of evidence varied widely. Generally, the more serious the 

offense, the greater the amount and the better the quality of the physical evidence that was 

gathered and analyzed. 

In many cases, a medical expert provided physical evidence through the physical 

examination of the victim. Testimony by examining physicians also varied greatly. Some 

physicians documented the type, number, location, estimated age and likely cause of injuries, as 

e 

well as the amount of force required to sustain such an injury. Often, medical professionals took 

X-rays, MRI’s or CAT scans of serious injuries. Some doctors also documented any preexisting 

injuries, and whether they were aggravated or affected by the more recent abuse. Some health 

care providers took photographs (or arranged for photographs to be taken) of the victim’s injuries 

at the time of the medical examination. 

One example of testimony by an examining physician illustrates how the medical 

testimony can be used to “tell the story” of violence. 

Q. Did you have a chance to observe [the victiml’s state 

of mind and demeanor? 

A. Yes. 

Q. What was it? Physician reports that the 0 A. I would characterize it as being upset, in pain, but victim was distressed. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 60 

composed and appropriate. 

Q. Did she seem, in the broad sense of the word, sober 

and in control of her faculties and aware of where she 

was? the influence of any 

A. Yes. substances. 

Q. Why was she there to see you? 

A. She indicated that she had been physically assaulted 

and wished to be evaluated for any potential injuries. 

Q. Did you see injuries on her? 

A. Yes. 

Q. What did you see? 

A. She had multiple areas of swelling and black and 

blue marks about her eyes and face, neck, and some on the 

lower back. 

a 

Victim ’s complaints seemed 

authentic, she was not under 

Victim reported that she had 

been assaulted. 

ne physician observed 

injuries. 

The doctor’s testimony also was “illustrated” with diagrams and photographs. The medical 

testimony was used to rebut claims by the defense that the victim, an exotic dancer with 

allegations of drug abuse, was exaggerating the injuries. 

a Generally, autopsies were the most thorough and best documented medical examinations. 

Autopsy reports detailed all relevant information about the victims and their injuries. The 

medical examiner provided an opinion regarding cause of death, and also gave opinions about the 

force necessary to cause such an injury; the presence or absence of defensive wounds; the angle 

of entry of a knife wound or a gunshot wound; and whether a wound was fatal or non-fatal. 

Some cases included physical evidence seized fiom the possession of the defendant that either 

corroborated the victim’s account or matched the evidence found at the scene of the crime. 

3.5.4 Statements 

Another common method of corroS~.at!~z; ::YXJKI acing staterncxts that bolstered the .. 

victim’s account of the events. This would show that her account was consistent, or indicate why 

her account of events may have changed. a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 61 

3.5.4.1 Eyewitnesses. Eyewitnesses gave graphic accounts of what they saw or 

heard. The "story" of the violence came to life when they provided details that matched or 

explained the victim's account of the assault, or expressed the concern or fear they felt in 

watching the events. Both the prosecution and defense focused on the motivation of the 

eyewitness to testify, primarily by emphasizing whether the eyewitness was a biased or unbiased 

observer. Also, they carehlly tested the details of the eyewitness account. 

Q. Describe for us what you saw. 

A. Just two people fighting, wrestling. 

[eyewitness describes locations of cars and vehicles] 

Q. All right. Now, you said wrestling. At any point in 

time, did you see blows struck? 

A. Yes. 

Q. All right. Tell us about those. 

A. Well, just like when you see a fight. You see 

somebody hitting or just like that (indicating), or this 

here, or another one going like this (indicating) with the 

other hand, what have you. 

Q. Both participants were swinging blows? 

A. No. I only saw one. 

[witness describes participants] 

Q. How many blows did you see struck? 

A. Well, probably may have been five or six. 

Q. Can you tell us anything about the forcefulness of 

those blows? How they appeared? 

A. Well, they were hitting hard. That's all I 

could say. 

[witness describes positions of persons who were in the Assailant Was standing, Victim Was 

fight1 on the ground. 

Q. How long did this go on? 

A. Oh, maybe five minqtes, ~GLX UT fi~e 4fi;ncttes. The assault went on for a period of 

Q. And I take it you could not see the other person on time. The victim Was on the Pound 

the ground during any portion of this? not fighting back. 

[witness describes going over to the victim] 

A. Well, after the cars left, we had finally got into-- 

Witness saw a two people fighting. 

Only one person was assaulting the 

other. 

The attack involved a series of blows 

that appeared forceful. 

L *** 

*** 

0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 62 

almost, in the parking lot space, and my husband was 

saying that this person was still on the ground, and I 

know that when you're fighting or if you're just wrestling The witness believed the victim was 

around, usually one goes and then the other one goes, injured because she remained on the 

you know, and no one is still laying on the ground, you ground. 

know. But at that time, I realized this person hadn't 

gotten up, so we went up to see what was wrong. 

Q. What did you see? 

A. Well, I realized it was a girl, and she wasn't moving victim 's physical condition indicated 

too much. By then other people had started to gather. 

[witness describes position of the victim's body] 

Q. What observations did you make of her at that point? 

A. Well, she looked like she was hurt pretty bad. 

Q. What marks did you see? 

A. I could see a cut or something on her wrist. I noticed 

that there was blood on her hair. 

Q. What was she doing at this time? 

A. Just making a funny noise. 

Q. Did anybody attempt to render aid or assistance? 

A. Not ri&t at the time. 

The witness's observation of the 

that she was badly hurt. 

- 

Q. Whathappened? 

A. Well, I don't know much about nursing, but I just 

checked her pulse here (indicating) to see if she was 

really okay or something, you know, maybe just knocked 

out. But she still had some pulse. I'm not one to know, 

but she just appeared to be still alive at that time. 

3.5.4.2 Victim statements. Another common way to corroborate a victim's 

account was to use other witnesses to testify about the victim's statements about the events. 

Generally, these statements were admitted through the excited utterance exception or the present 

sense impression exception to the hearsay Excited utterance statements included 

statements the victim made to an investigating officer, a friend, or some other person that she 

In a case where the victim was uncooperative and did not testify favorably to the 

prosecution at the time of trial, the prosecutor used her excited utterances to police officers as a a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 63 

way to tell the story of the violence. In direct examination of the officer who responded to the 

emergency call, the prosecutor elicited this story: 

Q. And sir, can you tell us who you met when you arrived 

at that location? 

A. I met [the victim] who told me that she was assaulted Victim speciJcally told thepolice 

by her live-in boyfriend who they have a child with, and I her boyfriend assaulted her. 

asked where he was, and she didn't know where he was. 

She said she had ran from the house. She tried to make a The victim admitted she ranporn 

phone call to the police. He had ripped the phone out, the house because of the assault. 

and so she got assaulted by being knocked down to the 

floor several times md slammed her head into the floor. Thepolice obsewedphysical 

I could see a cut on her left arm. So I asked again where injuries. 

he was at, and she says, "Well, I left to go to the neighbor's 

house to call. I don't know where he's at, but I think he's The victim told the police where the 

in the room in the basement that is locked.'' defendant was. 

Victim statements to a treating physician or nurse were also admitted under the hearsay 

exception for statements made in the course of medical treatment. 

3.5.4.3 Offender statements. Corroboration of the victim's account also came 

through the defendant's own statements to police, to other persons, or to the victim. This 

defendant gave the following account when arrested by police: "We had an argument. I pushed 

her down a couple times, but no problem." The victim had told police that the defendant had 

pushed her down and injured her. 

Often, offenders testified in their own defense at trial and gave accounts that corroborated 

the victim's account in many material respects. A defendant in a trespassing case corroborated 

the victim's testimony that he arrived at her home, cut the tzk$ione wires oGttside thc kause and 

entered the victim's home. Where their stories differed was with the defendant's claim that he 

entered the home with the victim's permission and that he did not physically assault her. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 64 

The following defendant actually admitted assaulting his wife, but was claiming that the 

assault was not serious. In questioning by his own attorney, the defendant testified: 

Q. [Defendant], as you will recall, we were -- you were 

testifjmg and you were at your mother’s house and -- at 

your house with [the victim], and you had just gone 

outside. Start kom the point when [the victim] left the 

house. What happened? 

A. We were still arguing and she was facing me in the 

driveway, and I was inside the house. And when she said 

that if she wanted to look at someone else’s dick that she 

weuld have, if she had -- something to that effect -- she 

looked -- if she wanted to look at somebody’s dick she 

would, something to that effect, and that’s when I 

snapped and that’s when I run out to the driveway. 

And she kind of turned her back towards me to cover 

up, and I slammed her into the pickup. *** 

Q. Then what happened? 

A. She rolled over onto her hands -- her knees and 

covered up like she was in the fetal position, and I 

jumped on the behind of her and was hitting her. 

e 

Q. Describe how you were doing it. 

A. With my open hand. 

Q. When she was on the ground, did you kick her? 

A. No, I didn’t. 

Q. She testified that you kicked her in the stomach 

A. No, I didn’t. 

Q. How do you suppose that she got the bruise on her 

A. When I swung her to the ground. 

[Defendant demonstrates assault] 

and that you kicked her in the butt. 

butt? 

Defendant admitted being angered 

by victim comments. 

Defendant admitted that he 

“snapped. ’’ 

Defendant admits initiating the 

assault. 

Defendant admits hitting the 

victim, but only with an “open 

hand. ” 

Defendant denies some elements of 

the victim’s stoly, claiming there is 

another cause for the injuries. 

3.5.5 Anticipating Defenses 

Part of an effective trial strategy is to anticipate likely defenses by presenting evidence 

a that undercuts or contradicts the anticipated defense.85 Prosecutors often learn about the defense 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 65 

before trial, by formal or informal methods. Defendants’ statements to police, either written or 

oral, recorded or unrecorded, provide the prosecutor some warning about what “story” to expect 

from the defense. The rules of criminal procedure require the defendant to file a written notice of 

certain defenses, such as insanity, diminished responsibility, intoxication, alibi, entrapment or 

self-defense.86 In addition, formal procedures, like reciprocal discovery ~uZes,8~ apply in some 

situations. Under reciprocal discovery, the defense must give the prosecution advance notice, in 

some circumstances, of the anticipated witnesses and evidence for the defeEse, so that the 

prosecution can prepare for trial.” Similarly, Iowa rules of criminal procedure give the 

prosecution the right to depose8’ witnesses before trial, if the defense has deposed any of the 

prosecution’s witnesses. ’O 

In addition to these formal methods of discovery, there are also informal methods for the 

prosecution to find out about the defense. The informal methods vary according to the various 

court communities and individual attorneys involved in the case. The victim, another witness, or 

the police officer that investigated the crime may tell the prosecutor what defense to expect based 

on what the defendant has said about the case. If victim advocates are involved in a case, they 

may provide the prosecutor with insight as to the defense likely to be raised, based on their 

interactions with the defendant.” In addition, prosecutors and defense attorneys often are well 

acquainted and aiscuss cases that they have in common, either in connection with pretrial matters 

such as bail, or in Mherance of plea bargain discussions, or in their regular professional 

interactions.% In small communities in Iowa, much of the information about domestic violence 

cases becomes “common knowledge” when local residents discuss the cases and the police or 

prosecutors hear those discussion^.^^ 

a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 66 

The prosecution strategy is likely to be based, at least in part, on the defense they expect 

to be presented. Although we did not interview the prosecutors involved in the cases in this 

study, the trial transcripts suggest that prosecutors generally were aware of the likely defenses, 

and structured their prosecution strategies in anticipation of those defenses. Thus, when 

discussing the defense themes and strategies, we will include examples of prosecution strategies 

that appeared to anticipate or respond to the defense theme or defense strategies used in the 

cases. 

3.6 Defense Themes 

Since the burden of proof lies with the prosecution in criminal trials, technically the 

defendant does not need to put on any evidence, other than to challenge the prosecution’s 

evidence to establish reasonable doubt. Defendants charged with a domestic violence-related 

offense might raise one of a variety of defenses. Two common defense themes seen in domestic 

violence cases are self-defense (justification) and diminished responsibility or capacity. 

In Iowa, self-defense is known as a ‘fjustification” defense. The elements of the 

justification defense are: (1) the defendant was not the provocateur, instigator or cause in either 

initiating or continuing the difficulty; (2) the defendant believed that he or she was in imminent 

a 

danger of death or serious injury and that the use of force was necessary to save himself or 

herself; (3) the defendant had reasonable grounds for such belief; and (4) the force used was 

reasonable. 

The defendant must actually believe there is an apparent danger of injury or death and that 

0 belief must be a reasonable belief. A defendant may act on apparent danger. It is not necessary 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 67 

for the defendant to prove that a danger did in fact exist, or to prove that an assault had actually 

occurred. This defense may not apply in every domestic violence situation, yet the police are 

required to arrest only the “primary physical aggressor,” who may or may not have a legitimate 

self-defense claim as part of the assault. 

The diminished responsibility defense is based on emotional or mental disability that 

makes it impossible for the defendant to formulate the specific intent required for a specific 

intent crime. Diminished responsibility can include an intoxication defense, which is based on 

severe intoxication of the defendant. An insanity defense is used in rare instances and requires 

that the defendant prove that he did not understand the nature and quality of his acts, and that he 

did not know right from wrong. Although a successful diminished responsibility defense results 

in conviction on a lesser charge, a successful insanity defense results in an acquittal. 

The primary type of defense or defense theme for each case in this study was identified 

0 

during the analysis. Each case was grouped into one of four different theme categories: 1) selfdefense or provocation; 2) going-for-a-lesser charge; 3) diminished responsibility; and 4) didn’t 

do it. In most of the murder cases, the defense was not arguing that the defendant did not commit 

the crime, but rather that there were extenuating circumstances such that the defendant should be 

held less responsible for the crime (See Table 3 for a summary of defense themes). 

Table 3: Defense Themes by Case Type 

Defense Strategy Murder Non-Murder 

Self-defense or provocation 3 14.3% 3 15.8% 

Going- for-a-lesser-charge 4 19.0% 5 26.3% 

Diminished capacity 8 38.1% 2 10.5% 

Didn’t do it 6 28.6% 9 47.4% 

TOTAL 21 100% 19 100% 

E- ?G - % 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 68 

3.6.1 Self-defense or Provocation 

0 

As described above, self-defense was an attempt to show that the defendant's behaviors 

were the result of defending himself against attack. For example, in one of the non-murder cases 

the defendant argued self-defense by alleging that the victim came in to his home and started 

hitting him. In the course of defending himself, the victim fell and hit her head, causing the skull 

fracture and head lacerations. 

Victim was jealous. 

Q. And what did you say, if anythmg? 

A. I said I didn't know. I was asleep till now until she woke 

me up. 

Q. Okay. And did she say anyhng else? 

A. Yeah. She asked me if I was screwing [another 

woman]. 

Q. And what did you tell her? 

A. I said I would if I could. 

Q. Okay. And did she make any other comments? 

A. No. She grabbed a hold of my hair. 

Q. Where was it that she grabbed a hold of your hair, as far 

as the part of your house? 

A. When I was laying in the bed, she grabbed a hold of the 

back of my hair and started pulling my hair backwards. 

Q. Was she saying anyhng when she did that? 

A. No. 

Q. What did you do when she started pulling your hair? 

A. I reached back, and I smacked her in the side of the 

head and knocked her off the bed, and she hit her head on 

the floor or the dresser or something and hit her head. 

Q. Okay. So in terms of your testimony, you are saying 

that this business about you attacking her and ripping Defendant denies victim's account 

her clothes off and all this is just not true? of events. 

A. No. I never took her clothes off. 

Q. Did you kick her at any time -:&en ycc ~rc trykg tz 

get her out the door? 

A. I don't believe so. 

Q. Do you believe you have a right to see her out your 

door if she attacks you in your own home in the middle Defendant had a right to defend 0 of the night? himsey 

@ 

Victim attacked defendantfirst. 

Defendant was defending himself 

when victim hit her head. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
-1 Prosecution Strategies in Domestic Violence 69 e 

A. Yes. 

Q. Did you invite her to come down to your house that 

night? 

A. No. 

Q. Did you expect her to show up after you went to bed? 

A. No. 

Q. Has she attacked you in the past physically? 

A. Yes. 

Q. How many times? 

A. Oh, probably half a dozen times. 

Victim has physically assaulted the 

defendant in the past. 

Provocation was connected to this action of self-defense. The defense used this theme to 

show that, particularly in the murder cases, the defendant lacked the intent required for the crime. 

The crime occurred in the heat of the moment, was not planned, or “things got out of hand.” 

About fifteen percent of both the murder and non-murder cases argued self-defense or 

provocation. 0 

Although as a legal matter, a successful self-defense/justification defense should result in 

an acquittal, defendants sometimes used this justification defense as an attempt to go for a lesser 

charge rather than an acquittal. In essence, the defendant argued that he was justified in 

responding with force to an attack, but that he got carried away and used too much force, or used 

more force than he realized he was using. He therefore asked the jury or judge to find him guilty 

of a lesser offense. As a technical legal matter, this scenario does not constitute self-defense, but 

as a practical matter, that is how the jury may view it. 

Some prosecutors appeared to anticipate the self-defense or provocation claims by the 

defense by presenting evidence to refute the claim. For example, in several cases, the 

prosecution asked witnesses to describe or compare the relative size of the defendant and the 

victim, pointing out that the defendant was physically bigger than the victim. Or they asked 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 70 

witnesses whether they had ever been concerned about the defendant’s safety when they had 

witnessed prior violence between the defendant and the victim. In some cases, prosecutors 

showed, typically through medical examiner testimony, that the injuries the victim suffered were 

so numerous andor severe that they had to have been intentionally and maliciously inflicted. 

Q. Now, with regard to the external examination, could you 

briefly describe to the jury the significant findings you 

observed with regard to that portion of your autopsy?A. 

[MEDICAL EXAMINER] Yes. The -- There were a 

number of significant findings relative to the external 

examination. Principally there were multiple stab wounds, 

and in fact, there were 26 such stab wounds. These were There were many stab wounds. 

found on the neck where I found one, on the thorax which 

includes the chest, both fiont, side, and rear. There were 

nine such stab wounds on the thorax. I found multiple stab 

wounds of the left upper arm. Seven of these appeared to Some of the wounds were created 

be wounds of entry, two appeared to be a continuation using substantial force. 

wound of exit. I found a -- a single stab wound on the left 

elbow. I found five actual stab wounds on the abdomen 

and an additional stab wound on the back of the left upper 

-- upper shoulder. . . . Also generally I found evidence of 

what we call peripheral or appendicular or external trauma 

apart fiom the stab wounds. These consisted of a number 

of bruises or contusions. Many appeared to be recent in 

terms of their color. 

Q. Were those bruises associated with any particular thing? 

A. All I can say is they appeared to be consistent with the 

application of blunt force trauma, not cutting, nonpatterned injury. They were just bruises. I also found some 

old bruises on the thigh and the lower legs. 

Q. Did you find any significant findings with regard to your 

internal examination? 

-4. Yes, I did. Internally the findings were significant; 

insofar as -- as indicated the amount of hemorrhage 

associated with these multiple stab wounds. . . . She 

actually bled much more than that into the lungs. And 

interestingly, she also had a large collection of blood in the 

pericardium, the sack that surrounds the heart, and closer 

There was substantiaz evidence to 

support the conclusion of the cause 

of death 

* 

***** 

0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 71 

b 

examination of the pericardium shows there was in fact The knife went straight through the 

a perforated, not just penetrated, a perforated, that is to heart, indicating substantial force. 

say through-and-through knife wound of the 

pericardium that went right through the heart front to 

back and exited on the back side. 

Q. So in other words, she had a stab wound that went 

through the heart? 

A. Right. Exactly right through the right ventricle of the 

heart. That's correct. 

Q. Now, Doctor, based on your autopsy, were you able to 

form an opinion as to the cause of death of [the victim]? 

A. Yes, sir. My opinion is the cause of the death of [the 

victim] was multiple stab wounds. 

Q. And what was the basis of that opinion? 

A. The basis of that opinion was the results of an internal 

and an external autopsy conducted on the decedent. 

Q. Were you able to form an opinion as to the manner of 

her death? 

A. Yes. In my opinion the manner, of course, in 

medical terms is a homicide. Which by medical 

terminology means a non-accidental death at the hands 

of someone other than the decedent. 

Q. And you discovered a total of 26 wounds; is that 

correct? 

A. That's correct. 

***** 

The cause of death was not 

accidental. 0 

3.6.2 Going-for-a-Lesser-Charge 

The going-for-a-lesser-charge defense typically found the defense challenging various 

elements of a specific charge. The defense did not deny that the defendant did something - he 

physically assaulted her, but did not sexually assault her; he killed her but he did not premeditate 

the crime -just that it was not as serious as charged. Roughly one third of both the murder and 

non-murder cases attempted to win the defendant a conviction on a lesser charge. 

.I 

Proszcutors who appeared to anticipate a lesser charge defense emphasized the evidence 

that showed the specific intent. In one case, the defendant stabbed his estranged wife in a 

e parking lot during a custody exchange across from the police station. He claimed that he simply 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 72 

lost control when he saw his wife with another man. The prosecution elicited testimony from a 

family member of the defendant's to show that, several days earlier, the defendant said, "It's 

going to happen here" [meaning he planned to stab his wife in that store parking lot]. 

Q. Go ahead and describe what happened, then, Mr. 

[witness]. 

A. We were standing in the parking lot talking back and 

forth. Sometime through the conversation, [the defendant] 

was looking up towards the police station and he said, "It's Statement used to show defendant's 

going to happen here," but he wasn't talking to aq&cdy intent. 

that I could tell. He wasn't talking to me. He was looking 

right at the police station. So I didn't think anything of it. 

[The victim] came, and they made the exchange with the 

baby. Words were said, but I couldn't understand because 

the baby was crying at the time. I started to pull away, 

because [the victim] had gone back to the car, and I seen 

[the defendant] back up. So I stopped to see what was 

going on. Then, finally, he just come on ahead and left, so 

then I left and went on. 

Q. What tone of voice did he use when he said, "It's going 

to happen here?" 

A. It was just barely audible, you know. Enough that I 

heard it. 

0 

This testimony served to undercut his claim of "loss of control" and spoke instead to hs 

premeditation of the murder. In the case quoted in the previous section, the prosecutor asked a 

medical doctor to describe the great force necessary to cause the severity of injuries that the 

victim suffered, as well as the number of individual blows needed to generate the bruises and 

lacerations found. The description was an effort to show that the defendant specifically intended 

serious injury. 

3.6.3 Diminished Responsibility 

Diminished responsibility defenses can be thought of as a specific type of going-for-aThis document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 73 

lesser-charge defense. In diminished responsibility, the defense typically tried to show that the 

defendant was either not responsible or less responsible for his actions because he was 

incapacitated in some fashion at the time of the offense. The types of diminished responsibility 

defenses included incapacitated due to alcohol or drug intoxication, incapacitated due to a 

psychological disorder, or both. For example, in one of the murder cases, the defense argued that 

the defendant suffered from Post Traumatic Stress Disorder (PTSD) as a result of his military 

service in Vietnam. They attempted to show that the defendant was suffering from a PTSDrelated flashback at the time that he shot his wife. They also argued that the onset of these 

flashbacks was aggravated by the defendant’s alcohol use that day. Close to forty percent of the 

murder cases put forth a diminished responsibility defense. 

a 

In the cases in which a diminished responsibility or intoxication defense were used, a 

pretrial notice was filed. Often, prosecutors anticipated the diminished responsibility defense by 

e 

asking various prosecution witnesses who had seen the defendant immediately after the crime to 

describe his demeanor and to give an opinion regarding whether he appeared to be functioning 

normally. Most often, the questions were posed to police oMicers (after establishing that the 

police were trained to look for signs of drug or alcohol intoxication) or family members (after 

establishing that they recognized when the defendant was intoxicated). 

Q. In your experience as a police officer for six and a half 

years, and I believe you said something even about another Police officer has had contact with 

ageccy before that, have you had occasion to deal with 

intoxicated persons? 

A. Yes, I have. 

Q. Have you arrested intoxicated persons? 

A. Yes, I did -- have. 

intoxiratedpew~n~. 

@ Q. ~ddrivers? 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 74 

Q. People in taverns? 

A. (Witness nods.) 

Q. Are you trained in fact in making observations on 

intoxication? identi& signs of intoxication. 

A.. Yes, I am. 

Q. Have you transported intoxicated people in your squad 

car before? 

A. Numerous times, yes. 

Q. And gone through the booking procedure with 

intoxicated persons? 

A. That is correct. 

Q. From your observations of [the defendant] on that 

night, do you have any opinion as to whether he was 

intoxicated at the time you arrested him? 

A. I don’t believe he was intoxicated. 

Q. Did he do anything in the squad car that would be to you 

an indication of an intoxicated person, the kind of thing you 

were trained to observe? 

A. No, he did not. 

Q. Did you observe any smell associated with intoxication 

A. No, I did not. 

Q. Would it be part of the process that you’re trained to intoxication is normalpolice 

do when you arrest someone to make observations 

about their condition whether they’re intoxicated or not 

intoxicated? 

A. Yes. 

Police oficer has been trained to 

The defendant did not appear 

intoxicated at the time of the 

oflense. 

0 that you can recall? 

Checking an arrestee for signs of 

procedure. 

3.6.4 “Didn’t Do It” 

The final defense theme, used in six of the murder and nine of the non-murder cases was 

an attempt to maintain the defendant’s innocence by establishing sufficient reasonable doubt 

about whether the defendmt cornniitsd the crime. Alnnct half of the non-murder cases 

employed the theme that the defendant was innocent. One defendant claiming innocence argued 

that the victim sustained her injuries, not from hm kicking her in the ribs, but from jumping 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 75 

through his car window as he was attempting to drive away fi-om her home. Six of the murder 

cases attempted to prove the defendant’s innocence. In these cases, the defense speculated that 

some “unknown person” could have perpetrated the crime. 

The prosecution seemed to anticipate these defense themes, as well. Often, the “didn’t do 

it” defenses fell into two categories: “it wasn’t me,” or “it didn’t happen.” If the defendant 

denied that he committed the crime, the prosecution focused on evidence of the identity of the 

perpetrator. In one case, for example, a victim who was partially paralyzed fi-om the assault was 

brought into court in a wheelchair. On direct examination by the prosecution, she was asked to 

identify her attacker and she pointed to the defendant. 

A. [The defendant] came in the door, and I can’t be for Defendant came to the door, made 

sure, but he said, “If that’s the way you want it, bitch,” threats towards victim. 

or, “That’s the way you want it, bitch,” and I remember 

being grabbed and thrown to the floor and that’s where I 

don’t remember what happened after that. 

Q. Do you remember where he grabbed you? 

A. My arm, I believe. 

Q. Miss [name], do you remember falling down? 

A. Yes. 

Q. What’s the next thing you remember? 

A. Waking up and calling for my son. 

Q. Do you remember talking to your son? 

A. Yes, I do. 

Q. What do you remember about that? 

A. He wascorning down -- I heard him coming down the 

steps and he was standing there and I asked him to go to my 

grandmother’s house and get my grandmother, who lived 

about a block and a half away. 

Q. What’s the next thing you remewhet-7 

A. I remember being told I was being lifted on a 

helicopter. 

Q. Lifted on a helicopter? 

A. To go to [hospital]. 

Q. He speaks with a Hispanic or Spanish accent? 

@ 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 76 

A. Yes, he does. 

Q. And you heard the person that attacked you speak? voice. 

A. Yes,I did. 

Q. And that voice you heard belonged to? 

A. [The defendant]. 

Q. And you saw the person that attacked you? 

A. Yes,I did. 

Q. And who was the person that attacked you? 

A. [The defendant]. 

Q. It wasn't [name of a friend]? 

A. No. 

Q. Any doubt in your mind as to who attacked you? 

A. No. 

Q. [Victim's name], for the record I'm going to have to ask 

you to identify [the defendant], and I don't know if I can 

turn your chair around so you can look at him, so with the 

Court's permission could I have someone who can operate 

that come forward and turn her? 

(An aide turned the witness's wheelchair.) 

Q. Is the person who attacked you on November 14th 

in court? 

A. Yes, he is. 

Q. What's he wearing? 

A. A black shirt with gold designs on it. 

Q. Is that [the defendant]? 

A. Yes, it is. 

[PROSECUTOR]: Your Honor, the record should 

reflect that the witness has identified the defendant. 

Thanks, [victim's name]. 

A. Thankyou. 

Victim recognized defendant's 

Victim saw the person who 

attacked her, it was the defendant. 

Victim is certain who attacked her. 

Victim identiJes the defendant as 

her attacker for the record. a 

In another case, the prosecution presented elaborate circumstantial evidence that 

connected small pieces of wrapping paper and tape that were found at the bombing scene with 

wrapping paper and tape dispensers found in the defendant's home. 

Q. In addition to examining the comparative items of paper, 

did you do an examination for matching a number of 

items? 

A. Yes, I did. 

@ Q. What other items were you -- did you compare? Criminologist describes the nature 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 77 

A. I compared - I was given two rolls of tape, two rolls of the comparison done. 

of tan colored tape [taken from defendant’s house], and 

also a cardboard tube with attached wires [part of the 

bomb found at the scene]. 

Q. If I may approach the witness, Your Honor. Let me 

show you what’s been marked State’s Exhibit 70(1) and ask 

if you can identifl that? 

A. Yes, I can. 

Q. And what is that please? 

A. This is a roll of box -- what I would call box tape, tan in 

color, with my initials, case number and my exhibit 

designation on it. And how does that relate to the 

examination you’re about to discuss? 

A. There was on one of the exhibits that I was given for 

examination, there was a tape on that exhibit, and I was 

given two rolls of tape to compare to the tape that was on 

the exhibit to see if I could match -- physically match the 

end of the roll of this tape to any of the tape that was on the 

other exhibit that was submitted to me. 

[witness displayed and discussed a series of slides of the 

tape pieces being examined] 

Q. Agent [name], based upon your evaluation -- strike that 

please. Is this method of examining for interlocking pieces, 

does that have a generic term? 

A. We just call it physical match. 

Q. Okay. Based upon your examination of this physical that the evidence found in the 

match, do you have an opinion as to whether or not the defendant’s home is linked to 

tape on State’s Exhibit 46 and the tape on State’s 

Exhibit 70(1) were ever of one piece? 

A. Yes, I do. 

Q. What is that opinion? 

A. It was my opinion that the end of the tan piece of box 

tape was at one time a continuous piece from the 

dispenser to the piece that was on the cardboard tube. 

Those were at one time one continuous piece that I had 

shown in the slides. 

Criminologist states his opinion 

evidence found at the crime scene. 

An example of a “it didn’t happen” was a kidnapping case in which the defendant 

abducted the victim at knifepoint, drove to another town and sexually assaulted the victim in a 

0 motel. The defendant argued that he and the victim simply took a trip together, that there was no 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 78 

coercion or assault. In these cases in which the defendant argued that a crime did not occur, the 

prosecution seemed to focus either on the victim’s injuries, if they were serious; or the victim’s 

credibility, if the injuries were less serious. For example, in a case in which the victim was held 

hostage and tortured over a period of time, medical experts testified about the seriousness of the 

injuries inflicted, and opined that they were not self-inflicted wounds. In another case, in which 

the defehdant was charged with raping his ex-wife, the prosecution bolstered the victim’s 

testimony by presenting several witnesses who heard the victim’s account imnediately after she 

escaped, and also presented physical evidence that corroborated the victim’s account. 

3.6.5 Summary of Defense Themes 

What is described above are the primary defense themes for each case. There is some 

obvious overlap among defense themes. For example, self-defense and diminished responsibility 

defenses often have the intent of trylng to get the defendant convicted on a less serious charge. It 

is diflicult to speculate on why the defense might choose a different theme, but it appears that in 

cases with poor physical evidence or no witnesses, a “didn’t do it” theme was likely. Cases 

where the defendant had a substance abuse or mental health history often focused on a 

diminished capacity, and cases in which the defense was alleging that the victim was violent 

involved a provocation theme. 

a 

3.7 Defense Strategies 

The defense used a variety of different strategies to create or support the above-mentioned 

defense themes (see Table 4 for a summary). These various defense strategies are divided into 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
e 

four categories: 

Prosecution Strategies in Domestic Violence 79 

3:7.1 The Relationship was Fine 

In many of the cases the defense spent a considerable amount of time trylng to establish 

that the relationship between victim and defendant was fine. They produced testimony by fiiends 

and family members who perceived the relationship as normal, happy, or status quo. 

Q. Did you have occasion to see [the victim] on 

Christmas Eve? 

A. Yes,I did. days before the offense. 

Q. Okay. What were the circumstances of that? 

A. She came with my son. 

Q. She came with him? 

A. Yes. 

Q. What had you been doing at home when they came 

over? 

A. Well, we was getting ready to have our family 

Q. Who else was present? 

A. My other son, my daughter was home fkom Georgia, 

and my husband. 

Q. Okay. And do you remember what time [the 

defendant] and [the victim] arrived at your house? 

A. I really can't say. I really don't know. I mean it was 

Christmas Eve. 

Q. After five o'clock in the afternoon? 

A. I would say so. 

Q. Okay. Had you invited [the victim] to come over Victim had testifled that she and 

that day? the defendant had ended their 

A. Not personally. I was just figured she was coming relationship several months before 

because [the defendant] would invite her as boyfriend, the offense. 

girlfriend thing. 

Q. Okay. Were you expecting to see [the defendant] that 

night? 

A. I was expecting to see [the defendant] and I more or 

less expected to see her. I purchased gifts because I 

thought she might be there. 

Q. Okay. Now, the night before Christmas Eve, was [the 

Defendant's mother saw the victim 

and defendant together several 

Chstmas on Christmas Eve. 

(I defendant] home that night? 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 80 

A. I can’t recall that. 

Q, Okay. Did the fact that they came over together on 

Christmas Eve give you any additional clues as to where 

[the defendant] might have been that previous week? 

A. I figured that he was staying with her. 

Q. Okay. How did things go Christmas Eve? Were The relationship between the 

there any problems? defendant and the victim seemed 

A. While they were at my house, everything was just fine. 

normal. She was lovey, dovey, kissy, kissy, girlfriend, 

boyfriend type thing. 

Q. What happened after they left? How did they leave? 

A. They were leaving to go to church. As far as I know, 

they left good. 

In some cases, the defense attempted to discredit the victim’s testimony by pointing out 

discrepancies between her testimony about the offense, and other’s perceptions of the “happy 

relationship.” The purpose of these strategies was to establish that either the offender did not 

commit the offense or, in going for a lesser charge, the offense was out of character given all the 

other positive aspects of the relationship. The defense would also show that the relationship was 

a 

fine through omission. If there was no evidence that the victim had told someone about 

problems in the relationship or about the defendant’s abusive behavior, then the conclusion to be 

drawn was that the relationship was fine. 

Prosecutors who appeared to anticipate this defense strategy focused on the private nature 

of the violence. When defense counsel elicited testimony that “the relationship seemed fine,” the 

prosecutor responded by asking the witness whether the witness lived with the couple, was with 

them constantly, or knew what happened between them when the witness was not present. The 

following is an example of a prosecutor’s cross examination of a next-door neighbor called by 

the defense to testify that “the relationship seemed fine”: 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 81 

Q. You mentioned that you could see what went on next 

door at their house by looking out the windows. You 

weren’t able to see in the painted windows in the 

basement, were you? windows. 

A. No. 

Q. So you could never see what happened inside the 

basement, could you? 

A. No. 

Q. As a matter of fact, there’s generally drapes pulled 

around the windows, so you weren’t able to see what 

happened inside the first floor of the house either, were 

A. No. 

Q. As a result, you have no idea whether [the defendant] 

ever locked [the victim] in the basement of that house, do 

A. No. 

Q. You have no personal knowledge as to whether [the 

defendant] would have burned [the victim] with cigarettes Neighbor would have no personal 

on various parts of her body, do you? knowledge of what the defendant 

A. No. was doing to the victim inside the 

Q. You have no personal knowledge as to whether [the home. 

defendant] would have choked [the victim] at any point in 

time either, do you? 

A. No. 

Q. You don’t know whether [the defendant] ever beat 

[the victim] inside that house either? 

A. No. 

Q. You would have no knowledge as to whether [the 

defendant] would have ever cut [the victim] with a knife 

inside of that house, do you? 

A. No. 

Q. For all you know, that type of behavior could have 

gone inside the house next door and you wouldn’t have It is unlikely that the neighbor 

known it the way it’s locked up and closed up, right? 

A. Right. 

Could not see through painted 

Generally, it was notpossible to 

see inside the house. 

you? 

you? 

COUld have k~wn what was going 

on inside the house. 

In addition, some prosecutors presented testimony about possible “cracks in the wall” of 

happiness, such as a victim’s statement to someone about the defendant’s temper, or the victim’s e 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 82 

concern about not upsetting the defendant. The defendant’s intemperate statements about the 

victim, or the victim’s decision to leave the relationship are other examples of “cracks in the 

wall”. Expert witnesses on domestic violence also testified about how commonly they see 

battered women whose relationships appeared to be fine by outside observers, but were in fact 

violent. 

3.7.2 Character Enhancement of the Abuser 

A second strategy of the defense was to show the good character of the defendant. The 

intent of this character enhancement was to imply that the defendant was unlikely or unable to 

abuse because of hs good character. Defendant character enhancement was done in a variety of 

ways to support the different defense themes. 

3.7.2.1 Defendant was a “good guy.” One type of character enhancement was to 

bring in general testimony about the defendant being a “good guy.” The testimony focused on 

describing the defendant as “happy-go-lucky,” a good friend, trustworthy, a member of the 

school board, a good father, etc. This “good guy” approach also focused on nice things the 

defendant did for the victim. One defendant sent the victim a “nice note” shortly before her 

death, another participated in the victim’s alcohol rehabilitation treatment, and a third voluntarily 

checked himself into an alcohol treatment center after a prior incident of abuse against the 

victim . 

Prosecutors anticipating this strategy generally focused on the brutal nature of the attack 

on the victim, or the circumstances of the offense that showed the seriousness or maliciousness 

of the crime. In some cases, prosecutors elicited testimony from the victim about how the 

0 defendant was sometimes nice and sometimes nasty, and how the victim could “read” his moods 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 83 

and adjust her behavior accordingly. Several victims described how the defendant "had this look 

in his eye," and testified that they knew violence would follow. 

A. And he told me that he drove by at 4:30 and my car 

wasn't out front. 

Q. What did you say to that? 

A. I told him that I probably got home right after he drove 

Q. Was he angry? 

A. He wasn't yelling at me. He was very calm. And he 

-- His eyes looked like they were jast kind of - I don't Victim could tell something was 

know. It could have been tired, I guess, but they just wrong with the defendant. 

looked like he wasn't really there. 

Q. What happened next? 

A. He accused me of making up the whole party and that I 

had really been out with somebody else. And I told him 

that that was crazy. That -- That I went to a party and we 

went out dancing afterwards. And I told him -- He said, 

"Well, the bars close at two. Where were you?" And I 

said, "Well, we went out to breakfast and, you know, I 

came home." And I didn't tell him about running into 

John because I could tell that something wasn't right. 

That he wasn't right. 

Q. How? 

A. Just like I said, just the look in his eye. 

by. 

Expert witnesses also testified about an abuser's facade of goodness, and about an abuser's 

ability to manipulate the victim by kindness mixed with violence. 

3.7.2.2 Defendant loved the victim. The defense demonstrated the defendant's 

caring for the victim through both defendant and family and friend testimony describing the 

d.e€enda.at as affectionate with the victim or professing his love for $e-. 

Q. What was your life at home with [the victim], your 

own apartment, like? 

A. Well, except for when she would be mad about 0 something, I mean I thought it was great. I mean I was Despite the victim 's behavior, the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 84 

with the girl that I loved. I thought I was going to 

spend the rest of my life with her. 

defendant loved her. 

Telling others he wanted to spend the rest of his life with her, treating the victim like a queen, 

looking past her bad behaviors, and doing anything to “please this very difficult to please 

woman” were other attempts to show this “love.” 

Prosecutors who seemed to expect this defense strategy focused on the nature of the 

injuries the victim suffered. They asked medical experts to describe the amount of force 

necessary to cause the injuries, the amount of time it would take for the injuries to heal, and the 

victim’s expression of pain when she was examined. Witnesses who saw the victim shortly after 

the crime described her physical and emotional appearance. Prosecutors used photographs of the 

victim, taken shortly after the crime, to emphasize the brutal nature of the injuries. In one case, 

the defendant’s theme was that he loved the victim and never intended to harm her when he 

killed her. In cross-examining the defendant, the prosecutor asked a series of questions about 

previous abuse, interjecting several questions about-whether the defendant “loved” the victim on 

those previous occasions when he had abused her. Then, the prosecutor asked the defendant to 

describe, in painstaking detail, each and every step involved in killing her, again injecting several 

questions about whether he “loved” the victim as he was doing those things. The following are 

selected excerpts f?om that cross examination: 

Q. Let’s talk about January 1994. You loved her so ~WC~I P.’ss~~ii<.;;i U dzo?!enging 

in January of 94 that you pushed her, causing nmks to her defendant’s claim that he loved the 

back and marks to her face, didn’t you? 

A. As I was trylng to leave, yes. . . . 

Q. And then, Mr. [defendant], you testified that you loved Defendant had abused the victim in 

victim by highlighting his abusive 

behaviors. ***** 

0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 85 

[the victim], but you've tied her up in the past before 

April 19th? 

A. Yes, ma'am. 

Q. And the circumstances by which you had to tie her up 

in the past were what? What happened that day? 

A. She was just going into one of her fits. . . . 

Q. And how long did you leave her tied up then, 

because you loved her? 

DEFENSE COUNSEL: Okay. I am going to object. Now, 

that's badgering the witness. She can ask the questions 

without the sarcasm, your Honor. That's inappropriate 

cross examination. 

THE COURT: You may answer the question if you 

remember the question. 

A. Around 15 to 20 minutes. 

Q. And that was because you loved her, is that right? 

A. Yes, ma'am. 

Q. And when did that happen in relation to the day 

when you loved her so much you killed her? 

A. It was probably about a half a year earlier. 

e 

a simiZar fashion in thepast. 

***** 

3.7.2.3 Defendant was cooperative with police. In many of the cases the 

defendant offered no resistance to police after the offense. In these cases, the defense highlighted 

the fact that the defendant made no attempt to leave the scene, voluntarily turned himself in to 

police, was generally cooperative and appeared truthful with police. 

Prosecutors expecting this defense strategy attempted to show that the defendant had no 

opportunity to flee the scene, or that other people were present and could identify the defendant. 

One prosecutor asked the investigating officer whether the defendant was cooperative when the 

officci rrrivcd on the wew, and thzn +he nfficer if he was in uniform and carrying a gun. 

3.7.2.4 Defendant did not intend for something bad to happen. The 

defendant's lack of intent was usually illustrated through statements the defendant made to others a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 86 

after the offense. The defendant told others he “did not mean to do it,” he did not intend to kill 

her when he tied her up, he was intoxicated and did not know what he was doing, he snapped, 

was in a daze, andor did not consider the consequences. The defendant’s actions after the 

offense were also used as examples of lack of intent: the defendant called police, or a family 

member or a priest or tried to get help for the victim after the assault. 

e 

Prosecutors who seemed to respond to this defense strategy focused on the injuries the 

victim suffered, as well as the relative physkd sizes of defendant and victim. One prosecutor 

asked the defendant whether he struck the victim with closed fists, and how many times he struck 

her. After obtaining these admissions, the prosecutor asked the defendant whether, as his fists 

were making contact with her head, the defendant meant to hurt her. Another prosecutor asked 

the defendant whether he intended to hurt the victim when he plunged the knife, up to its hilt, 

into her stomach. 

0 

3.7.2.5 Defendant never threatened the victim. When applicable, the defense 

would attempt to establish that the defendant never made any specific threats toward the victim. 

As was the case with demonstrating that the relationship was fine, the defense would often show 

a lack of threats by omission, questioning witnesses about whether they heard the defendant 

make any threats. In some cases the defense was also hoping to prove that the defendant had 

never been physically violent in the past. 

Q. But then they would get in a fight and he would yell; is 

A. Yes. 

Q. Would he, fiom what you saw yourself, what you 

actually observed, was he ever physically violent with 

her? defendant be physically violent 

A. I never saw him be physically violent. 

.. -,. th-,atright? . 1 \ ’3. 

Victim ’s son never saw the 

towards the victim. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
e 

Q. He just yelled at her; is that right? 

Prosecution Strategies in Domestic Violence 87 

A. Yes. 

Q. Were these one-sided fights where he is the only one 

fighting? 

A. No. 

Q. So these were verbal arguments the two of them 

were engaged in, right? 

A. Yes. 

Q. And basically what you are telling us today is you feel 

that she was threatened because he called her names like 

slut and whore, bitch, et cetera, things like that; is that 

correct? > 

A. Just fiom the way he was talking and his behavior. 

Q. Not because he had ever threatened her; is that 

right? defendant threaten the victim. 

A. No. 

Q. Because you never heard him threaten her; is that 

right? 

A. No. 

The verbal arguments between the 

defendant and victim were mutual. 

******** 

The victim’s son never heard the 

0 As with the “relationship was fine’’ defense strategy, prosecutors who responded to the 

lack of threats claim focused instead on the nature and circumstances of the offense, the private 

nature of domestic violence and outsiders’ lack of knowledge about that relationship. They also 

focused on an occasional reference to the defendant’s bad temper or “the look” that family or 

friends sometimes saw in the defendant’s eyes. 

3.7.2.6 Defendant was remorseful after offense. A great deal was made of the 

defendant’s remorseful behavior after the offense. The defendant was distraught, crying, 

suicidal, concerned about the victim, somber, very sorry for what he did, or asked the police to 

‘‘shoot him.” 

Some prosecutors anticipating this defense strategy focused on the defendant’s actions 

after the crime, to question whether the defendant was remorseful at all, or whether he was a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 88 a 

simply feeling sorry for himself for being in the predicament of being charged with a crime. For 

example, in a murder case in which the defendant said that he felt badly about killing his 

girlfiiend, the prosecutor emphasized that the defendant made no efforts to get help when he 

realized the victim was dead, and in fact he and a friend had discussed the possibility of 

disposing of her body in a farm field. 

Q. And so then [your friend] goes home, and it's shortly 

after that that you discover that [the victim] is dead? 

A. Yes, ma'am. dead. 

Q. And then it's your testimony that you untie [the 

victim]? 

A. Yes, ma'am. 

Q. And how is it that you untie her? 

A. I cut the ropes. 

Q. And her eyes are looking at you and there's stuff 

coming out of her mouth? 

A. Yes,ma'am. 

Q. And so do you call a medic? Do you run upstairs 

and use the phone? 

A. No, ma'am. for the victim. 

Q. For help? No, you don't, do you?A. No, ma'am. 

Q. Instead, you put her head in a plastic bag with the shrt 

and the sock and you go to [your fiend's] house, right? 

A. Yes,ma'am. 

Q. And at [your friend's], you and [your friend] put 

your plan together to dispose of [the victim's] body? 

A. It come up in conversation, yes, ma'am. the body. 

Q. How did it come up? 

A. We were -- I was sitting on his bed and we were both, 

you know, just freaking out over the situation that I had just 

told him about, that I had found her dead. And we were 

trying to decide what I should do. 

Q. And so did call tk psiice? 

A. No,ma'am. 

Q. Did you call an ambulance? 

A. No, ma'am. 

Q. Did you ever go back to even check on [the victim's] Defendant never tried to get help 

Defendant redizcs the victim is 

Defendant does not ty to get help 

Defendant considers disposing of 

0 welfare? for the victim. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 89 

A. Later. 

Q. Instead, you and [your fiiend] decide that you're going 

to bury [the victim]? Or you're going to put her on their 

family farm in [name of town]? 

A. It was brought up, yes, ma'am. 

a 

When the defendant claimed that he decided that it was a bad idea and would be unfair to the 

victim's family to dump her body, the prosecutor asked him whether the fact that he saw police 

cars at the scene helped to change his mind about disposing of her body. In some cases, the 

prosecutor acknowledged that the defendant expressed remorse, but asked the jury in closing 

argument to hold the defendant accountable for his actions because they were so egregious. 

3.7.3 Evidence Presented in Trial was Faulty, Misleading, or Inconclusive 

In cases where the defense strategy was to go for a lesser charge or to argue that the 

defendant did not commit the crime, the defense spent a considerable amount of time challenging 

the prosecution's evidence. This attack of the prosecution's evidence focused on four particular 

areas: 

3.7.3.1 No witnesses. In a little over half of the cases, there were no witnesses to 

the offense. In these cases, the defense was careful to establish this fact. In one case, the defense 

called 25 witnesses (neighbors, store clerks, acquaintances) to testifL that they never observed the 

defendant abusing the victim in any way. The defense would also try to establish that there were 

no witnesses to any prior zbilqe~ threats or injuries made by the defendant toward the victim. 

Prosecutors whose cases did not include eyewitnesses generally focused on circumstantial 

evidence. Many prosecutors discussed the concept of circumstantial evidence during their a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 90 

closing arguments. In one case when the defense produced witnesses who said they never saw or 

a 

heard any abuse, the prosecutor emphasized that the witnesses had no personal knowledge of 

what occurred in the defendant's household, or that witnesses would be unlikely to hear any 

arguments or physical altercations. 

3.7.3.2 Poor physical evidence. Only a fourth of the cases actually had poor or 

no physical evidence linking the defendant to the crime. Nonetheless, the defense spent a 

considerable amount of time challengilzg the physical evidence. In some cases they tried to 

establish that there could be another cause or explanation for the presence of that evidence. In 

the bombing case mentioned previously, the defense argued that the defendant had possession of 

a mercury switch (similar to the one found in the bomb) in order to perform a home maintenance 

0 task. 

Q. I want to ask you about another item that's come up; it's Bomb material defendant was 

a mercury switch. You heard the testimony of 

[defendant's co-worker] the other day, correct? 

A. Yes, sir. 

Q. Indicated he gave you a mercury switch? 

A. Yes, sir, he did. 

Q. He did? 

A. Yes, sir. 

Q. All right. Why? 

A. I had requested that if he had one, I'd appreciate it. I hadDefendant gives an alternative 

a problem with a sump pump in [town] with a rental 

house I had and I was going to try to make a float 

switch to fix this situation. 

Q. Did you? 

. A. I replaced the sump pump with a brand new one. Defendant pxpI@ns ivitj? 

Q. So the testimony -- I believe it was [the investigator] -- investigators could notfind the 

that there was no switch on that sump pump is correct? switch on the sump pump. 

A. That is correct. 

Q. What happened to the switch? 

A. The switch that [co-worker] gave me? 

known to havepossession oJ: 

Defendant admits he had 

possession of the switch. 

explanation for why he obtained 

the mercury switch. 

0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 91 

Q. Yes? 

A. I broke it apart to get the mercury out of it. 

Q. Why? 

A. I wanted to show my son a scientific experiment. We 

do things like that, like building model airplanes. 

Defendant provides an alternative 

explanation for why the switch was 

not found in his home. 

Prosecutors who seemed to expect this defense took two different tacks. One was to 

focus on the circumstantial evidence that pointed toward the defendant. The other was to do a 

pre-emptive strike, by bringing out the shortcomings of the evidence before the defense could do 

so. In one case, for example, the prosecution brought out evidence that ammunition seized fiom 

the defendant's home did not appear to match the shell casings found at the scene. The 

prosecution then provided a great deal of other evidence collected that did tie the defendant to the 

scene. 

3.7.3.3 Physical injuries were not obvious. As one would expect, the physical 

injuries in the murder cases were all apparent. However, in the non-murder cases the nature of 

the offense sometimes did not involve obvious physical injuries. The defense challenge of the 

seriousness of injuries seemed focused on contesting the elements of a given charge. For 

example, in a willful injury case, the prosecution has to show that the injuries or their effects are 

longstanding, or will take a long time to heal. The defense countered by arguing that the injuries 

were not that serious or were not likely to cause a permanent disability. 

Prosecutors responding to this defense strategy asked the victim to describe the pain 

.- . associated with the injuries, CT by Z&I;: TWCIC'Q i persc*:Lqe! !c describe what happens when a 

person suffers those types of injuries. Prosecutors also asked victims what they were thinking 

about and feeling at the time of the assault. e 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 92 

3.7.4 Police Botched the Investigation 

Although a poor police investigation was evident in only a handful of cases, when there 

were police procedure problems, the defense was meticulous in their attack of the investigation. 

These attacks included accusing the police of contaminating the crime scene, failing to collect 

certain evidence, and challenging the chain of custody of the evidence. 

When the defense tried to put the police on trial, the prosecution generally responded by 

presenting the evidence thoroughly and meticulously. They also asksd police officers to describe 

their training and experience, to emphasize that the police were competent. The prosecutor also 

elicited testimony from the police that, like other mortals, they are not perfect and do 

occasionally make mistakes, which they promptly correct as soon as possible. 

3.7.5 Attacking the Victim’s Character 

One of the most common and aggressive strategies used by defense attorneys in 71% of 

0 

the murder cases and 37% of the non-murder cases involved some sort of attack on the victim. 

These attacks took the form of either a general character assassination of the victim, or more 

specifically turning behavior that the victim engaged in during the relationship or during the 

abuse against her. 

3.7.5.1 General character assa~sination?~ Character assassination involved 

attacking overall victim character by dredging up any negative behavior from the victim’s past, 

such as mental health history, emotional problems, and/or substance abuse. This character 

disparagement of victims varied, with the defense asserting such claims as: the victim was a 

“strong willed person who wasn’t easily pushed around,” the victim had emotional problems, she 

@ could not control her temper, she had sex with other men, or she drank or used drugs. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 93 

Prosecutors expecting a character attack generally tried to litigate the issue pretrial, to 

severely limit the types of victim character evidence that would be admitted. In one case, the 

prosecutor diligently made objections throughout the trial, in an effort to force compliance with a 

pretrial ruling that a victim’s character could not be attacked. In several cases, the prosecutor did 

not object strenuously to the introduction of unfavorable testimony about the victim. This may 

have been because the judge was ruling in favor of the defendant, and the prosecution did not 

want to offend the presiding judge or damage the prosecutor’s credibility with the jury by having 

a series of objections overruled. 

3.7.5.2 Turning the victim’s behavior against her. Another strategy for 

attacking the victim’s character was to turn the victim’s behavior in the relationship or during the 

abuse against her. If she did not attempt to leave the violent relationship, or “call for help” 

during the offense, her credibility or motives were questioned. In one case, the defense 

a 

challenged the victim’s claim that she was genuinely fearful of the defendant by asking the 

victim why she let the defendant move in with her if she was so afraid of hm. 

Q. And it’s my understanding that one of the reasons you tried 

to kill yourself is because you found out that [the defendant] 

was getting released from prison, is that correct? 

A. Correct. Defense implies that victim let 

Q. And yet several months later you allow him to move into the defendant move in and this 

your house, is that correct? contradicts her claims of being 

A. I never gave permission. He just did it. I asked him aJLaid of defendant. 

several times to leave -- 

Q. One last question. This man that caused you so much 

fear that you tried to kill yourself about his release from prison 

in 1993, why did you let him back into your house in 

September of 1993? Can you tell us? 

A. I didn’t let him. I just wasn’t strong enough to stop him. 

******** 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 94 

The character assassination in the non-murder cases seemed to have the intent of 

attacking the overall credibility of the victim’s testimony through showing that the victim had 

emotional problems or possibly some motive for bringing false charges against the defendant. 

The victim was shown to have poor judgment in general or an inability to hction appropriately. 

The overall point was -- “don’t believe her.” 

In the murder cases, the character assassination seemed to have two different.motivations. 

In some cases, the victim’s character was brought into question in an attempt to establish that the 

victim may have provoked the offense. The victim was described as aggressive, could not 

control her temper, or was at times physically abusive. Another motivation was to establish a 

lesser charge conviction, that the victim’s character was so low that her death should not be taken 

so seriously. Here, the victim was painted as mentally disturbed, liked to cause trouble, was a 

hard person to be fiends with, was “whoring” around, spent a lot of time in the bars, or was 

“always drunk, skunkin’ drunk.” 

a 

Prosecutors anticipating this defense strategy focused on the “story of violence” fi-om the 

victim’s viewpoint. For example, in one case involving a victim whose character had been 

impugned, the prosecutor asked a series of questions about the victim’s behavior during the 

offense, which might appear strange to manyjurors. These questions specifically dealt with why 

the victim did not try to get away fiom the defendant, and why she “agreed” to have sex with the 

defendant during the kidnapping. The victim’s explanation for most of her seemingly 

inexplicable actions was that she did whatever she needed to do “to survive.” This became a 

primary theme of the prosecution. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 95 

Q. Jane [pseudonym], did you want to have sex with him? 

A. No. 

Q. Whydidyou? 

A. Tosurvive. Prosecution introduces the 

Q. What made you agree to have sex with him at that 

point? What were the things that you were thmking? 

A. That I wouldn’t survive if I didn’t. 

Q. Was there anything that he had told you that caused you 

to have sex with him at that point? Was there anything that 

you knew about him? 

A. I knew he had told me he had killed these three Victim knew the defendant was 

people in prison. And I knew that he had been violent capable of killizg her, this is why 

in the past. And when he told me how lucky I was that he she needed to survive. 

didn’t take me in the bathroom and drown me, I agreed with 

him. 

Q. What, if anything, did you think about what he had told 

you about the teenage girl that he had raped and kidnapped 

in Arizona? 

DEFENSE COUNSEL: Objection, leading question, 

“survival theme. ” 

__ a Judge. 

THE COURT: Sustained. 

Q. Did you think about anyhng else? 

A. I was thinking -- I was thinking to survive. And I was 

thinlung that it was -- that I really was lucky that he wasn’t 

going to take me in the bathroom and drown me. 

Q. Jane, what things about his past influenced your 

decision to go ahead and have sex with him that night? 

What things about hs past that he had told you influenced 

that decision? DEFENSE COUNSEL: Objection, asked 

and answered. 

THE COURT: Overruled. 

A. Well, Tanya Hill [pseudonym] had survived. 

Q. And who was Tanya Hill? 

A. She was the girl that he had raped and kidnapped in 

Arizona. She was the one he went to prison for. And 

she survived. 

Q. What other things thzt k ha6 told you about FA: ;last, 

Jane, affected your decision? 

A. And the fact that he killed three people in prison. 

Q. What else? 

Another woman victimized by the 

defendant in a similar fashion had 

survived. 

A. And I was trying to survive. All the things he had told 

meand-- 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 96 

Q. All the things that he had told you? 

A. And I just thought that if I go along with this and I’m 

a 

nice to this man and I tell him whatever he wants to hear, 

he will let me live. 

Table 4: Summary of Defense Strategies Used 

Relationshp was Fine 

Character Enhancement of Abuser 

Good guy 

Loved the victim 

Cooperative with police 

Did not intend for bad to happen 

Never threatened victim 

Remorseful after offense 

Evidence Presented at Trial was Faulty 

No witnesses 

Poor physical evidence 

Physical injuries not obvious 

Police botched investigation 

General character assassination 

Turning victim’s behavior against her 

a 

Attachng the Victim’s Character 

* = chi-square significant at .05 level 

** = chi-square significant at .01 level 

Murder (N=21) 

9 42.8% 

5 23.8% 

9 42.9% 

6 28.6% 

8 38.1% 

10 47.6% 

12 57.1% 

11 52.4% 

2 9.5% 

2 ’ 9.5% 

6 28.6% 

12 57.1% 

5 23.8% 

Non-murder (N=l9) 

5 26.3% 

3 15.8% 

2 10.5%* 

3 15.8% 

6 26.3% 

8 42.1% 

2 10.5h 0 ** 

12 63.2% 

8 42.1%“ 

9 47.4%** 

7 36.8% 

7 36.8% 

10 52.6% 

3.8 Summary of Defense Themes and Strategies 

The murder and non-murder cases did not differ significantly on the types of defense 

themes used in the cases. Diminished capacity and arguing the defendest’s imscence were wed 

most often in the murder trials. A “didn’t do it” defense was used in almost half the non-murder 

cases, with going-for-a-lesser-charge being the next most common defense. 0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 97 

There were some significant differences between the two types of cases on the defense 

strategies used. In the murder cases, the defense was more likely to show that the defendant 

loved the victim (42.9% versus 10.5%; chi-square = 5.23, p = .022) and that he was remorseful 

after the offense (57.1% versus 10.5%; chi-square = 9.53, p = .002). In the non-murder cases, the 

defense more often attacked the lack of physical evidence linking the defendant to the crime 

(42.1% versus 9.5%; chi-square = 5.65, Fisher’s p = .028) and argued that the physical injuries to 

the victim were not obvious (47.4% versus 9.5%; chi-square = 7.17, p = .007). 

These significant differences are not surprising given the nature of the offenses and 

elements of the charges in the murder and non-murder cases. Showing that the defendant loved 

the victim may have been an attempt by the defense to garner some sympathy for the defendant 

as well as an attempt to challenge the malice aforethought requirement in the first degree murder 

cases. It is also not surprising that a fair number of murder defendants were remorseful after the 

offense. When the stark reality of the consequences of his actions sinks in, one would expect the 

defendant to feel some remorse. The defense’s highlighting of this remorse may have been an 

attempt to show that the defendant did not premeditate the crime, otherwise why would he be 

sorry for what he did. 

The attack of physical evidence and a lack or injuries in the non-murder cases also fit the 

nature of these cases. In murder cases, the physical evidence is typically quite good because 

these cases are investigated more thoroughly and the victim’s body victim provides substantial 

physical evidence. It is also more difficult if not impossible to argue that the physical injuries to 

the victim were not obvious in the murder cases since the victim is dead. For victim’s in the 

0 non-murder cases, the injuries are usually healed by the time of trial, there may have been poor 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 98 

documentation of the injuries at the time of the offense, and the victim may have difficulty 

describing her injuries due to the trauma of the abuse. Arguing that the injuries were not obvious 

is also a challenge to the elements of some assault charges, such as willful injury in which the 

injuries or their effects must be longstanding take a long time to heal. 

a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 99 

4. ANALYSIS AND DISCUSSION 

4.1 Introduction 

This study is the first comprehensive qualitative content analysis of the trial strategies 

used in domestic violence felony cases. The findings are based on a systematic analysis of trial 

transcripts, rather than on the most common method of trial advocacy training: anecdotal advice 

about how to try a case. Many of the characteristics of these trials are similar to procedures used 

in most criminal prosecutions. These similarities are no doubt due to the fact that Iowa courts 

use the same rules of evidence in all criminal prosecutions, domestic and non-domestic related. 

What was particularly notable in these domestic violence-related cases was the manipulation or 

exploitation of abuse dynamics and myths about domestic violence used as strategies by the 

defense. 

a 

4.2 Defense Strategies, Abuse Dynamics and Myths About Domestic Violence 

Contained in these defense strategies are a manipulation of many of the abuse dynamics 

and myths about domestic violence. Although there is no such thmg as a “typical” case of 

domestic violence, there are recognized common dynamics that occur in abusive relationships: 1) 

domestic violence often occurs in private; 2) the batterer typically isolates his victims fkom 

fiends and family; 3) batterers commonly deny or minimize their abusive behavior; and 4) 

batterers often blame their victim for the abuse. 

Some of the most common myths about domestic violence include: 1) much of domestic 

violence is mutual combat, in which both parties who engage in violence are equally matched; 2) 

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This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 100 

domestic violence is a problem of anger control, or results from the use of alcohol or drugs or 

from the abuser’s mental illness; 3) violence and love are incompatible; and 4) the abuse is not 

that bad or the victim must like the abuse, or she would have left the relationship. 

Described below are some specific examples of the defense manipulations of abuse 

dynamics and myths. 

4.2.1 The Social Isolation Dynamic: No Corroboration of the Victim’s Story 

Kirkwood describes hrw in many abusive relationships the victim is typically extremely 

social deprived. The impact of this social deprivation is intense isolation. The isolation serves to 

cut women off fiom contact with others or the opportunity to develop intimate relationships. A 

consequence of this isolation is that the abusive partner is ensured protection from the influences 

of others who might help the woman see an outsider’s perspective of what the abuser is doing.95 

An additional consequence is that there are likely to be few if any witnesses to the abuse, and the 

woman is very unlikely to have disclosed the history of abuse to others. In many cases the 

defense capitalized on this isolation dynamic in their claims of no witnesses to the offense, no 

evidence of prior abuse, claims that the relationship was fine, and no evidence that the defendant 

had threatened the victim. 

0 

The defense also attempted to capitalize on situations where the victim was having 

contact with family and co-workers but did not disclose any problems or abuse in the 

relationship. Kirkwood would explain this lack of disclosure by women as the result of the abuse 

as well. In her interviews with abused women, they described situations where their subjective 

reality was continually attacked by the abuser. This “constant irreconcilability between what 

women perceived and what their partners maintained eventually led to women questioning the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 101 

validity of their own subjective reality.”96 Thus, even if a woman were having social contacts, 

she would be unlikely to share her perceptions of the relationship with others, once again leaving 

no corroboration of the victim’s accounts of the abusive relationship. 

4.2.2 The Myth that Violence and Love are Incompatible: Showing That the 

Relationship Was Fine 

The defense strategy showing that “the relationship was fine” uses the myth that violence 

and love are incompatible; that is to say, if the relationship is fine, then there must be no violence 

in the relationship. The “relationship is fine” strategy also capitalizes on the common dynamic of 

domestic abuse occurring in private, with few if any witnesses to the batterer’s abusive behavior. 

The social isolation discussed above also serves to maintain the notion that the “relationship was 

fine.” The combination of the abuse occurring in private and the victim being isolated from 

others, assures there will be no witnesses who can testifL about problems in the relationship, with 

the fiu-ther assumption being that “the relationship was fine.” 

0 

4.2.3 The Batterer’s Denial or Minimization of the Abuse 

Batterers use a variety of tactics to avoid responsibility for their abusive behavior. These 

tactics range fiom outright denying the abuse (“it didn’t happen,” “she’s lying”) --- to minimizing 

the abuse (“I never punched her, I just slapped her”) or its impact on the victim (“it didn’t hurt 

that much”) --- to blaming the victim (“she was nagging me”), drugs or alcohol (“I was drunk”), 

or other life circumstances (“I had a bad day”) for the abuse.97 

4.2.3.1 Denial and minimimtion in the defense themes. The four defense 

themes identified in this study: 1) self-defense or provocation; 2) going-for-a-lesser charge; 3) 

diminished capacity; and 4) didn’t do it; all fall within the common denial or minimization 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 102 

tactics used by batterers. Self-defense or provocation involves attributing the violence to the 

behavior or characteristics of the victim (“I was provoked,” “I was defending myself’). The 

going-for-a-lesser charge defense can be seen as minimizing the impact of the abuse on the 

victim. In these cases, the defense was arguing that the defendant did something, it just was “not 

that bad.” Blaming the abuse on alcohol or drugs or other life circumstances (“I have PTSD from 

serving in the military”) were common topics in the diminished capacity defenses. In these 

cases, the defendant was denying personal responsibility for thc abuse because of some sort of 

in~apacitation.~’ The “didn’t do it” defense involved an outright denial of the offense. 

4.2.3.2 Character enhancement of the abuser. Character enhancement of the 

abuser can be seen as a minimization or denial of the abuser’s behavior. This strategy attempts 

to show that the abuse either did not occur or was an aberration, because the abuser is generally a 

“good guy’ or not violent in other aspects of his life. But again, when the abuse occurs in private 

and is only directed at the victim, the defendant’s actions visible to those outside the relationship 

are at odds with his treatment of the victim in the privacy of their home. 

4.2.3.3 No witnesses, weak evidence and poor police procedure. Attacking 

weaknesses in the prosecution’s case also can be seen as a denial, minimization or justification 

claim by the defense. Highlighting a lack of witnesses or physical evidence tying the defendant 

to the crime was an attempt by the defense to argue that either the abuse did not happen or the 

defendant was not responsible for the abuse. While a lack of witnesses might be the result of the 

abuse dynamic of social isolation, jurors unaware of this isolation dynamic, and subsequent lack 

of witnesses to any abuse, may find a “reasonable doubt” about the prosecution’s case. 

a Defense arguments that the physical injuries were not obvious or very serious minimizes 

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expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 103 

the abuse as well. Batterers commonly trivialize the effects of their abuse on their victims. In 

fact, batterers who minimize severity also tend to minimize the frequency and effects of the 

abuse, regardless of who they viewed as responsible for the abuse.99 

Attacking police procedure during the investigation and collection of evidence also can 

be seen as an attempt at denial or minimization. One defense attorney went so far as to argue 

that, if the police had not engaged his client in a high speed chase after he shoplifted food at a 

grocery store and threatened store employees with a gun, the defendant would not have shot hs 

wife in the head when finally stopped by police. 

4.2.4 Attacking the Victim’s Character 

The defense manipulation of abuse dynamics was particularly apparent in the victim 

character assassination. The victim’s weaknesses were maximized in an effort to undermine her 

credibility and challenge the prosecution’s evidence. In murder cases, this character 

assassination was easier to accomplish because the victim was not available to rebut these 

claims. 

0 

Batterers commonly attack their victim’s character as a way of maintaining their power 

and control. loo Batterers use a combination of emotional and physical abuse on their victims. 

Battered women describe how the physical abuse committed by the partner carries the emotional 

message that the victim is of such low value as to be considered useless.”’ The defense 

sometimes used character assassination to suggest that the crime was not as serious (a lesser 

charge should be considered) simply because of the victim’s shortcomings. Sometimes character 

assassination was used in connection with a self-defense -- exploiting the mutual combat myth -- 

but character assassination was used regardless of the defense theme. The defense seemed to 

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This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 104 

seek a “discount” by the jury, if the victim’s low stature were established. This is consistent with 

previous research on rape prosecutions, in which charging decisions were based on the “worth” 

of the case, and adverse victim characteristics lowered the “value” of a rape case.lo2 The general 

character assassination of victims during the trial is a sad parallel to the abuse the women already 

experienced at the hands of their abusers. 

e 

Parallels between the women’s experiences during the abuse and the defense’s attack of 

the victim’s behavior at the time of the offense also are apparent. In many of the cases, the 

defense challenged the victim’s lack of self-defense or protective action taken before or during 

the offense; the assumption here being, if she were really in such danger, she would have tried to 

escape or call for help. The abuse dynamic being manipulated and distorted in these cases is the 

victim’s fear of her abuser. Abused women describe how the shock of the first assault, and the 

unpredictability and un-preventability of subsequent assaults creates an atmosphere of continual 

danger, anxiety and fear.’03 The reason an abused woman might not try to escape is that she was 

experiencing real fear not necessarily based on what the abuser was doing at the moment, but on 

what she knew he was capable of doing. As Kirkwood points out, “the commonly raised question 

of why a woman does not leave an abusive partner during periods in which she is not physically 

restrained defines the issues in physical terms and ignores broad dimensions of control enacted 

through emotional or mental rnean~.””~ Most people fail to understand the sum total of the 

abuser’s power brought to bear in controlling the victim. The abuser may use his powers of 

persuasion, his sensitivity to her vulnerabilities, his physical strength, as well as other personal 

resources, such as access to family income, greater economic opportunities for men, to exert 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 105 

4.3 Jury Decision Making 

To understand the potential implications of this exploitation of abuse dynamics by the 

defense, one needs to consider these findings in light of research on how jurors make decisions 

about guilt or innocence in criminal trials. Researchers have developed a number of theories 

about decision making by individual jurors and by juries as a whole. Although many researchers 

do not specifically explicate the decision theory underlying the jury model, it is instructive to 

discuss general decision making theory before addressing particular juror decision making 

theories. 

4.3.1 Formal Decision Making Theory 

Decision making is the process involved when a problem is presented, identified, and 

resolved. Decision making is not always a conscious process. We are not always aware of the 

decision makingpoint at the time the decision is made. Sometimes hindsight, or reflecting back 

on a major decision, shows the point at which a determining decision was made.lo7 

a 

Decisions often flow fiom a decision-making “tree,” with many branches representing the 

range of azternative decisions that are made in a given situation. Individuals cannot consider 

every possible alternative, because of cognitive limitations and, often, time limitations. When 

faced with a host of alternatives, a decision maker uses a value system to rank the relevant 

attributes of each decision alternative. Different values are ascribed to each attribute according 

to the decision maker’s value system.lo8 Thus, a decision maker’s value system does appear to 

play a role in the decision making process. 

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This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 106 

4.3.2 The Role of Values in Individual Decision Making 

Svenson suggests that the importance of values varies with the type of decision made, the 

109 In decision maker’s earlier experience, and the importance of the decision being made. 

straightforward, simplistic decisions involving a problem similar to a once resolved problem 

(what to have for dinner tonight, for example) the decision maker usually makes no explicit 

reference to his or her value system. As the complexity of the decisions to be made increases, the 

decision maker will begin to evaluate the attribgtes of a problem in light of how he or she usually 

values those attributes, at times creating new decision alternatives.’” At the highest or most 

complex level of decision making, the decision maker faces a “new and unfamiliar decision 

problem in which the alternatives have to be elicited or created,” in which the decision maker has 

to go “beyond the immediate present in terms of values and facts.”l l1 

. 

a 

Decision makers engage in all these levels of decision making, according to the type of 

problem presented and the decision maker’s experience. In summary, the more frequent and 

routinized the decision, the less likely it is that the decision maker will assess the decision in 

light of his or her value system.’12 

4.3.3 Juror Decision Making 

Formal decision making theory is instructive in understanding how decisions are made. 

However, it may not account for all of the variables in juror decision malung, in part because of 

the constraints on decisions to be made by jurors (a dichotomous choice of guilty or not guilty) 

and in part because of the group nature of the juror decision making process.’ l3 iwimy scholars 

have studied the process of juror decision making, including overall models of decision making, 

as well as studies of potential influences on juror decisions. 

This document is a research report submitted to the U.S. Department of Justice.

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expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 107 

Pennington and Hastie identified the various components of a jury’s decision making task 

based on the progression of a trial. They point out that jurors come to the task without 

knowledge of what they will be asked to decide, or what information they are provided in making 

the decision. Jurors are presented with bits of information in various forms, at different times, 

with differing degrees of formality and varying amounts of explanation. The jurors must take all 

of the information they receive in the trial and, using their internal value systems to interpret and 

underatad the information, they must make a decision about guilt or innocence.’ l4 

In analyzing juror decision making, then, the theory must take into account the various 

forms in which information is presented, as well as the means used by jurors to interpret the 

information and arrive at a decision. The criminal procedures of a trial constitute “external” 

sources of data or information presented to jurors. These procedures include: (1) the indictment 

or formal charging document read to the jury at the beginning of a trial; (2) the defendant ’s plea 

to the charge; (3) the opening statement by the prosecution, which summarizes the testimony the 

prosecution expects to introduce at trial; (4) the opening statement by the defense, which serves 

the same purpose of summarizing expected defense evidence or responding to the prosecution’s 

case; (5) the testimony by witnesses generally comprises the largest portion of the trial; (6) the 

closing argument by the prosecution, which includes the initial closing argument and any rebuttal 

argument made after the defense closing argument; (7) the closing argument by the defense, 

which provides the defense arguments regarding the evidence presented and the inferences that 

might be drawn; (8) thejury instructions mgardingprocedure to be used during jury 

deliberations which instruct the jury regarding the presumption of innocence, the prosecution’s 

burden of proof, the consideration of evidence that was admitted at trial, the assessment of 

a 

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expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 108 

credibility of witnesses, and the application of the standard of proof; and (9) thejury instructions 

regarding verdicts which outline the possible verdicts and instruct jurors that the verdict must 

comport with evidence about identity, intent, and actions of the defendant.’15 

Characteristics of individual jurors provide the “internal” sources of data in criminal 

trials.116 The jurors will consider the external sources of data in light of their internal thought 

processes when they make a decision about guilt or innocence. 

4.3.4 The Story Model in Jury Decision Making 

The “story model” of decision making in the trial procedure is the most well developed 

model ofjury decision making.”7 It suggests a way in which jurors may absorb a large quantity 

of information and organize it in a way that allows them to reach a verdict at the close of the 

case. Pennington and Hastie posit that jurors construct a story, based on both the evidence 

presented and the juror’s own life experience.’” That is, jurors “fill in the blanks” of the story, 

consciously or unconsciously, based on their own life experiences. 

In their story model, Pennington and Hastie summarize the process by which an ideal 

juror obtains and uses information in making a deci~ion.’’~ They describe the process by listing 

the various “tasks” of jurors in reaching a decision. 

First, jurors must encode the trial contents. Jurors are asked to suspend judgment and 

evaluation until after all of the evidence is in and the trial judge has given the jury instructions. 

This is unlikely to occur in reality, because jurors cannot retain all of the information presented, 

they may give different weight to the various pieces of evidence, and they may find it difficufi to 

organize the evidence in a meaningful way. 120 

0 Second, jurors must establish judgment categories based on the legal principles set out in 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 109 @ 

the court's jury instructions. The categories can be defined as identity, mental state, 

circumstances and actions. This complex task may be even more dif'ficult because jurors may be 

influenced by their preconceived (and often erroneous) assumptions based on media portrayals of 

criminal trials.'21 

Third, jurors must select only the evidence that was actually admitted at trial. Again, 

jurors are instructed to consider only the admissible evidence presented at trial, rather than the 

fact that the charge was brought, the opening statements and closing arguments of both parties, 

the behavior of the attorneys or the judge at any time during the trial, and any evidence deemed 

to be inadmissible. 122 

Fourth, jurors must construct a plausible sequence of events. Jurors will simultaneously 

0 construct a sequence of events, evaluate credibility and evaluate the implications. In essence, 

Pennington and Hastie posit that the juror constructs a plausible sequence of events (a story), 

evaluates the story for believability, and tests whether the story supports a finding of guilt of the 

Construction of a sequence of events, according to Pennington and Hastie (198 1) is 

essentially fitting the evidence into a story model: 

In constructing the story, the ideally thorough juror would (a) include each piece 

of evidence in appropriate temporal or causal sequence, coordinating appropriate 

observations made at the time of the trial with behavior that occurred at the time 

of the events reported; (b) give equal regard to evidence throughout the trial 

(evaluation for credibility will result in discounting some evidence, but no 

eviderce should be discounted because of the particular time in the tria! period .r! 

which it occurs); c) include alternative event representations when ambiguities are 

created by the nature of the event reported, by information that is left out, or by 

contradictory information; and (d) make use of appropriate world knowledge to 

construct a reasonable and causally coherent account of the events in question.lZ4 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 110 

Fifth, jurors must evaluate the evidence for credibility, at the same time that the juror is 

constructing the sequence of events and drawing inferences. This is based on two witness 

attributes: “credibility of the statement (how likely it is that it is true) and the probity of the 

statement (its implications for guilt in terms of mental state, identity, actions, or 

circm~tances).”’~~ Probity and credibility are closely related, and a juror’s evaluation of 

credibility is closely tied to the juror’s assessment of inferences. 12‘ 

Several factor Sear on a finding of credibility: (1) opportunity (for the witness to know 

about the subject of the testimony); (2) bias, either a personal interest in the outcome, or a 

general attitude; (3) consistency of a particular witness’s testimony; (4) character of a witness 

that bears on the ability to tell the truth; (5)pZausibility, that is, whether it is expected or 

unexpected in the context in which the events occurred; and (6) inter-witness consistency, either 

direct or indirect.’27 The inference of credibility, based on these factors, should lead a juror to 

0 

believe or disbelieve testimony presented, and is done in conjunction with the evaluation for 

implications and simultaneously with the construction of a story.’28 

Sixth, the juror must evaluate the story for implications of the evidence. This task is what 

Wigmore referred to as evaluation of probity, that is, what impact the evidence has on the 

decision regarding guilt. Pennington and Hastie cite four dimensions bearing on guilt: “identity, 

mental state, actions, and attendant circ~msfances.~~~~~ 

Evaluation for implications involves inferential processing to interpret the story 

events with respect to the overall plans, gods. integtions, aid ~nntivatians eftbe 

principal participants. These interpretations serve as a backbone, gwing the story 

causal and thematic ~oherence.’~’ 

Thus, the juror constructs what seems to be a plausible story, based on the juror’s life experience 0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 11 1 

and the evidence introduced at trial, and then reassesses that story in a more formal fashion, 

taking into account the legal standards that are set out during the trial. 

Seventh, the juror must make a judgment about guilt, in light of the presumption of the 

defendant’s innocence and the prosecution’s burden of proof beyond a reasonable doubt. It is, 

in essence, a test of hyp0the~es.l~~ 

Using this overall framework of analysis, then, Pennington and Hastie posit that jurors 

construct a story, based on the evidence presented and the juror’s own life experience. Tky 

provide this example: 

“Billy went to Johnny’s birthday party. When all the children were there, Johnny 

opened his presents. Later, they sang Happy Birthday and Johnny blew out the 

candles.” Many listeners will infer spontaneously, and most will agree when 

asked, that there was a cake at the birthday party. Yet, no cake is mentioned in the 

sentences above; indeed, it is not certain that there was a cake. The cake is 

inferred because we share knowledge about birthday party traditions and about the 

physical world (the candles had to be on something).”132 

The “story” is evaluated in two very different ways. First, the juror evaluates the story 

based on the juror’s personal life experiences. Second, the juror evaluates that personal 

interpretation based on the legal standards set out by the judge in the instructions. 

In the personal evaluation phase of decision making, the juror combines the evidence 

admitted at trial with the juror’s knowledge and experience with similar events and, using the 

juror’s ability to construct stones based on common life experiences, constructs various “stones” 

0 of what may have occurred.’33 The juror will assess whether the stories appear to be true, based 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 112 

on whether the story is plausible (makes sense, based on the juror’s experience and the witness’s 

explanations) and ~omp1ete.l~~ Thejuror then tentatively accepts the version of the story that 

seems most complete and most plausible, and tests it based on legal standards. 

The second phase of decision making involves this application of legal standards to the 

story that the juror has tentatively accepted as true. The governing legal standards are established 

by the judge’s instructions, as well as on the juror’s prior notions of what constitutes a crime.’35 

That is, the juror interprets the judge’s instructicrs though the lens of life experience. The juror 

uses the verdict categories provided in the instructions to evaluate the story that had been 

tentatively accepted as true. The juror examines the various verdict categories that are possible, 

taking into account the proof of identity, mental state, actions and circumstances, and tries to 

match the story that the juror tentatively accepted with the legal principles. If the story does not 

match, then the juror will either re-examine the story or re-examine the governing legal 

principles and re-evaluate. If the story that the juror has constructed is consistent with one of the 

verdict categories set out by the judge in the instructions, then the juror will conclude that the 

verdict is appropriate in the circumstance^.'^^ 

Thus, if the juror constructs a story that is consistent with the legal requirements for the 

identity, mental state, actions and circumstances necessary for a guilty verdict, the juror will 

accept that verdict and find the defendant guilty. Similarly, if the juror constructs a story that is 

at odds with the elements of the crime, then the juror will conclude that the verdict category that 

most closely approximates the juror’s view of events is the verdict of a~quitta1.l~’ 

Various stories might be constructed by the juror, and the particular story accepted may 

0 depend on three “certainty principles”: (1) “coverage,” or the “extent to which the story accounts 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 113 

for evidence at trial”; (2) “coherence,” or the “consistency, plausibility and completeness” of the 

story; and (3) “uniqueness,” or the juror’s conclusion that only one story is ~oherent.’~’ 

After the juror has constructed a story and comprehended the verdict categories, the juror 

must make a decision. Pennington and Hastie suggest that ths is done by “either (A) 

construct[ing] a single ‘best’ story, rejecting other directions as they go along or @) 

construct[ing] multiple stories and pick[ing] the best,” or, if neither applies, then picking a 

default verdict. 13’ 

4.3.5 Testing the Story Model 

Pennington and Hastie tested their story model and found support for it.’40 They 

interviewed 26 adult subjects who were sampled fkom a pool of volunteers called for jury service 

@ 

in Massachusetts. The subjects were shown a videotaped enactment of a simulated trial based on 

the following account of events: 

[The defendant, Frank Johnson], and the victim, Alan Caldwell, had a quarrel 

early on the day of Caldwell’s death. At that time, Caldwell threatened Johnson 

with a razor. Later in the evening, they were again at the same bar. They went 

outside together, got in a fight, and Johnson knifed Caldwell, resulting in 

Caldwell’s death. The events under dispute include whether or not Caldwell 

pulled a razor in the evening fight, whether Johnson actively stabbed Caldwell or 

merely held his knife out to protect himself, how they got outside together, 

whether or not Johnson intentionally went home and got his knife, whether 

Johnson went back to the bar to find Caldwell or went to the bar because it was 

his habit, etc.I4’ 

The subjects were told that an actual jury had decided the case, and they were asked to “be one of 

thc jlworqyy and reach a decision on the verdict. The jurors could rhoose frmi four verdicts: nc! 

guilty, guilty of manslaughter, guilty of second-degree murder or guilty of first-degree murder. \ 

The jurors were then interviewed at length about their decision making processes. They were 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 114 

asked to articulate events and relationships based on the evidence presented, and their responses 

were coded to show whether the jurors’ responses resulted fkom evidence presented or from 

inferences from the evidence. Then their responses were graphed to show how the evidence was 

analyzed and 1ir~ked.l~~ 

a 

They found that jurors’ accounts of events were more in the form of a story (“Johnson 

was angry and so he decided to kill him”) rather than in the form of an argument (“Johnson was a 

. violent man. That makes me think he intended to kill him.”) Moreover, about 55% of the 

references to important facts were to events included in the testimony, while fully 45% of the 

references were to inferred events -- “actions, mental states, and goals that ‘filled in’ the stories 

in episode configuration.’9143 

In addition, jurors who reached the same verdict generally agreed on the underlying story. 

In fact, agreement reached 80% for some verdicts. Jurors who reached the same verdict adopted 

similar stories, and jurors who reached different verdicts relied on different stories. There was no 

indication that jurors who reached different verdicts forgot important legal principles that would 

affect their verdicts; instead, it appeared that they relied on different stories. 144 

0 

In another set of studies, jurors were given written summaries of the same cases presented 

in the first study and then subjects were given a memory recognition test, to see what information 

they recalled from the case. The materials were developed fkom the content analysis of the first 

study, and included some sentences that were unique to each verdict story in the first study (e.g., 

the sentence “Johnson stabbed Caldwell” wzs present in the first-degree murder story but not in 

the not-guilty verdict story). The memory recognition test included some sentences that were not 

part of the evidence presented but were inferences made as part of the verdict stories in the first 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
a 

study. 14’ 

Prosecution Strategies in Domestic Violence 115 

The subjects were more likely to recognize evidence consistent with their verdict -- 

whether it was a true statement of the evidence presented, or a false lure based on inferences 

consistent with the story. Pennington and Hastie concluded that the subjects not only constructed 

stories in their decision making process, but that they did so spontaneously rather than as a result 

of the interview process.146 

In another set of experiments, Pennington and Hastis vx5ed presentation order and 

witness order so that it would be easier to construct a story that favored either the defense or the 

prosecution. In the “story order” presentation, jurors heard the evidence “in a temporal and 

causal sequence that matched the occurrence of the original events,’’ whereas the “witness order” 

presentation was based on “the sequence of evidence as conveyed by witnesses in the original 

Mock jurors heard a tape recording of a 100-item version of the case (50 prosecution 

@ 

fria1.w147 

statements and 50 defense statements) and a judge’s charge to find guilty or not guilty verdict.148 

These studies also supported the story model theory. The mock jurors found the 

defendant guilty in 78% of the cases when they heard the prosecution evidence in story order and 

the defense evidence in witness order. Only 3 1 % found the defendant guilty when the 

prosecution evidence was presented in witness order and the defense evidence was presented in 

story order. *49 Pennington and Hastie conclude that “the uniqueness of the best-fitting story is 

one important basis for confidence in the fiury] decision.”150 Moreover, jurors who heard both 

the prosecution and the defense case in story order were more confident of their verdicts, no 

matter what those verdicts were. Pennington and Hastie concluded that “completeness, 

0 coherence, and uniqueness of the best-fitting story would predict confidence in the correctness of 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
a 

the verdicf.”lS1 

Prosecution Strategies in Domestic Violence 116 

Finally, another set of studies indicated that an algebraic equation that weighted evidence 

consistent with the story model was a significantly better predictor than a Bayesian model or an 

algebraic anchor-and-adjust model for decision making. Although the anchor-and-adjust 

algebraic model predicted item-by-item judgments, global judgments were better predicted by the 

story model.’52 

4.4 Juror Decision Making and the Dyzamics of Abuse 

The general principles of decision making theory and the more specific principles of the 

story model of juror decision making have important implications for domestic violence-related 

prosecutions. These theories suggest that jurors’ decisions in domestic violence cases depends 

on jurors’ preconceived notions about domestic violence. Their knowledge about domestic 

violence affects their assessment of the decision alternatives. Thus, if jurors accept the 

commonly held myths about domestic violence, they may “fill in the blanks” with an unrealistic 

0 

view of the violent relationship, and their evaluation of the evidence (the decision alternatives) 

may be skewed. 

Consider again the example of the birthday party. Suppose the jury is told the “birthday 

party story”: 

“Billy went to Johnny’s birthday party. When all the children were there, Johnny 

opened his presents. Later, they sang Happy Birthday and Johnny blew out the 

candles.” 

Given this story, most jurors will infer that there was a cake at tile birthday party. But 

very different conclusions might be drawn ifjurors were told that Billy and Johnny practiced 

animal abuse, including a birthday ritual in which animals in cages were surrounded by burning 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 117 a 

candles, then lit afire as the “Happy Birthday” song was sung. 

What would appear to be a description of an ordinary event may take on very different 

meaning if jurors were given the context of the events. The same may be true for violent 

domestic relationships, with outward manifestations of normality that take on very different 

meaning when the private violence is described. 

We would argue that jurors need information about the context of the abusive 

relationship. This is because domestic violence is not a commonly understood phenomenon that 

calls for routine decision making. Rather, it may be necessary to explain how violent 

relationships differ from non-violent relationships, how cycles of violence affect interactions, and 

how victims put in a powerless position may respond differently from persons in a more 

egalitarian relationship. Given that many of the attributes of a violent relationship are unlike 

those of a non-violent relationship, jurors may be asked to assess evidence that they genuinely 

believe that they understand, but that they actually do not. 

a 

For example, evidence about “other or prior acts” helps put the violence in perspective. 

Jurors who know that an abuser was previously convicted of domestic abuse assault may be less 

willing to dismiss the current charge as an aberration, or they may be better able to understand 

why a victim acted in the way that she did. Sometimes victims act in what appears to be an 

irrational way, but when they describe their thought processes, it becomes clear that the victim 

was interested in survival. For example, a victim who is held hostage may not ask for help at the 

first opportunity because she is uncertain that she wiii be believed or that she can escape 

successfully. Instead she may choose to wait for another opportunity to escape when she feels 

@ that it is safer for her to leave. An understanding of the previous acts of violence in the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 118 

relationship may put that victim’s actions in context. The jury may conclude that, rather than 

evidencing a lack of fear of the abuser, the victim’s actions evidenced a legitimate fear of him. 

Similarly, evidence about a victim’s character may be misleading in the context of a 

violent relationship. For example, a victim uses illicit drugs because the abuser has coerced her 

to use them, with an implied threat of violence if she does not comply. Then at trial, the abuser 

presents evidence that the victim was a drug user who lied about the abuse in order to gain some 

benefit, and therefore is not a credible witness. 

4.5 Prosecution Strategies, Telling the Story, and the Dynamics of Abuse 

What is commonplace experience for domestic violence victims may not be 

commonplace for jurors who hear the evidence. Therefore, it is up to the prosecution to assist the 

juror’s understanding of these dynamics through “telling the story” of domestic violence. 

a 

Criminal prosecutions focus on a specific incident, rather than on an ongoing relationship 

between the offender and victim. This means the use of “relationship” or “context” evidence 

generally is viewed with skepticism in a criminal prosecution. Motive is not an element of the 

crime that must be proven, although it may be relevant to the case. Often the story told is a 

limited story about an isolated incident. In cases where the offender is a stranger, this is an 

accurate story, because the crime is an isolated incident. In domestic violence cases, however, 

the incident by itself is not an adequate unit of information. Context information about the 

relationship or prior abuse completes the story and can dispel some myths about domestic 

violence. 

Given the likelihood that jurors may misunderstand a violent relationship, evidence about 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 119 

other acts helps put the violence in context. However, courts are reluctant to allow “other acts” 

evidence. This judicial reluctance, combined with an often-hostile attitude toward domestic 

violence cases means that prosecutors face an uphill battle in having other acts evidence 

admitted, according to the prosecutors in the focus groups. Prior acts or relationships often are 

viewed as irrelevant to the incident charged, and are admitted only in limited circumstance^.'^^ 

In contrast to most criminal cases, context is critically important in domestic violence cases. A 

victim’s decisions and actions are strongly influenced by the ongoing violent relationship. Even 

when the abuser makes no explicit threat, the victim often is fearful nonetheless, based on prior 

experiences with the abuser. “Other acts” evidence also has the potential to be legally 

detrimental to a domestic violence victim when it is used against her. Some victims fight back, 

some are charged with criminal offenses themselves, and the “mutual combat” defense is a very 

real possibility. In addition, “other acts” evidence may be relevant in the context of character 

evidence which can be used to the benefit of either the prosecution or the defense. 

e 

Despite the perceived reluctance of courts to adrmt “other acts” evidence, many judges in 

the cases analyzed allowed evidence of the prior abuse. Sometimes the prior abuse was admitted 

through proof of prior convictions, but often the abuse was shown by direct or indirect reference 

to a pattern of abuse. Direct references included descriptions of specific prior incidents 

(generally admitted as “other acts” evidence under Rule 404(b)). Indirect references to prior 

abuse were made by the description of the abuse “this time” or by referring to the victim’s 

previous bruises or other injuries. 

“Telling the story” by explaining the context of the violence during the prosecution can 

0 serve to educate jurors about abuse dynamics and dispel the common myths about domestic 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 120 

violence that jurors may hold. It can make the prosecution’s “story” more plausible than the 

defense “story” of events. 

0 

4.6 Other Methods of Education Used by Prosecutors 

Prosecutors in the focus groups reported that they attempted to educate the jury about 

domestic violence during the jury selection process. Very few jury selection procedures were 

transcribed in the cases in this stndy, so it is not possible to test that assertion. However, most 

reported jury selection proceedings demonstrated only limited “education” components by the 

prosecution, and somewhat more “education” components on the part of defense counsel. 

Prosecutors attempted to challenge myths and preconceived notions about domestic violence, 

whereas defense attorneys reinforced myths through their questioning ofjurors. The nature of 

the jury selection process (questioning of jurors) provides only limited opportunities to change 

attitudes, beliefs or values. In fact, jury selection is better suited to the identification and 

reinforcement of existing attitudes, beliefs or values. Moreover, any education during the jury 

selection process is limited by time constraints and often by judicial constraints. 

4.7 The Role of Expert Witnesses in Educating Jurors 

The use of expert testimony would be the most direct method for “educating” jurors about 

the dynamics of domestic abuse.*54 In order to admit expert testimony on domestic violence, the 

prosecution must first show the qualifications of the expert. The9 the information on which the 

expert’s opinion is based must be established. The prosecution also would need to show that: (1) 

0 the subject is beyond the understanding of the average lay person because it is distinctly related 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 121 

to some science, profession, business or occ~pation’~~ and (2) the expert witness has such skill, 

knowledge or experience in that field that their opinion probably will assist the 

Decisions about the admissibility of expert opinion evidence lie within the discretion of 

the trial In 1997, the Iowa Supreme Court for the first time approved the use of expert 

testimony on battered woman syndrome. In State v. Grzfin the victim was the common law wife 

of the defendant. On the night of the assaultkidnapping, she and the defendant had gone to a 

motel room and smoked crack cocaine. The defendant ordered the victim to remove her clothing, 

so that she would not run away. He held her in the motel room overnight and repeatedly raped 

and physically assaulted her. She made several attempts to have her sister come to the motel 

room to help her escape, but the defendant prevented it. After the event, the victim was taken to 

the hospital, where she gave a statement about the kidnapping and assault. She later recanted 

that statement, but testified for the prosecution at trial, consistent with the statement she gave at 

the hospital. 

The prosecution called an expert witness to explain battered women’s syndrome, and the 

effect that it may have on a victim’s reluctance to testify against her abuser, which was relevant 

to explain the victim’s recantation. The Grzfin court found that the expert testimony on battered 

women’s syndrome was appropriate because: (1) the testimony was relevant to explain why a 

domestic abuse victim might recant; and (2) the expert gave no opinion on the victim’s 

credibility. The Grzfin court found that the testimony helped to explain a matter that might not 

be within the realm of aderstanding of jurors. Iowa has a tradition for “liberal” admission of 

opinion testimony “if it will aid the jury in screening the properly admitted evidence to ascertain 

the truth.”’58 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 122 

The presentation of expert testimony about the dynamics of domestic violence occurred in 

only two cases analyzed in the study. The expert testified about domestic violence dynamics 

generally, and did not provide an opinion regarding the particular victim in either case This type 

of evidence is important because the experience of domestic violence may be beyond the 

experience of the typical jurors who hear the evidence. Thus, jurors may mistakenly consider 

some evidence to involve a routine decision, when in fact, their lack of knowledge about this 

type of relationship means that the evidence requires a more ia-depth analysis of an unfamiliar 

decision problem. The expert testimony of domestic violence advocates helps the jury to 

understand the context of the victim’s actions. Because only two cases involved the use of a 

domestic violence expert, it is difficult to draw any solid conclusions about the benefits of expert 

testimony. In one of the cases, the defendant was convicted as charged (with a class A felony, a 

serious crime); in the other case, the defendant was convicted of a misdemeanor assault rather 

than a low-level felony offense. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 123 

5. CONCLUSIONS AND IMPLICATIONS OF FINDINGS 

This section addresses the implications of the findings, limitations of the research, and 

implications for future research. 

5.1 Implications for Criminal Justice and Domestic Violence Fields 

The study identified categories of trial strategies and themes used by prosecutors and 

defense attorneys who try domestic violence felonies. The findings of this in-depth, qualitative 

analysis of 40 domestic violence related felony trials have important implications for the criminal 

justice and domestic violence fields. 

5.1.1 Use of Expert Testimony 

As described above, we would suggest that the use of expert witnesses in domestic 

violence related trials should be seriously considered. We are suggesting a use of expert 

testimony similar to the use of Rape Trauma Syndrome (RTS) by the prosecution in rape trials. 

RTS is typically used to support the victim’s claim of rape by showing that her behaviors and 

reactions are consistent with her ~1aim.l~~ In the cases in this study, defense counsel routinely 

attempted to exploit the jurors’ misunderstanding of domestic violence by presenting defenses 

that took advantage of, or even promoted, typical myths and misperceptions of violent 

relationships. Although prosecutors in the focus groups said that they attempted to educate the 

jurors during the jury selection process, the educational potential is very limited in that setting. 

To undo centuries of societal acceptance of domestic vioience in a short period of questioning of 

prospective jurors is asking the impossible. 

a 

Based on the theory behind the “story model” of juror decision making, expert testimony 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 124 

about domestic violence challenges jurors to rethink their decision making processes. Jurors may 

realize that, if their experience and orientation is based on non-violent relationships, they may 

not be able to apply their own knowledge of the world to the “story” of a violent relationship. 

Instead of basing their decisions on “domestic violence stories” that are steeped in myth and 

misperception, they usually will reformulate their own view of the world and better understand 

and accept the “story” of violence that is presented by the prosecution. 

e 

Iowa courts have adopted liberal standards for the admission of expert testimony, ad 

have approved the use of expert testimony by a domestic violence victim advocate. However, 

the same result may not occur in other jurisdictions with a stricter standard for admissibility. 

Jurisdictions applying either a Frye standard16’ or a Daubert standard’61 may require a much 

stronger scientific basis for the expert’s qualifications or basis of knowledge. Many battered 

women’s advocates cannot satis@ this exacting criteria, because their expertise is based on 

experience rather than on scientific study. 

a 

The use of expert testimony to explain a crime victim’s actions actually constitutes a 

“second wave” of expert testimony about domestic violence. The “first wave” of expert 

testimony came in the form of experts who testified about the effects of “battered woman 

syndrome” on women accused of killing their abusers.16* 

Reliance on expert testimony about battered woman syndrome was criticized for several 

reasons. First, the testimony was seen to encourage “sex stereotypes of female incapacity” by 

focusing on “the passive, victimizcd aspects of battered women’s experience^."'^^ Courtsthat 

relied on women’s “handicaps” to excuse their behavior were “shaped by patriarchal 

solicitude.”164 Moreover, the “typical” battered woman syndrome fails to account for the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 125 

experiences of AErican-American women who are battered.’65 

Even more fimdamental, traditional self-defense law requires that the defendant’s lethal 

blow occurs only when the defendant is faced with an “imminent” or “immediate” threat of death 

or serious injury. This narrow view of self-defense, with the implicit assumption that defendant 

and victim are equally matched, fails to account for the experience of women in a violent 

relationship. The typical physical stature of men and women suggests that women and men are 

not evenly matched. Some research suggests that “physical power is an important factor in 

violent disputes.”’66 Weapons help to balance the power, and women tend to use weapons when 

they inflict injury on an intimate.’67 But many battered women lack easy access to weapons, so 

they do not have the opportunity to equalize power with their abusive intimate without advance 

planning or preparation. a 

Most courts, in adopting the battered woman syndrome defense, essentially carved out an 

exception to traditional self-defense law. This was because women’s “handicaps” made them 

different fkom men. The result was to reinforce traditional stereotypes of female criminals as 

“crazy or helpless or both.”168 The focus was not on justification of the battered woman’s 

actions, but on an “excuse” for her actions, not on the “complex experiences of battered women,” 

but on the woman’s defects or inca~acity.’~~ Zn short, the “battered woman syndrome” defense 

was criticized because it was not a good “fit” in self-defense law, and was based in part on 

stereotypical views of women. 

The second wave of expert testimony is not fiaught with the same problems. The second 

wave of expert testimony is designed to provide general information about the violent 

relationship, not to provide any psychological assessment of a particular battered woman. The 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 126 

focus is not solely on the battered woman, but rather on the dynamics of the relationship. Rather 

than addressing only the negative effects of the abuse on the victim, the expert focuses on the 

abuser’s purposefil actions and their logical consequence^.'^^ One advocate who has provided 

expert testimony in a number of cases reported that abusers are strongly opposed to the use of 

expert testimony. This is because “they know that I understand what they are doing to control the 

woman in the relationship, and they do not want me to name their behavior in front of the judge 

or the jury.’9171 As contemplated by the Iowa Supreme Court in Grzfin, the expert testimony is 

designed to provide background or context to the violent relationship, not simply to assess the 

victim’s state of mind. This limited use of expert testimony may reduce, though not necessarily 

eliminate, the risk of victim blaming.172 

In addition, expert testimony contemplated by the court in Grzfin does not include 

testimony by a domestic violence advocate who has a client relationship with the battered 

woman. Rather, the expert is unrelated to the case and obtains all information about the case 

fiom the prosecutor, not the victim. This reduces the likelihood that a battered woman’s 

confidential relationship with an advocate would be compromised. 

.i 

The use of expert testimony, however, is not without danger. Courts allowed testimony 

about battered woman syndrome, but justified the admission based on negative stereotypes about 

~0men.I’~ Therefore, it is possible that expert testimony on the dynamics of abuse could be used 

to promote negative stereotypes about women, or to portray women as psychologically 

unbalanced, or to further victimize battered women by blaming Oiem €or the violence. That is 

not the use that is intended by the language of the Iowa Supreme Court’s opinion in Grzfin, or by 

a the Gr@n prosecution’s use of the expert testimony in that case. In Gr@n, for example, the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 127 

expert testimony enhanced the victim’s testimony that her seemingly inexplicable actions were in 

fact the result of her interest in surviving at the hands of a violent partner. It appears that the use 

of the expert in Grzfin answers Walker’s plea to use her research on battered women as a tool to 

empower battered women rather than to blame them for responding to their abusers’ vi01ence.I~~ 

Walker points out that despite the gender-biased law on self-defense, many battered 

women who lulled their partners were successful in avoiding prosecution altogether. Instead, 

they got acql_l;lttals, or received probation or shorter prison sentences. 175 Her statistics support the 

story model of juror decision making. When judges and jurors heard the explanations of the 

circumstances surrounding the crime, they understood the “story of violence’’ and were less 

punitive. This bodes well for the use of expert testimony in the second wave. Now experts can 

rely on even more experience and even more research about domestic violence relationshps to 

help the jury to understand the story of domestic violence. They can focus attention on the 

abuser, and can help to make prosecution an opportunity to empower the woman rather than to 

portray her as a helpless or hapless victim. 

a 

5.1.2 Refining Prosecution Strategies and Trial Techniques 

The findings of this study can be used to develop trial advocacy training for prosecutors. 

Trial advocacy training focuses on practice tips for trial lawyers, and generally includes 

performance exercises that allow the trial lawyers to “try out” the new techniques while 

experienced trial lawyers watch and critique the performance. 

The findings can inform prosecutors about potential avenues for argument and may help 

them to refine their trial strategies by identifylng themes. Also, understanding the significance of 

0 the story model, thereby telling the story more effectively, and anticipating likely defenses can be 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 128 

helpful. An effective trial advocacy training course should include suggestions for prosecutors to 

develop trial themes that can be introduced during jury selection. Also included should be 

presentation of the theme in a story fashion during opening statement, presentation of evidence in 

a story fashion, consistent with the trial theme, and using the theme to tell the story of violence 

during closing arguments. 

0 

The frequent use of victim character assassination in these cases also illustrates the need 

to train prosecutors about character evidence issues, as well as techniques to comhat -verse ,,A 

character evidence that is admitted at trial. 

5.1.3 Police Training 

The study findings also support additional police training on investigation techniques in 

domestic violence cases. Victim character assassination seemed especially intense and appeared 

to take on greater significance in those cases in which the investigation was incomplete, or there 

was a lack of physical evidence. Prosecutors in the focus group suggested that some police who 

were resentful of mandatory arrest in misdemeanor assault cases might make the arrest, but fail to 

follow through with a thorough investigation. Even in some felony cases in the study, police 

initially charged only misdemeanor offenses, indicating that they discounted domestic violence 

cases. In addition, some police witnesses evidenced a lack of understanding of the dynamics of 

abuse, or a negative attitude toward a particular victim or toward domestic violence in general. 

Because a prosecution is only as good as the underlying investigation, additional police training 

on domestic violence investigations is recommended. 

5.1.4 Judicial Training 

Prosecutors in the focus groups felt that many judges did not understand the dynamics of 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 129 

a violent relationship and were not sensitive to victims. The victims in the focus groups echoed 

the same view. This study did not refute those perceptions. Judicial attitudes were most evident 

in rulings that liberally permitted character assassination of the victim. 

Prosecutors and police have received intensive training since the institution of mandatory 

arrest in Iowa, including one-day seminars, multi-day seminars, and training publications. The 

training has included information about domestic violence dynamics, investigative techniques 

and prosecution techniques, and has been. held at regularly scheduled conferences as well as 

specialized training sessions. 176 

Judicial training did not follow the same pattern during the time period in which the cases 

in this study were tried. Judicial training on domestic violence generally occurred less often, on 

a more limited array of topics, and for shorter time periods.177 Although judges often were 

invited to police or prosecutor training sessions, they seldom attended because of their concern 

that they may appear to be biased toward the prose~ution.'~~ 

a 

Since 1995, training opportunities for all criminal justice officials, including judges, has 

increased. The Iowa Law Enforcement Academy and the Iowa Prosecuting Attorney Training 

Coordinator Office each added a full-time instructor to their staffs in 1996, using Violence 

Against Women Act funds. 179 The Iowa Judicial Department added a Domestic Violence 

Intervention Coordinator in 1996, to implement a recommendation by the Iowa Supreme Court's 

Equality in the Courts Task Force. 180 Training on domestic violence issues has increased since 

then. However, the findings in this study suggest that judges could benefit fimi training in 

several areas, including evidentiary issues such as character evidence and other-acts evidence; 

trial strategies in domestic violence cases; and the story model of juror decision making. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 130 

5.1.5 Victim Advocate Training 

Aside from victim advocates who serve as expert witnesses, other advocates can benefit 

from this research as well. Victims in the focus groups expressed great fkustration with the 

criminal justice system, and often felt victimized by this system as well. Given the common 

defense tactics that parallel the abuse dynamics -- victim-blaming, minimization or denial of the 

injuries or the abuse, surprise attacks -- the victims’ characterization appears to be valid. 

Advocates who understand the common themes and strategies used in domestic violence cases 

can better prepare the victims for what they may face in court. Victims who understand the 

process better are more likely to be stronger witnesses and to feel empowered by participating in 

the criminal justice process. They also can provide other information to prosecutors that may be 

a helpful in rebutting defenses or malung the prosecution’s case. 

5.2 Limitations of This Research 

The findings of this study must be considered in light of its limitations. The data in this 

study are limited in several ways. First, all the cases analyzed were felony cases involving 

domestic violence situations. Many domestic abuse assaults are misdemeanor offenses. The 

strategies used in felony trials may not translate directly to misdemeanor offenses. Ths may or 

may not affect a juror’s view of a case, or the prosecutor’s choice of strategy. 

Second, only cases involving convictions in which a transcript was prepared were 

considered. This was due in large part to pragmatic ccnderations, specifically the difficulty 

identifylng domestic violence related cases and the substantial cost differential between 

transcripts for convictions and acquittals.I8l Thus, the trial strategies found in this study were 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 131 

developed from felony cases that were successfullyprosecuted. We do not know whether the 

same strategies are employed by either the prosecution or the defense in unsuccessful 

prosecutions. In the case of the prosecution, we can say that these strategies did work in these 

cases. Further analyses of acquitted cases in needed to examine similarities and differences in 

strategies used in successful and unsuccessful prosecutions. Such analyses might also allow us to 

a 

compare whether differences in physical evidence, motive, or level of violence or seriousness of 

injury appear to impact successful outcome as well. 

Third, the study contains no comparisons between domestic-relationship cases and nondomestic-relationship cases. Such comparisons may be valuable'82 however, these comparisons 

cannot be done with this data set. 

Fourth, all cases are from Iowa, and therefore are limited in their applicability to other 

jurisdictions. The practices, statutes and rules of evidence in Iowa may not be typical of other 

jurisdictions. Limiting the research to a single state, however, enhances internal validity. Iowa 

prosecutors are a close-knit group, with a centralized training agency that also operates an 

independent organization for county attorneys. This organization consistently includes all but 

one or two of the 99 county attorneys as members. Nonetheless, trial practices and individual 

experience vary widely across the state, as is true virtually everywhere. 

Q 

Fifth, all cases were tried between 1989 and 1995. It is quite possible that attitudes about 

domestic violence among police, prosecutors, defense counsel, judges and jurors may have 

changed during that time period. Recent high profile cases, such as the Anita Hill sexual 

harassment hearings, and the O.J. Simpson murder trial have brought increased information and 

awareness to the general public about issues of abuse against women. These potential changes 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 132 

are offset by several factors. 

First, Iowa adopted the federal rules of evidence at the time that all of these cases were 

tried. Therefore, evidentiary rules are probably similar to those of other states. Although Iowa 

statutes do not directly track the Model Penal Code, they are similar. The felonies involved in 

this study generally are common law types of crimes and the general criminal law standards in 

Iowa are similar to those in other jurisdictions. Second, domestic violence had generated 

considerable interest in Iowa before 1990. Mandatory zrrest laws were passed in 1984, and 

police and prosecutors received regular training fiom that time to the 1989-95 period. 

Third, prosecutors received intensive training on domestic violence prosecutions in 1989- 

1990, in conjunction with the publication of the first prosecution manual devoted to domestic 

violence prosecutions. Fourth, in early 1990, the Iowa Attorney General launched a massive 

public information campaign about domestic violence, including public service announcements 

on television and radio and print ads in newspapers, magazines and billboards, as well as many 

public speeches about the topic. The Attorney General also held meetings at 30 locations around 

the state to discuss the issue with local elected officials, police, prosecutors, clergy and business 

persons. 

@ 

Sixth, the number of cases is limited to 40 felony trials, comprising approximately 50,000 

pages of transcript. This data set is more than sufficient for valid qualitative analysis, and we 

believe that saturation was reached on key concepts and findings. However, the sample size is 

insufficient for more sophisticated quantitative analysis. 

Seventh, the data set consists of transcripts of trials. Some researchers have been critical 

of such text analysis, because it does not capture the “sights, sounds, smells, intonations, and 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 133 

emotional tensions of the original event.”’ 83 Nonetheless, the findings provide valuable 

information about the prosecution and defense strategies. 

Eighth, the data set does not include information about jurors deciding the cases, nor does 

it include feedback fiom jurors about what entered into deliberations. Only the final verdict is 

available. 

Finally, we have a bias in favor of the prosecution. Roxann Ryan has been a prosecutor 

for 17 years, and trained hundreds of police officers about domestic violence issues during the 

time that the cases involved in this study were being tried. Carolyn Hartley is a professor of 

social work at the University of Iowa, with a strong pro-victim orientation. 

We have made a conscious effort to identify personal biases in making assessments, and 

to include specific coding information that will convey the defense perspective in the trial. For 

example, the survey form includes objective information about what evidence was considered, 

what types of witnesses appeared for the prosecution and the defense, and other demographic 

information about the trial and its participants. In addition, by coding particular segments of text, 

it is possible to compare our subjective assessments with actual text of what occurred at the trial. 

5.3 Implications for Future Research 

We would offer several suggestions for future research to build on the findings of ths 

study. 

5.3.1 Comparisons of Felony and Misliemeanor Prosecutions 

This study involved only felony charges involving domestic violence. This means that 

@ the crimes involved the most serious offenses, and therefore is taken more seriously by 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 134 

prosecutors, judges, defense attorneys and jurors. Often, the charges prosecuted in the cases 

were deemed more serious because of the severity of the injuries to the victim, the serious nature 

of the acts committed, or the offender’s prior record of assaults. All of these factors can affect 

the charging response to the crime, regardless of whether it involves a domestic a~sau1t.l~~ 

Similarly, the seriousness of the offense can affect the jurors’ response. It was for these reasons 

that only felony cases were chosen for study. The investigations were potentially more thorough, 

the attorneys were more likely to prepare the cases and refine the trial strategies mcre pecisely. 

Lastly, judges and jurors were more likely to examine and analyze the cases more diligently. 

Prosecutors also echoed these views during the focus groups. The assumption was that patterns 

would be easier to discern in felony cases. 

One recommendation for hture research is to compare the strategies used in felony cases 

with those used in misdemeanor cases, and especially simple misdemeanor cases. If the 

investigations are weaker, the attorneys are not as thoroughly prepared, and judges and jurors 

attribute less significance to the case, then the experience in misdemeanor court may be different 

from that in felony court. The findings of such a study could have implications for future 

training of criminal justice officials, for changes in the procedures used to investigate and 

prosecute cases, and for advocates’ responses to battered women and their work with criminal 

justice officials. 

0 

5.3.2 Comparisons of Domestic and Non-Domestic Crimes 

This study was limited to domestic violence cases. Some prosecutors have argued 

anecdotally that domestic violence related assault cases are similar to non-domestic assault cases 

0 in which the victim and defendant are merely acquainted with each other (i.e., a bar fight). We 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 135 

would argue that there is a difference between these cases because of the power and control 

inherent in domestic abuse relationships that is not a part of an acquaintance relationshp. 

Further research should compare the trial themes, trial strategies and types of evidence 

that are presented in non-domestic assault cases in which the victims are acquainted but not 

intimate. This would be done in an effort to determine whether the distinguishing factor in 

domestic violence cases is the nature of the intimate relationship, rather than the fact that there is 

a relationship history available to present. 

5.3.3 Victim Credibility Issues 

Victim character assassination was so prevalent in the cases in this study that it would be 

valuable to conduct further research on the issue of victim credibility. Schdan suggests that 

credibility issues are important in a variety of ~0ntexts.l~~ Criminal justice researchers also 

suggest that gender stereotyping can affect decision making. Some research was conducted 

regarding prosecutonal views of credibility in the area of domestic violence,’86 and more recently 

in the area of sexual violence. 187 Some research has been done regarding whether police 

response is influenced by gender. 188 In addition, some researchers have examined juror attitudes 

about credibility based on gender.’89 In addition, traditional sex role views may affect not only 

the partners involved in the violent relationship, but also the perceptions of criminal justice 

officials who respond to the violence, and jurors who hear the evidence.’” 

a 

Previous research suggests that victim character assassination in domestic violence cases 

is based, at least in part, on gender biases. Further studies could examine how perceptions of 

domestic violence are influenced by gender stereotypes, and how those gender stereotypes affect 

decision makers in the criminal justice system, from police to prosecutors to defense attorneys to 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 136 

judges to jurors. 

5.3.4 Mock Jury Research 

Pennington and Hastie tested their “story model” of juror decision making through the 

use of vignettes presented to mock juries. 19’ The same type of research could be conducted to 

test the use of the story model in “telling the story of violence” in a domestic relationship. 

Vignettes could be constructed consistent with the themes and strategies identified in this study, 

with special emphasis on the use of victim character evidence and other-acts evidence. In 

addition, mock jury research could be conducted to test victim credibility issues, based on the 

types of evidence and the types of themes used in the hypothetical cases. 

e 5.4 Closing Remarks 

This is the first study that has examined the content of trial prosecutions in domestic 

violence felonies. The primary conclusion to be drawn fiom the study is that prosecutors and 

defense attorneys have a common repertoire of strategies and techniques that are used in these 

trials. Some strategies and techniques may be unique to domestic violence cases, others may be 

common to all criminal cases. The nature of the intimate relationship between victims and 

defendants is likely to result in parties who know each other well. The depth of knowledge may 

affect the “stories” told by both the prosecution and the defense. 

In constructing its strategy, the prosecution often emphasized the public nature of the 

private violence, and the need to take the violence seriously and to hold the abuser accountable 

for the violence. The prosecution commonly sought to dispel or de-emphasize myths about 

0 domestic violence and preconceived notions about the nature of the violent relationship or the 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 137 

characteristics of the battered woman. 

Trial techniques used in defending against a felony charge of domestic violence seemed 

to parallel the abusive thinking patterns generally observed in abusers. These techniques 

provided some support for victims’ perceptions that the criminal justice system simply served as 

another way for the abuser to victimize the battered woman. The jurors’ knowledge about 

violent relationships -- either from their personal experiences or from evidence presented at trial - 

- is likely to affect the assessment of the competing stories told by the prosecution and the 

defense. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 138 

Notes 

1. William Blackstone, Commentaries on the Law of England (Philadelphia, PA.: J. B. 

Lippincott, 1885). 

2. Isabel Marcus, “Terrorism on the Home,” in The Public Nature of Private Violence: 

The Discovery of Domestic Abuse, ed. Martha Fineman Albertson and Roxanne Mykitiuk (New 

York: Routledge, 1994), pp. 1 1-35. 

3. Elizabeth Pleck, Domestic Tyranny (New York: Oxford University Press, 1987). 

4. hid. 

5. Susan Schechter, Women and Male Violence: The Visions and Struggles of the 

Battered Women‘s Movement (Boston, MA.: South End Press, 1982); Mildred D. Pagelow, 

Family Violence (New York: Praeger, 1984), pp. 261 -263. 

6. Lawrence Sherman, Policing Domestic Violence (New York: Free Press, 1992). 

7. Maryann Syers and Jeffery L. Edelson, “The Combined Effects of Coordinated 

Criminal Justice Intervention in Woman Abuse,” Journal ofhterpersonal Violence 7 (1 992): 

490-502. 

8. Sherman (n.6 above), Experiments with domestic arrest policies have produced 

divergent results. Arrests were effective in reducing recividism in experiments in Minneapolis, 

Colorado and Metro-Dade, but seemed to increase recividism in experiments in Milwaukee, 

Charlotte, and Omaha (p. 3). The differing results might be attributed to differences in 

demographics, socio-economic status, and variables in the intimate relationship (p. 4). 

9. Ibid., pp. 5-6. 

10. Ibid., p. 8. 

1 1. David Ford, ‘Rosecution as a Victim Power Resource: A Note on Empowering 

Women in Violent Conjugal Relationships,” Law & Society 25 (1991): 3 13-334. 

12. Eve S. Buzawa and Carl G. Buzawa, Domestic Violence: The Criminal Justice 

Response, 2nd cd. (Thczsand O&B, Cia: Sage F;;lclicat.tions, 1996), p. 33. 

13. Linda McGuire, Domestic Abuse Prosecution Handbook (Des Moines, IA: Iowa 

Prosecuting Attorneys Council, 1994). 

14. Jane W. Ellis, ‘’Prosecutorial Discretion to Charge in Cases of Spousal Assault: A a Dialogue” Journal of Criminal Law & Criminology 75 (1984): 56-99; Eve S. Buzawa and Carl 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 139 a 

G. Buzawa, Domestic Violence: The Criminal Justice Response, 2nd ed. (Thousand Oaks, CA: 

Sage Publications, 1996), p. 86. The authors discuss an “organizational imperative” in 

prosecutors’ offices to achieve high rates of convictions. The number of cases successfully 

prosecuted helps jurisdictions evaluate performance, show efficiency, and negotiate for limited 

resources. Given the difficulty prosecuting these cases, there may be a bias against moving them 

forward. 

15. McGuire (n. 13 above) citing Iowa Code of Professional Responsibility, DR 2-1 03 

and National Prosecution Standards, Standard 9.1 et seq. (NDAA 1977). 

16. Lisa G. Lerman, Prosecution of Spouse Abuse: Innovations in Criminal Justice 

Response (Washington D.C.: Center for Women Policy Studies, 198 1); Margaret A. 

Rosenbaum, “The Prosecution of Domestic Violence: An Overview,” The Florida Bar Journal 

68 (1 994): 52-55; Stuart H. Baggish & Christopher G. Frey, “ Domestic Physical Abuse: A 

Proposed Use for Evidence of Specific Similar Acts in Criminal Prosecutions to Corroborate 

Victim Testimony, ” The Florida Bar Journal 68 (1 994): 57-61. 

17. Rosenbaum (n. 16 above), p. 68. 

18. Iowa has adopted the Federal Rules of Evidence with a few modifications. The 

citations here will be to the Iowa Rules. 

19. Personal communication, meeting of an ad hoc task force of the Iowa County 

Attorneys Association, November, 1993. 

20. The elements of the crime refer to the components of the crime that are set out by the 

criminal statute. In proving the elements of a crime, the prosecution has to show that the act is 

prohibited by law, that it involved criminal intent, and that any injuries sustained were the result 

of the defendant’s actions. 

2 1. McGuire (n. 13 above), “More than prosecution of any other criminal offense (with 

the possible exception of adult sexual abuse), prosecuting domestic assault requires a special 

understanding of the unique and complex dynamics operating in the context of the crime -- an 

intimate relationship.” (p. 3-1). 

22. Sherman (n.6 above); Jacob Clark, ‘Where to Now on Domestic Violence? Studies 

Offer Mixed Policy Guidance,” Law Enforcement News 19 (1 993): 1 - 17. 

23. Davd Rubin, “LeadiDg the Fight for Battered Women and Children in 

Massachusetts,” Young Lawyers Division Section News 10 (1 993): 12-1 3. 

24. AMA Council on Ethical and Judicial Affairs, ‘Physicians and Domestic Violence,” 

Journal of the American Medical Association 267 (1 992): 3 190-3 192. 0 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 140 a 

25. Iowa Supreme Court, Final Report of the Supreme Court Task Force on Courts’ and 

Communities ‘ Response to Domestic Abuse (1 994); Sylvia Law, “Every 18 Seconds a Woman is 

Beaten,” The Judges Journal 12 (1991): 12-15,40-41. 

26. See, e.g., Tit. IV, Violence Against Women Act, Subtitle D., ch. 1 & 2 (education 

and training for judges and court personnel recommended); Iowa Supreme Court FinaZ Report of 

the Supreme Court Task Force on Courts’ and Communities’ Response to Domestic Abuse, 

(1 994) (recommended training for police); National Council of Juvenile and Family Court 

Judges, Courts and Communities: Confronting VioZence in the Family 33 (1 993) (judicial 

education). 

27. Mildred D. Pagelow, Family Violence (New York: Praeger, 1984), pp. 301-324. 

28. hid. 

29. See Catherine Kirkwood, Leaving Abusive Partners (London: Sage, 1993) for an 

excellent discussion of the pattern of physical and emotional abuse and its impact on women. 

30. Iowa Judicial Department, Iowa Domestic Abuse Benchbook (1 994). 

31. Ibid. 

32. Lynn Hecht Schafkan, “Credibility in the Courts: Why is There a Gender Gap.” The 

a 

Judges Journal 34 (1995): 5-9,40-42. 

33. Elizabeth Anne Stanko, “Would You Believe This Woman? Prosecutorial Screening 

for “Credible” Witnesses And a Problem of Justice,” in Judge, Lawyer, Victim, Thiefl Women, 

Gender Roles, and Criminal Justice, eds. Nicole Hahn Rafter and Elizabeth Anne Stanko 

(Northeastern University: Northeastern Univeristy Press, 1982), pp. 63-82. 

34. Schafkan (n.32 above). 

35. Ibid. 

36. hid. 

37. State v. Thornton, 498 N.W.2d 670 (Iowa 1993); State v. Phansouvanh, 494 N.W.2d 

219 (Iowa 1992); State v. Frake, 450 N.W.2d 817 (Iowa 1990). 

38. State v. Frake, 450 N.W.2d 817 (bwi 1930). 

39. Maureen McLeod, “Victim Noncooperation in the Prosecution of Domestic Assault.’’ 

Criminology 21 (1983): 395-416. 

a 40. Technically, the term murder refers to a type of homicide case in which the defendant 

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This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 141 a 

had malice towards the victim when committing the crime. Not all the cases in this study met 

this legal definition of murder. We chose to use the term murder rather than homicide because 

th~s term would be more familiar to the non-legal reader. 

41. Trial advocacy is a portion of training for trial lawyers that often includes 

performance exercises that allow the trial lawyers to “try out” new trial techmques. 

42. Frances L. Wellman, The Art of Cross-Examination, 4th ed. (New York: Collier 

Books, 1962). 

43. Buzawa and Buzawa (n. 12 above). The authors point out that research on what 

works in the judiciary is less advanced than the research on police response, in part because 

issues of prosecutorial and judicial performance have not yet captured the attention of the public 

or state legislatures. 

44. Ibid. 

45. Patrick A. Langan and Christopher A. Innes, Preventing Domestic Violence Against 

Women. (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1986). 

46. 

47 I 

48. 

49. 

50. 

51. 

Ibid. 

State v. McKee, 312 N.W.2d 907,913 (Iowa 1981) Iowa Code $ 708.2A (1997). 

Iowa Code $ 702.18 (1 997). 

Ibid. 

Iowa Code $708.4 (1997). 

Battelle Memorial Institute of Law and Justice Study Center, Forcible Rape: A 

National Survey of the Response by Prosecutors (Washington, D.C.: National Institute on Law 

Enforcement and Criminal Justice, 1977). 

52. Schmidt, Janelle and Ellen Hochstedler Steury, “Prosecutorial Discretion in Filing 

Charges in Domestic Violence Cases.” Criminology 27 (1 989): 487-509. 

53. Most Iowa prosecutors are members of the Iowa County Attorneys Association. This 

Association holds regular meetings m3 training sesslcr,~ 

54. Kersti Yllo, “Political and Methodological Debates in Wife Abuse Research,” in 

Feminist Perspectives on Wfe Abuse, ed. Kersti Y11o and Michele Bograd (Newbury Park, CA.: 

Sage, 1988), pp. 28-50. 

55. Samuel R. Gross, Robert Mauro, Death and Discrimination: Racial Disparities in 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 142 a 

Capital Sentencing (Boston, MA.: Northeastern University Press, 1989), pp. 212-214. 

56. These opinions were shared by prosecutors from the focus groups conducted in this 

study. 

57. Catherine Marshall and Gretchen Rossman, Designing Qualitative Research 

(Thousand Oaks, CA.: Sage, 1995), p. 23. 

58. Ibid., p. 26. 

59. Iowa Crime Reports. (Des Moines, IA.: Department of Public Safety, 1995). 

60. Thus, even misdemeanor domestic assault cases that can be readily identified were 

relatively inaccessible in Iowa. This study involves only felony prosecutions, but the challenges 

in obtaining that information were even greater than obtaining information regarding domestic 

abuse assaults, classified under Iowa Code section 708.2A. 

6 1. Because most convictions are appealed, a transcript has been prepared, so that a copy 

can be obtained at relatively low cost. According to Iowa Supreme Court Rule lO(b), the cost of 

a copy of a transcript cannot exceed 2515 per page, but the cost of an original transcript cannot 

exceed $2.75 per page. Some court reporters waived fees when they provided a computerized 

copy of a transcript; they would be unlikely to waive any fees in preparing an original transcript. 

Most non-murder felony transcripts are 500-700 pages, and most murder transcripts are 1,000- 

2,000 pages, so the cost differential is notable. 

0 

62. These included crimes classified as class A, B, C, or D felonies, with sentences 

ranging flom five years to life without parole. 

63. A domestic relationship was defined as an intimate relationship between a man and a 

woman, whether or not they were married or had ever lived together. 

64. The Crime Victim Assistance Division (CVAD) of the Attorney General’s office 

provides compensation to victims of violent crimes that are statutorily entitled according to Iowa 

Code, chapter 912. 

65. HyperResearchTM is a text analysis computer software program. In order for the 

program to read a file of text material, the file must be edited manually to include page breaks (a 

”-” sip) every ?5,000 words. 

66. All prosecutors who participated were white. The racial mixture of prosecutors in 

Iowa is roughly 99.5% white, so the focus groups were representative of Iowa prosecutors. At 

the time of the focus groups, there were no non-white prosecutors who specialized in domestic 

violence prosecutions, nor were any elected county attorneys non-white. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 143 

67. HyperResearchTM is available fiom Researchware, Inc. P.O. Box 1258, Randolph, 

MA 02368-1258. Phone: (781) 961-3909; e-mail: researchwr@aol.com; web: 

http://members.aol.com/researchwr. 

68. Kathy Charmaz, ‘“Discovering’ Chronic Illness: Using Grounded Theory,” Social 

Science and Medicine 30 (1 992): 1 16 1 - 1 1 72; Barney G. Glaser and Anselm Strauss, The 

Discovery of Grounded Theory: Strategies For Qualitative Research (New York: Aldine de 

Grutyer, 1967). 

69. The prosecution’s case in chief refers to the process of the trial in which the 

prosecution gets to present its evidence first. The prosecution’s case in chief is then followed by 

the defense case in chie;, wherein the defense presents its evidence. The prosecution then has the 

opportunity to present rebuttal evidence, followed by surrebuttal by the defense. 

70. Barney G. Glaser, Basics of Grounded Theory Analysis (Mill Valley, CA.: Sociology 

Press, 1992). 

71. Race is assumed in some cases. Since the majority (93%) of the population in Iowa 

is white, it is not surprising that the majority of defendants are white. Race was determined in 

some cases through a witnesses description of the defendant. For some defendants, race was 

determined by their last name (e.g., Hispanic defendants). In one case, the defendant’s mother 

testified through a Spanish interpreter. Race was also known in some cases by our personal 

familiarity with the case. Many of the murder cases were high-profile media events in Iowa. 

72. We cannot tell fkom the trial transcripts whether private counsel were retained or 

court-appointed. 

73. Margo Wilson and Martin Daly, “Spousal Homicide Risk and Estrangement,” 

Violence and Victims 8 (1993): 3-16. 

74. Angela Browne and Kirk R. Williams, “Gender, Intimacy, and Lethal Violence: 

Trends fkom 1976 Through 1987,” Gender and Society 7 (1993): 78-98; Michael R. Rand, Diane 

Craven, Patsy A. Klaus, Craig A. Perkins, Cheryl Ringel, Greg Warchol, Cathy Matson, and 

James Allen Fox, Violence Between Intimates (Washington, D.C.: Bureau of Justice Statistics, 

1998). 

75. Jacquelyn C. Campbell, “If I Can’t Have You, No One Can:” Power and Control in 

Homicide of Female Partners,” in Femicide: The Politics ~j’?%ne,v Killilrg, eas. J. Radford and 

D.E.H. Russell (New York: Twayne Publishers, 1992), pp. 99-1 13; Margo Wilson and Martin 

Daly, “Spousal Homicide Risk and Estrangement,” Violence and Victims 8 (1 993): 3- 16; 

Carolyn Rebecca Block and Antigone Christakos, “Intimate Partner Homicide in Chicago Over 

29 Years,” Crime &Delinquency 41 (1995): 496-526. e 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 144 0 

76. Angela Browne and Kirk R. Williams, “Gender, Intimacy, and Lethal Violence: 

Trends from 1976 Through 1987,” Gender and Society 7 (1993): 78-98; Jacquelyn C. Campbell, 

“If I Can’t Have You, No One Can:” Power and Control in Homicide of Female Partners,” in 

Femicide: The Politics of Women Killing, eds. J. Radford and D.E.H. Russell (New York: 

Twayne Publishers, 1992), pp. 99- 1 13; Margo Wilson and Martin Daly, “Spousal Homicide 

Risk and Estrangement,” Violence and Victims 8 (1 993): 3- 16. 

77. Carolyn Rebecca Block and Antigone Christakos, “Intimate Partner Homicide in 

Chicago Over 29 Years,” Crime & Delinquency 41 (1995): 496-526. 

78. Campbell (n.75 above). 

79. %id. 

80. Many judges and practitioners use the term “motion in limine” broadly to encompass 

all motions regarding the admissibility of evidence, including motions made under Iowa Rule of 

Evidence 104 (seeking preliminary rulings on evidentiary matters) even though as a technical 

legal matter such motions are not motions in limine. The Iowa courts will consider the merits of 

evidentiary issues, regardless of how the parties label the motion. 

8 1. McGuire (n. 13 above), p. 6-1. 

82. In most domestic violence cases, the defendant is theprincipal (main actor), rather 

than an aider or abettor (assistant) to the offense. Unlike many non-domestic cases, in most 

domestic violence cases, the identity of the perpetrator is not in issue. 

83. The use of the term severity is based on a legal definition of the seriousness of the 

injuries. The more serious the injury, the more serious the charge that can be made against the 

defendant. This term is not intended to imply that some injuries sustained by a victim are “less 

important or significant” than other injuries. 

84. An excited utterance is defined as “a statement relating to a startling event or 

condition made while the declarant was under the stress of excitement caused by the event or 

condition.” Iowa Rule of Evidence 803(2). Apresent sense impression is defined as “a 

statement describing or explaining an event or condition made while the declarant was perceiving 

the event or condition, or immediately thereafter.” Iowa Rule of Evidence 803( 1). 

85. McGuire (n. 13 above). 

86. Insanity refers to the defendant’s mental state at the time of the crime and requires 

that the defendant prove that he did not know right from wrong, nor did he understand the nature 

and quality of his acts at the time that he committed the crime. Diminished responsibility refers 

to some defect in the defendant’s mental capacity that would make it impossible for the 0 defendant to form specific intent required under the criminal statute with which defendant has 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 145 0 

been charged. Intoxication is a related to the diminished responsibility defense, wherein the 

defendant claims that he was too intoxicated to have the capacity to form the specific intent 

required by the criminal statute with which he was charged. AZibi refers to a defense in which the 

defendant claims that he was somewhere else when the crime was committed, and he provides 

witnesses to his whereabouts. Entrapment refers to the defendant’s claim that he was enticed or 

induced by government agents to commit a crime he was not otherwise contemplating. Sevdefense or justification refers to the legitimate use of force against someone who instigated the 

violence. Iowa Rule of Criminal Procedure 1 O( 1 1) sets out the specific requirements for these 

notices of defense. The sanction for the defendant’s failure to comply with the rules may include 

exclusion of witnesses other than the defendant (who always can testify in his own defense as to 

any defense). 

87. Discovery refers to the process during litigation by which one side is required to 

reveal information that it intends to use at trial, when the other side makes an appropriate request 

for that information. Reciprocal discovery means that when one side reveals information, the 

other side also has an obligation to reveal information. 

88. Iowa Rule of Criminal Procedure 13 governs discovery procedures, and requires that 

the defense disclose certain evidence once the defense employs discovery techtuques to find out 

about the prosecution’s evidence. Under the Iowa rules of evidence, the defense may be required 

to allow the prosecution to examine documents, tangible objects, statements of persons other 

than the defendant, photographs, reports of mental or physical examinations, or scientific tests or 

experiments. Iowa R. Cr. P. 13(3). 

89. A deposition is testimony, taken under oath but not during a trial in open court. 

Under the Iowa rules, depositions are to be taken before trial, although in some circumstances, a 

recess may be taken during trial so that a party can depose a witness in order for the attorney to 

prepare for that witness’s trial testimony. 

90. Iowa R. Cr. P. 1 l(3). 

9 1. Personal Communication with Prosecutor, November, 1997. Advocates’ 

communications with victims are confidential under Iowa Code chapter 236A. This limits the 

advocates’ ability to share information obtained from the victim, unless the victim gives a waiver 

or partial waiver of the counselor-client privilege. 

92. Personal communication with prosecutor, November 1997. 

93. Personal communication with prosecutor, November 1997. 

94. The term assassination may be seen as too strident, however we chose to use this 

term because we think it best captures the essence of this defense strategy. 

95. Catherine Kirkwood, Leaving Abusive Partners (London: Sage, 1993). 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 146 a 

96. Ibid., p. 56. 

97. Kerry Healey, Christine Smith, and Chris 0’ Sullivan, Batterer Intervention: Program 

Approaches and Criminal Justice Strategies (Washington, DC: U.S. Department of Justice, 

Office of Justice Programs, 1998). 

98. Donald G. Dutton, The Domestic Assault of Women: Psychological and Criminal 

Justice Perspectives, (Vancouver: UBC Press, 1995). 

99. Ibid. 

100. Lenore Walker, The Battered Woman (New York: Harper & Row, 1979), p.74. 

101. Kirkwood (n.95 above), p. 44. 

102. Estrich describes prosecutorial assessments of “real” (aggravated) rape cases and 

“technical” (simple or non-aggravated) rape cases, noting that the victim’s characteristics have an 

impact on the prosecutor’s assessment of the case. Susan Estrich, Real Rape. (Cambridge, 

Massachusetts: Harvard University Press, 1987). Similarly, Spohn and Homey found that rape 

reform laws had little impact on criminal justice officials’ views regarding the admissibility of 

evidence of the victim’s prior sexual history. Cassia Spohn & Julie Homey, Rape Law Reform. 

(New York: Plenum Press, 1992). 

103. Kirkwood (n.95 above). 

104. Ibid., p. 64 

105. Ibid. 

106. Terry Connolly, ‘Decision Theory, Reasonable Doubt, and the Utility of Erroneous 

Acquittals,” Law & Human Behavior 1 1 (1 987): 101 - 1 12. 

107. Ola Svenson, “A Psychological Process Perspective on Decision Making” in 

Computer-Aided Decision Analysis, ed. Stuart S. Nagel. (Westport, CT.: Quorum Books, 1993): 

pp. 69-71. 

108. Ibid., p.72. 

109. Ibid., pp.75-76. 

110. Ibid., p.77. 

11 1. Ibid., p.78. 

112. Ibid., p.78. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 147 e 

1 13. Jonathan Casper, Kennette Benedict and Jo Perry, “Juror Decision Making, 

Attitudes and the Hindsight Bias,” Law &: Human Behavior 13 (1989): 291-3 10; Nancy 

Pennington and Reid Hastie, “Juror Decision-Making Models: The Generalization Gap,” 

PsychoIogicaI BuIIetin 89 (198 1): 246-287. 

114. Pennington and Hastie (n.113 above). 

115. Ibid., p. 248. 

116. Ibid., p. 248. 

1 17. Reid Hastie, Inside the Juror (New York: Cambridge University Press, 1993). 

1 18. Nancy Pennington and Reid Hastie, “The Story Model for Juror Decision Making” 

in Inside the Juror, ed. Reid Hastie (London: Cambridge University Press, 1993), p. 192. 

119. Pennington and Hastie (n. 1 13 above), p. 249. 

120. Ibid., p. 249. 

121. Ibid., pp. 249-252. 

122. Ibid., p. 252. 

123. Ibid., pp. 252-253. 

124. Ibid., p. 253. 

125. Ibid., p. 253. 

126. Ibid. 

127. Ibid., pp. 253-254. 

128. Ibid. 

129. Ibid., p. 254. 

130. Ibid., pp. 254-255. 

131. Ibid., p. 255. 

132. Pennington and Hastie (n.118 above), pp. 194-195. 

133. This formulation is consistent with what Cicourel describes as “social facts,” that is, a generalizations on a macro-level that are based on individualized, routine experiences in 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 148 0 

everyday life. Aaron V. Cicourel, “Notes on the Integration of Micro- and Macro-Levels of 

Analysis,” in Advances in Social Theory and Methodology: Toward an Integration of Micro- and 

Macro-Sociologies ed. K. Knor-Cetina and A. Cicourel (Boston: Routledge and Kegan Paul, 

198 1). 

134. Pennington and Hastie (n. 1 18 above), pp. 198- 199. 

135. Ibid., pp. 199-200. 

136. Ibid., p. 200. 

137. Ibid., p. 201. 

138. Ibid., pp. 198-199. 

139. Ibid., p. 201. 

140. Ibid., p. 209. 

141. Ibid., p. 204. 

142. Ibid., p. 204. 

143. Ibid., pp. 205-206. 

144. Ibid., p. 206. 

145. Ibid., p. 209. 

146. Ibid., p. 210. 

147. Ibid., pp. 210-21 1. 

148. Ibid., p. 21 1. 

149. Ibid. 

150. hid. 

?.51. Paid., pp. 21 1-212. 

152. Ibid., p. 21 7. Vinson reaches similar conclusions about the effectiveness of “telling 

the story” to the jury. Donald Vinson, Jury Persuasion. (Englewood Cliffs, New Jersey: 

Prentice Hall, 1993). a 153. Iowa Rule of Evidence 404(b). 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 149 a 

154. Susan Murphy, “Assisting the Jury in Understanding Victimization: Expert 

Psychological Testimony on Battered Woman Syndrome and Rape Trauma Syndrome,” 

Columbia Journal ofLaw and Social Problems 25 (1992): 277-312. “If expert testimony is not 

admitted, it is possible that a jury, left alone, will decide issues based upon misconceptions and 

prejudices disproved by modem scientific study.” pp. 28 1-282. 

155. State v. Johnson, 219 N.W.2d 690 (Iowa 1974) 

156. State v. Martin, 217 N.W.2d 536 (Iowa 1974). 

157. State v. Gartin, 271 N.W.2d 902 (Iowa 1978); State v. Nowlin 244 N.W.2d 591 

(Iowa 1976). 

158. State v. Myer, 382 N.W.2d 91 (Iowa 1986).. 

159. Murphy (n.153 above). 

160. The Frye standard refers to the standards adopted in Frye v. United States, 54 U.S. 

App. D.C. 46,293 F. 1013 (1923), which held that the subject of the expert testimony must be a 

matter that has met with “general acceptance” in the relevant scientific community. 

161. The Daubert standard refers to the standards adopted by the United States Supreme 

Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the 

Court interpreted Federal Rule of Evidence 702, and held that expert testimony based on 

scientific evidence must meet three criteria: (1) the testimony is based on “scientific” evidence, 

that is, knowledge based on the use of the scientific method, or research that is subject to peer 

review, or research having a very low error rate, or research that is generally accepted in the 

scientific community; (2) the testimony “will assist” the trier of fact in understanding the issues 

in the case; and (3) the expert is qualified to render an opinion based on scientific evidence. 

a 

162. Elizabeth Schneider, “Describing and Changing: Women’s Self-Defense Work and 

the Problem of Expert Testimony on Battering,” Women ’s Rights Law Reporter 9 (1 986): 195- 

222. 

163. Ibid.,p. 198. 

164. Ibid., p. 214 

I65. Lindr, L. AIIIIIons, “Mules, Madonnas, Babies, Bathwater, Racial kmgery ad 

Stereotypes: The Ahcan-American Woman and the Battered Woman Syndrome,” Wisconsin 

Law Review 5 (1995): 1003-1080. 

166. Richard B. Felson, “Big People Hit Little People: Sex Differences in Physical 

Power and Interpersonal Violence,” Criminology 34 (1996): 433-452. 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 150 a 

167. Ibid., p. 447. 

168. Schneider (n.162 above), p. 214. 

169. Ibid., p. 215-216. 

170. Myrna S. Raeder, “The Double Edged Sword: Admissibility of Battered Woman 

Syndrome By and Against Batterers in Cases Implicating Domestic Violence,’’ University of 

Colorado Law Review 67 (1996): 788-816; Myrna S. Raeder, “The Role of Batterers’ Profiles 

and Expert “Social Framework” Background in Cases Implicating Domestic Violence,” 

University of Colorado Law Review, 68 (1997): 147-187. 

17 1. Personal Communication with Advocate, April 1998. 

172. The Iowa court’s approach may not translate well to other jurisdictions, because the 

Iowa courts have a long tradition of liberal admission of expert testimony. Rules on the 

admission of expert testimony in other jurisdictions may not allow similar rulings. 

173. Schneider (n. 162 above). 

174. Lenore Walker, “A Response to Elizabeth M. Sch”ider’s.“Describing and 

Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering,” 

Women’s Rights Law Reporter 9 (1986): 223-225. 

a 

175. Ibid., p. 224. 

176. Personal communication with Iowa Law Enforcement Academy and Iowa 

Prosecuting Attorney Training Coordinator Office, November 1996. 

177. Personal communication with Iowa Judicial Department, November 1996. 

178. Personal communication with Iowa Judicial Department, November 1996. 

179. Personal Communication with ILEA and PATC, June 1996. 

180. Personal Communication with Iowa Judicial Department, November 1996. 

18 1. As stated earlier, all trials are court reported, but a transcript of the trial is typically 

only prepared in the case is appealed. hi trials \;.here the cielendant is acquitted, Clere is no cause 

for an appeal. 

182. David Brereton, “How Different are Rape Trials?’’ British Journal of Criminology 

37 (1 997): 242-26 1. a 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.
Prosecution Strategies in Domestic Violence 151 

183. Philip J. Stone, “Thematic Text Analysis: New Agendas for Analyzing Text 

Content” in Text Analysis for the Social Sciences: Methods for Drawing Statistical inferences 

From Texts and Transcripts, ed. Carl W. Roberts (Mahway, NJ.: Lawrence Erlbaum Associates, 

1997), p. 37. 

184. Janelle Schmidt and Ellen Hochstedler Steury, “Prosecutorial Discretion in Filing 

Charges in Domestic Violence Cases,” Criminoloa 27 (1 989): 487-509. 

185. Schafi-an (n.32 above). 

186. Ellis (n.14 above). 

187. Lisa Frohmann, “Discrediting Victims’ Allegations of Sexual Assault: 

Prosecutorial Accounts of Case Rejections,” Social Problems 38 (1 991): 213-226; Julius A. 

Gylys and John R. McNamara, “Acceptance of Rape Myths Among Prosecuting Attorneys,” 

Psychological Reports 79 (1 996): 15- 1 8; Cassia Spohn and Julie Homey, “Rape Law Reform 

and the Effect of Victim Characteristics on Case Processing,” Journal of Quantitative 

Criminology 9 (1993): 383-409. 

188. Eve Buzawa, Thomas L. Austin and Carl G. Buzawa, “ Responding to Crimes of 

Violence Against Women: Gender Differences Versus Organizational Imperatives,” Crime & 

Delinquency 41 (1 995): 443-466; Daniel J. Bell and Sandra L. Bell, “The Victim-Offender 

Relationship as a Determinant Factor in Police Dispositions of Family Violence Incidents: A 

Replication Study,” PoZicing and Society 1 (1991): 225-234; James J. Fyfe, David A. Klinger and 

Jeanne M. Flavin, “Differential Police Treatment of Male-on-Female Spousal Violence,” 

CriminoZogy 35 (1 997): 455-473; Alice M. Home, “Attributing Responsibility and Assessing 

Gravity in Wife Abuse Situations: A Comparative Study of Police and Social Workers,” Journal 

of Social Service Research 19 (1 994): 67-84. 

a 

189. Peter Hahn and Susan Clayton, “The Effects of Attorney Presentation Style, 

Attorney Gender, and Juror Gender on Juror Decisions,” Law & Human Behavior 20 (1996): 

533-554; Stephanie Riger, Pennie Foster-Fishman, Julie Nelson-Kuna, and Barbara Curran, 

“Gender Bias in Courtroom Dynamics,” Law & Human Behavior 19 (1995): 465-480. 

190. J. Finn, “The Relationship Between Sex Role Attitudes and Attitudes Supporting 

Marital Violence,’’ Sex Roles 15(5/6) (1986): 234-244: Gwendolyn L. Gerber, “Gender 

Stereotypes and Power: Perceptions of the Roles in Violent Marriages,” Sex Roles 24 (1 991): 

439-458. 

19 1. Pedngton and Hastie (n. 1 13 above). 

This document is a research report submitted to the U.S. Department of Justice.

This report has not been published by the Department. Opinions or points of view

expressed are those of the author(s) and do not necessarily reflect the official

position or policies of the U.S. Department of Justice.