Domestic Violence Trial Notebook - Mass.gov

1 Domestic Violence Trial Notebook 3rd Edition February 2015. This Domestic Violence Trial Notebook was written and compiled by Carrie W. Newton and includes excerpts from MDAA's Domestic Violence and Sexual Assault Manual, 3rd Edition written by Lisa S. McGovern with updates from Kim Aliprantis. Additional contributions are acknowledged below. Acknowledgments MDAA would like to thank and acknowledge the contributions of the following people for their assistance in developing and reviewing this Domestic Violence Trial Notebook , 1st Edition. Michele Armour, Norfolk County District Attorney's Office Holly Broadbent, formerly with the Suffolk County District Attorney's Office Courtney Cahill, Plymouth County District Attorney's Office Kelly Kemp, Berkshire District Attorney's Office Suzanne Kontz, Middlesex District Attorney's Office Christina Miller, Suffolk County District Attorney's Office Thomas D.

2 Ralph, Chief Cybercrime Division, Attorney General's Office*. *Author of the digital evidence section of this Trial Notebook Carrie Russell, Northwestern District Attorney's Office Michigan Domestic Violence and Sexual Assault Prevention and Treatment Board, and the Prosecuting Attorneys of Michigan for its contributions in Appendix C. This project was supported by 2012-WF-AX-0039, awarded by the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the state or the Department of Justice, Office on Violence Against Women. MDAA Domestic Violence Trial Notebook Page 2. 2nd Edition TABLE OF CONTENTS. 1. SCOPE .. 7. 2. LANGUAGE .. 7. 3. DYNAMICS IN Domestic Violence .. 7. 4. ARRAIGNMENT .. 7. THE COMPLAINT AND DISCOVERY.

3 7. BAIL DECISIONS .. 8. An Act Relative to Domestic Violence 2014 and the Changes to the Bail Statute .. 9. Factors to be Considered .. 9. Conditions of Release in Domestic Cases .. 9. 6 Hour Non-Bailable Period .. 9. 3 Hour Period after the Complaint is Signed .. 9. Access to Information .. 10. Preliminary Written Statements .. 10. Notification to the Victim .. 10. Revoking Bail .. 10. Dangerousness 12. G. L. c. 276, 58A .. 12. Judge's Ruling .. 13. Summons to Victim or Victim's Family .. 14. Reopening Dangerousness Hearing .. 14. Requesting the Transcript .. 14. Annotations .. 14. IDENTIFYING STRANGULATION AT ARRAIGNMENT .. 15. RESTRAINING ORDERS .. 16. Emergency Orders .. 16. Ex Parte Hearings and Orders .. 16. Hearings After Notice (10 Day Hearing) .. 17. Orders After Notice .. 18. 209A Order Renewals .. 19. Mutual Orders .. 20. Domestic Animals on Restraining Orders .. 20. Custody and Support Orders.

4 20. 209A Violations .. 21. Full Faith and Credit .. 21. HARASSMENT PREVENTION ORDERS .. 21. 5. ASSESSING THE CASE AFTER ARRAIGNMENT .. 22. REVIEWING THE COMPLAINT .. 22. COLLECTING EVIDENCE .. 22. MDAA Domestic Violence Trial Notebook Page 3. 2nd Edition Generally .. 22. Hospital Records .. 22. Digital Evidence .. 22. CONTACTING THE VICTIM .. 26. 6. PRE- Trial CONFERENCE .. 26. DISCOVERY .. 26. Exculpatory 27. Victim Witness Advocate Notes .. 27. Protecting Victim's Safety During Discovery .. 27. Certificate of Compliance .. 28. Reciprocal Discovery .. 28. Joinder 28. DWYER MOTIONS .. 29. DISPOSITIVE MOTIONS AT THE PRETRIAL CONFERENCE .. 30. Motions to Dismiss .. 30. Privileges .. 31. SENTENCING RECOMMENDATIONS .. 31. 7. Trial PREPARATION .. 31. PREPARING YOUR WITNESS(ES) .. 31. EVALUATING YOUR EVIDENCE: WHAT IS ADMISSIBLE AND HOW? .. 32. Relevant: .. 33. Authentication: .. 33. Authenticating Voice Identification Testimony.

5 33. Authenticating Photographs .. 33. Authenticating Digital 34. Authenticating Handwriting Samples .. 34. Hearsay: .. 34. Hearsay Exceptions: .. 35. Hearsay Exceptions: Declarant Availability Not Material .. 35. Hearsay Exceptions: Requiring Declarant's Unavailability .. 39. Confrontation Clause: .. 41. Documentary Evidence: .. 41. Statements: .. 42. OTHER EVIDENTIARY CONSIDERATIONS WHEN PREPARING FOR Trial .. 46. Consciousness of Guilt Evidence .. 46. Certification of Out-of-State Court Orders ( Restraining Orders) .. 46. Descriptions of the Victim's Appearance and Demeanor .. 47. Prior Consistent Statements: Rehabilitation .. 47. Prior Inconsistent Statements .. 47. Preparing for the Defense of Self-Defense .. 48. PREPARING MOTIONS IN LIMINE .. 49. Motion for Admission of 911 Call/Statements .. 49. MDAA Domestic Violence Trial Notebook Page 4. 2nd Edition Forfeiture by 50. Defendant's Prior Bad Acts.

6 50. Joinder .. 52. 8. Trial ISSUES .. 52. DEVELOPING A THEME AND THEORY FOR THE CASE .. 52. IMPANELLING THE JURY AND VOIR DIRE .. 52. Challenges .. 53. Improper Exclusion by Race or Gender .. 53. Voir Dire for Domestic Violence Cases .. 54. OBSTACLES TO PROSECUTION, AND STRATEGIES TO HANDLE THEM .. 56. Trial Delay .. 56. th 5 Amendment Assertions by the Victim .. 56. Spousal Privilege .. 57. Motion to Dismiss .. 58. OPENING 58. DIRECT EXAMINATION .. 58. Generally .. 58. Using Demonstrative Evidence .. 58. Reluctant Witness .. 59. PREPARING FOR DEFENSE'S CASE .. 60. Anticipating the Defense .. 60. Defense Witnesses .. 61. USING MEDICAL RECORDS AT Trial .. 63. CLOSING 63. 9. SENTENCING .. 63. CERTIFIED BATTERER'S PROGRAM .. 64. Restraining Order Violations .. 64. Strangulation and Domestic Assault and Battery .. 64. 10. APPENDIX A: DISTRICT COURT Domestic Violence CHARGES .. 65. 11. APPENDIX B: SAMPLE MOTIONS.

7 96. 12. APPENDIX C: DIRECT EXAMINATION OF THE RECANTING VICTIM .. 128. SHOULD YOU CALL THE VICTIM AS A WITNESS? .. 128. SAMPLE QUESTIONS FOR A RECANTING 128. MDAA Domestic Violence Trial Notebook Page 5. 2nd Edition MDAA Domestic Violence Trial Notebook Page 6. 2nd Edition 1. SCOPE. This Trial Notebook is to aid district court prosecutors in handling the many issues that arise in prosecuting Domestic Violence cases. This Notebook contains excerpts from MDAA's Domestic Violence and Sexual Assault Manual, 3rd Edition and contains new information. If you plan to cite any of the case law, make sure you take the time to read the case, understand the law, and check to make sure it is still good law. In an attempt to keep this Notebook a length, which is easy for prosecutors to use in court, in many areas prosecutors are directed to other resources for a more in-depth look at an issue. Please note, that while Appendix B contains many Domestic Violence motions, there are many more motions for use in Domestic Violence cases available through MDAA's Home Page on Prosecutors' Encyclopedia at 2.

8 LANGUAGE. Throughout the Trial Notebook , victims are often referred to with feminine gender. This reflects the fact that in the overwhelming majority of Domestic Violence cases, the victim is female and the offender male. However, where applicable, the contents are intended to pertain equally to male victims, and/or to victims who are the same gender as their assailants or abusers. In the past decade rape crisis center advocates have deliberately adapted use of the term survivor in place of victim. Due to the statutes, cases and legal authorities that use and define the term victim, the manual introduces survivor but also retains victim.. 3. DYNAMICS IN Domestic Violence . Understanding the dynamics in abusive relationships is critical to successful prosecution. Since this Trial Notebook is for a prosecutor's use in court, this topic is not covered in this Trial Notebook . For a more detailed discussion about the dynamics involved in Domestic Violence , please access MDAA's webinar Exploring Domestic Violence Dynamics and Statistics through MDAA's website at 4.

9 ARRAIGNMENT. THE COMPLAINT AND DISCOVERY. It is important to review the complaint for accuracy in the arraignment session. If you are handling the arraignment of a Domestic Violence case, make sure the names, dates of birth, incident dates and charges are all accurate. It is easier to make minor changes to the complaint during arraignment than at subsequent proceedings. A form motion to correct the complaint is available through MDAA's Home Page on Prosecutors' Encyclopedia. MDAA Domestic Violence Trial Notebook Page 7. 2nd Edition When providing discovery, consider whether it may be necessary to ask the court to protect a victim's address that is not known to the defendant. For more information on this issue, refer to Protecting Victim's Safety During Discovery at section of this Trial Notebook . BAIL DECISIONS. The arraignment session is a critical time for a prosecutor to establish contact with the victim, begin safety planning and to make bail decisions that recognize the victim's safety as a paramount concern.

10 It is likely your office maintains policies and procedures on some of the high risk Domestic Violence cases or on all of the Domestic Violence cases. On August 8, 2014, then Governor Patrick, signed into law Ch. 260 of the Acts of 2014. This law, an Act Relative to Domestic Violence ( 2014 Act ), made significant changes to the bail statute. Relevant sections of Chapter 276 are summarized below and discussed in more detail in the following sections. Summary of the Bail Statute, c. 276. 58 58A 42A 87 58( 3) 58B. Regular Bail Dangerousness DV Case: Pre- Trial Bail Bail Revocation Hearing Conditions of Probation Revocation Release (60 day) (90 day). Type of Argument by Motion and Argument by Argument by Motion and Motion and Hearing ADA Evidentiary ADA ADA Argument by Argument by ADA. Hearing ADA. Burden to Ensuring D Clear and D a danger to V D must agree D given bail Conditions set Show returns to court convincing if doesn't follow to these warnings on under 42A, 58, and the safety evidence that no conditions open case; PC 58A or 87, and P/C.