Stop. Do Not Pass Go. Do Not Compel Your Domestic Violence Victim to Court

Contributing Author: Tracy M. Prior, San Diego County Chief Deputy District Attorney, San Diego (CA)

Photo credit: ThitareeSarmkasat / iStock

Imagine a domestic violence victim who has survived abuse at the hands of a lifelong partner. Children witnessed the abuse for years, and the victim finally had the courage to report the abuse; yet as many victims do, pulled back once the system took hold. This victim felt it was better to recant the initial story because of fear, shame, or embarrassment. Then this victim did not report to court in response to the properly served subpoena because that victim had four children to get to school who needed the benefits of a dual income, and that abuse had actually stopped recently.

Insert an untrained or undertrained prosecutor who is not equipped with the myriad of legal ways in which to secure attendance of domestic violence victims to court, or how to prove a case without a victim’s testimony, but who sincerely intends to get justice for this victim. That prosecutor pulls out a tool that is widely used in other prosecutions, the request for a bench warrant to issue against the victim. The judge grants that request since the prosecutor submitted a proof of service and the victim had not appeared. The prosecutor — unhappy that the trial could not “go” — is satisfied because proper legal process occurred and moves on to the next case.

Then we see the aftermath. That domestic violence victim is walking down the street one day, four children in tow, and is contacted by a law enforcement officer for whatever justifiable reason, and ultimately the officer finds out the victim has a warrant for arrest. The officer arrests the victim; the four children are placed in a local holding facility; and a cycle of secondary trauma has now attacked this victim maybe even worse than some of the initial abuse.

Or change the scenario: The well-intended prosecutor is told by a district attorney investigator or a paralegal that the victim is avoiding service or evading the officer process server. The prosecutor gets her ducks in a row and requests a material witness warrant pursuant to her state’s Penal Codes Material witness warrants are used in traditional prosecutions to secure witnesses who may be evading service. Some legal authority allows for the witness to be taken into custody, be brought before the court, and then be entitled to the appointment of counsel and a hearing. The witness could remain in custody until the trial date to ensure attendance.

Again, we witness the aftermath. The domestic violence victim gets arrested and held in custody. The victim may have had children, a job, or a semblance of stability — all of which are now in complete disarray. The victim’s abuser may continue to control or perpetrate while the victim is in jail through jail phone calls. Is the victim now in a better place to “participate” in our prosecution? I think not.

Photo credit: Serghei Turcanu / iStock

It is best practice not to request warrants compelling domestic violence victims to court. While warrants can be an important tool to ensure that cases move forward and violent abusers are held accountable, prosecutors must also recognize the real tensions that exist for domestic violence, particularly in the case of victims. This does not mean these tools should be removed from a prosecutor’s discretion, but rather best practices should be implemented to ensure the use of these warrants promotes the best interests of justice and the victims involved in the case. Prosecutors must weigh these dynamics against every set of facts. Trial prosecutors should equip themselves with the many existing legal tools that best balance the case moving forward without causing secondary trauma to victims by bringing them to court in handcuffs.

A victim’s failure to appear in court is not uncommon. Victims may fail to appear by avoiding subpoena service, disobeying a subpoena, or recanting. Domestic violence prosecutors must recognize the myriad of reasons why victims might not want to come to court. Despite attempts at legal service of process, victims may be scared, embarrassed, or threatened by the abuser with consequences for going to court. The victim may be caught in the cycle of violence and going to court may worsen the abuse. If a prosecutor has a reasonable belief that victims are uncooperative or unlikely to appear for a preliminary hearing or trial, it is essential to investigate their motivation for non-compliance (e.g., fear, reconciliation, embarrassment, cultural or religious pressures, economic disincentive). This information can be pertinent for any potential forfeiture by wrongdoing hearing or simply to educate the jury or judge as to why the victim is not appearing in court.

One of the first questions a prosecutor can ask when a victim may be evading service is whether the victim’s testimony is needed to prosecute the case. While domestic violence often happens behind closed doors with no “independent” witnesses, perhaps there are other forms of “corroboration” for the victim’s statement, e.g., photographs of the scene or a 911 call with statements that are non-testimonial and “spontaneous” or “excited utterances” per the rules of Evidence. Are there jail calls that corroborate the victim’s initial statement or show consciousness of guilt on the part of the abuser? Can officers lay a proper foundation for the victim’s initial on-scene statement creating admissibility as an excited utterance? Is there a prior incident of abuse or a prior victim that can be introduced as propensity evidence or some other form of accepted character evidence pointing to motive, intent, lack of accident, or common scheme or plan?

A prosecutor should then legally brief the issues supporting the prosecution without calling the victim to the stand and get legal rulings from the court. Legal rulings will often result in settlement of the case once the judge learns of case law authorizing admission of spontaneous statements at the scene or non-testimonial statements from a 911 call. An investigator may be able to tie this all together by testifying how many attempts were made to secure the victim’s attendance, but to no avail. This can provide the context a jury may need as to why the victim did not testify, followed up in closing argument by the prosecutor reminding the jury that the evidence is what proves the case, not necessarily whether a named victim testifies. We do this all the time, especially in murder cases where there is no live testimony from the deceased.

The National Domestic Violence Prosecution Best Practices Guide is a living document highlighting current best practices in the prosecution of domestic violence. This guide was revised by NDAA’s Women Prosecutors Section on June 23, 2020.

This is part one of a two-part blog series during Domestic Violence Awareness Month. Be on the lookout for part two on suggestions for prosecutors dealing with warrants amid DV cases.

The National District Attorneys Association (NDAA) is the oldest and largest national organization representing state and local prosecutors in the country.

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