A Criminal Defense Attorney’s Observations of Unfair Tactics Used in Domestic Violence Prosecution

cartoon sketch of a jury in black and white

For one reason or another, as a criminal defense attorney in Boise, Idaho, I cover more domestic violence cases than I do any other type of crime. Through this experience I have come to see patterns in the prosecution’s strategies. Some of these strategies apply to both misdemeanors and felonies, but these strategies are most prominent in the felony world where there is obviously more to lose.

1. Cycle of Violence:

The theme of every jury trial on domestic violence that the prosecutors bring can be summed up in the words: cycle of violence. The state repeats these words over and over to the jury, even when there is little to no evidence put on that there was any prior acts of violence in the relationship.  The reason for this is clear. There is nothing that juries like more than mystery. Every juror has seen enough television shows (e.g. Law and Order) and movies (e.g. Sleeping With the Enemy)  where the villain is a violent domestic abuser to know about the cycle of violence theme. And each and every juror will believe that even though no evidence is put on regarding prior incidents of violence, they will all wonder, and many will conclude that this is not this defendant’s first rodeo. The preconceived notion of men as inherently violent helps bridge the gap that would have been caused by otherwise reasonable doubt.

2. Fact that witness recanted is evidence that witness is a victim.

Witness changed her story because she is a victim, that is what victims do. (Or in other words, the fact that she changed her story is evidence that the witness is a victim) This is the state’s favorite response to the recanting witness. The state even goes so far to put on a “Domestic Violence Expert” (A cop who took some law enforcement classes on domestic violence) to educate the jury about how victims of domestic violence change their story for a variety of reasons. All these reasons can be summed up as “she is a victim of domestic violence, and victims of domestic violence change their story because they are victims of domestic violence.”

But what about when a victim sticks to her story? Well then the state argues that she has stuck to her story because it is the truth. So a witness sticking to her story and recanting are both evidence that she is a victim.

3. Defendant is a liar because he has been accused of a crime.

The argument goes a little something like this, the defendant has incentive to lie because he is has so much to lose. This is the oldest trick in the book for prosecutors. It is not limited to crimes of domestic violence, but domestic violence cases almost always turn on the issue of credibility (since they are almost always he/said she said cases), and so the defendant’s credibility is attacked by virtue of his being a defendant. In other words, once you are accused of a crime, you are no longer to be believed because everything you say is tainted by the fact that you have a substantial stake in the outcome of the trial. The prosecutor does not even have to argue this point for it to be a problem for the defendant. This is a thought that jurors will naturally have anyway.

4. The defendant is guilty because he has had a prior felony.

In Idaho State court the prosecution is allowed, in most cases, to impeach a defendant’s credibility with a prior felony, as long as the felony was in the last ten years, is relevant to credibility (note: the courts have ruled that almost all felonies are relevant to credibility), and is not unfairly prejudicial to the defendant’s case (unfairly being the keyword, if it wasn’t prejudicial, the state would not be asking to use it). If it was not in the last ten years, the state may still be able to use it, but will have a heightened burden when it comes to proving the relevance of the evidence.

The reason that the state wants to present this evidence is not just because they want to impeach the defendant’s veracity for telling the truth. They do it for the very reason that character evidence has generally been banned in courts, and that is so the jury will convict him based on the evidence that he has been convicted in the past. Crudely put, he did it before, he probably did it again.

Of course, the prosecutor is not allowed to argue this. In fact the judge will instruct the jury that the evidence is only to be considered in determining the credibility of the witness, and not as evidence of guilt. But every prosecutor and criminal defense attorney knows that once that bell is rung, it cannot be unrung through a limiting instruction by the judge. Essentially what the judge is asking the jury to do is ignore the evidence they just saw. But all lawyers know, that is not going to happen.

Also, by putting the Defendant on notice that he will be impeached with a prior felony, the state knows that the defendant will probably choose not take the stand, since any attorney with a half a brain knows that if he puts his client on the stand, and it comes out that he has a prior felony, your chances of winning are marginal. However, your chances of winning are also slim if the defendant is not able to tell his side of the story. As is so often the case in domestic violence cases there are only two witnesses, the complaining witness and the defendant. So there is no other party to put the defendant’s evidence on with.

As you can see, this is a very powerful tactic used by the prosecution. Once a judge rules that the evidence can be used for impeachment purposes if the defendant takes the stand, then the defendant either takes the stand and the evidence comes out, and the jury convicts him because he’s been found guilty before of a crime; or the defendant chooses not to take the stand, is unable to tell his side of the story, and leaves the jury with only the prosecutor’s side of the story. It is often a lose/lose situation for the defendant if he has a prior criminal history.

5. Prior incidents of violence of the victim are suppressed.

When a defendant attempts to use evidence of prior acts of violence that the complaining witness has perpetrated against him as evidence of a complaining witness’s propensity for violence in order to bolster his self defense claim, the prosecution asks the judge to suppress the evidence on the grounds that it is impermissible character evidence. I have been through trials where the state’s entire case was built on evidence of the defendant’s prior acts of violence (Judge allowed it because it was same alleged victim, and recent act), and the defendant had a load of evidence of the alleged victims acts of violence, but the judge suppressed the defendant’s proffered evidence. (Judge said, defendant was not the victim of the violence, and so suppressed the evidence) It goes without saying that this was tragic for the defendant’s case.

6. File witness intimidation charges.

The strategy goes like this. If the defendant is in custody, record all his phone calls. Wait for him to call a witness, and talk to a witness about the case. File witness intimidation charges. Then get the defendant to plead to the original charge, and drop witness intimidation as a part of a plea deal.

The witness intimidation statute in Idaho is written so broadly that any discussion of changing testimony can be used as evidence of witness intimidation. Furthermore, since the State has the charging power, and the defense does not. When the State’s witnesses intimidate the defendant’s witnesses, no charges are ever brought.

7. Prevent defendant from contacting spouse/girlfriend.

Put protection order in place to “protect the victim”. Really what the prosecutors want, is to make sure they keep the defendant and complaining witness are separated so that there will be no reconciliation, meanwhile the prosecutors “victim witness coordinator” can continue to coddle and coach the complaining witness until she is convinced that she is a battered spouse. This ensures that the state has a cooperative witness for trial.

8. Threaten the defendant’s mother.

This strategy goes a little something like this; when the defendant’s mother (or sometimes the father, but it is almost always the mother) contacts the alleged victim and asks her to “drop the charges,” (btw, the idea that a complaining witness can drop any charges is a myth) charge the mother with a felony charge of witness intimidation. Then tell the defendant you will dismiss witness intimidation charges against his mother if he pleads to the original charge. As you can imagine, this is an intense motivating factor for defendant’s to plea.

9. Charge the defendant with a violation of a no contact order, then dismiss as part of a plea agreement.

This strategy is similar to the strategy above of charging a new crime, and then dismissing those charges to get the defendant to plea. Also similarly, this happens very frequently when the defendant is in custody. The staff at the Ada County Jail in Boise, Idaho are very proficient at monitoring the inmates phone calls. Many defendants, who believe that they can outfox the fox try to come up with tricks to speak with the person who they have a no contact order with. One of the tricks is to have another inmate call the spouse/girlfriend and then give the phone to the defendant.

This way the protected phone number will not show up on the defendant’s jail phone records. However this is against the rules of the jail, and they catch the offenders every time. The other trick, that rarely ever works either, is to pretend the spouse/girlfriend is someone else, like a sister or a friend. The problem is, they can never keep the act up, they always slip up, and make it obvious who it is they are talking to. It came up in one trial that the defendant had tried this trick by pretending his girlfriend was his sister, but then they began having a “romantic” conversation with each other, and it became very apparent that they were not brother and sister.

Even if the jail staff never catches on (or more likely hardly care) the prosecutor almost always subpoenas the recorded phone records, and has one of their staff review them. If there is anything there, they find it. When my clients call me, we have a talk about how he should not talk on the phones to his spouse/girlfriend. They usually tell me they already have, but have dodged the bullet. Imagine the disappointment when they are informed that I can almost guarantee that those conversations will come out at trial.

10. Charge the misdemeanor case as a felony. Then plead defendant to a misdemeanor as part of a plea negotiation.

This tactic goes like this; take a case that normally would have been charged a misdemeanor, charge it as a felony, and then amend the case back to a misdemeanor as part of a plea negotiation. One of the prosecutor’s favorite charges to do this with is attempted strangulation. What the prosecutor’s look for is any mention of the defendants hands getting near the victim’s neck. (e.g. defendant pushed the complaining witness in the neck area) Even though the prosecutor knows they have a weak case, it is enough evidence to get past the low probable cause standard.

Even if the misdemeanor case itself was a weak case, the defendant almost always ends up taking the deal for fear that they may be convicted of something much worse.