Sharing Our Stories of Survival: Native Women Surviving Violence (47 page)

Gathering and Using Evidence

An attorney can use the services of the victim advocate when gathering evidence. Often the victim advocate will have a strong relationship with the victim. Many times the victim advocate has taken pictures of injuries, may have torn or bloody clothing, and may even have pictures of the scene that can be very helpful if the batterer has destroyed the victim’s property. However, the attorney and the victim advocate must be aware of the foundational requirement known as the “chain of custody” for tendering items in the victim advocate’s possession during a court hearing. In court, the victim advocate must state what the article is, how she came to have possession of it, identify any unique marks on the article, state where the article has been kept, and who, if anyone, has had access to the article. The victim advocate must then indicate that the article is in the same condition as it was when the victim advocate took possession of it.

Some types of evidence that will support allegations of abuse are: your client’s testimony, testimony of witnesses, visible injuries, 911 tapes, other protection orders, criminal records showing the abuser’s domestic violence offenses, diaries recording incidents of abuse, evidence of past abuse, and expert testimony regarding the dynamics of domestic violence and regarding defensive actions or injuries to the batterer caused in self-defense.

Usually witnesses cannot testify about the words spoken by another person. However, there are exceptions to the
hearsay
rule and those exceptions work well in domestic violence cases. The “then existing mental, emotional or physical condition”
¹⁵
rule allows for an array of evidence to be introduced. For instance, the victim may have stated, “my neck hurts and my back is stiff.” Those statements will be admissible under this rule. In addition, the victim’s fear or her state of mind is admissible pursuant to this rule.

“Present sense impression”
¹⁶
is another useful rule of evidence to use in domestic violence cases. This rule allows the witness to state what they heard the
declarant
say while perceiving an event or immediately thereafter. For example, a 911 dispatcher may be able to testify that a victim yelled “He’s banging on the front door!” on the telephone.

“Excited utterances”
¹⁷
are also very useful. To use this rule, the attorney must show that the statement is relevant and the witness heard the client make the statement while still under the stress or excitement caused by the event or condition. There is a time restraint that varies according to jurisdiction regarding how long the statement may be made after observing or experiencing the event or condition, so the attorney must check the applicable rules of evidence. A police officer may be able to testify that the victim yelled “He’s going to kill me!” while visibly shaking.

Finally, “prior bad acts” is a useful tool in domestic violence cases. Since domestic violence is a pattern of behavior, it is relevant to introduce other acts of the batterer to demonstrate the pattern. This rule is a little complicated but basically allows evidence of prior bad acts to come in if used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Medical records are also useful evidence. The victim advocate may have referred the victim to health care professionals and those medical records, such as emergency room admissions or doctors’ notes, may prove very telling in the case.

The attorney should use discovery in domestic violence cases where time permits. In my own practice, protection order hearings rarely allow time for formal discovery. However, you can gather some information such as police reports and interview possible witnesses. If time permits, consider using interrogatories, request for production of documents, and request for admissions. I have found that request for admissions sometimes work extremely well for my clients as the batterers are often hard for opposing council to contact and the admissions have to be answered within a certain time frame or they are deemed admitted. What a wonderful tool! In more than one case, I have had such admissions as “I admit that I have physically and emotionally abused my wife on a regular basis and continue to do so” to be deemed admitted for a failure to timely respond.

Drafting the Pleadings

If the victim has not already completed an affidavit requesting protection from the court, the attorney or victim advocate should assist her in doing so. Keep in mind that the facts that constitute the statutory definition of domestic violence must be set out in the petition or affidavit. The definition and requirements may vary from jurisdiction to jurisdiction.
¹⁸
Be specific regarding the remedies your client seeks. Don’t hesitate to request a “no direct or indirect contact” order. You may request exclusive use of the home and automobile as well as payment of certain debts and bills. However, a word of caution, batterers historically will not comply with court orders, especially in jurisdictions where the court will not hold the batterer accountable. Make sure your client has alternative financial resources to help her through this critical time.

Consider requesting custody of the children if the jurisdiction where you practice allows you to obtain custody in protection order cases. If not, consider adding the children to the protection order if you have enough evidence to do so.

If children are involved, you should request supervised visitation. Despite the fact that many jurisdictions have statutes that require a batterer must have supervised visitation unless the court makes findings that an alternate type of visitation will provide for the safety of the children, I have found the courts will rarely comply with that particular statutory provision. I tend to locate a supervisor and bring that person to court with me to agree to supervise the visitation. This burden should not fall on my client, but in reality if she wants supervised visitation she has to provide the option and do the groundwork.

Preparing and Interviewing Witnesses

Witnesses have varying storytelling abilities and personalities. You should ask your client and the victim advocate to write down a list of potential witnesses, including a summary of what their testimony will be. Ask the client if she discussed the abuse with anyone. Try to determine whether there were any eyewitnesses. When preparing your case, you should interview each witness and assess whether his or her testimony is helpful or harmful to your case. Prepare your witnesses for testimony, including what to do when objections are made. Only use those witnesses you feel the court will find credible unless unusual circumstances are present in your case.

Some typical witnesses in a protection order hearing might be: family members, neighbors and other bystanders, friends, co-workers, mental health providers, doctors, and law enforcement officers. Expert witnesses may also be needed in the case to educate the court with respect to domestic violence. One key reason I use expert testimony is to explain why the victim keeps going back to the batterer or why she has obtained and dropped numerous protection orders in the case. Expert witnesses can be domestic violence victim advocates that may or may not have worked on the case but who have extensive experience in the field. Be cautious about calling your own victim advocate as an expert witness as you may waive the attorney-client privilege against disclosures of confidential information. I typically use victim advocates from other counties or tribes.

Identifying the Theory and Theme of the Case

While you do not have to be elaborate in developing the theory and theme of your case, it is helpful to go through these steps in order to make your client’s story more organized and sequential in its telling. The theory is the “what happened in what order” of the case. It is sometimes useful to make a chronological list of the story. Do not forget to explain why the victim has acted as she has, especially if the batterer is alleging your client is the aggressor or if your client has obtained and dropped protection orders on other occasions. Make a flowchart with each piece of evidence or testimony that supports a fact the statute requires you to prove. Choose the most important facts and be simple and brief.

The theme of the case will most likely be that “the opposing party is an abuser.” You can refer to the characteristics of the batterer set forth above to help you develop your theme further. The facts of your case must support the theme. The attorney or victim advocate must tell the client’s story through the facts presented, supported by the evidence and testimony. Repeat your theme at least two times during your presentation.

The Protection Order Hearing

Safety

The protection order hearing is often stressful and emotional for your client. Safety to and from the courthouse must be addressed at the outset. The victim advocate typically accompanies the client to and from the courthouse. Safety plans are reviewed prior to the hearing as emotions may run high during and after the hearing. You should strategically place your client away from the batterer and away from the batterer’s eye contact if possible. Try to visit the courtroom with your client a day or so prior to the hearing when the room is vacant. Instruct your client where she will sit and prepare her for cross-examination. Preparation in these areas not only assists you in the presentation of the case, but it makes the victim feel empowered because she knows what to expect.

Direct Examination

Direct examination will require you to meet each one of the statutory requirements to establish domestic violence through testimony of your witnesses. Do not neglect to call elders as experts in tribal court when custom and tradition are necessary for the court to have an understanding regarding the theory of the case or any remedies you are requesting. Most tribal codes require the tribal court to give deference to custom and tradition.

Let your client tell her story. Your role is to guide the story to ensure that all of the statutory requirements are met. Listen to your witness. Try to paint a clear picture for the court with respect to what has gone on and what your client needs to be safe.

If there is damaging evidence about your client, get it out when you present your side of the case. It is always less damaging if it comes from your witnesses and you have an opportunity to allow those witnesses to explain in a light more favorable to your client.

Cross-Examination

Cross-examination is perhaps the most difficult aspect of the case. Discuss with your client body language the batterer might exhibit to indicate he is losing control. It is also important to bring up that the batterer may not be represented by counsel and thus may be cross-examining your client himself. Instruct your client whom to look at and what to do when objections are made. Good cross-examination requires endless preparation and protection order hearings do not typically allow that luxury. You should consider three reasons to conduct cross-examination of defense witnesses. First, cross-examine to bring out evidence that is good for your case; second, to impeach the witness due to prior inconsistent statements; and finally, to show that the witness cannot be trusted because of some bias. If none of these reasons are present, be cautious and consider whether to cross-examine at all. Remember, a batterer will almost never admit that he has abused.

Listen for partial admissions from the batterer. Can you place him at the scene at the right time? Ask short questions in logical sequence. Use leading questions that require a yes or no answer. If the batterer is rambling, request that the court issue an instruction to the batterer to answer the question yes or no. Some courts will give the instruction and the batterers do not enjoy losing that control.

Crafting Enforceable Orders

It is not unusual to have a client that lives in one jurisdiction, works in another jurisdiction, and may visit still another from time to time. The attorney should strive to ensure that each protection order contains language that increases the chance of enforcement in other jurisdictions.

Congress enacted the Violence Against Women Act (VAWA), which contains full faith and credit mandates
¹⁹
(see chapter16). In order for a protection order to comply with the VAWA,
²⁰
four components must be present in the language of the protection order. First, the order must indicate that the party who is being awarded the
relief,
or someone on that party’s behalf, has filed a request for the relief; second, the order must set forth that the court that issued the order had subject matter jurisdiction and in personam (personal) jurisdiction over the parties.
²¹
The order language must indicate that due process has been satisfied by setting forth what measures were used to give notice and opportunity to be heard to the respondent.
²²
Dual protection orders will not be given full faith and credit unless the language indicates that each party filed a request for such an order and the court made specific findings of fact with respect to the need for the dual protection order.
²³

Ensure that the protection order sets forth specific, detailed findings regarding the danger to the victim and the need for the protection order. The duration of the order should be indicated. The order should give contact information such as the clerk’s name and telephone or fax number. The order should state that all parties have been informed of the scope and terms of the order. Some jurisdictions even note what constitutes a violation of the order, such as any contact through a third party. All parties should be provided a copy of the order and that fact should be noted in the order language.