Tips for Trying Family Violence Cases to Judges and Juries Dana Nelson Assistant District Attorney Travis County, Texas

Dana’s Motto  Has a crime occurred?  Can I prove a crime occurred?  Should I prove a crime occurred?

Proof for Trial:  Identify Defendant  Identify Victim  Manner and Means  Injury  Other witnesses  Statements by D  Tangible evidence  911 recording  Prior FV history  D’s conduct after  FV Expert Evidence of offense is credible and corroborated

Identify Defendant and Victim  Defendant Photo of D from scene Photo of D from scene V’s statement of name and relationship V’s statement of name and relationship Other witnesses: past g/f of D or relative of V Other witnesses: past g/f of D or relative of VVictim - Someone who will always know how to contact - All ways to contact: , cell, pager, work

Witnesses:  Who called 911?  Who was present for any part?  Children Use their excited utterances Use their excited utterances Safety concerns if testify at trial Safety concerns if testify at trial  ALL officers at scene  Who translated?  Emergency Medical Treatment/Firefighters

Tangible Evidence:  Hair that was pulled out  Use demonstrative version if actual item not collected

MUTUAL COMBAT IS NOT IN THE PENAL CODE Determine the primary aggressor: 1. Offensive v. defensive wounds 2. Do you have both sides? 3. Which version is consistent and corroborated?

Victim Categories  Cooperative  Reluctant but truthful  Reluctant but minimizing or self-blaming  Recanting Did not happen/ “I lied because…” Did not happen/ “I lied because…” Different person committed assault Different person committed assault S/D “I hit first…” S/D “I hit first…”

Affidavits of Non-Prosecution  Use Office Form  Accept Defense Counsel Affidavits  Pre-requisites before sign  Allege facts?  Defense attorney for victim at trial

TRIAL  Jury Selection  Jury Charge

Jury Selection  BE the Squirrel!  SCARE UP THE NUTS!!  Jurors do the talking  We want jurors to be truthful  Ask the strike for cause question: The law is X can you follow that law?  Listen to panel. Do not try to persuade or change mind of juror who could be struck for cause.

Topics to Cover  State of Texas v. _______  Elements of offense  Credibility of Witnesses  Circumstantial v. Direct Evidence  Burden of Proof  History of Family Violence for panel member

State of Texas v. ______  Criminal v. Civil cases - Civil cases are for money - Civil lawyers have to do what their client wants - Who does the prosecutor work for? Opportunity for privacy  Anyone think State should not be involved in “family violence”?

Elements of Offense  Do elements in context of strangers first  Pain is enough  Ask jury to describe how one person can assault another  Then narrow down their examples to your case  Ask what evidence they would WISH for to prove those elements. Then identify what a particular juror would require.

Credibility of Witnesses  Everyone on equal ground  Give them the language: After you hear about the particular person testifying then you can give that person more credibility  HYPO: Has any panel member interviewed a person for a job? How assess their credibility in interview? How verify application/resume?  Testimony is credible and corroborated!

Credibility of Witnesses  HYPO A tourist was robbed in the parking lot at the mall at gunpoint after dark. Victim does not want to come back for trial and is not afraid. State can prove the case without victim’s testimony.  Should the State dismiss the case? Why not?

Circumstantial v. Direct Evidence  HYPO Chocolate cake on counter  HYPO TV news anchor, remember Walter Cronkite. What they say is hearsay but we believe it. Why?

Burden of Proof  Law does not require State to prove case a certain way  Accept our burden – confidence  Defendant’s right not to testify  Defendant’s right to subpoena  Law and Order: No notice of defensive theory to State  CSI  Discovery process

Family Violence History  “Have you, your family, friends, neighbors or co-workers had any experience with family violence?”  “Based on your experience can you serve as a fair and impartial juror?”  Let victims of family violence be struck for cause

Panel Busters  One Witness Rule Only ask if you really only have one witness.  Prior conviction limiting instruction. Make the defense handle this one.

Order of Witnesses  Chronological: reporting or occurrence  Start and finish strong: victim?  Admissible hearsay first

Jury Charge  Result of Conduct offense?  Unanimity  Lesser-included offenses  Verdict Form: relationship and/or family violence finding?

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