If you need immediate help to enter an item of evidence or a witness statement into a case, go directly to Part 3, and come back to Parts 1 & 2 later. These first two sections aim to give you a foundation for working with evidence on a more routine basis.

Evidence is the gold standard currency of the justice system. Its the evidence, more than anything else, that will determine whether or not the system can implement its powers on behalf of the victim, and to what extent. Moreover, when a criminal case is supported by an abundance of evidence, that case can usually overcome whatever other problems the case may have, whether the problems be mishandling of the case by officials, or victim reluctance and fears.

In short, a case backed by solid evidence points so unambiguously to the truth that the case pretty much drives itself. Cases backed by solid evidence will save women's lives.

So when a case is being mishandled, when officials are backing away from a case for any reason, - and as a potent means of preventing this in the first place - strengthening a case with additional evidence is one of the best strategies victims and advocates can use for keeping a case on track. It's a strategy that's a win for everyone. And fortunately, strengthening a violence-against-women case with more evidence isn't usually difficult at all to do.

Evaluating, uncovering, and handling evidence is mostly common sense. It's so common sense, that once you start involving victims in the process, most victims quickly catch on and become their own best source of generating new evidence leads. Furthermore, contrary to the widespread myth that violence against women cases are plagued with lack of evidence and doomed by 'he said-she said' dilemmas, the reality is violence-against-women cases are usually more evidence-rich than other kinds of criminal cases for many reasons we discuss further on.

So don't be intimidated. And don't feel you have to know all the fine points of evidence law before you start working with evidence yourself. Just by focusing your thinking on the evidence as you work violence against women cases, you'll start immediately to boost your evidence recognition skills. And though legal systems vary from country to country, the logic of evidence is universal. No matter where you live, we hope that what follows helps you to strengthen the proofs needed to stop the violence in women's lives.

Part 1 ~ Tracking and
Monitoring Evidence

Whether a case is going well or not going well, advocates should routinely keep tabs on the evidence that's available in the case, and, just as important, should routinely keep tabs on how much of that evidence has been securely entered into the criminal case. Two overarching questions to keep in mind are: One, has all the available evidence been properly entered into the case? And, two, Is there enough evidence in the case for the system to bring appropriate charges and action against the perpetrator and to support appropriate protections for victim?

As you do this, be sure to keep victims informed and involved in this process of monitoring evidence. When a victim is aware of the building blocks of evidence that support her truth, it boosts her confidence in the case right at a time when victims are most fearful they may not prevail. Understanding the strength of the evidence can often be the deciding factor in getting reluctant victims to proceed with prosecution. But more to the point here, victim attention to evidence is usually the most fertile source of new evidence leads in violence against women cases. This is because victims in these cases usually have an intimate, detailed view, not just of the crime itself, but also of the crime's context, and of the perpetrator.

The more you and your client begin to routinely monitor and evaluate evidence, the more adept you'll become at automatically noticing new or unexplored evidence, and the more adept you'll become at evaluating the finer points of relevancy, probative value, and admissibility of different kinds of evidence.

The best way to start is to get in the habit of keeping a list of case evidence as part of your case notes, leaving ample space to update the list over time. Throughout your work on a case - whether in conversations with officials, with the victim, in going over documents, or in court hearings - always keep one ear attuned to evidence. As indications of potential evidence surface, make a note. Then ask questions, then or later, to probe further.

If you have one ear tuned to evidence and a victim says, "... and then he kicked the wall," you'll naturally want to know, "Did he leave a mark on the wall?" "Did you show the mark to the police when you made your report?" "Did police take note?" "Take pictures?" "Did any one else see him do it?" Is there anyone in the nearby apartments who may have heard this?" etc. Or, if the victim hasn't yet made a report to police and plans to do so, you'll want to point out to her the importance of showing the footprint and dent in the wall to police.

This doesn't necessarily mean that every time the victim (or any one else) mentions something relevant to evidence that you stop the conversation then and there and delve into the evidence questions. Naturally, that approach at the wrong time could upset any one's train of thought. But at the very least, make note of the "he kicked the wall" statement on your evidence list so you'll remember to get back to the related questions later.

Just by beginning to consistently monitor and track evidence in these ways, you'll soon find yourself, time and again, protecting valuable evidence from slipping through the many cracks in the justice process. Just this step alone will save women's lives.

Here are two guides, in the form of sets of questions, that can also help you and your client evaluate the evidence and other aspects of the criminal case: Form for Evaluating Police Response to Domestic Violence,
http://www.justicewomen.com/help_police_evaluation.html ;
Form for Evaluating Police Response to Sexual Assault,
http://www.justicewomen.com/help_rape_evaluation.html

Also, as part of routine tracking the evidence, begin educating yourself along the way on the rules of evidence, by asking questions of officials you trust, and by consulting your state codes. Most jurisdictions the world over now have their penal codes and evidence codes on the Internet. Use them! But, again, don't feel that you have to know it all before you begin putting your evidence intuition to work.

In addition to catching overlooked evidence and promoting confidence in the case, routinely monitoring evidence is also the best protection against one of the most common tactics used by officials the world over to deny women justice. Officials frequently tell victims and advocates, (and their own supervisor's, too), that there's 'not enough evidence' to do the case, - when, in actual fact, there's plenty of evidence.

Or, equally outrageous, officials purposely build this excuse into the case by purposely not collecting, or not developing, the evidence that's right there in front of their eyes.

In either case, this 'not-enough-evidence' ruse for dumping perfectly viable cases of violence against women is very widespread among police and prosecutors the world over. Clearly, these rampant false claims by law enforcement of 'not-enough-evidence' are extremely dangerous and oppressive to women. These false claims, in fact, constitute government complicity with the violent oppression of women, and they most be confronted in order for women to be free of the violence.

Granted, there are violence against women cases in which the claim of 'not-enough-evidence' is legitimate. But this is all the more reason that victims and advocates should become evidence smart - so you can quickly tell the difference between the legitimate and false claims. So that when officials falsely claim there's 'not-enought-evidence, you'll be prepared to rebut the claim to the officer's superior. Or, as we hope this section will show you, when all else fails, you, yourself, can go out and get more evidence, and fill in the gaps in the case. But most useful of all, and more to the point here, once officials become aware simply that you're paying attention to the evidence, this alone will make officials much less likely to try this 'not-enough-evidence' ploy in the first place.

NOTE: Unfortunately, many victim advocates and counselors believe that it's not their job to watchdog the evidence, and even more, that it's not their place to question law enforcement statements as to the sufficiency of evidence. If police or prosecutors say there's not enough evidence in a case, too many advocates simply pass this information on to the victim as if it is fact. This practice of parroting law enforcement statements to victims, without even advising victims to beware, makes advocates little more than agents of the system. This is in direct, ethical conflict with the role of an advocate. If you've told the victim you are her advocate, the victim has been led to believe that you are watching out for, and acting on behalf of, her best interests, and not that you are acting as a mouthpiece for the system.

Or another way of looking at it is this. As long as so many officials continue to falsely claim 'not-enough-evidence', trying to advocate for victims of violence against women without tracking the evidence is like trying to play poker without looking at the cards in your hand.

A frequently overlooked aspect of monitoring evidence is keeping specific track of which evidence has been officially entered into the case and which has not. Just because you or the victim are aware of certain evidence, you can't assume that the evidence has been securely entered into the case.

Did Ana actually tell the officer that her neighbor saw her run screaming out of the house? Or did she just tell you? Did the officer follow up and get a statement from the neighbor? Did the neighbor actually tell police what she saw? Or was she too afraid? Or, did Ana not even know the neighbor was standing on her porch? In which case, when Ana told the officer she had run out of the house screaming, did the officer then earn his pay and canvas the neighbors to check on the possibility that a neighbor may have heard or seen enough to corroborate Ana's statement?

There are a number of reasons it's so easy to mistakenly assume that critical evidence has been entered into the case, when in reality it has not. One of the most common reasons is that victims are generally much more forthcoming and expansive in talking to advocates, than when talking to officials. A victim may tell you in such great detail and outrage about the threats her boyfriend left on her message machine, that it doesn't even cross your mind that she may never even have mentioned these messages to the police.

So here are four caveats to keep in mind in evaluating evidence status:

1. Don't assume that just because a victim has spelled out critical information to you that she has given the same information to authorities, or even to the appropriate authority.

In addition to being generally more guarded with officials than with advocates, victims' lack of knowledge of who's who in the system, and about how the system works, often leads to serious gaps in what key officials have been told. For example, a victim may put vital information into her restraining order petition, tell it to a dispatcher, to the advocate, or a patrol officer, and then completely neglect to give that same information to the detective who's in charge of investigating the case. A current client of ours wrote a detailed account in her restraining order petition about how her husband strangled her 4-year-old daughter. She also told the patrol officer - but the patrol officer didn't write it down. She told witnesses the day it happened, told the advocate at the DA's office, and told us -- but she never told the detective assigned to the case that the suspect had strangled her 4-year-old.

When we asked her why she hadn't told the detective, she answered quite understandably that she had already told so many people she just assumed the detective already knew about it. One common variation of this mishap occurs because of victim confusion about the difference between the criminal and family law case. Victims often think that because they put given evidence into their restraining order petition, that that evidence is automatically entered into the criminal case. So in addition to checking to make sure that victims told authorities about specific evidence or incidents, it's also important to check that she told the appropriate official. Ask victims specifically, "Did you tell officer X about the suspect strangling your daughter?"

2. Don't assume that just because the victim told an official, that the official wrote it down or entered the information into the case.

Often officials don't record vital information for the simple, all-to-common reason we've already discussed; i.e., because it's the easiest way to sabotage and dump a case they don't want to work. But officer failures to record vital information can also be understandable oversight.

In the example we gave in the last paragraph where a responding officer didn't put the strangling of the 4-year-old in his report even though the victim claims to have told him about it, it's likely the officer just plain forgot to do it. On the day this officer responded to the victim's call, the perpetrator had just made a murderous attack against the mother and had kidnapped the 4-year-old girl. The officer's entire day was focused on launching a search and securing the safety of the child. Which he did successfully. It's easy to understand that when he later sat down to write the report that night, he simply forgot to include what the mother had told him about the strangling incident against the daughter that had occurred a few days before.

3. Don't assume that just because an officer appears to have taken careful note of given evidence, that the evidence has been securely entered into the case.

Here are two examples of critical evidence which seemed to be securely entered into a case, but was not: Example One: An officer took a witness statement from the teenage son who had been an eye witness, and the only corroboration, to the domestic violence against his mother. In the police report the officer wrote that the teenager had given a statement - but, the officer did not write out the son's statement, or even a summary of the son's statement. On reviewing the report, the district attorney, instead of taking the simple step of sending the report back to the officer to get the boy's statement, chose instead to use the officer's failing as an excuse to reject the case for lack of evidence. None of this sloppiness came to light until three weeks later when the mother was found by the same teenage son laying slain on her bedroom floor with nine bullets in her body.

If an alert advocate had confronted the district attorney's claim of not-enough-evidence, and then pressed the district attorney to get the son's statement into the record, and prosecute the case properly, it's very likely the woman's life could have been saved.

Example Two: In a multiple felony domestic violence case it seemed to us the officer had done just about everything right - from his caring attitude to his painstaking collection of the evidence. The fact that the officer arrested and booked the suspect on multiple felonies covering all aspects of the crimes further indicated the officer felt confident he could back it all up with the evidence he'd gathered. Our only concern was that the officer had used an available business person to translate the victim's statement. But, as improper as this may be, we knew the business person to be fluent in both languages, and we also knew that our DA's office routinely accepted victim statements with much less proper language translations than this.

What we didn't know, until suddenly, unexpectedly, the perpetrator was back out on the street hunting down every one involved, was that the deputy district attorney had rejected the case on every charge. Why was the case rejected? Because unbeknownst to the victim and to us, the businessman was so afraid of the perpetrator that, though he had been willing to translate, he had refused to give his name to the police - a fact which completely broke the legal bridge to the most crucial evidence in the case i.e., the victim statement. One critical gap in the officer's handling of the evidence, led to the crash of the entire case, until such time as the victim could be re-interviewed properly. Luckily, and it was only a matter of luck, she was alive and well for the occasion.

4. Don't assume that an officer has followed obvious evidence leads on the chance of finding evidence.

This is the point where officers' not caring about violence against women is so clear. When Ana tells an officer that she ran out of the house screaming, if Ana doesn't already know that a neighbor saw her, very few officers will make the obvious effort to talk with neighbors on the chance that one of the them may have been a witness. If the evidence doesn't virtually jump into the officer's view, most will not make the effort to actively go looking for the means to make the case. This is a significant gap in most all violence against women cases, one that victims and advocates can almost always explore and fill.

***

Officer bias, oversight, neglect, laziness, time limitations; victim reluctance, fears, fragmented communication, misunderstanding the system, forgetting; witness reluctance, fears, unavailability, misunderstanding the system; clerical, dispatch, and support person errors, oversight, and bias, etc.. There are so many ways that vital, available evidence can, and so often does, slip through the cracks, that a vital aspect of monitoring evidence is to always ask yourself the question, "Has the existing evidence been properly entered into the case or not?"

Unless you have the completed copy of the police report in your hands, you can never be 100% certain which evidence has been officially and properly entered into the case, and which has not. But, even without the police report, there are a number of ways that, taken together, you can usually arrive at a very close determination of this crucial evaluation of evidence status. Here are some of those ways:

Ask the Victim. As in most aspects of violence-against-women cases, the victim, herself, is one of the best sources for obtaining information on the status of evidence. A good general starting question to ask victims is whether or not she felt the officer was making a sincere effort to treat the case seriously and to gather all the evidence available. Then as specific evidentiary points come up in the victim's story, always ask more specific questions: Did she give that same information to the principal investigating officer? Did the officer appear to make note of the information? Did the officer gather relevant verification of the evidence, such as taking photographs, obtaining witness statements, message recordings, etc.? Did the officer interview specific witnesses? Does she know if the witnesses spoke freely, etc.?

Additionally, it's important to ask the victim what information she gave to the 911 operator. Remember, phone calls to 911 are tape recorded and stored by police departments for a significant length of time. The evidence in these tapes can be pivotal in violence-against-women cases. (It's also important to make sure that these tapes are downloaded and entered into the case, something police often neglect to do. But, naturally, the victim won't know the answer to that part of the question.)

Keep in mind that even if you get a positive picture of evidence status from going through these evaluations with the victim, there can still can be big, bad surprises of missing evidence lurking in the investigator's final report, such as the examples given in the previous section.

Obtain Booking Charges. Obtaining the booking charges following an arrest is a quick, easy, and excellent first read on the kind of evidence that the officer has officially logged into the case - or not. When a police officer makes an arrest and 'books' a suspect into jail, that officer makes official note of the 'booking charges'. These booking charges are not actual charges against the suspect, since it's the district attorney who makes final decision as to which, if any, charges will be formally filed. Rather, the booking charges are the officer's recommended charges based on the evidence he or she has recorded into the report. As such, the booking charges are a very good first take on the array of evidence in the report.

For example, if the suspect has been booked only on one domestic violence charge, but has not been booked on a threats charge, you can be quite sure that even though the victim says she told the officer about the suspect's threats to kill, those threats have very likely not been recorded in the police report. If the officer had written these threats into the report, the officer would have almost certainly booked the suspect on both domestic violence and a threats charge.

Routinely obtaining booking charges will again and again serve to give you early warning on major gaps in police reports. As one more example, it was the booking charges that alerted us to the fact that the strangling of the 4-year-old girl was probably not in the police report. Despite booking charges of multiple felonies, a violence against a child charge was not one of them.

What makes obtaining booking charges especially valuable to victims and advocates is that you can obtain them so quickly and easily. If the suspect has been arrested and is still in custody, all you have to do is make a phone call to the jail. Booking charges are public record. Jail staff in the US must tell any caller who requests it, the list of booking charges on which the suspect is being held. It's so simple, that once a suspect has been arrested, calling the jail and requesting booking charges should be routine and one of the first things you do. And in the same phone call, of course, you can obtain bail information, and the date and time of the suspect's first or next court appearance. In addition, don't forget to give the jail phone number to the victim so that she herself can talk with the jail at any time, day or night, to obtain the same array of vital information, including getting an answer to the question that is usually uppermost in her mind; i.e., is the suspect still in custody?

Whenever possible, obtain the police report and/or other official documents, such as CAD (dispatch records) records, 911 tapes, search warrants, and arrest warrants. The only way to know with 100% certainty that particular evidence has been entered into the case is by actually seeing it written into official reports. So, whenever possible, always obtain a copy of the police report and other official case documents. In most states, as in California, law enforcement has a legal obligation to give victims copy of the domestic violence police report if the victim requests it. However, victims of sex crimes don't have the same legal right in any state that we know of. And, even with domestic violence reports, you can't always get a copy quickly. So, although obtaining a copy of the police report is obviously the best way to know what's in the police report, you'll usually have to rely on the other sources, to one degree or another, to make that determination.

Don't forget about search warrants and arrest warrants! These warrants are almost always a gold mine of exactly the evidence information you're looking for, made all the more valuable because these warrants are a matter of public record. Made even more valuable because search warrants and arrest warrants are usually written up before even the district attorney has seen the case. In order to obtain a judge's approval for either a search or arrest warrant, police have to argue their case in writing to a judge on the record. These requests, which usually contain a laundry list of the evidence the officer has already gathered in the case, become part of the signed warrant. Sometimes, even better than a laundry list of evidence, officers will just attach a copy of the police report to date - which puts the police report on the public record before the case has even been sent to the district attorney. Obtaining copies of search warrants and arrest warrants is especially useful in sex crimes cases where it is usually impossible for victims to obtain the police report on request. So if you know that a warrant has been issued in a case, all you or the victim has to do is go to the courthouse to request a copy.

Ask officials directly and indirectly. Officers vary greatly in the degree to which they're willing to talk about the details of their investigation. But most all officials will engage in some level of conversation with victims and advocates. So take advantage and give them a call. As you do this, keep in mind that while investigating officers do have a reasonable obligation to keep victims and advocates informed on the progress of a case, they have no obligation to share the specific evidence they've gathered. This is all the more reason to polish and nuance your law enforcement conversational skills.

One particularly critical communication juncture that you'll run into time and again is when a police officer, prosecutor, or probation official tells you or your client that there's not enough evidence to proceed with the case. It's in discussing this issue with the official, that applying just the right combination of artful questioning, conversation, and confrontation, you should be able to both obtain needed information about the current evidence status of the case, and keep the official's mind open to continuing with the case.

One reliable strategy for maximizing the information you can obtain in these conversations is that the more information you have going into the conversation the more new information you'll be able to get out of the conversation, and the more solutions you'll be able to provide. So if a client comes to you and says an official already told her there's not enough evidence to go forward with the case, take your time to gather as much information as you can on the evidence status before getting on the phone or getting into a meeting with the official. Another strategy is to simply keep the conversation going. The longer you can keep the official talking, the more likely you are to get new and useful information, plain and simple.

Ask other officials connected to the case or officials not connected to the case. When you run into a brick wall attempting to get evidence information from the investigating officer, don't forget that any one case will move through the hands of an array of officials. And, in addition, that there are many more officials, beyond those who are directly assigned to the case, who are, nonetheless, in a position to pull the case file and take a look at the case. Don't hesitate to reach out to these officials.

For example, suppose you find out from the jail that the suspect is not booked on a threats charge even though the victim claims to have told the officer about the suspect's threats to kill. Or the victim says no photographs were taken of her injury. Or that she's not sure if the officer took notes when her child told the officer about witnessing the fight. And suppose further that for whatever reason you can't get the needed information from the responding officer. One thing you can always do is call the on-call sergeant at the police department. Tell her or him that you're concerned that a particular piece of case evidence may not have been entered into the case, and that you'd like to know if the victim should come in to make a supplemental statement, or to get photographs taken, or whatever it is that needs to be done to fill the gap. In all likelihood, this should prompt the sergeant to pull the case, take a look, and confirm things for you one way or another, at least on the particular issue.

In the same way, you can reach out to the head of domestic violence/sex crimes units, charging deputy district attorneys, district attorney investigators. Victim advocates who work inside the system, probation officers, and victim assistance personnel also often have access to police reports. The main point here is that there are a lot of different officials not directly assigned to the case who can get their hands on the police report for you, and can tell you specifics of what's in the report and what's not. Use them! The main limitation of this approach is that though many will be willing to pull a police report, take a look, and answer a question or two, most will be very reluctant to sit there and read you the whole report. But there are some who will do that too.

Ask witnesses. Victims will often tell you about people who have been witness to aspects of the crime, about witnesses who have corroborating information, or about persons who have themselves been victim of the same perpetrator. Even though the victim tells you she told the officer about these persons, you and she may have serious doubts about whether the officer actually followed up and did the interview. If other means fail to determine if that crucial task has been done, don't be shy about contacting the witness yourself, and asking the person directly if an officer contacted them to take their statement.

If victim Ana says she told the officer that her neighbor saw her running out of the house screaming, there's nothing wrong with you or Ana asking the neighbor if the police officer talked to her - assuming the victim gives you permission to do so.

When you make this kind of contact with a witness, it's usually best to limit yourself to just that one question only - did the officer take her statement. It's generally not a good idea to ask the person to tell you what they had to say. Asking a witness to reveal the content of what they told the officer can too easily be perceived as your attempting to influence or intimidate the witness. In fact, it's a good practice to preface your question to a witness by explaining that you don't intend to ask about content, and that you're just wanting to check to make sure the investigator contacted the witness. Naturally, if the person wants to offer more information, that's a different story. But even in that circumstance, just to make sure the person doesn't feel pressured, you can tell the person something like, "Look, you don't have to tell me what you said to the officer unless you really want to."

Despite the special care that needs to be taken to assure that witnesses not feel influenced or pressured in any way, determining whether or not police obtained their statements is just too crucial a point to go unchecked. In our investigations of domestic violence homicides, one of the things that showed up again and again in earlier police reports pertaining to the same victim is that though the reports may have mentioned a witness, the police had failed to interview the witness. The case then went to the DA, who, instead of taking measures to obtain the witness statement, took the easy way out and simply rejected the case, leaving the perpetrator free to escalate to murder - in homicide after homicide after homicide. So if you can't verify this information any other way, don't be shy about calling a witness and saying, "I'm sorry to bother you. I'm a victim advocate and I just wondered if you could tell me if police contacted you about an incident that occurred yesterday. We just want to double check." It can save your client's life.

Feel free to photocopy and distribute this information as long as you keep the credit and text intact.
Copyright © Marie De Santis,
Women's Justice Center,
www.justicewomen.com
rdjustice@monitor.net