Part 2 ~ Uncovering
Additional Evidence

No matter at what stage a case comes to you, violence against women cases almost always have a wealth of unidentified evidence. Don't give up on these cases just because officials have thrown in the towel.

There are a number of reasons that even well meaning investigators of violence against women cases usually leave a wealth of unidentified and unexplored evidence. The number one reason is that law enforcement victim (and witness) interviews are usually woefully inadequate and incomplete. And since most evidence leads in these cases originate from the victim's story, the poor quality of victim interviews severely limits the evidence base of these cases right from the start. It also means that good victim interviews are the first and best place to look for new evidence leads.

The reasons that law enforcement violence-against-women victim (and witness) interviews are usually woefully inadequate are two fold. First, law enforcement culture overall seems to be utterly tone deaf to the unique constellation of fears and concerns that make most victims of violence against women hold back in interviews. Officers just barge ahead in violence against women interviews not much differently than the way they go about interviewing a victim of auto theft. It's a rare officer that knows how to quickly identify and address a women's specific fears, and then create the confidence and safety the victim needs to open up her story. Rarer still is the officer who will make the additional step of effectively engaging the victim as a partner in uncovering the full array of evidence leads.

The second reason most law enforcement violence-against-women interviews are woefully inadequate and incomplete is because these interviews usually take place at the peak of the victim's trauma and fear. This timing generally heightens the victim's reluctance to speak freely, and causes her communication to be particularly fragmented, incohesive, and forgetful of critical points. Most officials don't take the time, or don't have the time, to follow up later to obtain a more open, relaxed victim interview. And a significant number of officials will actually use the victim fears and fragmentation as an easy way of assuring their claim of 'not-enough-evidence' to work the case.

The good news is that victim advocates usually have very good skills for communicating with victims at any time. Advocates also usually have the advantage of talking with victims at a much calmer time and place than in the midst of an attack. So as the first, and very powerful step, in developing your own evidence exploring skills, give recognition to the critical victim interview skills you already have. And then simply focus those listening and conversation skills on questions of evidence.

A complete, unfettered victim statement is almost always going to be the main source of new evidence leads in violence against women cases. At the same time, without proper preparation, this all important victim telling of her story almost always comes highly contaminated and constrained by a huge constellation of immediate, life long, and society wide forces that work to minimize the story she'll tell. These forces must be identified, and addressed before the full evidentiary value of the woman's story can be anywhere near realized.

The first step to good partnering with a victim to uncover new evidence is to identify and address the fears that bind her, the same first step as for helping her through most every other aspect of getting free of the violence. Some or all of the following fears can severely restrict a woman's story: fear of losing the children, of retaliation, of the perpetrator carrying out his threats if she goes to police, fear of losing housing, income, friends, the marriage, immigrations status, stability, fear of deep shame, of the children losing their father, of children being pulled into court, her own fear of testifying, fear of police themselves, of police blame, of police siding with the suspect and turning the tables on her, of police finding out about her own illegal acts, no matter how slight, fear of going against deeply held religious beliefs, fear the perpetrator might suffer in jail, and much more

Women, and even children, intuitively understand the immense power and upheaval of dynamics they unleash by exposing the truth of abuse, and by pointing to proof. Most won't wield that power until they are assured of protection against the very real dangers she risks. This is not stupidity on the part of the women, as so many conclude. Revealing that her 13-year-old daughter heard her screams when her husband was raping her is a potent and irrevocable card to play. That mother naturally needs to have confidence in the consequences before laying these things out into the open.

So, ask the woman directly, and from as many angles as you can, "What are you afraid might happen if you fully tell your story to police?" Once you identify the specific fears, these fears need to be validated and resolved with viable options, alternatives, and protections. And always, it's important to remind victims that, on the one hand, there are no 100% guarantees, and, on the other hand, 'if nothing is ventured, nothing is gained.'

This process of identifying and resolving fears is an ongoing priority throughout any case, as new fears emerge and old fears resurface.

The second step is to think out loud with the victim as you identify the evidence in her story. Educate her as to how and where the evidence fits in the criminal justice process, and in freeing her from the violence.

In addition to thinking out loud with the victim as you identify and explore evidence in her story, be sure and explain to victims why you want to monitor the evidence, and how it can be helpful to her. Explain the importance of making sure that nothing's been left out of the case, either accidentally or intentionally. Or, if your client hasn't yet reported to police, explain the importance of identifying items of evidence or potential evidence when she does report. A victim who is not prepared in this way will usually tell her story to police stressing the emotive elements of her story. Though police should be able to get the victim focused on the law enforcement needs, most don't do so effectively, and officials end up turning off to the victim, or judging her to be uncooperative, or loony, right at the time she most needs to be heard. On the other hand, a victim who has been educated to think in terms of evidence, a victim who is informed about the investigatory objectives, will always get a much, much better response from all officials throughout the system.

In addition, as you focus on evidence, you want to make absolutely sure that victims understand why you (or officials) are pursuing that particular line of questions about evidence. If you haven't explained well, victims can easily misinterpret this line of questioning as a doubting of her story, or a questioning of her actions, which further constricts the victim's willingness to be open, which, in turn, further constricts the officer's willingness to work the case, and the inevitable downward spiral of victim-law enforcement relationship ensues. Furthermore, explaining you're thinking out loud serves as a model for the victim on how to think about evidence when she's doing so on her own. And it's in those contemplative alone times that so many victims suddenly remember absolutely vital elements of evidence, key points that victims so frequently have blocked from their mind when talking with others.

The third step in partnering with the victim to uncover new evidence is to encourage her to actively mull over in the days that come possible witnesses and material evidence that may have been missed. And to jot it down when she thinks of it.

The fourth step in partnering with the victim is to explain the next two points that follow:

There is no way to construct a check list covering all potential evidence because the array of potential evidence is infinite. From one case to the next, anything and everything can be evidence. A victim asking a friend to walk her to class might be nothing more than her daily routine and, as such, be completely irrelevant as evidence. But if this is the first time ever that the victim has asked any one to walk her to class, that request can be significant evidence in corroborating the victim's level of fear, which level of fear corroborates her claim that she was raped by a male classmate the day before. A footprint underneath a window, a neighbor hearing a speeding car in the middle of the night, a convenience store receipt, grass stains, a whisper, a shout, mud on the bottom of shoes, anything and everything can evidence; including, as happened in the OJ Simpson case, the plaintive wail of a dog, which wail as heard by a neighbor was brought in as evidence to set the time of the murder.

The list of possible evidence is endless. And that's the main thing to keep in mind as you and the victim begin to scan her story for additional evidence.

The second key point to keep in mind in your scan for new evidence is that most evidence is circumstantial, and by itself, does not prove that the suspect is guilty. The fact is most all criminal convictions are built entirely on circumstantial evidence. A victim asking a friend to walk her to class for the first time ever is not proof beyond a reasonable doubt that she was raped by her classmate - not even close. But nonetheless it is crucial circumstantial evidence, which when pieced together with a lot of other supporting, circumstantial evidence, will begin to create the picture of truth.

Most criminal cases do not have the proverbial 'smoking gun'. In fact, even a 'smoking gun' found in the waistband of a suspect is still not proof beyond a reasonable doubt. Even in that case, the defendant can still use the 'soddi defense', i.e. 'some other dude did it'. The defendant can say, "'Some other dude did it' and then the dude handed me the gun and ran off into the bushes, and there I was, poor me, not knowing what to do, so I stuck the gun in my waistband".

So don't reject evidence just because it doesn't prove beyond a reasonable doubt that the defendant did the crime.

Safety First: In any attempt to go beyond the victim looking for evidence, always put safety first. In addition, always make sure the victim wants to pursue each step you take and is fully informed.

Friends, Family, and Associates of the Victim: Persons close to the victim often know much more about the problem than victims think they know. Victims frequently overestimate the extent to which they've been able to hide the problem. At the same time, persons close to the victim frequently don't tell the victim how much they do know, for fear of upsetting the victim. In addition, perpetrators are also frequently unaware of how much of their criminal abusiveness they've unwittingly revealed to persons close to the victim. As such, friends, family, and associates of the victim can often provide key evidence to the case even though the victim believes they know nothing.

Victims may not realize that a coworker knew her injuries were caused by a boyfriend, even though the victim told the coworker she fell. Victims may not know their friend overheard the perpetrator threatening to kill her. Victims may have forgotten that they called their friend after a rape.

Two ways you can explore victim's associates as potential witnesses or sources of evidence are to have the victim ask around, or ask the victim if she minds if you 'ask around'. If it's you doing the calling, be sure that the victim knows and approves of who you're calling, and is kept informed. You'll be very surprised how often this simple 'asking around' turns up vital new evidence in a case.

Friends, Family, and Associates of the Perpetrator: On first take, it may sound ridiculous to consider associates of perpetrators as potential sources of evidence or as potential witnesses. But consider that associates of the perpetrator may be increasingly concerned about, or disapproving or fearful of, the perpetrator's escalating behavior. And very frequently they have seen or know a lot. After all, perpetrators can be very careless about what they say and show when around those they assume will be loyal to their side. In fact, perpetrators often openly brag about or 'show off' the particulars of their hatred of women - assuming that others will approve. As the following example will show, the arrogance of perpetrators and suspects often leads them to make serious miscalculation of how the people around them really feel about their behavior.

One recent example of this is the damning Email sent out to friends by one of the suspects in the Duke University rape case - after the alleged rape occurred. Here's the text of that Email:

To whom it may concern,

tomorrow night, after tonight's show, ive decided to have some strippers over to edens 2c. all are welcome.. however, there will be no nudity. i plan on killing the bitches as soon as the walk in, and proceding to cut their skin off while cumming in my duke issue spandex.. all in besides arch and tack please respond.

Beyond the suspect's astonishing blatant willingness to publish this kind of hate in an Email, it's equally important to note that one of the friends he assumed would share in the thrill, clearly did not, and turned the Email over to police.

Another thing to keep in mind is that in violence against women cases, the victim and perpetrator almost always share a common social circle. The victim may think many in that circle are on the perpetrator's side when in reality it just seems that way because they have been just too fearful themselves to speak out. But, once a criminal case is underway, some may be fortified to help - as happened in the Duke rape case.

Naturally, any attempt to explore the perpetrator's associates for new witnesses and leads requires great caution, as any error in approaching these people could easily get back to the perpetrator and backfire on the victim. So, once you and the victim identify someone close to the perpetrator who would be of interest to talk to, it may be best to attempt to get a police officer or district attorney investigator to do the exploring, if at all possible.

Public and Nonpublic Records: Court house records, such as restraining orders, past criminal history, and probation reports, can tip you off to all kinds of valuable information and leads. Another person completely unknown to the victim may have a restraining order against the perpetrator. That person may have continuing problems with the perpetrator. Or knowing of the existence of the restraining order now makes the perpetrator's possession of a gun a crime. Public records also can point you to other police agencies and investigators who may have unsuccessfully attempted to nail the perpetrator in the past, who themselves often have a wealth of information in their own files. (See two paragraphs down.)

Nonpublic records, such as violent incident reports at the person's work or school, are usually not available to victims. But once employers, teachers, or business associates know there is an open criminal case against the perpetrator, this often gives these other persons both the extra boost of courage to slip loose with all kinds of documents and information they didn't previously feel would make any difference to reveal.

And don't forget medical records. Even if the victim didn't tell the health care provider the truth about an attack, the notes of health care providers can be invaluable.

Previously Interested Officials: Previously interested officials, those who may have in the past attempted to nail the perpetrator, but were unsuccessful, often have a wealth of information and leads that can tie into or bolster the current case in all kinds of ways. These officials will usually be unwilling to give you the information directly, but if you give them a call and alert them to the current open case, they are frequently willing to pick up the phone and give that information to the investigator or deputy district attorney on the current case.

Tricks and Traps: These don't have to be complicated. Simple things like making sure the victim has a reliable phone message recording system and that she doesn't answer the phone when it rings so as to capture the perpetrator's threats. In many states, including California, it's legal for anyone to secretly tape record any non-electronic based conversation, i.e. an in person conversation. And, in many states, including California, it's legal for anyone to secretly tape telephone conversations when attempting to gather evidence of a felony or of a restraining order violation. Remember, safety first!

Physical Evidence: We leave physical evidence to last because physical evidence is usually the first thing people think of in terms of what's needed to prove a criminal case. In everything from media to murder mysteries it's usually the clever discoveries of physical evidence that get hyped, and the skill of people contact and communication that gets ignored. But these people skills are every bit as critical in producing evidence.

Naturally, it's important not to swing to the opposite pole and forget the physical evidence: the broken furniture, photographs, dents in the wall, grass stains, broken phone cords, slashed tires, the infinite array of possibilities that requires an open, hungry mind to find them all.

The Injuries/Statement Match/Mismatch: Interestingly, one of the most probative, and yet poorly investigated, elements in violence against women cases is in the combination of the physical evidence of injuries and the victim and perpetrator statements. First, there needs to be a careful, exact description of the injuries on the victim and perpetrator. Then there needs to be the detailed statements from both perpetrator and victim as they describe the exact choreography of the attack. The reason this works so well to separate fact from fiction is that it is extremely difficult to create a detailed fiction that matches the injuries exactly.

Not only do officers often fail to get the detail that's needed to bring the lies to light, many times the police, and the prosecutor's who review the report, don't even notice the minute contradictions and cracks between the perpetrator's account and the descriptions of injuries that are sitting right there in their own report. Simply by very carefully going over the police report, victims and advocates can often turn up new evidence of this sort which points directly to the lie of the perpetrator's story.

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