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Uncover, and Enter Evidence into the Case Yourself
2 ~ Uncovering
Against Women Cases Almost Always Have a Wealth of
Unidentified and Unexplored 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
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
with the Victim to Uncover Evidence Leads
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.
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.'
of identifying and resolving fears is an ongoing priority
throughout any case, as new fears emerge and old fears resurface.
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.
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.
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.
step in partnering with the victim is to explain the next
two points that follow:
Limit Your Thinking:
The Array of Possible Evidence is infinite;
And Most Evidence is Circumstantial.
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
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.
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.
Sources, Aside from the Victim, for
Uncovering New Evidence
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.
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.
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
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.
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
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.
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.)
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.
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
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!
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.
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.
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.