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Monitor, Uncover, and Enter Evidence into the Case Yourself

Part 3 ~ Gathering and Entering the Evidence into the Case Yourself

Tips for Gathering the Evidence from
Point of Origin Yourself
Victim Statements
Witness Statements
  Statements from Special Witnesses
  Photographic Evidence
  Voice Recordings
  Public Records, Professional Records,
and other Documents
  Physical Evidence
Entering the Evidence into the Case

The following section gives you some general principles and specific tips on how to gather various kinds of evidence and enter it into a case. To start with, don't feel that your efforts to gather evidence have to be perfect, or that they have to conform to exactly the outlines given here. The worst thing that any one can do, whether trained or not, is to sit by and allow good evidence be lost to a case. If evidence is about to disappear, or if authorities are unavailable or unwilling, even if you don't feel confident, do whatever you can to preserve the evidence, to make a record, or take a statement. There's only one good reason not to try, and that is safety. And for the rest of this section, we assume that you will always discuss and put safety first.

Remember, all evidence, even when gathered by police, is open to question. The goal is to gather evidence in a way so as to minimize as much as possible doubts about the origin and veracity of the evidence. So even if it's not perfect, it's much better to present the evidence in the best form that you can, rather than to lose the evidence all together.

We have seen many, many people successfully uncover, gather, and enter evidence into violence against women cases with no previous training or guidance. So, don't let evidence get lost because you feel intimidated you might not do it right! What follows here is meant to help you do it better. It's not meant to discourage you from doing whatever you can.


Once you have uncovered new evidence or witnesses, it is usually better - but not always - if you can convince a competent, unbiased law enforcement officer to collect the evidence from its point of origin.

Having a law enforcement officer obtain the statement from a newly identified witness, or collect newly identified evidence from its point of origin, is usually the best way to preserve the all-important integrity of the evidence, but not always. Preserving the integrity of the evidence means to minimize as much as possible any doubt that the evidence may not be what it is being claimed to be, or that it wasn't collected at the time and place it is claimed to have been collected. If a competent, unbiased officer collects the evidence, this minimizes the risk that questions can be raised later about whether the evidence has been contaminated, tainted, fabricated, falsified, obtained under pressure, altered, or in any way is not exactly what it is presented to be. This is because a law enforcement officer is presumed to be both trained in proper handling of evidence and unbiased as to the outcome of the investigation. Victims, their friends and advocates, on the other hand, will be presumed to be both untrained in the handling of evidence and biased in favor of the victim - and rightly so.

This doesn't mean you cannot gather evidence and obtain witness statements yourself when needs be. In fact, most of this section is dedicated to giving you basic tips for doing just that. But the better you understand this concept of preserving and protecting the integrity of the evidence, the better you'll be able to make decisions about if and when to bypass law enforcement and gather the evidence on your own. And the more success you'll have gathering the evidence in a way that it will ultimately be admissible and effective in supporting the woman's case. To further illustrate this concept of preserving and protecting evidence integrity, consider the following example of three different ways of handling the same evidence.

Example: Laura, a victim of domestic violence, tells her best friend, Gloria, that when she called the police she didn't tell the police about the bruises on her back because she felt embarrassed. Both Laura and her friend Gloria realize that pictures of these bruises are important, and should be part of the police report. Here are three different ways they might go about obtaining these pictures, and the different levels of risk for compromising the evidence for each method.

a. Gloria gets out her camera, takes a set of pictures of Laura's bruises, and takes the pictures to the police. The police, the prosecutor, and certainly the defense attorney, are going to have a lot of questions about these pictures before the pictures can be accepted as evidence in the case. In fact, there's a good possibility these pictures may not survive the questions. How do we know, for example, when these pictures were really taken? Why should we take Gloria's word for it? After all, Gloria is Laura's best friend. How do we know whose back that is in the picture anyway? How do we know the images haven't been manipulated? After all, we do know that as Laura's friend, Gloria naturally wants to see the victim's side of the case prevail. How does the court know that Gloria didn't step over the line to help her friend? Perhaps by submitting pictures of bruises from a long time ago? Or pictures of bruises on someone else's back? Or by manipulating the images in Photoshop?

Obtaining the pictures in this way will not automatically result in the pictures being rejected as evidence in the case. What it does do is put the picture at unnecessarily high risk of being rejected.

b. In the second method of securing photos of the bruises for evidence, Gloria goes with Laura to the police station. They explain the situation to the receptionist and request that an officer or police technician take a set of pictures and enter the pictures into the case. An officer or police technician takes a set of pictures. The first picture taken in the set is full body, face-front shot which will serve as identification of the individual in the rest of the set. In this way, victim identification will not likely be open to question. Also, because the officer or technician is considered to be an impartial investigator, it's unlikely anyone in the courtroom will even question the officer's claims about the time and place the pictures were taken, nor will there likely be any concerns that the images have been manipulated.

c. In the third method, Laura and her friend Gloria go to the police station and ask to have a set of pictures taken. But they sit and wait a whole two hours in the police station lobby and no one responds. Nor does the head of the domestic violence unit return their call either. It's getting late. They both have to get home to children, and they both have to go to work the next day, and they know the bruises are fading. So instead of waiting any longer, Laura and Gloria decide to ask the next door neighbor who is a nurse to take the pictures. They ask her to make the first picture a full body, face front picture. And they ask her to take two or three pictures of the bruises from different angles to make sure the lighting distinguishes the bruises.

They also ask the nurse to write and sign a one or two paragraph statement briefly describing the injuries and describing the time and place and occasion of taking the pictures. This solution of having the nurse (or a teacher, or even a co-worker) take the pictures and write an accompanying statement is almost as good as having a law enforcement officer take the pictures in terms of protecting the integrity of this evidence. This is because the court would assume that the nurse, even if she could be construed to be on the victim's side, would be very unlikely to risk her professional license by falsifying or manipulating the evidence.

This is just one example that should begin to clarify the kinds of things you need to think about to protect the evidence integrity; i.e. to protect the ability to prove later on that the evidence is exactly what it is being claimed to be. There are no hard and fast rules for doing this. In fact, in the case example above, even if Gloria had taken the pictures herself, a court still might have allowed the pictures into evidence.

The key point is that you always want to maximize the likelihood that the evidence will be admitted by the court, and minimize the risk that a defense attorney can successfully attack the integrity or the veracity of the evidence. Naturally, having a victim's best friend or advocate take the pictures opens up the significant risk that this critical evidence could be rejected. We'll give more examples as we go along. But just from this one example, you can see that protecting evidence integrity, like everything else about evidence, is very much a matter of basic common sense.

NOTE : Different kinds of evidence vary widely in terms of their risk of being compromised by mishandling. Some forms of evidence, such as copies of medical records, have very little risk. This is because the validity of a medical record can always be verified by checking back with the hospital or clinic, as can the signature of the medical professional. It's also unlikely that someone would make the effort to fabricate a medical record when the veracity of the record can be so easily double checked back at the source.

Other examples of evidence that have a low risk of being compromised when gathered by persons other than law enforcement are public record documents, business records, school records, professional records, and anything else where an officer or attorney could check back with the source to verify that the evidence is, in fact, what it is being claimed to be.


Tips for Gathering the Evidence from
Point of Origin Yourself

Obtaining Victim Statements, Witness Statements, Photographs, Voice Recordings, Public Records, Other Documentation, Physical Evidence, and More

When officers are dragging their feet, hostile to the case, refusing to do the job right, or unavailable, and sometimes when it's just more convenient all the way around, don't hesitate to gather the evidence from point of origin yourself. As long as so many officials are unwilling to do the job right for women and children, it's essential that advocates not be afraid to do the job themselves. The following are some general tips for gathering frequently encountered forms of evidence. Even if the kind of evidence you want to collect isn't specifically covered here, by understanding the thought processes here you can probably do a very good job of thinking through how to obtain whatever evidence may come your way.

For the rest of this section, we assume you've been unable to get authorities to do the job right, or that they're simply not available in a timely matter to preserve the evidence.


Obtaining Victim Statements:

By far the most frequent evidence you'll have occasion to obtain and add to a case is additional information from the victim herself. The original victim interview by the officer may have been inadequate, or the woman may have withheld or forgotten something important. Or perhaps she has read over the police report and discovered that the officer's narrative of her statement was incomplete or inaccurate. Any and all of these things happen often. And when they do occur, having the victim write up her own statement may be the best way to get the information secured.

Here are the usual guidelines and instructions we use to obtain written statements from our clients.

* Victim and witness statements can be written or typed out on any standard paper, or you can use what are called 'police supplemental forms'. (Most police departments have their own blank supplemental statement forms for people to use for just this purpose. We used to keep stacks of these forms on hand. But with ten different departments in our county, each with slightly different forms, it's just so much easier to use plain, everyday paper.)

* Prepare the woman as you would prepare her before a police interview by making sure she has considered the options, by orienting her to the kinds of information the police need, and by reiterating the importance of not holding back.

* This is important! Tell her that you're going to give her some tips on how to structure her statement, but that you're not going to tell her what to say, and you're not going to converse with her after she starts writing. Explain that the reason for this is so that when officials or attorneys later ask her if anyone helped her write the statement, she can easily answer honestly that she wrote the statement herself. This doesn't mean that you can't help a woman identify the criminal and evidence points in her story prior to her writing her statement. But, when it comes to having the victim write her actual statement, she should, in fact, write it herself without prompting from others.

* Always advise your client that a written statement is permanent - but don't scare her. The most common error made by victims and honest witnesses in writing out their statements is to leave something out. So also advise that they indicate in writing that there are more details to tell.

* If her primary language is not English, she should write her statement in the language in which she feels most comfortable. (Officials will generally do a much better job of finding good translators for written documents. Such is the power of a written statement.)

* At the top of the first page put:

Supplemental Victim Statement
Crime Report # XX
Victim's Printed Full Name
Full Phone Contact Information (daytime and evenings)
Page 1 of X pages

* Have her start her narrative by saying who she is. If the victim is just adding a bit of information to an otherwise full police report, she can simply state that the following incident was left out of the original report. If, on the other hand, she is telling or retelling a whole incident, suggest that she start by writing a short paragraph on her relationship to the suspect and on the history of the abuse. (This one paragraph of history can often be the most difficult for victims. One suggestion that often helps is that they write a sentence or two about the first incident, the worst incident, and the number of times the abuse occurred over what period of time.)

* As close as possible, give the time and date of the main incident she's describing. Tell her that if she runs into difficulty describing the incident, she can prompt herself by repeatedly asking herself, 'And then what happened next?.' Remind her that this isn't a language test. So she shouldn't be anxious about grammar and spelling. Remind her it doesn't have to be perfect.

* Don't hesitate to give her a photocopy of these tips before she starts writing - so she can refer to them if she gets stuck.

* Suggest that if she's having difficulty covering all details, she should indicate in writing that there is more to tell.

* If the suspect has made threats to harm her or others, she should write out a quote of the suspect's words as accurately and as completely as she can remember them.

* She should indicate whether or not she is fearful of the suspect, and what she fears he might do.

* When she finishes writing her statement, have her number each page in the form of 'Page 1 of X pages'; 'Page 2 of X pages, etc.; X being the total number of pages in the statement.

* Have her put her signature at the bottom or top of each page.

* MAKE MULTIPLE COPIES of the statement before handing the original to authorities. Keep the copies in a safe place.

* Put the original of the statement in an envelope clearly marked with the contents and crime report number; i.e. Victim Supplement Statement - Crime Report # X. You and/or the victim can take the original of the statement to the law enforcement official of your choice; a patrol officer, head of the domestic violence/sex crimes unit, a district attorney investigator. Or you can hand it to the person at the reception desk and ask that she get the statement to the officer assigned to the case.

For more detailed tips for entering evidence into the case, see the final section of this Part 3 text, or click here.

* Always obtain and write down the full name of the person to whom you give the statement, along with the time and date of doing so. It's also a good practice to call and leave a message on the phone of the officer or attorney in charge of the case saying that you've handed in a supplemental victim statement, even if that official has been hostile to the case.

* As the case moves along, double check to be sure that the supplemental statement has, indeed, been added to the case. It's interesting, though, that as often as we've experienced officers who have failed to get adequate statements to begin with, we've never had an officer who refused to put a written supplemental statement into a report. Again, such is the power of putting things in writing.

NOTE 1: When obtaining victim statements, or any other form of evidence, a general rule to follow is to avoid putting yourself into the evidence chain of custody. In the case of victim statements, for example, this does not mean you can't deliver the statement to the police department, nor does it mean you shouldn't orchestrate getting the evidence obtained. What it does mean is that you shouldn't serve as the conduit of the statement at any point where you could be accused of altering or influencing the evidence, or where you would be the only person who could attest to the validity or parameters of the evidence.

In the case of the victim statement, for example, keeping yourself out of the chain of custody means you shouldn't interview a victim and then write down her answers as a means of putting together her statement. Nor should you translate a victim statement to police or on paper. In the case of obtaining needed photographs, you shouldn't be the person taking the photographs.

If you do insert yourself into the evidence gathering in this way, you automatically make yourself a material witness in the case, a role that is intrinsically in conflict with your role as an advocate for the case victim. This is because it's impossible to both serve as an impartial witness to the validity of the evidence, and as an advocate for the victim. A defense attorney would have a legitimate right to protest to the court that the evidence is compromised by your role as advocate for the victim, and a judge could legitimately rule on that basis that the evidence is not admissible.

Once you get a feel for the concept of how to keep yourself out of the evidence chain of custody, you'll be able to think through how to obtain almost any form of evidence. And, don't forget, there are many forms of evidence, as we alluded to earlier, which have very little vulnerability to these concerns; such as obtaining copies of medical records.

NOTE 2: There is no harm, and often much benefit, if the woman wants to include in her written statement an explanation of why the information wasn't in the original report, whether that be due to officer misconduct or failures, or to her own forgetfulness, fears, or embarrassment in the trauma of the moment.

In particular, if a woman is writing a supplemental statement to correct inaccuracies in the initial police report, she should refer to the error she is correcting. If she believes those inaccuracies derived from the officer mistake or misconduct, she should say that too. Or, if the errors exist because she lied to the officer, her written statement should explain why she lied at the time of the initial interview.

NOTE 3: There may be occasions when the victim wants to launch her entire report to police by writing out her complete statement before even calling police. When she then calls police to make her report, she can hand the officer a copy of her written statement to be included in the report. In this way, a victim can have complete control, right from the beginning, that her statement is accurately entered into the record. This is also an excellent strategy to consider when victims or witnesses don't speak English and authorities are failing to provide professional interpreters.

However, in deciding whether or not to use this strategy, keep in mind that it carries certain risk. It's one thing to add detail, or to correct detail, in a story that's already been told. It's much more difficult to sit down and write a coherent, complete narrative that contains all the information needed to be the centerpiece of a criminal case. In doing this, there is considerable risk the critical points will be missed. The traumatic nature of the events makes it especially easy to forget even some of the most relevant facts. If the woman decides that she still wants to do this any way, it's important to make sure she has a good understanding of what police need to know. It also helps to have her outline the main elements of her story before putting it into final statement form. And don't forget - Make and safeguard additional copies!

(Unfortunately, one more way police have of derailing violence against women cases is by exploiting exactly this difficulty of writing a coherent, complete narrative in the midst of a traumatic event. In responding to a call at the scene, with the woman visibly shaken and frightened, the police radio blaring, the kids in upheaval, and a screaming baby in her left arm, the officer shoves a piece of paper at her and tells her to write down what happened. Then later, when she attempts to add critical information to her understandably sketchy written narrative, the officer bellows at her for not having included this or that information in her initial statement, or the officer tells her it's too late to add the information, or he accuses her of now wrecking her credibility and the case for not having told him everything from the start. These officers, of course, should be fired. But, alas, many are still out there, responding to women's calls.)

NOTE 4: Obtaining a victim statement from someone who is illiterate presents obvious difficulties. You don't want to put yourself in the position of interviewing the victim and writing out her statement except as a very last resort for reasons discussed earlier. Asking a person to audio tape record their statement is also not advisable. For most people, talking solo into a tape recorder is so unnatural it's likely to yield a seriously fragmented, incomplete statement. If you have a client who is illiterate, consider having a counselor or other professional you know take the woman's statement.

NOTE 5: Phone calls to 911 or to the police dispatch number can be an excellent way to get initial or additional victim and witness statements solidly entered into the case. Just have the victim or witness call 911 or dispatch - whichever is most appropriate under the circumstances - . Have them tell the operator that there's something important that: either you forgot to tell the officer, or the officer didn't understand, or that you are a witness, whatever the case may be, and then tell the operator all.

The exquisite beauty of this is method is that the operator who answers these calls will always be assumed to be trained and impartial, she or he will, in fact, know how to ask relevant questions, and the evidence will be technologically securely recorded, time and date stamped, and secured in a safe place in police agency records - at most agencies for up to 90 days.

Other particular situations in which calling 911 or dispatch can be especially useful is with individuals who don't speak English. This is because 911 and dispatch systems in the US almost universally connect immediately to professional interpreters. And with children, who are too young to write, having them give a call to dispatch can work like a charm.

The only obstacle to using this method is that victims and witnesses often feel reluctant to do it for fear they may be misusing the system. But think about it, and have your client think about it, too. What better use can there be of this system, than to nail in evidence to end violence crimes against women and children. Think about how many people in this country call 911 to find out who won the world series or to get directions to the nearest 7-11.


Obtaining Witness Statements from Persons Other
than the Victim Witness

You can use the same general guide as outlined above for obtaining statements from witnesses other than the victim. The main difference you'll likely encounter with witnesses other than the victim (whom we refer to from this point on simply as witnesses) derives from their different relationship to the crime. Victims usually have a strong interest and much to gain by telling their story to authorities, even though they may also harbor fears and hesitations. Witnesses, on the other hand, in addition to normal fears and hesitations, frequently don't feel they have anything to gain by getting involved. This means that you and your client need to talk about how to best how best to approach the witness, and decide whether or not it's a good idea to do so in the first place. Clearly, in most cases, for example, it is not advisable to attempt to obtain witness statements from persons who are outright hostile to the victim.

Having said that, keep in mind that most people, in the end, want to do what's right. If they're a witness to wrong doing, there is an awareness somewhere in most people that they have a part and a responsibility in assuring that justice prevail.

Here's an example of a typical situation in which it may be very beneficial for you to obtain a written statement from a witness, and one possible way you can go about doing so.

Example: Sandra's co-worker, Anita, was present when Sandra's ex-husband barged into Sandra's office and started screaming at her that she'd better come back home because he couldn't live without her. Anita saw how scared Sandra was. She came up to Sandra afterward and asked her if she was ok. Sandra called police. But by the time police arrived, Anita had left the office for the day. Sandra shows the officer her restraining order. She tells the officer how afraid she is of her ex-husband, and that he just won't leave her alone. She also tells the officer that her co-worker, Anita, witnessed today's encounter. Sandra gives the officer Anita's phone numbers.

Two days later, Sandra asks Anita if police have contacted her and Anita says they haven't. When Sandra calls the officer, he tells Sandra not to worry. He says that the DA's office will get the statement later if they file the case. But Sandra does worry. She worries that the officer's failure to get the statement from her co-worker means her case will go up to the district attorney without any corroborating evidence. And she's right to worry. Without Anita's statement, the DA's office may be just as lazy as the police officer. They might use the absence of the statement as an excuse for taking the easy way out, and reject the case, even though the police report gives Anita's name as a witness. Sandra calls you for help.

You call the sergeant who says the case has already been sent to the district attorney's office. So you call the prosecutor assigned to the case who says they'll get the statement if the case gets filed. You have a conversation with Sandra about options. Possibly by pushing harder on officials you could get police or a district attorney investigator out to get Anita's statement. But, up to this point, all officials sound so disinterested and have proven totally unwilling to make the simple effort of picking up the phone to talk to Anita. So Sandra decides that she'd like to try, with your help, to obtain Anita's statement.

Obtaining Anita's statement:

* This is the usual point at which obtaining a witness statement differs from obtaining a victim statement. You and Sandra need to decide how best to approach Anita. You should discuss, What is Sandra's relationship to Anita? Does Sandra feel confident enough to answer questions Anita may have? Would Sandra prefer that you do it? Should Anita be called at home or work? etc.

Suppose Sandra says that even though she and Anita work in the same building, they don't know each other well. Sandra says that even though Anita seems friendly, she doesn't feel comfortable asking Anita directly. She wants you to talk to Anita, and thinks it would best to call her at her work.

* Here's how that phone conversation might go:

"Hi Anita. My name is Nancy. I'm a victim advocate with the local family violence center and we're working with Sandra, a co-worker of yours. Sandra asked me to call you. Is this a good time for you to talk for a few minutes or is there a better time?"

"When Sandra reported to the police she told them you were a witness. She gave the officer your name and phone number. But, we understand police never contacted you to get your statement about what you saw happen. Unfortunately, sometimes police let these things slide. We think it's important that your statement about what happened be part of the report. We were wondering if you would be willing to write a couple paragraphs about what you saw, so we could take your statement to the police station and make sure it gets entered into the report?"

Witnesses will usually have questions and concerns before agreeing (or not) to write out a statement. Always answer those concerns honestly. In addition, always take special care with witnesses to tell them that neither you nor Sandra need to know or see what they have to say. That can stay private. In fact, if a witnesses wishes to mail or take their statement to the police herself, make sure the witness has the crime report number, the name of the officer, and the address of the station. In our experience, most of the many witnesses we've asked are more than willing to provide their statement one way or the other. But, remember, key to obtaining their cooperation is your honesty and openness in laying out their options and responding to their concerns.

* Once the witness agrees to write out a statement, simply reiterate the main points of guidance as outlined above for obtaining victim statements.

* Don't forget to have the witness keep copies of the statement for her or himself.

* Double check a day or two later to make sure the police or District Attorney have entered the witness statement into the report.

NOTE 1: Not surprisingly, there are often witnesses in violence against women cases who are hostile to the victim, such as the perpetrator's friends or family members. Naturally, it's usually not a good idea for you or the victim to attempt to obtain statements from persons who are truly hostile to the victim. At the same time, before you write off a witness as hostile, remember that they may not really be as hostile as you think. In fact, the perpetrator's family and friends, as we discussed earlier, are often themselves very worried about the perpetrator's escalating behavior. Or they themselves may be fearful of the perpetrator, or even direct victims of his violence. They may be quietly hoping that law enforcement will step in and put a stop to things before they get worse.

If you decide that this is the case, the best argument to get these witnesses to come forward is to explain to them why this is the moment for everyone to put their voices together so as to make sure that authorities have enough to act on.

NOTE 2: Police or district attorney failure to contact and obtain a statement from a known, available witness should be a red flag whenever it occurs. It is another common means by which officials purposely diminish the strength of violence against women cases. When victims or advocates protest that a named witness hasn't been contacted, police (or prosecutors) usually respond with a "not to worry", we'll contact them later if we file charges, or if it looks like the case is going to trial. But, so often it's the absence of the witness statement early on that serves as an excuse for the district attorney to reject the case for filing.

What happens, and what police know will happen, is that when the district attorney reviews the case and sees that the officer didn't make the effort to contact a witness, the district attorney gets the message loud and clear that this is a 'don't even bother with it' case. If the district attorney reviewing the case is as sloppy as the officer, that district attorney will just reject the case for lack of corroboration. The reverse is also true. When a district attorney sees that a police officer has taken the time and effort to obtain statements from all the witnesses, even a lazy prosecutor will get the message that the police officer believes in this case and is serious about wanting to see it prosecuted.

Naturally, there are exceptions, when the failure to obtain a witness statement does not mean the officer is mishandling the case. But, as always, your common sense is your best guide to evaluating individual circumstances. For example, if there are four co-workers who witnessed Sandra's ex-boyfriend barge into her workplace, it's understandable that an officer might get statements from two of the witnesses, and simply take the names and contact numbers of the others. But, think about it, even in that circumstance, it could be that one of the witnesses, and only one, was standing in just the right position where he could see that the suspect had a gun in his back waistband.

A good police officer, an officer who understands how dangerous these situations are to women, who sincerely wants to protect and serve, who knows how often one witness or another can become unavailable; a good police officer who truly cares about building strong violence against women cases would likely get a statement from all four witnesses.


Obtaining Statements from Special Witnesses

Certain kinds of witnesses call for special considerations. Two groups we discuss here are children and professionals.

Obtaining witness statements from children: Law enforcement frequently neglects to take statements from children. Or, they pose such an intimidating presence to youngsters, that they don't get a fraction of the information the child has to offer. At the same time, children are even more likely than adults to be eye and ear witnesses to violence against women. In fact, children are often the only eye or ear witness to these crimes. So, it's essential to get children's statements on the record.

The most important consideration in deciding how to obtain a child witness statement is to remember that the statement of a child is particularly vulnerable to questions of influence. If a law enforcement officer is not the person who obtains the statement, it's very likely that this question will be raised. Did the mother, or any one else, influence or pressure the child into making the particular statement? Naturally, the younger the child, the greater the likelihood a child's statement will be subject to this line of questioning.

Because of this vulnerability it's always best to obtain a child's statement outside the mother's presence, and outside the presence of other family members. If at all possible, you should try to obtain the statement outside the advocate's presence, too. Again, the younger the child, the more care needs to be taken.

One way to obtain a younger child's statement is to have a counselor, teacher, or other professional with the child as they write. Or, if the child is too young to write, to ask the child questions and record the answers. For example, consider the situation in which an 8-year-old girl is the only witness to her step-father's beating her mother. When police came, the girl was so afraid she just shook her head 'no' when the officer asked what she saw. As the mother's advocate you asked the officer to reinterview the girl a few days later. The officer said a DA investigator would do it if the case went to trial. You call the DA's office and find out the district attorney has already rejected the case for 'insufficient evidence'. You and the girl's mother have had enough of this nonsense and together you decide the best avenue is to get a good statement from her daughter, and then go back to the prosecutor's supervisor with the statement, and request the office reconsider filing charges.

Mom says the girl is fully willing to write out her statement of what she saw. So you caution the mom that it's best if she is not the one to obtain the statement. You suggest she take the girl to a counselor. The very best way to do this is to explain the situation to a counselor and have the counselor meet with the girl and guide the girl in writing out her statement. And, in addition, have the counselor write up her own set of notes.

And there is a second special consideration in obtaining statements from children. Time is more of the essence than with adults. Children's memories are rightfully considered to be more flexible and suggestible with time. In other words, their statements will generally be given more credence, the closer the statements are made in time to the incident being described. When time is of the essence, you, the advocate shouldn't hesitate to go ahead and obtain a statement from a child using the same general guidelines as for obtaining a statement from adult witnesses, but putting them into 8-year-old language. The main point is to pay particular attention to protecting the integrity of the girl's statement - particularly from the question of whether or not mom, or other family members, influenced the statement.

Another consideration in obtaining a witness statement of a child is, of course, making sure the child knows how to write comfortably enough not to hold back because of incapacity to put difficult thoughts into writing.

Obtaining witness statements from Professional Witnesses: Professional witnesses, such as teachers, health workers, counselors, and clergy, require very different considerations from those of children. As you might guess, statements from professionals in violence against women cases are generally at a very low risk from questioning of whether or not they were obtained under pressure. The courts will generally assume that any professional would be highly unlikely to risk their professional standing by falsifying a statement for a domestic violence or rape victim. As such, this means you can get on the phone and be as persuasive as you wish in attempting to get a professional to put together a statement, without worrying that the defense is going to accuse them of buckling to the pressure of the victim or the advocate. For this very same reason, professional statements which corroborate a victim's statement carry superior weight in the court room. So, every effort should be made to get that professional's statement into the record.

As valuable as professional statements are, law enforcement frequently fails to follow through and get these statements, too. So it's not unusual that you will have occasion to want to get these statements yourself.

The problem with many professionals is twofold. They often know more than they have charted, particularly with regards to abuse of women and children. So professionals are often worried that if their initial records don't indicate they were aware of the abuse, that omission could be exposed if they now write up a more complete statement. Or worse, if they are mandated reporters, they may fear that writing up a statement now could incriminate them for not having earlier complied with the mandated reporting laws. You often have to persuade these professionals as best you can that if they are now coming forward with a statement that serves the prosecution's case, it's highly unlikely, in fact, it's virtually unheard of, that the prosecutor is going to turn around and charge that professional with a failure to report earlier.

The second problem with professional witnesses is that they often do not want to get involved, even more so than most other witnesses. Unfortunately, many professionals feel that if it's not billable hours, it's beneath them or it's a waste of their time. Again, your persuasive powers need to be on full steam. Appeal to their professional ethics. Appeal to their (original) desire to do good for people, which desire they probably repeated again and again to the admissions committees for entry into the profession. Hold them to their word. But one way or another, try to get that professional's statement into the record.


Obtaining Photographic Evidence

Photographs can be a very effective way to record evidence in violence against women cases. They are particularly useful in securing evidence that is soon to disappear. Common examples of evidence which will disappear with time are bruises and other injuries, broken glass below a window, the disarray of furniture in a room, footprints, slashed tires, lipstick smudge on the floor where a woman's face was pressed into the floor, and a whole infinity of possible evidence that is likely to get healed, cleaned up, repaired, rained on, or in some other way lost, if not quickly collected or recorded.

Clearly, with evidence that may be lost, it's not just a matter to trying to get an officer who is willing to come back to the scene and photograph this evidence, you have get an officer who's willing to do it sooner rather than later. Or, you and the victim have to do it yourself. Photographs are often your best avenue to make sure the evidence isn't lost and for securing it into the case.

There are three questions that will generally always be asked about photographic evidence not obtained by a law enforcement officer. How can we know for sure when these pictures were taken? For example, how can we know that pictures of broken glass under the window aren't pictures taken a month before the crime in question? How can we know that the photos are really pictures of what it is claimed to be? For example, how can any one be sure that the broken glass in the picture isn't from a broken window down the street from where the crime supposedly occurred? And today, when almost everyone has a digital camera and computer photo programs, a third question is how can the court be sure the photos haven't been manipulated?

Here are a couple ways you can obtain this valuable photographic evidence with minimal risk that it will be ruled inadmissible.

* Try to get someone who is credible and as neutral as possible to take the pictures, someone other than the victim or advocate. This can a neighbor, a co-worker, or even a friend not involved in the case. Make the request to the person in the same manner as described for requesting a witness statement. Explain why you need the person's help, explain the law enforcement gaps, and answer their questions carefully. You have to be honest and tell the person there is a possibility they could be called to testify in the case that they took the pictures. But you can also tell them truthfully that it's more likely than not that they'll never be called to court, because 95% of these cases are resolved in a plea. If you can't find any one, and evidence is about to be lost, then, of course, you or the victim should take the pictures.

* Have whomever takes the pictures write and sign a paragraph or two describing who they are, and the circumstances, time, and place of taking the pictures. This can be very simple as in the sample paragraph that follows:

"I am Raine Jones. I live across the street from Nancy Wilson at 222 Main St.. I am a home health worker. On August 24, 2006, around 3pm, I took a set of 15 pictures of Nancy and her injuries in the living room at her home. I took the pictures with my cell phone camera (give make and model of camera). I took pictures of two bruises on her left forearm, and of the red marks on her neck. Signed, Raine Jones."

As always, complete phone and address contact information should be included with the statement.

* To establish the validity of the pictures' contents always take the first few pictures as an overview of the physical surroundings and context of the evidence. For example, in photographing the glass under a window, start by stepping way back and taking a picture of the whole side of the house in which the window is broken. Then step in a little closer and take another picture, and in a little closer still, and take another picture, until you arrive at a close-up of the broken glass. In this way, there won't be any question that the final picture of the broken glass was taken at the exact location where it is claimed to have been taken.

In the case of photographing injuries, always step back and take a full body, face-front picture of the person with the injuries. Then, as you move in and methodically take pictures of the injuries, try to keep the picture coverage big enough to include at least a little of the clothing. This way, it can be reasonably concluded that the person in the first picture is the same as the person in the close-up of the injury.

* If one is available, put a ruler or tape measure in the picture alongside the injuries, damage, footprints, or other physical evidence, so as to give an accurate measure of the size of the subject of your pictures.

NOTE: Bruises are technically difficult to capture in a photograph. If the photographer is inexperienced, the way to be sure the bruises show up is to take two or three pictures of each bruise under different lighting conditions. For example, take one picture of a bruised arm near the window, and take the same picture with the arm turned away from the window, and perhaps another with the flash.

* If the person is taking the pictures with a digital camera or cell phone, naturally you should request that they not erase the pictures or the memory card.

* Turn in a set of printed pictures or a CD with copies of the pictures, along with the photographer's statement. Ask that it be entered into the crime report pertaining to the case.

* Keep the originals (or negatives) of the pictures, and of the photographer's statement in a safe place.


Obtaining Voice Recordings

Voice recordings have a big advantage over photographs. Because a person's voice is so unique, there usually isn't any question as to whose voice it is on the tape, even if you have copied the tape from the original. Nor are there likely to be questions of authenticity, since it would be quite difficult to fake a voice and technologically difficult to match it all up into a coherent unit.

Another advantage of voice recordings is that they can provide some of the most powerful and moving evidence in a criminal case because they carry so much textured information about a state of mind and emotion surrounding a crime. Hearing the agony and terror in a child's voice when calling 911 because daddy has taken a knife to mommy is something that never can be forgotten. So too, hearing the contempt in a suspect's voice as he talks with his rape victim, not knowing that the phone call is being recorded, is chilling and unforgettable. Likewise, the malice heard in a playback of threats a perpetrator has left on a victim's voice mail can freeze even the most jaded officials in a courtroom.

Voice recordings are very powerful. In addition, with just a bit of creativity, voice recordings can be the vehicle of choice for developing explosive new evidence in cases where no other evidence yet exists.

Following are some specific points on three different kinds of voice recordings; 911 calls, telephonic messages, and pretext calls.

Obtaining 911 Tapes: 911 tapes can be the best of evidence, if only police would routinely take the time to download their own agency's tape and log it into the case. 911 tapes frequently capture all the intensity, words, and events in real time as the crime(s) are occurring, or in the immediate aftermath. But although most police department domestic violence protocols call for their officers to include the 911 tapes in family violence reports, many officers don't do so, to the great detriment of many women's cases. This failure is so frequent that you should always monitor the status of the 911 and dispatch tapes throughout the case.

Ask victims if a call was made to 911 or to police dispatch. (Most police agencies make and preserve tapes of all calls made both to 911 and to the agency dispatch number. They generally don't tape calls made to the business office. Because of this, we advise clients to always make their calls pertaining to their case to 911 if it's an emergency, or to dispatch if it's not an emergency.) Ask who made the initial call to police. Was it the victim herself or a witness, or was it the perpetrator? Ask in detail about the content of the call to get a general idea of the potential evidence on the call.

But, even if it sounds like there's not much of evidentiary value on the tape, don't stop there. Victims often forget, or are even unaware, of the deep texture of relevant information these tapes often capture. Ask the case officer if the tape was logged into the case and included in what was sent to the district attorney. Ask the district attorney assigned to the case if she(he) has listened to the tape. You'll be amazed how many times their answer is, "no".

If you have decided to obtain a copy of the 911 or dispatch tape yourself, you don't have to take any particular care to protect the integrity of this evidence since much like a medical record, the veracity of the tape can always be checked against the original back at the police station. The one difficulty you may have is that the police records department may refuse to give a copy to the victim. Remember that in California, domestic violence victims have the right to obtain a copy of their police report on request at any time. We have never had any problem obtaining a copy of the 911 tape when we ask for it as part of the request for the case report. When you obtain the tape, take it to the prosecutor and ask her(him) to listen to it. Sadly, this generally works a lot better and faster than asking prosecutors to get a copy themselves.

NOTE 1: Whenever you request a copy of the 911 or dispatch tape, always ask for a copy of the CAD report that corresponds to the call. The CAD report is the printout of the typed notes that the 911 operator makes as she listens to the 911 call. They also contain precise time stamped information of officer assignments throughout the police response, as well as a precise record of the information that was passed on to police during the incident.

NOTE 2: And don't forget how very useful 911 and dispatch calls can be in securing additional victim and witness information into a case.

Obtaining Telephone Voice Mail or Answering Machine Messages: When police fail to obtain voice mail or answering machine messages, it's crucial for victims to make copies of these messages and preserve the original as soon as possible. And then to follow up on this until it's done. This particular form of evidence, valuable as it is, tends to get ignored, forgotten, erased, and lost, more than most any other physical evidence. One of the main reasons for this is a lack of confidence with the technology of how to do it. So it's important to walk your client through it, sometimes step by step. Have them put the proper part of a tape recorder up to the ear piece of the telephone as the message is played and then check to make sure the recording is fully intelligible. And then walk them through, step by step, how to save the original.

Another point to remember in obtaining these messages is to make sure, if possible, to include the time-date indicator in the recording. It's also a good idea to include the message just before the relevant message and the message that follows all in one sequence. This can help fix the timeframe if there's any question later on.

Pretext Calls and Recordings: Pretext recordings are the thinking person's evidence. Their potential for providing key evidence is as unlimited as the creativity of the people who imagine the scenarios and carry them out. Pretext calls and recordings can develop new sufficient evidence to nail a prosecution when there is no other evidence to be found. They are particularly suited to violence against women cases because of the very intimate knowledge the victim (and other witnesses) usually has of the perpetrator.

Generally pretext calls are made by the victim to the suspect. But many other combinations of participants are possible. In a pretext call, the caller uses a prearranged scenario to get the suspect talking about the crime. It's that simple. Coming up with the prearranged scenario requires that police put their heads together with the victim, and, in fact, defer to the victim's thoughts on what will and won't work. (It's this aspect, as you might guess, where investigators so often do less than their best.) The problem they need to strategize together is this: given the features of the relationship between the caller and the suspect, how best can we trick the suspect into talking about his crime? These scenarios (pretexts) are usually pure invention designed to play on vulnerabilities in the suspect's psychology. The suspect is unaware that the conversation is being recorded.

Here's an example of a pretext call. A 12-year-old girl calls grandpa. She tells grandpa that that her mom took her to the doctor and the doctor "told my mom that I was having sex." "So, grandpa," continues the girl, "I'm going to have to tell my mom what we've been doing, that we've been having oral sex." Grandpa's reaction is sheer panic. His voice tightens. He aggressively tells his granddaughter, "That's our secret, like you promised." Right then and there, in that one response, grandpa has roundly torpedoes his own ship.

Pretext calls frequently provide this kind of slam-dunk evidence, and, as such can secure convictions without the necessity of court hearings. Police play the tape back to grandpa, and grandpa 'pleas to the sheet', as they say when a suspect accepts guilt on all charges. That's the power of slam-dunk evidence. It knocks the wind right out of the perpetrator's sails. But even when the proof of guilt isn't so clear cut, pretext calls often provide powerful and moving supporting evidence.

Clearly, the success of any pretext call or recording depends heavily on the quality of pre-planning. Many detectives doom their pretext calls by simply handing the victim a formula script a minute or two before having her make the call. This is flat out ridiculous, since it's the victim who has a relationship with the suspect, who knows what might get him to talk, and is the one who has to think on her feet during the call. She should be given ample time prior to the call for ruminating and brainstorming the 'what if he says this or thats'.

Another dimension of pretext calls that is grossly under-used is consideration of having a person other than the victim make the call. This can be anyone, family members, neighbors, teachers, and even persons unknown to the perpetrator, who might claim, for example, to have information about the crime. But the key, it's worth saying again and again, is pre-consulting and pre-planning with the victim.

Sadly, because the skills needed to develop good pretext calls are not the same action street skills for which most in law enforcement are selected, the potential of this invaluable investigative tool, so beautifully suited to crimes of violence against women and children, is so often lost.

Yes, you should consider attempting pretext calls on your own. But, as you do, start and end with these three critical criteria:

Safety First: At every step in planning a pretext call or recording, whether with or without police involvement, is to keep present and future safety considerations foremost in decision making. Pretext calls do not always result in the conviction of the suspect. So ask yourself if the particular scenario you're considering using can have negative consequences if the suspect is not put behind bars.

Face-to-face, in-person recordings carry particularly high risk of violence. But there are many ways to reduce this risk too, such as tape recording at a child exchange in the police station lobby.

Know the law! In California, for example, anyone can secretly tape record any face-to-face (in person) conversation. No police permission is necessary. Similarly, anyone can secretly tape a telephonic conversation when that call is made for the purpose of attempting to get obtain evidence in a felony (a rape, for example) or when attempting to obtain evidence in a domestic violence restraining order violation. You cannot legally tape record a telephonic conversation for any other reason. Know the law in your state.

And then take maximum advantage of what's legal. Secretly tape recording suspects is a great unplowed terrain for nailing violence against women perpetrators.

Don't Make Illegal or Coercive Threats: You already know this, but here's just a reminder. You can't say things like, "Admit you raped me, or I'll kill you." First of all, illegal. Second, it's no good as evidence. Many innocent, reasonable people would quickly admit to rape under many kinds of threats. So evaluate your threats and scenarios beforehand to determine what's workable in producing evidence and what's not. In the example above where the 8-year-old threatens to tell her mom about grandpa's oral sex, clearly any innocent person would have reacted completely differently than did this very guilty grandpa. Then, having evaluated your thinking for the 'don'ts', remember, you can lie, invent, manipulate, and go for the suspect's weaknesses to the max.

By all that's right in this world, there's no more appropriate time than a pretext call for the predator to become the prey.

NOTE: Yes, emails can be used in much the same way as pretext calls. The disadvantage of emails is that the suspects have more time and awareness to be on guard about what they put into writing and send into cyberspace. The advantage of email is that the 'caller' has more time to weave the web.


Obtaining Public Records, Professional Records,
and other Documents

Justice System Public Records: Why, you might ask, would you need to gather public records when police and prosecutors have these at their fingertips? One sad part of the answer is that some officers just can't be bothered. Many miss the fact that their suspect is on probation, has restraining orders, or has been arrested by his own department multiple times before. But in addition to officer laziness and disregard, justice system data and documents, are not, as you might imagine, all filed into centralized systems. Mining the various justice system data bases, files, and reports, criminal and family, local and national, can often be time consuming, particularly so if the suspect has a history outside your local county.

Nonetheless, it's definitely worth obtaining as much as hardcopy information as you can. Previous police and arrest reports, chargings, and convictions, court files, arrest and search warrants, probation or parole terms and status, pre-sentencing reports, restraining orders, 911 tapes and CAD reports, divorce files, juvenile proceedings, and more, each have potential of providing new evidence, new witnesses, new victims, and new leads for the current case. Remember, too, that previous criminal behavior against the same or another victim which closely resembles the current accusation will often be allowed into evidence in the current case.

The beauty of these kinds of documents is that they are usually quite easy to obtain on request, and they don't require any special care in the handling since the validity of the document can always be verified back at the source.

In general, the public has a right to any and all documents, memos, and records of any sort produced by public agencies. Unfortunately, one of the few areas of exception to these rights pertains to aspects of justice system records. The overarching logic behind these exceptions is, of course, the need to protect the internal workings of investigations and legal proceedings that are not yet complete. So here are some general guidelines to your rights to justice system documents.

In general, the public has a right to any and all justice system records for cases that have been adjudicated. The main exceptions to public access to adjudicated case documents and materials are child protective and juvenile cases.

For cases that have not yet been adjudicated, justice officials have discretion as to which information they wish to release and which to withhold. The exception to this is that, in general, even though the case has not been adjudicated, certain case documents and information is immediately available, including search warrants, arrest warrants, booking charges, and face (cover) sheets of police reports. Another exception is that, at least in California, domestic violence victims have a right to obtain a complete copy of the police report even though the case has not been adjudicated. (Victims and advocates should take advantage of this exception and obtain copies of the police domestic violence crime reports as soon as possible after reporting to police.)

It's important for victims and advocates to get a feel for which documents you have a right to and when because there is so often a tendency for officials to say, "NO".

If you are told "no" when you believe you have a right to the document, go immediately to a supervisor. If that still doesn't get you the document you need, put your request in writing. It's as easy as the example that follows:

Dear Chief Rosano,

Under the California Public Records Act, I am requesting a copy of X.


For more examples of how to use a state's public records act click here.

The beauty of a written public records request is that it immediately puts the official on a timetable, under the law, to respond to you in writing. According to the California Public Records Act, for example, any official who receives a written public records request must respond to you in writing within ten days, with either the document or information you requested or with a written explanation as to why the official believes they are not legally bound to produce the requested material.

NOTE: Other public records, such as school records, city council records, public policy records, emergency vehicle logs, etc., can all be obtained in the same way.

Professional Records: Like public records, professional records, such as records from doctors, attorneys, mental health professionals, victim advocates, etc., have the advantage that they can be gathered and handled without much need for care to protecting the integrity of the evidence. Again, this is because their validity can always be double checked back at the source. Also, like public records, professional records carry considerable weight in the courtroom because they are assumed to be both credible and expert in the content they present.

Unlike public records, however, professional records are usually not available to the public. They are generally available only to the client of the professional to whom the record directly pertains. For example, only the patient can obtain a copy of the patient's medical records. So it's the client herself who will have to make the document request. She will also generally have to be the person who physically picks up a copy of the document from the source.

One way you can sometimes get around a victim having to make an extra trip is by having her put her signed request for the records in writing, complete with as much identifying information as possible. Still, many institutions and offices want to see an in-person with photo ID before turning over confidential records. Because these documents so often prove invaluable as evidence, it's usually worth the trip.

The other problem that sometimes comes up is when the professional refuses to provide the records, or takes so much time getting around to it, that their value is lost. When this happens it may be that your state has laws requiring certain professionals to turn over records to the client. For example, in California, physicians, clinics, and hospitals must give patients a copy of their medical records within five days of request. If no law exists, don't hesitate to get on the phone, explain the situation, and persuade, push, and coax. Or, make a complaint to the corresponding local or state professional association, such as to your local bar association or the local marriage and family counselors association.

NOTE 1: To be useful as evidence, professional records do not have to contain a definitive statement that the client is a victim of violence. Remember, most evidence is circumstantial. So a medical record may document an injury with an implausible explanation, such as the patient saying she fell down a flight of stairs. Or it may say that a 15-year-old girl came in for an STD test, seemed upset, and wouldn't talk. Such documents, though not smoking guns, can, nonetheless, be pivotal in proving a criminal case.

NOTE 2: Don't forget that many professionals can be persuaded to write up a letter specifically for the purposes of the case, even if they haven't kept meticulous notes up until that point. Counselors and therapists, for example, often don't log notes, but they are usually willing to write an overview opinion or summary for a case. This is frequently and particularly helpful when the only person children have opened up to is a counselor, therapist, or teacher.

Other Documents: Repair receipts, estimates, store receipts, notes, greeting cards, envelopes, grocery lists, homework assignments, letters, work logs, attendance records, etc., any one of these can and often do provide key evidence in criminal cases. One thing to keep in mind with documents that are not public or professional records, is that their validity cannot always be double checked back at the source. So you may have to come up with some accompanying evidence.

So, stop and think! What about this greeting card can be questioned? How do we know this is the suspect's handwriting? Perhaps the victim has a verifiable sample of the suspect's handwriting that could be submitted with the card. How do we know the greeting card was sent after the victim had obtained the restraining order and not before? Perhaps she still has the postmarked envelope, or perhaps she called a friend in a very upset tone right after receiving the card.

To be sure, there will be many times when there is nothing to back up claims that the card was left in the victim's car on date X. Submit the evidence anyway! Victim credibility is often enough to substantiate things. The point here, as with all forms of evidence, is to try to submit the evidence in as verifiable a form as possible. But even if it's not perfect, submit the evidence anyway.


Obtaining Physical Evidence

There are so many kinds of physical evidence that it is impossible to give even a cursory coverage here. In addition, the techniques for handling and processing physical evidence are as varied as the evidence itself. Some are fairly simple, like documenting damage done. Many other forms of physical evidence, however, require sophisticated knowledge and equipment. DNA, paint chips, ballistics, hair and fibers, blood spatter evidence, drugs, footprints, tire prints, fingerprints, bones, insects, etc.; each one of these is a forensic specialty field in and of itself.

Still, you shouldn't be intimidated by this kind of evidence either. If you think about it, most police officers don't know how to do the sophisticated forensic testing either. They generally log the raw evidence into the case and let the forensics experts take it from there.

So, overall, with a few general tips there is a great deal that even someone with no experience can do to preserve physical evidence, and at the very least, keep it from being entirely lost to the case. The occasion for you to handle this kind of evidence comes up more frequently than you might think. This is because in violence against women cases the victim's home is so often the crime scene. When police leave the scene, just in the course of moving around her own home, women frequently discover things that were missed.

She may find weapons that he's stashed, illegal drugs, damage she hadn't noticed before, or incriminating writings. She may notice for the first time that the perpetrator has disabled or booby trapped her car, or she may discover blood stains that were missed by the police, or that her clothes were knifed, or children's birth certificates burned, or discover his fresh footprints by the back window when he swore he hadn't broken the restraining order.

The other reason it's common for you to have occasion to gather this kind of evidence is that it's often very difficult to get police to come back to the same scene just to get one more piece of evidence. The officer may feel that the victim has already received her taxes' worth of his time, or that he's already got the perpetrator on one charge, so why bother with another, or that it's just too much trouble to add a supplemental to an already completed report.

So here are some generalized tips for handling physical evidence when police are unavailable or unwilling to obtain it.

* The first objective in handling physical evidence is to create verifying documentation, as fully as possible, of the time of discovery of the evidence, the location of the evidence, and a descriptive record of the evidence. In many cases, even if this is all you can do, you have not only kept the evidence from extinction, but you have likely substantiated the evidence sufficiently that it will stand up in court.

Example: A woman with a restraining order comes home and finds her ex-husband in her house in blatant violation of the order. As she calls the police the suspect takes off running. The woman makes a report to police. But with no evidence to back up her statement, the officer takes the report with attitude, as if the woman has wasted his time. When the officer leaves, the woman discovers the broken lock and back door where her ex had broken in. She calls police again to tell them about the broken door. The dispatcher says she'll try to get an officer back out there. A day has passed, and an officer never comes. The woman calls you. Together you decide to document this evidence yourselves.

Ask the woman what she said to the dispatcher. If she hasn't already done so, have her call the police dispatch again and this time give a full description of the situation and of the evidence she found. Next, have her ask a neutral person to take a set of pictures as described in the section on photography - making sure to start with a picture of the whole back of the house, then take sequential pictures moving in to closeups of the damage, making sure to capture the splintered wood fragments still on the floor. Then have her keep a hardware store receipt of the purchase of a new lock. And, have the landlord or repair person write out a description of the damage and estimate of repair.

There is no guarantee that when this accumulation of additional evidence is attached to the case that the district attorney will file a violation of restraining order charge. But adding this evidence to the case greatly increases the chances. In fact, many restraining order charges and convictions have been obtained with a lot less evidence than the above example. And, if in addition, you could find a neighbor who saw or heard the break in, or there were fresh footprints matching the suspect's shoe size which you also photographed, you're well on your way to handing the court the proverbial slam-dunk case.

* If the victim hasn't already tried to get the police to come back to collect the evidence, she should call the police dispatch number or 911 to make the request. On the call she should explain the situation and describe the evidence she found. This isn't proof positive that the evidence exists, but at least it's now on police tape, and that tape certainly is supportive, and helps set the timeframe of the discovery.

In fact, even if she has talked to police, and they haven't responded by coming to get the evidence, having the victim call dispatch or 911 again is not a bad idea. "Hi, I left a message with officer Jones this morning to have him come out to take pictures of the broken window in the back of the house where my ex-husband broke in, but Officer Jones hasn't responded. Officer Jones was here yesterday to take my domestic violence report but I hadn't noticed the broken window when the officer was here the first time, so could someone please come out before I clean it up so my kids won't get cut."

* Time is important. Don't wait around and think about what you're going to do for too long. If a victim calls in to police on Friday that she discovered on Monday that her husband had cut the brake lines in her car, the obvious question and suspicion will be, 'Why did she wait four days to report something that serious? It can't be because she was afraid to call police, since she had just talked to police on Sunday." Time is also important for the obvious reason that so much of physical evidence is likely to be moved, cleaned up, rained on, or repaired.

* Document the location of the evidence with the evidence in location before the evidence is disturbed. Taking a set of photographs as described in the section on photography above is always a good place to start. Remember, it's always better to get the most neutral person possible to take the photos. But don't wait to get the perfect person. If evidence is about to be lost, have the victim take the pictures or take them yourself.

Another way, aside from photographs, or in addition to photographs, to obtain supportive evidence of the evidence location is to have a repair person or cleaning person come in and give a written estimate of cost of repair. You can do this even if the victim doesn't have enough money to follow through and hire the person. Have the repair person make written note of the damage.

Another way is to have a neutral person come in and make written note of the evidence. If the victim discovers a blood stain on the floor she can have a neighbor, or even a friend come over, and describe the location and amount of blood in a signed written note.

But keep in mind, pictures are worth a thousand words.

* Now that you've documented the timeframe, location, and description of the evidence, as best you can, it's time to decide whether or not the evidence itself should be secured. Clearly, if it's a damaged door on a restraining order violation, it would be ridiculous to bring the door into police. On the other hand, if the suspect has taken a knife and slashed a victim's clothes to shreds, those clothes should be bagged up and entered into the case. Common sense should be your guide.

* Before you pick up and bag evidence, stop and think again. Some forms of physical evidence need great care to avoid contamination or deterioration; such as body fluid evidence like blood on a knife. This evidence should be very cleanly handled and placed in a bag that hasn't been previously used. Other forms of evidence, however, such as a victim's clothes that have been slashed up can be simply put in a bag without concern. Just take a moment to think about how the evidence you have should be best picked up and contained.

* Label the evidence clearly and securely. The best way to do this is to write directly on the bag, envelope or container. Write the date, the time and location found, a phrase of description, and, very important, the criminal case number.

Entering the Evidence into the Case

Once you have obtained new witness statements or documented and gathered new evidence, it's time to get the evidence entered into the case. This is usually the easiest step of all. If the investigating officer has been basically well intentioned and was simply unavailable to obtain the new evidence, or a little too slow, all you have to do is turn whatever you have over to him or her. If, on the other hand, you had to obtain the evidence yourself because the investigating officer was unwilling, then you'll likely want to take an alternate route.

In general, you can take the evidence to any police officer in the department that's handling the investigation, or better yet, to the on-call sergeant. Or easier still, you can deliver it to the department reception desk and ask that it be turned into the case. Just make sure that the evidence is well labeled. Also, always take down the full name and position of the person who's taking the evidence from you.

If the police report has already been completed and sent to the District Attorney's office, what the investigating officer should do, and will probably do, with your evidence is write up a supplemental report covering the new evidence. The supplemental report will have the same crime case number as the original report. That supplemental report should be sent to the DA's office to be attached to the original case. Always double check with the deputy district attorney (the prosecutor) on the case to make sure they have, indeed, received the supplemental report.

Another way to enter the evidence is to take it directly to the district attorney's office. But, as often as not, the district attorney's office will ask that you take it to the investigating police officer, even if the police report has already been sent to the DA's office. There is also an important difference in entering evidence into a case through the district attorney's office even when they are willing to accept the evidence. The deputy district attorney in charge of the case won't and can't accept the evidence, because this will make the attorney a witness in his or her own case. What the deputy district attorney will do is ask one of the district attorney investigators - investigators assigned to the district attorney's office - to log the evidence into the case.

This whole process of getting the evidence entered into the case is usually quite simple and usually goes smoothly.

But there is one possible wrinkle that you need to watch for and check on before you turn the evidence in to police. Make sure the case has a crime report number! (If a case has already been sent to the DA's office you don't have to worry about this, since a case doesn't get sent to the DA without a crime report number.)

Before Turning Evidence into a Case, Make Sure Police have Opened a Crime Report on the Case, and NOT an Incident Report! Obtain the Crime Report Number!

No matter to whom you choose to turn in the evidence, make sure the case has been opened as a criminal case, and has not been logged into police records as an incident report (sometimes called an informational report). The last thing you want to do is take evidence to officials and have them put it into an incident report, where it will likely never be heard from again.

Here's what you need to know to protect women from this particular slight of hand.

When police respond to a call, the officer makes a decision of whether or not the events being reported constitute criminal behavior. If the officer decides the events do constitute criminal behavior, the officer opens a crime report. Each crime report is given it's own unique police crime report number for that agency. All further information and evidence regarding pertaining to that report goes into that specified crime report. The crime report will then proceed either to more police investigation or to district attorney review. Or, at the very least, it will remain a dormant criminal case, which can always be revived with new evidence. In essence, the opening of a crime report and the assignment of a crime report number is the victim's entry ticket into the criminal justice process.

If, on the other hand, the responding officer makes an initial decision that the events being reported do not rise to criminal behavior, the officer simply makes out an incident report, or sometimes makes no report at all. In general, once a law enforcement decision has been made to file events in an incident report, that's the dead end of the process. There will generally be no further investigation nor additional action taken on the matter - unless you push police to change the case status to a criminal report.

When a woman reports violence and the officer logs her story into an incident report, that's a pretty good indication the officer doesn't want to be bothered investigating the case and is wrongly attempting to bury the case. Keep in mind that the officer does not need proof or evidence to open a crime report. All that's needed is a person reporting a situation, which if true, constitutes criminal behavior.

Putting a victim's report of violence or threats of violence into an incident report is yet another common tactic you need to watch for in which police wrongly derail violence against women cases. Because police know this is wrong when they do it, they naturally don't tell the victim what they're doing. The victims are usually completely unaware it has occurred. This is why it's so important before entering evidence into a case to double check to make sure the case has been given a crime report number.

Fortunately, this is easy to do because crime report numbers pertaining to a specific police call are public record right from the moment the case is opened. Furthermore, in California and a number of other states, the law requires that police give this crime report number to victims in writing before leaving the scene.

So you can start by asking the victim if the officer gave her an informational pamphlet with the crime report number written by the officer somewhere on the pamphlet. Or, you can simply call the police department and ask for the crime report number corresponding to the time, address, or suspect name of the original call to police.

Once you're assured a crime report has been opened and you have the crime report number, then, and only then, can you safely enter the evidence into the case.

NOTE 1: In addition to obtaining the crime report number, it's also important to find out which penal code sections (i.e. which specific crimes) are under investigation per that report. This information is also part of the public record right from the initial opening of the case, including in child abuse cases. So at the same time as you request the crime report number, ask also for which crimes are being investigated.

Opening a case on less serious or on fewer crimes than the victim is reporting is an additional means by which police can dump or minimize violence against women. For example, opening a case on less serious crimes than a victim reports is an especially common means of dumping rape cases. Many police departments, including major police departments such as Philadelphia and Phoenix Police, have been caught using a wholesale practice of dumping literally thousands of rape cases by opening these cases as crime reports of a minor interpersonal crime, instead of as a rape report. This dooms the rape case to such low priority right from the beginning that the case will never move further through the system.

Another variation of this tactic is to fail to cover all the crimes being reported. For example, if a woman reports that her boyfriend threatened to kill her, then hit her with a baseball bat, and then blocked her attempt to escape from the house, the crime report should be opened on all three crimes; i.e. on terrorist threats, assault with a deadly weapon, and on false imprisonment.

If a crime report is not opened on the all appropriate crimes, it is essential to get this situation corrected too.

NOTE 2: As a criminal case moves through the system it will pick up additional case numbers. It will be given a district attorney office number, a court case number or two, and perhaps a probation case number. Most justice system computer systems will be able to pull up a case by referencing, or cross referencing, any one of the case numbers, including the original police crime report number.

If you discover that police have not opened a criminal case, and have instead logged the call as an incident report, or that police have simply walked away and not logged anything at all, getting police to open a criminal case is the first thing you'll have to do.

On rare occasions, it may be that police haven't opened a criminal case, because, in fact, the victim didn't tell the officer the criminal aspects of her story. In this situation, you'll need to educate her on the kind of information the police need to know in order to help her, and then help her make another report to police. However, on most occasions when police write an incident report on violence against women, it's because the officer's intent is to be done with the woman and her case. In this situation, you'll have to go over the officer's head, to argue that a criminal case be opened.

Remember, all violence, threats of violence, stalking, violations of court orders, destroying community property, and many other hostile acts are crimes. When women report these acts to police, there is no excuse for police not writing these cases up as a crime, other than the unacceptable excuse that the officer doesn't want to do the job. So don't hesitate to push hard and insist that a criminal case be opened.

Walk into the station with the woman, call a sergeant or the head of the domestic crimes unit, and then start from scratch. Naturally, you should tell the new officer about the existence of the incident report. Then, if the new officer balks, just remind him or her that it really doesn't make much difference whether or not the victim got her message across to the first officer. What is important now is that she has been a victim of a crime. She wants to report the crime. She wants to have it investigated. And her statement alone is sufficient to have a crime report opened and an investigation begun.

If this doesn't work, you'll have to go up the ranks, or use some of the other methods described here. But don't hesitate to keep pressuring until the job is done. Refusal to open a crime report when women report violence is a blanket denial of justice.


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Copyright © Marie De Santis,
Women's Justice Center,

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