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Uncover, and Enter Evidence into the Case Yourself
3 ~ Gathering and Entering the Evidence into the Case Yourself
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.
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.
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
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.
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.
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?
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
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
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.
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.
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.
for Gathering the Evidence from
Point of Origin Yourself
Victim Statements, Witness Statements, Photographs, Voice
Recordings, Public Records, Other Documentation, Physical
Evidence, and More
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.
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.
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,
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.
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.
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:
Crime Report # XX
Victim's Printed Full Name
Full Phone Contact Information (daytime and evenings)
Page 1 of X pages
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
* 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
hesitate to give her a photocopy of these tips before she
starts writing - so she can refer to them if she gets stuck.
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.
should indicate whether or not she is fearful of the suspect,
and what she fears he might do.
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.
her put her signature at the bottom or top of each page.
MULTIPLE COPIES of the statement before handing the original
to authorities. Keep the copies in a safe place.
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
For more detailed tips for entering evidence into the case,
see the final section of this Part 3 text, or click
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
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
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.
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
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.
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!
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.)
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.
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.
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.
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.
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.
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.
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.
how that phone conversation might go:
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?"
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
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.
the witness agrees to write out a statement, simply reiterate
the main points of guidance as outlined above for obtaining
forget to have the witness keep copies of the statement
for her or himself.
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.
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.
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.
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.
Statements from Special Witnesses
of witnesses call for special considerations. Two groups
we discuss here are children and professionals.
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
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
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.
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.
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.
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.
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.
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.
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
* 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.
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.
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.
the originals (or negatives) of the pictures, and of the
photographer's statement in a safe place.
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.
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.
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
some specific points on three different kinds of voice recordings;
911 calls, telephonic messages, and pretext calls.
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
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.
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
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.
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.
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.
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
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'.
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.
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:
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.
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
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.
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.
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.
Public Records, Professional Records,
and other Documents
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
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.)
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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
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
But keep in mind,
pictures are worth a thousand words.
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
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.
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.
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
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
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.)
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
Here's what you
need to know to protect women from this particular slight
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
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.
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
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
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.
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.
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.
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.
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.