Trial – CDAC Member Portal

Prior to Trial

If you have not spoken with the victim prior to trial, odds are the victim has refused to cooperate with the prosecution. In this scenario, it is very unlikely you will have an opportunity to prepare for trial with them like you would with a cooperating witness. Your trial preparation with the victim in this scenario should focus on personally serving the victim with a subpoena to ensure you have done your legal due diligence to secure their attendance at trial. Usually, an investigator at the DA’s office or deputy at the local sheriff’s office personally serves witnesses, but you should check with your supervisor if you are unsure.

Sometimes the victim is willing to meet with you in preparation for trial. That does not necessarily mean they are cooperative or willing to testify, at least not without a subpoena. In such a scenario, a victim might meet with you out of respect for you or authority in general, or perhaps to try to convince one last time the charges should be reduced or dismissed. You should still expect these victims to say exculpatory things. Many of the Dos and Don’ts above apply to meeting with a victim under these circumstances. Use the meeting as an opportunity to personally serve the victim with a subpoena for trial. Let the victim know the subpoena is a legal requirement for you and the victim. If the victim appears especially uncooperative, do not threaten the victim with jail time. You may, however, need to remind the victim that a judge will issue an arrest warrant for anyone, including the victim, who refuses to appear as legally ordered by their subpoena. When victims are willing to comply with a subpoena but don’t wish to cooperate, you can explain to them that your first line of questioning during their direct examination can be about how they are there because they were subpoenaed, not because they wanted to be. This allows the victim to save face while reminding the jury that the dynamics of DV are playing out right before their eyes.

If the victim is cooperative, you should treat them similarly to other victims of crime. In these preparation meetings, however, be sure to elicit facts that expose the power and control dynamics. Also be sure to prepare the victim for the defense. You may have to even practice cross-examining with the victim to help them understand and prepare for the kind of questions the defense may ask.

As always, when you are preparing the victim, be mindful of your legal and ethical obligations to timely disclose Brady and Rule 3.8 information to the defense. For this reason, you should not wait until the last minute to conduct trial preparation meetings with any victim, especially a victim of domestic violence. DV victims can be vulnerable to domestic violence precisely because of things that may count as exculpatory information, such as being on drugs at the time of the abuse or cheating on their spouse. The victim may state that “rough sex” or “choking” during sex was consensual even when the victim’s “consent” was actually the product of the defendant’s coercion and control. There are countless examples. This kind of information should be disclosed long before trial so both you and the defense are prepared to address it. Surprising defense on the eve of trial with this kind of charged, arguably exculpatory information will result in the delay or trial or sanctions, which may include dismissal of the entire case.

Victims are often aware and will bring up their own “weaknesses” during trial preparation. Listen carefully to these areas of concern and prepare the victim to respond to those questions from defense. If the victim is aware, that means the defendant and therefore defense counsel knows.

Voir Dire

Voir Dire in domestic violence cases, as in all cases, removes biased jurors and frames the case for the jury in a way that helps them see the facts the way you do.

Common voir dire topics in a DV case include:

1. 1. What is domestic violence
  2. When and where domestic violence takes place and why
  3. Power and control dynamics
  4. Lack of injury doesn’t mean something didn’t happen
  5. Pain is legally defined as an injury
  6. Counter-intuitive victim behaviors, especially recant and continued affiliation with the abuser
  7. Why society criminalizes this kind of conduct
  8. The importance of following the law even if someone disagrees with it
  9. Reasonable doubt is not beyond all doubt
  10. Reasonable doubt is a high standard, but not an impossible-to-meet one

Think about your case and why you believe the defendant is guilty. What makes you believe certain things are “facts”? Are those truly facts, or does getting there require some logical inferences? Why do you believe the facts meet the elements? Where might the jury disagree with you or be confused about certain elements, such as “intent”? What must the jury believe is going on in the case to believe the facts are the way you view them? If your case lacks evidence, why, and is that your fault or the product of the defendant’s actions?

Voir dire is difficult to do effectively, even for veterans. Before a case, consult prosecutors more experienced with DV cases about the topics you should be addressing in voir dire. Remember, however, that you are the expert on your case, and that you will be the person standing in front of the jury.

Consider practicing voir dire on your friends and family. Their reactions and perspectives can give you good ideas for how to better approach your voir dire in any case.

Direct and Cross Examination

Sometimes, the first and only time a prosecutor has a chance to speak with a victim is when the victim takes the stand at trial. Adept prosecutors faced with this challenge begin addressing it during voir dire and opening statements by forewarning the jury during that the victim has refused to speak with the People and that the People don’t know what the victim will say at trial. This piques the jury’s interest and sets up the prosecution’s expert in domestic violence and victim behavior to educate the jury about why a victim of domestic violence may not wish to cooperate with prosecution.

If the victim appears and takes the stand, you should be prepared with a direct or cross-examination that does not require the victim’s agreement or even participation. Although cross-examination is easier, this can be done during direct examination too, which is essential if you need to admit the victim’s prior inconsistent statements to prove the elements of the charges during your case-in-chief. Section 16-10-201 will ensure you do not need to argue with the victim on the stand to admit the evidence you need to survive the defendant’s half-time Motion for Judgment of Acquittal.

When examining a victim of domestic violence on the stand, adopt a kind, compassionate tone. You need to demonstrate to the jury through your tone and manner of questioning that you believe you are speaking with a victim. If the victim is hostile, lies, or tries to play games during your direct examination, remain kind and professional and proceed through your direct examination admitting evidence using § 16-10-201. Most jurors will understand what the victim is doing and, especially after your expert on domestic violence educates the jury on counter-intuitive victim behavior, why the victim is doing it. The jury will appreciate your professionalism and kindness and view the victim as someone who feels hopelessly stuck in the cycle of violence.

Admitting Victim’s Prior Statements (§ 16-10-201)

Do not worry about losing a case or key evidence if a victim recants. Section 16-10-201 offers prosecutors a way to introduce the victim’s original statements to the jury as proof that what the victim said originally is what really happened. Section 16-10-201 states:

(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:

(a) The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and

(b) The previous inconsistent statement purports to relate to a matter within the witness’s own knowledge.

For purpose of this statute and the introduction of prior inconsistent statements in general, a victim “forgetting” their original statements counts as a denial, and may serve as a basis to introduce their supposedly forgotten statement. Davis v. People, 310 P.3d 58, n.2 (Colo. 2013) (citing with approval People v. Baca, 633 P.2d 528, 529 (Colo. App. 1981)).

If you anticipate a victim recanting at trial, or even if you aren’t sure, before trial make a list of all the victim’s inculpatory statements that you wish to admit. Identify the witness to the victim making those statements. Then create a table that looks something like this:

To Witness	Statement	Source	Deny/Forget	Admitted
Ofc. Pluto	“He hit me in the head.”	BWC 2:54; 911, 1:02
	“I love him.”	BWC 5:45
	“Ouch! It hurts when I touch my ear.”	BWC 7:00, Supp.
Invest. Han	“It didn’t hurt very much.”	Audio Rec. 5:32
	“He was jealous.”	IR 3, p.1
	“I still love him.”	Text (Ex. 12)

If the victim recants or forgets these facts, you can then ask the victim about making these statements to the witnesses. If the victim denies or forgets saying these things, then you can call these witnesses to testify that the victim did, in fact, say these things. It’s even better if you can prepare video or audio clips of the victim saying these things and introduce those clips through the witnesses.

This is usually done at trial in four main steps:

1. 1. Repeat the recant you wish to cast doubt on:
    - Am I hearing you correctly that your testimony today is that he has never hit you?
  2. Build-up the prior statement by pointing out context that enhances its reliability;
    - Do you remember speaking with the police on [date]?
    - Do you remember how you were crying and shaking?
  3. Confront the victim with the prior inconsistent statement (be careful with your tone);
    - Do you remember telling Ofc. Ramirez that you were crying because the defendant had just hit you in the head?
  4. Complete the impeachment:
    - Get the victim’s response: “yes,” “no,” or “I don’t know” or “I don’t remember.”
    - If the victim denies or minimizes the prior statement, consider calling your 16-10-201 witness to complete the impeachment.

Evidence admitted in this way, especially in combination with a generalized “blind” expert who can educate the jury about counter-intuitive victim behavior, often proves to the jury that the victim is hopelessly stuck in the throes of domestic violence and is trying to protect herself and the defendant on the stand by recanting. It is for this and other reasons that experienced prosecutors will tell you it is often easier to prove a DV case when the victim recants than when they do not—and it is why you should not be afraid to speak with DV victims before trial or disclose their recantations to the defense.

DV Experts

In almost every DV trial, you will need to have a generalized or “blind” DV expert prepared to testify about counter-intuitive victim behavior. Even if you think you have a cooperative victim, victims can suddenly become uncooperative. They can also change their behavior—and their testimony—on the stand when they sit in front of their abuser. Victim’s can minimize, forget seemingly obvious details, and recant some or all of their prior testimony. Having a DV expert available to explain these things to a jury is often the difference between conviction and acquittal in these situations.

Having a DV expert available at trial requires you to do several things long before trial starts. For DV cases, you’ll want to focus on ensuring your expert is qualified and able to educate the jury on the kind of counter-intuitive victim behaviors and domestic violence dynamics present in your case. Make sure your expert has experience, training, education, or preferably all three in domestic violence in general. You’ll also want to ensure your expert has significant experience working with victims of domestic violence. This real-life experience will go a long way toward helping your jury understand how “real” victims of DV behave and why they behave that way. For a guide on the use of Domestic Violence experts, see the Domestic Violence & Sexual Assault Trauma Expert Witness Handbook. For a comprehensive overview of the law on admitting expert testimony, including generalized expert testimony, see the Trial Evidence Manual.

Pre-trial, be sure to speak with your expert generally without giving away details about the case. Telling them too many details about the case will preclude them from testifying as a generalized expert, and in fact, will probably preclude them from testifying at all. During trial prep, it’s ok, however, to ask questions about topic areas and provide very basic categorical information about the case, such as whether the victim and offender are married and have children. This will ensure you and your expert can properly prepare for trial.

Resources

CDAC Resources

Domestic Violence & Sexual Assault Trauma Expert Witness Handbook

Trial Evidence Manual

Recorded Trainings

Prosecutor’s Guide to Utilizing Trauma Experts in Sexual Assault and Domestic Violence Cases

Trial Techniques: Direct-Examination

National Resources

Framework for Prosecutors to Strengthen Our National Response to Sexual Assault & Domestic Violence

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