TRIAL STRATEGIES FOR THEPROSECUTION OF SEXUAL ABUSE INCONFINEMENTChristopher Mallios AEquitasMay 14, 2013
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SupportThis webinar is funded through the National PREAResource Center and Grant No. 2010-RP-BX-K001 fromthe U.S. Department of Justice, Office of JusticePrograms, Bureau of Justice Assistance. Neither the U.S.Department of Justice nor any of its componentsoperate, control, are responsible for, or necessarilyendorse this webinar (including, without limitation, itscontent, technical infrastructure, and policies, and anyservices or tools provided)
National PREA Resource CenterThe National PREA Resource Center (PRC) wasestablished through a cooperative agreement betweenthe Bureau of Justice Assistance and the NationalCouncil on Crime & Delinquency (NCCD). The mission ofthe PRC is to assist adult prisons and jails, juvenilefacilities, lockups, community corrections, and tribalfacilities in their efforts to eliminate sexual abuse byincreasing their capacity for prevention, detection,monitoring, responses to incidents, and services tovictims and their families
AEquitas: The Prosecutors’ Resource onViolence Against WomenAEquitas’ mission is to improve the quality ofjustice in sexual violence, intimate partnerviolence, stalking, and human trafficking cases bydeveloping, evaluating, and refining prosecutionpractices that increase victim safety and offenderaccountability
PresenterChristopher Mallios, Attorney Advisor,AEquitas
Ombudsman CallThis call and accompanying fact pattern contain graphiclanguage and descriptions and was created in connectionwith prosecutor training on sexual abuse in confinement.The names and incidents in this fact pattern arefictitious.
Learning ObjectivesAt the end of this webinar, participants willbe better able to: Develop trial themes and strategies throughoutyour opening statement, case-in-chief, crossexamination, and closing argument Support and work with victims who recant or donot want to participate in the criminal justiceprocess Overcome challenges, including jury bias anddefenses
Definition: Sexual Abuse“Sexual abuse” refers to “contact between thepenis and the vulva or anus; contact between themouth and the penis, vulva, or anus; penetrationof the anal or genital opening; and ‘‘[a]ny otherintentional touching, either directly or through theclothing, of the genitalia, anus, groin, breast, innerthigh, or the buttocks of any person that isunrelated to official duties or where the staffmember, contractor, or volunteer has the intent toabuse, arouse, or gratify sexual desire”28 CFR § 115.6, Definitions related to sexual ult/files/library/2012-12427.pdf, p. 96
Statement of Sherry Sullivan (continued)I have been an inmate at the South BrocklandWomen’s Correctional Facility since November 11,2012. I got picked up for possession of cocaine and Iwas just waiting for a trial or something. I am waitingto get released -- maybe this summer. One of thesupervising officers on my block was ThomasAnderson. At first, he didn’t bother me. But then Istarted working in the laundry, and he would betransporting a few of us down there every day, Mondaythrough Friday.
Statement of Sherry Sullivan (continued)After just a few days in the laundry, that’s when itstarted. He started pulling me out into a room offto the side and raping me. It was like a closet, butbigger. It had a table in there that looked like itwas an old table from a doctor’s office. Sometimeshe did it twice a day. It was always the same thing,except a couple of times. He always used acondom, turned me over and put me face down soI was bending over on a table, and then he put hispenis in my vagina from behind.
Statement of Sherry Sullivan (continued)The first time he said something like, “If you knowwhat is good for you, and you want me to takecare of you and protect you in here, you will dothis,” or something like that. Honestly, I was soscared, I didn’t say a word. I would cry a lot in thebeginning. He just ignored it. Sometimes he wouldgive me some food or stuff or cigarettes before orafter.
Statement of Sherry Sullivan (continued)I never said a word to anyone. I really just thoughtthat he could kill me in there so I didn’t sayanything. I never told anyone. A few of the girlswould give me dirty looks, not just in the laundrybut like in the cafeteria too, but no one saidanything to me. I wasn’t going to report this. I justcouldn’t keep it in anymore. I do not want to presscharges. I just thought about him beingtransferred and that he is going to do this tosomeone else somewhere, and I just don’t wantwhat happened to me to happen to anyone else.
If this case came across mydesk, I would:A. Take it to grand juryB. Request additional investigationC. Call the victim immediatelyD. Other
Offender-Focused Prosecution Offenders purposefully, knowingly, andintentionally target victims whom they believethey can successfully assault Keep the focus on the actions, behaviors,characteristics, and intent of the offender
The Context of the VictimThe victim’s context is defined by: The offender (influence on the truth,relationship, etc.) The culture (barriers, disclosure, access toservice, etc.) The self (blame, prior history and experience) The audience
Trial PreparationSherry Sullivan is transported to theprosecutor’s office for a trial prep session.Sherry says she doesn’t want to talk about therapes; she just wants the prosecutor to talk toher about what will happen during the trial.The prosecutor spends 45 minutes talkingabout the process. Sherry says she will talk tothe prosecutor another time prior to trial.28 CFR §§ 115.43, 115.68, 115.368 Protective fault/files/library/2012-12427.pdf,p. 50; 28 CFR § 115.67 Agency protection against retaliation, p. 102
STATE v. Thomas Anderson“Hi it’s Sherry Sullivan from the Andersoncase. I am calling because I just I wantthis whole thing dropped. I want thecharges dropped. I just cannot do this.Please just tell me what I have to do toget the case dropped. If I have to signsomething or what.”
STATE v. Thomas AndersonThe prosecutor calls the prison and asks the PREAcoordinator to relay a confidential message toSherry:“Hello Sherry, I would like to talk about yourmessage. I am here to support you and I just wantto talk to you to make sure you are OK. I am hereto support you. I will see you tomorrow in court.Please call me back.”
What should the prosecutordo on Monday?A. Tell the defense attorney that the victim does not wantto testifyB. Tell the victim she has to testifyC. Proceed without the victim’s testimonyD. None of the above
STATE v. Thomas AndersonOn Monday morning, the victimcomes to court and tells theprosecutor that the rape neverhappened.
What should the prosecutordo?A. Conduct a victim interviewB. Drop the caseC. Have a victim-witness advocate speak to victimD. Tell her to think about it and call back in a fewdays
Discovery(a) A prosecutor should not intentionallyfail to make timely disclosure to thedefense, at the earliest feasibleopportunity, of the existence of allevidence or information which tends tonegate the guilt of the accused or mitigatethe offense charged or which would tendto reduce the punishment of the accused.Standard 3-3.11, ABA Criminal Justice Section Standards
Discovery(b) A prosecutor should not fail to make areasonable diligent effort to comply with alegally proper discovery request.(c) A Prosecutor should not intentionallyavoid pursuit of evidence because he orshe believes it will damage theprosecution’s case or aid the accused.Standard 3-3.11, ABA Criminal Justice Section Standards
Why recant?For many victims, recanting isan attempt to stop the criminalcase from moving forward andstop cooperating with theinvestigation or prosecution.
Victim DynamicsWhy do so many victims fail to cooperatewith criminal prosecution? TraumaMistrust or the criminal justice systemEmbarrassment/shameBeing treated with suspicionLack of supportPut the incident behind themIntimidation
DecisionsSafety risks, cultural barriers, andconsideration of life changing, unintendedconsequences are serious concerns forvictims in whether to cooperate with acriminal prosecution against their offender.These decisions are also serious concernsfor the criminal justice system, asprosecutions are often dismissed whenvictims fail to appear for trial.
Complex DecisionResponsibility is not just to understand these dynamics:ParticipateNotParticipateWe need to appreciate that perpetrators master andexploit them to circumvent the justice system andcommunity efforts.
Criminal JusticeSystemBeliefs Response
Rape Myths“Despite considerable researchand publications in professionaland popular journals concerningrape, such myths continue topersist in common lawreasoning”Sarah Ben-David & Ofra Schneider, Rape Perceptions, GenderRole Attitudes, and Victim-Perpetrator Acquaintance, 53 (5/6)SEX ROLES 385 (Sept. 2005)
QuestionAssume that the victim recants to theprosecutor and then admits that therecantation was a lie. Can the prosecutor be called as awitness? What argument would you make inrequesting that the subpoena bequashed?
Lawyer as Witness“A lawyer shall not act as anadvocate at a trial in which thelawyer is likely to be anecessary witness.”Rule 3.7(a). Model Rules of Professional Conduct.
How we proceed
2-Step Charging Process1.Assuming the victim’s version is100% true, do the allegationsconstitute rape?2.Can you prove the victim’sallegations?
CorroborationConsider other evidence 911 tapes/Calls to reporting hotline Medical records 404(b) evidence Photographs Behaviors, appearance, and demeanor of allparties Any requests for cell/other transfer while inprison
Factors to Consider Corroboration Motive Consequence of making thedisclosure Intimidation Timing Level of detail Plausibility
The Crawford EffectMust consider the effect ofCrawford v. Washington, 541U.S. 36 (2004) on your abilityto prove the case.
Voir Dire What behaviorswould you like toaddress in voirdire? What questions doyou think wouldreveal juror bias?
ClosingTheme: Who is the defendant? Why and how did he select the victim? How did he carry out the crime? How did he injure her? Why is she to be believed (ie, how canyou assess her credibility so that youknow she is telling you the truth)?
Opening Should the prosecutor address thevictim’s behavior in his/heropening? How can the prosecutor addressthis behavior without putting thefocus on the victim?
Witness OrderPotential Witnesses: Victim Corrections officers assigned to her block Corrections official who can explainvictim’s/defendant’s schedule Corrections official who can explain map offacility and D’s access to victim Expert testimony on victim behavior Medical testimony Prompt complaint witness Law enforcement
Direct Examination Should prosecutors address victimbehaviors through their directexamination of the victim? What are the pros and cons ofasking victims to explain theirbehaviors?
Victim BehaviorMay be addressed In voir dire By the victim Through an argument Through an expert Through a combination
Direct Examination of theVictim
Victim BehaviorMost common reactions judged to becounterintuitive: Earnest resistance Not screaming, not yelling, notshouting “no” during the rape, notfighting back, etc. Delayed or piecemeal reporting Continued contact with the offender Subsequent sexual activity
Victim ResponsesVictim’s judgment of her behavior influencesreaction: I should have I shouldn’t have Why did I Why didn’t I
TraumaWhat Causes Trauma Extreme fear or terrorBetrayalBlitz or surprise assaultsBlame and shameDisastrous disclosures orreportsLack of supportEffects of Long TermTraumatic Stress Anxiety and vigilanceAnger, resentment, andconflictUncertainty about futureProlonged mourning of lossesDiminished problem solvingIsolationHealth ProblemsPhysical and mentalexhaustionChanged world view
Expert Testimony on Victim BehaviorPurpose Provides jurors with specialized information about a range ofvictim behavior Provides a proper context in which to evaluate a victim’sbehavior Not trying to match victim behavior to a “typical” or “real”victim Not using an expert to opine on the victim’s reasons for aspecific behavior Lay a foundation for closing arguments based on factualevidence about how victims behave Counter defense arguments the victim behaviors support aninference that the victim is lying
Introducing Expert Testimony Identify the behavior that you think willcause a jury to disbelieve the victim Decide whether to call an expert Admissible? Available? Pros and cons Explain the behavior
Case Law“[T]he behavioral characteristics orbehavioral patterns of an alleged victim in asexual abuse case may need to beexplained by expert testimony, especiallywhere that behavior would seem to becounterintuitive.”U.S. v. Pagel, 45 M.J. 64, 68 (CAAF 1996)
The Danger ZoneAn expert CANNOT: Testify about a particular witness’scredibility Cannot be a human lie detector Testify as to whether an assault did ordid not happen
Combating DefenseIt never happenedIt wasn’t me
Closing ArgumentOffender-focusedCredibility – statements with the ring oftruthDetailDemeanorInterestCommon senseCorroboration
Summary Cases involving sexual assault in confinementwill require focused and collaborativeinvestigative and victim-centered resources Focus on the offender’s behavior and how heselected this particular victim Look for corroboration from a variety ofsources Carefully prepare to try the case inanticipation of issues related to recantationor non-participation
Additional Resources U.S. Department of Justice National PREA ea final rule.pdf STRATEGIES Newsletter, Prosecuting Cases of Sexual Abusein Confinement, Issue#http://www.aequitasresource.org/library.cfm The .org/library.cfm Voices for Justice: Surviving Prison Rape, produced by JustDetention Internationalhttps://www.youtube.com/watch?v 0bOQet07OIg
For More InformationFor more information about the National PREA Resource Center,visit www.prearesourcecenter.org. Direct questions email@example.comMichela BowmanPRC Co-Directormbowman@nccdglobal.orgJenni TrovillionPRC Co-Directorjtrovillion@nccdglobal.orgTara GrahamSr. Program Specialisttgraham@nccdglobal.orgFor more information about AEquitas, visit www.aequitasresource.org.Direct questions to firstname.lastname@example.org.Connect with om/AEquitasResourc
Trial Preparation Sherry Sullivan is transported to the prosecutor’s office for a trial prep session. Sherry says she doesn’t want to talk about the rapes; she just wants the prosecutor to talk to her about what will happen during the trial. The prosecutor spends 45 minutes talking about the process. Sherry says she will talk to
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