Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault
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- (These titles reflect positions held at the time of the publication of the 3 rd edition.)
- (These titles reflect positions held at the time of the publication of the 2 nd edition.) Editorial Board for the Original 1997 Edition
- District of Massachusetts
- Berkshire County District Attorney’s Office Pittsfield, Massachusetts
- Bristol County District Attorney’s Office New Bedford, Massachusetts
- Essex County District Attorney’s Office Salem, Massachusetts
- Middlesex County District Attorney’s Office Cambridge, Massachusetts
- Northwestern District Attorney’s Office Greenfield, Massachusetts
- Suffolk County District Attorney’s Office Boston, Massachusetts
- 3. ASSESSMENT INVESTIGATION 171
- 4. INITIATING THE PROSECUTION 282
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Massachusetts District Attorneys Association THE MASSACHUSETTS PROSECUTORS’ MANUAL: DOMESTIC VIOLENCE & SEXUAL ASSAULT THIRD EDITION (Original Edition 1997) (Includes Updates Through July, 2010) Written by Lisa S. McGovern Third Edition: Updated and Revised by Kim Aliprantis Staff Attorney, Domestic Violence/Sexual Assault The Massachusetts District Attorneys Association One Bulfinch Place, Suite 202 Boston, Massachusetts 02114
Lisa S. McGovern Third Edition: Updated and Revised by Kim Aliprantis Staff Attorney, Domestic Violence/Sexual Assault THIS MANUAL WAS FUNDED BY A VIOLENCE AGAINST WOMEN ACT STOP GRANTS 2005-XO749-MA-WF and 2006-XO163-MA-WF, AWARDED BY THE VIOLENCE AGAINST WOMEN PROGRAMS OFFICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, THROUGH THE MASSACHUSETTS EXECUTIVE OFFICE OF PUBLIC SAFETY. POINTS OF VIEW IN THIS DOCUMENT ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REPRESENT THE OFFICIAL POSITION OR POLICIES OF THE U.S. DEPT. OF JUSTICE OR THE MASSACHUSETTS DISTRICT ATTORNEYS ASSOCIATION. Purpose & Scope In 1996 several Massachusetts agencies received funding under the federal Violence Against Women Act after having outlined in their grant proposals plans to develop a training manual for the prosecution of domestic violence and sexual assault cases. The Massachusetts District Attorneys Association proposed that a collaborative effort, including all Massachusetts District Attorneys offices and the Attorney General’s Office, combine resources and produce a single manual for statewide application. The original manual was funded by the Offices of former Attorney General Scott Harshbarger, former Norfolk District Attorney Jeffrey Locke, and former Norfolk District Attorney William Delahunt. The manual was written by Lisa McGovern, formerly an Assistant District Attorney in Middlesex County, and was reviewed by an editorial board comprised of representatives from the offices of Massachusetts’ eleven District Attorneys and the Attorney General. The manual was distributed in November 1997 to all Massachusetts prosecutors handling domestic violence and sexual assault cases. In 2000 the Violence Against Women Grant Office awarded the Massachusetts District Attorneys Association a grant to update the manual in 2001. The manual was significantly expanded and revised, and supplanted the original edition. In 2005 and 2006 the VAWA STOP Grant program again awarded the Massachusetts District Attorneys Association with grant funding to update the manual. The manual has again been significantly revised and replaces the second edition. The manual covers domestic violence and sexual assault cases simultaneously because they involve similar victim dynamics, and present prosecutors with similar complex challenges. The crimes of domestic violence and sexual assault are also all too often inextricably intertwined. Cases involving child abuse, including child victims of sexual assault are not within the scope of this work. A Note On Language Throughout the manual, victims are often, though not exclusively, referred to in the feminine gender. This reflects the fact that in the overwhelming majority of domestic violence cases and sexual assault cases, the victim is female and the offender male. However, where applicable, the contents are intended to pertain equally to male victims, and/or to victims who are the same gender as their assailants or abusers. In the past decade rape crisis center advocates have deliberately adapted use of the term “survivor” in place of “victim,” particularly with respect to the crime of rape. Due to the statutes, cases and legal authorities that use and define the term “victim,” the manual introduces “survivor” but also retains “victim.” Acknowledgements Without the support of the Executive Office of Public Safety, and the VAWA STOP Grant program, this 3rd edition of the Massachusetts Prosecutors’ Manual: Domestic Violence & Sexual Assault would not have been produced. The Massachusetts District Attorneys Association especially thanks Diane DeAngelis, Grant Administrator for the VAWA STOP Grant Program, for her steadfast support. All of the District Attorney’s offices and many in the criminal justice community contributed to this new edition, and we especially thank:
(These titles reflect positions held at the time of the publication of the 3rd edition.) A number of people were generous in sharing their expert advice with the author for the second edition, including:
(These titles reflect positions held at the time of the publication of the 2nd edition.) Editorial Board for the Original 1997 Edition (These titles reflect positions held at the time of the original publication.) Office of the United States Attorney District of Massachusetts: Marianne Hinkle Assistant United States Attorney (formerly Chief, Domestic Violence Unit, Norfolk District Attorney’s Office) Office of the Attorney General Commonwealth of Massachusetts: Joseph F. Whalen Assistant Attorney General Amy Sharff Assistant Attorney General Kathy Morrissey Victim-Witness Advocate Janine Gannon Project Coordinator, Child Witness to Violence (formerly Victim Witness Advocate, Norfolk District Attorney’s Office) Berkshire County District Attorney’s Office Pittsfield, Massachusetts: Anne M. Kendall Second Assistant District Attorney Elizabeth A. Keegan Director, Victim-Witness Assistance Program Bristol County District Attorney’s Office New Bedford, Massachusetts: Michele Stanton Director, Victim-Witness Assistance Program District Attorney for the Cape & Islands Barnstable, Massachusetts: J. Thomas Kirkman Chief, Domestic Violence Unit Essex County District Attorney’s Office Salem, Massachusetts: Mary Alice Doyle Assistant District Attorney Hampden County District Attorney’s Office Springfield, Massachusetts: Maria F. Rodriguez Assistant District Attorney Chief, Family Protection Bureau Middlesex County District Attorney’s Office Cambridge, Massachusetts: Beth Merachnik Director, Domestic Violence Unit Norfolk County District Attorney’s Office Dedham, Massachusetts: Jeanmarie Carroll Chief, Domestic Violence Unit Northwestern District Attorney’s Office Greenfield, Massachusetts: Laurie McLeod Assistant District Attorney Plymouth County District Attorney’s Office Brockton, Massachusetts: Sheila M. Calkins Chief, Family Protection Unit Suffolk County District Attorney’s Office Boston, Massachusetts: Andrea Cabral Chief, Domestic Violence Unit Worcester County District Attorney’s Office Worcester, Massachusetts: Anthony J. Pellegrini Director, Victim-Witness Assistance Program 1. FOUNDATIONS 1 1.1. BACKGROUND INFORMATION ON DOMESTIC VIOLENCE & SEXUAL ASSAULT 1 1.2. BACKGROUND INFORMATION ON RESTRAINING ORDERS 25 1.3. BACKGROUND INFORMATION ON STALKING AND CRIMINAL HARASSMENT 47 1.4. BACKGROUND INFORMATION ON NON-CRIMINAL LEGAL OPTIONS FOR VICTIMS 57 1.5. DOMESTIC VIOLENCE & SEXUAL ASSAULT STATUTES: ELEMENTS, PENALTIES, and SELECTED ANNOTATIONS 62 1.6. PROCEDURAL STATUTES AND ISSUES 102 Definitions are included in 18 U.S.C. § 921: 107 “Intimate partner” means the spouse, former spouse, parent of a common child, or person who has cohabitated or cohabitates with the person in question. 107 To be considered “to have been convicted,” a person must have been represented by counsel or knowingly and intelligently waived counsel, and if entitled to a jury trial must have had the case tried by a jury or must have knowingly and intelligently waived the jury right. 107 A “misdemeanor crime of domestic violence” means an offense that: (1) is a misdemeanor under Federal or State law; and (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Thus, any misdemeanor which involves the use or attempted use of physical force, committed by one of the defined parties, would constitute a “crime of domestic violence” under the statute, whether or not a state statute or local ordinance defines it as domestic violence; e.g., a conviction for an assault against a spouse prohibits the offender from receiving or possessing firearms or ammunition. 108 The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law’s effective date of Sept. 30, 1996. 108 A conviction is not disabling if it has been expunged, set aside, pardoned, or if the person has had his or her civil rights restored, and the person is not otherwise prohibited from possessing firearms and ammunition. 108 18 U.S.C. § 1201 Kidnapping 108 Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when -- 108 the person is willfully transported in interstate or foreign commerce; 108 any such act against the person is done within the special maritime and territorial jurisdiction of the United States; 108 any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49; 108 the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or 108 the person is among those officers and employees designated in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties, 108 shall be punished by imprisonment for any term of years or for life, and, if the death of any person results, shall be punished by death or life imprisonment. 108 With respect to subsection (a)(1) above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce. 109 If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life. 109 Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than 20 years. 109 2. VICTIM ADVOCACY 110 2.1. YOUR RELATIONSHIP WITH THE ADVOCATE 110 2.2. YOUR RELATIONSHIP WITH THE VICTIM 114 2.3. VICTIM RIGHTS 118 2.4. ADDRESSING VICTIMS’ RELUCTANCE TO PROSECUTE 125 2.5. RAPE CRISIS CENTERS AND DOMESTIC VIOLENCE SHELTERS 132 2.6. FACTUALLY SPECIFIC VICTIM ISSUES 135 2.7. SAFETY PLANNING 167 3. ASSESSMENT & INVESTIGATION 171 3.1. OVERALL STRATEGY 171 3.2. INITIAL REVIEW AND ACTION 173 3.3. INTERVIEW THE VICTIM 178 3.4. REVIEW THE PERPETRATOR’S STATEMENT 186 3.5. ASSESS TECHNICAL AND SCIENTIFIC EVIDENCE 187 3.6. ASSESS ALL OTHER PHYSICAL EVIDENCE 239 3.7. ASSESS ALL POTENTIAL WITNESSES 243 3.8. ASSESS THE BASIS FOR ADMISSIBILITY OF ALL TESTIMONY 253
4.1. RESOLVE DUAL ARRESTS AND DUAL RESTRAINING ORDERS 282 4.2. THE CHARGING DECISION 289 4.3. BAIL/ PRETRIAL DETENTION 292 4.4. PROBABLE CAUSE HEARING and GRAND JURY PRACTICE 304 4.5. NO DISMISSAL OVER COMMONWEALTH’S OBJECTION 305 5. DISCOVERY 309 5.1. WHAT YOU ARE ENTITLED TO FROM THE DEFENSE 309 5.2. WHAT TO PROVIDE THE DEFENSE AS A MATTER OF ROUTINE 312 5.3. POTENTIALLY CONTESTED DISCOVERY ISSUES 316 5.4. ACCESS TO PRIVILEGED RECORDS AND COMMUNICATIONS 323
6.1. TACTICS 336 6.2. MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION 338 6.3. MOTIONS REGARDING DISCOVERY 346 6.4. OTHER PROCEDURAL MOTIONS 355 6.5. MOTIONS TO ADMIT EVIDENCE 362 6.6. MOTIONS TO PRECLUDE EVIDENCE 393
7.1. DEVELOPING THE THEME OF THE CASE 408 7.2. PREPARING FOR ISSUES OF PROOF 409 7.3. ANTICIPATING DEFENSES 410 7.4. PREPARING THE VICTIM (AND OTHER LAY WITNESSES) FOR TRIAL 417 7.5. PREPARING POLICE OFFICERS AND EXPERT WITNESSES 420 7.6. DEALING WITH UNCOOPERATIVE WITNESSES AT TRIAL 421 7.7. PREPARING EXHIBITS 426 7.8. IMPANELING THE JURY; VOIR DIRE 427 7.9. OPENING 435 7.10. DIRECT EXAMINATION 435 7.11. CROSS EXAMINATION 437 7.12. CLOSING ARGUMENT 439 7.13. JURY INSTRUCTIONS 443 8. POST-CONVICTION 446 8.1. THE RIGHT TO BE HEARD 446 8.2. PROBATION REVOCATION HEARINGS 447 8.3. SENTENCING OPTIONS 449 8.4. FORMULATING YOUR SENTENCING RECOMMENDATION 454 8.5. POST-TRIAL COMMUNICATIONS 456 8.6. CIVIL COMMITMENT OF A SEXUALLY DANGEROUS PERSON 456 8.7. THE SEX OFFENDER REGISTRY BOARD AND PROSECUTING “FAILURE TO REGISTER” CASES 458 9. APPENDICES 463 9.1. APPENDICES TO SECTION ONE, “BACKGROUND INFORMATION” 463 9.2. APPENDICES TO SECTION TWO, “VICTIM ADVOCACY” 464 9.3. APPENDICES TO SECTION THREE, “ ASSESSMENT & INVESTIGATION” 464 9.4. APPENDICES TO SECTION FOUR, “ INITIATING THE PROSECUTION” 465 9.5. APPENDICES TO SECTION FIVE, “ DISCOVERY” 465 9.6. APPENDICES TO SECTION SEVEN, “TRIAL STRATEGIES” 466 9.7. APPENDICES TO SECTION EIGHT, “POST-CONVICTION” 466 Download 1.82 Mb. Share with your friends:
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