Prosecuting cases without victim cooperation.

The scenario plays out innumerable times in jurisdictions across America. In response to a 911 call, officers rush to the site of a domestic disturbance, where they encounter the suspect and his girlfriend. The sobbing victim holds an ice pack to her swollen face and claims that her boyfriend struck her during an argument. When an officer asks for the offender's account, he replies that a disagreement had "gotten out of hand" but that everything is fine now.

The officers arrest the offender and call for a unit to transport him to a holding center. An officer then photographs the victim's injuries and obtains a written statement from her, requesting that she report to the police station the following day for additional photographs. Other department personnel arrive and provide the victim with the telephone number of a local shelter and with information on securing a protective order against her boyfriend. They also suggest that the victim have a doctor examine her injuries.

Three days after the assault, the victim calls the station to inform one of the arresting officers that she wishes to drop the assault charge. She tells the officer that the dispute had been her fault and that her boyfriend was merely defending himself when he struck her. Although the victim did not admit to it, the officer had an idea of what actually had led to her change of heart: The defendant had returned with the rent money, a bouquet of flowers, and a promise that "nothing like this will ever happen again."

But to the victim's surprise, the officer calmly advises her that the evidence collected in the case will enable prosecution efforts to proceed despite her lack of cooperation. Like a growing number of domestic abuse victims who decide to disavow statements and drop charges against their abusers, this victim has discovered that the criminal justice system may not be as willing to forgive and forget. In fact, with the right evidence, prosecutors can gain a conviction, even if the victim testifies on the abuser's behalf.

Aside from protecting victims from further abuse, law enforcement agencies have a vested interest in pursuing such cases. Departments often respond to repeated domestic disturbance calls from the same address. A manipulative offender who can convince a frightened and vulnerable victim to drop her charges may be deterred from violence if he knows that the police and prosecutors can pursue the case without the victim's testimony.

Law enforcement agencies can obtain sufficient evidence to secure convictions without the assistance of victims by carefully prioritizing evidence collection in domestic assault cases. In a case like the one described above, evidence collected by police officers enabled prosecutors in New Hampshire to win a conviction without calling the victim as a witness.

EVIDENCE COLLECTION

The Dover, New Hampshire, Police Department began prioritizing evidence collection for domestic assault cases in June 1993. Since implementation of the policy - based on a similar approach used in San Diego - the conviction rate for domestic violence assault cases has increased significantly.

As part of the policy, officers use a checklist to ensure that all evidence is preserved for later use by the prosecution. Together, the different types of evidence can more than compensate for the lack of a victim's testimony. However, the fact that conviction may depend solely on this evidence underscores the need for officers to collect and save all relevant documentation regarding the case.

Secure Emergency 911 Tape

Investigating officers should secure a recording of any 911 call made by the victim. Calls to the 911 dispatcher reporting the assault can be presented at trial under the hearsay exception or as impeachment. Often, these tapes will include the defendant in the background, yelling or threatening the victim.

Record Excited Statements by the Victim

Any statement made while the victim is still under stress from the assault can be admitted into court through responding officers as a hearsay exception. It is important that officers document the victim's condition and note her exact statements concerning the assault. Officers can testify to such remarks as, "He punched me!" under the excited utterance exception.

Take Photographs

Photographs are critical pieces of evidence. In court, pictures truly do say a thousand words, and two or three photographs can have more impact than hours of testimony from officers describing a victim's condition after an assault.

Recent advances in instant camera technology allow for highly detailed close-up shots. Instant photographs also reveal immediately any problems in focusing or lighting, so that corrections can be made before the opportunity is lost. Because full bruising coloration may take at least 24 hours, responding officers should encourage the victim to report to the police station the day after the assault for followup photographs.

Officers also should photograph the crime scene to provide a record of damaged property or to show evidence of a struggle. If the defendant pleads self-defense in court, prosecutors may choose to introduce booking photographs in court to rebut such claims.

Request a Statement from the Victim

While a victim is cooperating, responding officers should request that she provide a detailed, written account of the assault. If the victim appears too traumatized to write, an officer should transcribe her exact words as she dictates the statement. Officers should make sure that the victim's statement references any prior abuse. The victim also should be encouraged to file a petition for a protective order.

If the victim later becomes uncooperative, the written statement can be used to refresh her memory or to impeach her testimony. If the victim has indicated past instances of abuse, prosecutors can request that the court admit the prior acts as character evidence. Prosecutors can even file additional charges if corroborating evidence supports the claims. The victim's sworn petition for a protective order can be used to impeach her testimony if she becomes a hostile witness.

Interview the Offender

Officers should record all spontaneous remarks the offender makes at the scene. While the officers are conducting their probable cause investigation, they should request that the offender provide his version of the incident. Such noncustodial interviews do not require a Miranda warning. However, even when officers issue a Miranda warning upon arrest, offenders usually respond to questions. Admissions by the offender are the best type of evidence.

Interview Other Witnesses

Unlike some other crimes, domestic violence is difficult to hide. Unfortunately, children often are the primary witnesses. Officers should not overlook taking statements from children who were present during the assault. Neighbors also can provide statements that could be introduced later by prosecutors to rebut claims of accidental injury or self-defense.

Secure Medical Records

Responding officers should request that the victim sign a medical records release. If she later proves uncooperative, the prosecution can still obtain medical records relevant to the case.

Similarly, officers should not overlook reports made by the emergency medical team. These reports generally contain very detailed information regarding the victim's injuries and can provide necessary documentation that confirms the assault.

Seize Plain-view Evidence

Responding officers should seize any evidence in plain view, such as blood-stained or torn clothing, and look for indications of a struggle, such as hair clumps, bloodstains, torn buttons, etc. Officers also should seize as evidence any weapon used in the assault.

CONCLUSION

Domestic violence represents one of the most vexing problems facing law enforcement agencies. Domestic disturbance calls are especially stress-inducing for responding officers, not only because of the potential for violence but also because officers know their efforts on behalf of the victim will probably prove futile. After a cooling down period, battered victims often reconcile with their abusive partner and refuse to support prosecution efforts. The cumulative effect of responding to repeated calls involving the same parties also takes a considerable tell on officers' morale.

But, law enforcement agencies do not need to be passive players in a cycle of violence. By collecting sufficient evidence, law enforcement officers can help prosecutors prove assault, even if the victim testifies on the assailant's behalf. Such proactive efforts on the part of the criminal justice system send a clear message to potential abusers. At the very least, the real threat of prosecution may deter some offenders. At best, courts can use the threat of jail time to divert abusers into treatment programs.

The more evidence that officers collect, the better the chance that prosecutors can prove assault. Not every case can be won. But by collecting the right evidence and using it wisely, law enforcement officers and prosecutors can take a more active role in curbing domestic violence.

Lieutenant Wattendorf serves as a legal advisor to the Dover, New Hampshire, Police Department on liability and labor issues.