Monday, November 14, 2011

New Tool Provides Victims of Domestic Violence a Voice in the Courtroom- Series Part 2

What is the Evidentiary Abuse Affidavit?

The Evidentiary Abuse Affidavit is documentation and information coming directly from the victim as it relates to domestic violence and stalking, providing the offender’s description, identity, behavior, and possible motivation.

In the past, victim’s voices were silenced. If the victim was missing or dead, testimony given on her behalf by others who knew of the violence, knew about threats made against her, or knew of possible motives for her murder, have been dismissed as hearsay. Now, with the Evidentiary Abuse Affidavit, the victim will have documented her abuse through video and other legal procedures that will allow it to be used in court as her words, should she disappear or be murdered.”

Hearsay is an out of court statement "offered for the truth of the matter asserted" and not subject to cross-examination, typically because the declarant or speaker is unavailable. This is important as it applies directly to women ending a relationship like Jacque Waller, Kelly Rothwell, Hope Meeks and others who have never been seen or heard from again and are currently missing. And she (the victim) is not "available." Such statements are deemed unreliable because of the obvious fact that they can easily be fabricated and can not be tested through cross examination.

One basic way to get around hearsay is to seek admission, not for the truth of the statement itself, but for another highly relevant purpose. For example, let's say I am charged with intentionally shooting my daughter's boyfriend (which is not beyond realm of reason) while the two of them are harmlessly playing tie-up. Prior to bursting in the room and firing, I was told by her ex-boyfriend that the new guy was in the process of raping her. My defense is not intentional murder, but rather manslaughter because I believed the ex who has fled to Costa Rica and is unavailable at trial. Here I would offer his statement of rape, not because it was true, but because of the effect it had on my mental state, a very relevant fact in the case. Again, I am not offering it for its truth and therefore, whether it was fabricated is not in issue. Whether the statement was made and whether my response was reasonable (based upon my credibility) can all be determined by the trier of fact at trial because I, not the ex would be subject to cross.

In any event, statements can be admissible solely for their impact upon the listener (if relevant in a case) and not for the truth of the statement.

Exceptions, which have literally swallowed up the general rule. Since the beginning of time, Courts have recognized certain fact patterns that contain such inherent elements of reliability so as to overcome the need for cross. All of this is based upon a notion of getting all relevant information to the jury subject to a prejudice to the defendant analysis -for the State this stuff is worth fighting over, it usually means "game over" for the defendant. Certain fact patterns below have crystallized into exceptions.

Dying Declaration- declarant unavailable says just before dying to witness "Mr. X shot me." Aadmissible based upon the notion that people who are dying do not typically have a motive to lie.Witness will testify as to demeanor of declarant.

Excited Utterrance-declarant screams "the plane is going to crash into the house" and witness doesn't see the plane. Here admission based on fact that when people are experiencing a startling event under stress they don't have time to fabricate.

Present sense Impression - same as above, except witness also experience the same event as the declarant and the declarant's statement is relevant.

The one used the most by prosecutor's and the one that is highly relevant for a person ending their relationship who has vanished is a "Statement Against Interest." For example if I told you that I did "dope and shit" the statment would be admissable based on the theory that people do not make up highly negative evidence against themselves, especially facts that would subject them to criminal prosecution.

This procedure currently provided in the book Time's Up has the capability of providing vital information that could aid in a suspect’s arrest and provide a solid criminal case for prosecutors.

Part 1

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Example of the video affidavit:

Susan Murphy Milano is a staff member of the Institute for Relational Harm Reduction and Public Pathology Education as a educator and specialist with intimate partner violence prevention strategies directing prevention for high risk situations and cases.
Online contributions: Forbes : Crime, She Writes providing commentary about the hottest topics on crime, justice, and law from a woman’s perspective, as well as Time's Up! a blog which searches for solutions (SOS) for victims of crime.
Radio Shows: Susan is the host of The Susan Murphy Milano Show, "Time's Up!" . She is a regular contributor to the nationally syndicated "The Roth Show" with Dr Laurie Roth and a co-host on Crime Wire.

Books: Time's Up: A Guide on How to Leave and Survive Abusive and Stalking Relationships,Moving out, Moving on, and Defending Out Lives

To schedule Susan Murphy Milano for your next event, seminar, or workshop, please contact ImaginePublicity:  Phone: 843.808.0859   Email:

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