Tuesday, January 10, 2012

The Sixth Amendment : New Protocol in Cases of Domestic Violence & Stalking

Until now, the standard response for intimate partner violence and stalking from law enforcement has been:

    * Victims are told to report (but action is only taken if you can show evidence of the abuse)
    * Victims are told to go to a shelter
    * Victims are told to get a restraining order (but usually only granted if there is evidence of the abuse)
    * Victims are told to move away (but leaving behind careers, family, and assets)
    * Victims are told to stay with someone else
    * Victims are told stalking is hard to prove and stalking laws are often weak and poorly defined

This response does not help the victim ‘document’ the situations and specifics of her abuse and her abuser. Outside of a police report or restraining order, documentation has still not occurred. In a case of future serious injury, the victim goes missing, or is killed, nothing exists to link her to her story.

Solution: Evidentiary Abuse Affidavit as Historical Abuse Documentation

The E.A.A. has the propensity to document the historical aspects of the abuse and record it to challenge 'hearsay' arguments in a case. By simply following the steps of creating an E.A.A. a victim can provide 'before the event' information that presents the history of her case prior to serious injury, disappearance or death. Click here to read more about how the E.A.A. benefits a victim's case.

Problem: Lack of Documentation of Abuser’s Motives, Habits, Risks, History, Weapons, or Location

Abusers, especially those with high lethality risk factors, are those most likely to seriously injure, re-injure, stalk, ignore stay away warnings, child abduct, or kill. These dangerous abusers are not merely low life criminals but can also often be white collar professionals whom from the surface do not look capable of these life-threatening behaviors. Those abusers without former police reports or arrests are likely to lack the documentation of their impending motives behind future acts of violence. His private personal habits are often unknown as is any mental health or other lethality risk factors such as addictions, undiagnosed mental health problems, housed weapons, impulse control problems, prior stalking behavior, or other acts of perpetrated violence.

Solution: Evidentiary Abuse Affidavit as Abusers Profile Documentation

In cases in which no outside documentation exists (no police reports, no shelter visits, no restraining order, no CPS reports), the only historical information about the abuser is often from those closest to him, including the victim.  Partner related assessments of pathological disordered person’s behaviors and motives have been utilized in other settings to help highlight the undiagnosed pathology (see The P-SCAN, Dr. Robert Hare).

Information such as details of how the perpetrator has said he would carry out harming, abducting or killing her can be detailed.  Admissions or comments made to her about other victims the perpetrator has harmed can be listed. Likely hiding places for weapons or evidence can be revealed. Possible alibis that he would make up for his defense (including identification of people who could be the perp’s co-defendants in her harm, abduction or murder).  If the victim has existing scars or active wounds, they can be documented at the time of the E.A.A. creation.
The E.A.A. has the same informational capabilities of providing unknown and unrecognized abuser and stalking risk factors known by the victim.

Problem: No Way to Identify Her Wishes About Her Children’s Placement In Case Their Parent Is a Perpetrator

In high conflict cases, the perpetrator often does not want, and cannot share, custody of their children. Power and control dynamics coupled with pathology is at the core of why they will do anything to not lose custody—including serious injury, abduction or murder.

In cases where the victim goes missing and there is no Last Will and Testament about her desires for the placement of her children and no legal documentation of her abuse by the perpetrator, custody is almost always given to the other parent should she not be present.

Solution: The E.A.A. as a Suggested Custody Placement Tool

The E.A.A. is utilized as a Last Will and Testament during which the victim indicates she is concerned about serious injury, disappearance, or being killed. Naming the perpetrator as the possible suspect will remove the children from his custody during investigation and/or trial. The victim has the ability in the E.A.A. to name where her children should be placed in case of her injury/death and his arrest. This provides a deep sense of comfort that her wishes are made known regarding children’s placement and that she has made efforts to assure they don’t end up in the perpetrators care.

Problem: Abusers Think They Will Get Away With It Because There Is No Documentation So There Is No Deterrent For Their Behavior

Victims who have no documentation of their abuse (through police reports, CPS reports, restraining orders, stalking reports etc.) often have abusers who think that they have future opportunities to abuse because no one knows abuse is occurring. Believing the victim is not likely to report in the future because she has not reported in the past, abusers feel no deterrent for their behavior. The more times an abuser repeats, the higher the risk factors associated with the victim’s serious harm potential. Some abusers believe that even if she did report and he was not arrested, that in the future he will also not be arrested or his battering exposed.

Solution: The EAA as Future Prevention—As The EAA Becomes a Standardized Protocol in Domestic Violence It Teaches Abusers That All Victims Will Get an E.A.A.

We see a future when the E.A.A. becomes a standardized protocol in intimate partner violence and stalking. Not only will victims be readily utilizing the E.A.A. themselves, but first line responders who interact with victims will have as an automatic process, creating an E.A.A. on every victim. Emergency room physicians, paramedics, domestic violence agencies, attorneys and prosecutors, court house personnel, free clinics…anywhere a victim is likely to go. When the E.A.A. becomes standardized as a model of care approach in intimate partner violence, perpetrators will also know that all victims are being offered the E.A.A.

We see a future when the E.A.A. will actually prevent future acts of violence against victims when abusers know evidence is likely to have been legally documented.

Problem: In Court, Testimony of Prior Abuse is Argued as ‘Hearsay’

A long standing hurdle in the cases of domestic violence and stalking where prior evidence does not exist, is the defense’s argument that family/friends allegations of pre-existing abuse is merely ‘hearsay’ and often dismissed as non-credible evidence. Hearsay is an out of court statement "offered for the truth of the matter asserted" and is not subject to cross-examination, typically because the speaker is unavailable.  Such statements are deemed unreliable because of the obvious fact that they can easily be fabricated and can not be tested through cross examination.

The 6th Amendment rights (for the abuser to be able to confront his witnesses) have been a death blow in the past to witness testimony in DV cases in which the victim is missing or dead.

Solution: E.A.A. as Pre-Existing Before The Fact Evidence

After-the-fact testimony on intimate partner violence and stalking is solved with the E.A.A. because it is recorded prior to the fact of testimony. It is prior evidence of pre-existing abuse before the onset of court action. The victim’s pre-recorded abuse testimony, and documented and notarized affidavits, are arguable under seeking admission of the testimony, not merely for the truth of the statement, but for a highly relevant other purpose. Victims often tell others about the abuse or stalking in case she goes missing or is harmed. The legal argument is focused on the effect the abuse had on the victim that impacted her enough to confess fear of death to someone else. Or when victims say “If anything happens to me, please take care for my children’ which offers dynamic impact and is comparable, in some ways, to a dying declaration. Portions of the affidavits of the E.A.A. are a notarized Last Will and Testament, which is a victim’s dying declaration.
Problem, In Court—The Perpetrators Rights to Confront Their Accusers 
The 6th amendment gives the accused the right to face their accuser and to argue the points of the accuser’s statement. There isn’t a person in the United States that doesn’t know that is their basic right. But what happens with the accuser is missing, in a coma, or dead? 6th amendment rights have been another legal hurdle for domestic violence victims who are no longer alive to tell what happened to them.

Courtwatch Brevard is an organization that tracks the effectiveness of judicial decisions in domestic violence cases. Below is an example of a 6th amendment and domestic violence case.

Giles v. California, 554 U.S. 353 (2008)
Facts of the Case
When Dwayne Giles was tried in state court for the murder of his ex- girlfriend, he claimed self-defense. Giles stated that he had heard her vow to hurt him and a friend, and that she had previously shot a man and threatened people with knives. The prosecution then introduced evidence of a conversation between Giles' ex-girlfriend and police in which she claimed that he had assaulted her and threatened to kill her. The district court eventually convicted Giles of murder.
On appeal, Giles argued that use of the police conversation violated his Sixth Amendment right to confront witnesses against him, namely, his deceased ex- girlfriend.
The California Supreme Court held that Giles had waived this right because he was the cause of his ex-girlfriend's absence. Although this exclusion was justified under common law rules of "forfeiture by wrongdoing", the Supreme Court had greatly constrained the admissibility of such evidence in its 2004 holding in Crawford v. Washington. Crawford essentially wiped out the admissibility of such out-of-court statements unless the testimony could be subject to cross-examination at trial, an option that would be impossible under these circumstances. This case gives the Court an opportunity to expand on its decision in Crawford and to apply it to a situation where the wrongdoing that kept the witness from appearing in court was not motivated by a desire to prevent the witness' testimony.
Are a criminal defendant's rights under the Confrontation Clause of the Sixth Amendment violated when the common law "forfeiture by wrongdoing" doctrine is applied to allow out-of-court statements made by a witness, absent due to the defendant's own conduct, into evidence without giving defendant an opportunity to cross-examine the absent witness?
Yes. In a 6-3 decision, the Court held that the forfeiture by wrongdoing exception only applies to situations where the defendant causes the witness' absence with the intention of preventing that witness from testifying at trial. Without this intention, any act by the defendant making the witness unavailable does not waive that defendant's Sixth Amendment right to confront and cross-examine the witness, and therefore any out-of-court statements made by the witness are inadmissible as evidence. Justice Antonin Scalia delivered the opinion of the Court.
Justice Clarence Thomas wrote a concurring opinion stressing his belief that statements such as those made by the witness in this case should not implicate the Confrontation Clause at all because the police questioning was not a "formalized dialogue." Justice Samuel Alito also wrote a concurring opinion suggesting that the witness' statements, in his view, did not fall within the Confrontation Clause but noting that neither party had made this argument before the Court. Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred in all parts of the majority opinion except one section denouncing the dissenting argument. Justice Souter stated that he did not find the dissent as wrongheaded as the majority suggested.
The dissentwritten by Justice Stephen Breyer and joined by Justices John Paul Stevens and Anthony Kennedy, argued that a defendant loses his right to confrontation when he makes a witness unavailable due to his own wrongdoing, even if he did not act with the specific intention of preventing her from testifying at trial. (Used with permission of Courtwatch Brevard)

Solution: Proving Forfeiture with The E.A.A.
A pre-existing videotaped notarized testimony of a victim’s abuse would secure the forfeiture law in her case. The ability to link her disappearance through her testimony and evidence that she leaves behind, prevents the perpetrator from benefiting from her absence and the ability to testify. 
A Victim’s Case Example Where An E.A.A. Was Needed
Vashti Seacat, murdered by law enforcement officer husband
The couple had been married since 2004. During the marriage Vashti Seacat had given birth to a son in 2007 and another in 2009. Child support was ordered to be paid by a judge in the amount of $1,281 beginning on May 15, 2011.
Vashti Seacat had filed for divorce from her husband Brett Seacat just 16 days before a sudden fire on April 30th which caused heavy damage to the family home. Her husband at the time was employed as a police instructor at the Kansas Law Enforcement Training Center after a number of years with the Sedgwick County Sheriff’s Department. In the divorce papers a judge ordered Seacat out of the marital home within 24 hours of being served the papers however, he remained in the home despite the order to vacate.

The boys and their father would escape the blaze without injury but Vashti Seacat was not so lucky. She would not die as the result of the fire, but according to the medical examiner a gunshot wound to the head. The medical examiner was unable to determine whether the wound was self-inflicted because the entry wound was destroyed in the fire. Brett Seacat then easily made claims his soon to be ex-wife was “suicidal.”
Last week in court, after two long days of testimony, the judge decided there was enough to charge the former law enforcement officer with murder. He is being held on $1 million dollars bond and the next court date is schedule for January 6, 2012.
Tragically, this is an all too common with a case ending in murder. Vashti suffered constant abuse including threats to her life at the hands of her estranged husband. Vashti and her fears are now left to “hearsay” statements repeated by friends and relatives in the aftermath of her murder.

What should have happened but did not, was Vashti Secat could have prepared the Evidentiary Abuse Affidavit. She could have done this at the courthouse, therapist's office, or at a remote location to document the abuse. It would then be witnessed by two people and then it would have been notarized before video taping her own words about the abuse in the relationship and her fears of being killed. This would remove "hearsay" and any doubt that she feared for her life.

If you are considering ending a relationship, before you say the words out loud "it's over,” before you go to court and file for a protective order from the courts, and before you see an attorney, prepare the Evidentiary Abuse Affidavit.
With the E.A.A. your words will count and will account for your history of abuse. With the E.A.A. no one can try to claim you killed yourself or if you just happen to go missing, the E.A.A. will serve as your voice and the person responsible for your harm will be arrested.Benefits of The E.A.A.

The E.A.A. provides legal and evidentiary support to the issues of:

    *Historical Documentation for the timeline of her abuse
    *Proof of Stalking
    *Affidavits as Abusers Profile Documentation
    *Suggested Custody Placement
    *Possible Prevention of Future Acts of Violence By Perpetrator
    *Legal Defense Arguments of Hearsay

The new site Document the Abuse.Com contains vital information on how the EAA can support each case of abuse from the perspective of the first responders, prosecutors, family attorneys, victims and advocates, to an appearance in court.  

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.
 A national trainer to law enforcement, training officers, prosecutors, judges, legislators, social service providers, healthcare professionals, victim advocates and the faith based community and author.. In partnership with Management Resources Ltd. of New York addressing prevention and solutions within the community to the workplace. Host of The Susan Murphy Milano Show,"Time'sUp!" . She is a regular contributor to the nationally syndicated "The Roth Show" with Dr Laurie Roth and a co-host onCrime Wire. Online contributions: Forbes : Crime, She Writesproviding 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.

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