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the witness who recants victim intimidation by intimate partner abusers the speakers for today is the Honorable Judge Diane and halt from the Philadelphia Court of Common Pleas and we also have James Carpenter who is the chief of the family violence and sexual assault unit with the Philadelphia District Attorney's Office today's objectives is described forms of intimidation used by domestic violence offenders and to identify strategies to prevent and combat intimidation in the courtroom now we're going to have mr. carpenter start the presentation okay thank you all for attending or not attending or attending by web and I'm here with Judge Diana and Holt and we appreciate you giving us your time we were interested in any questions you might have and the more we can answer questions directly relevant to things you're interested in that would be the most helpful as your as your honors all know domestic violence is a pattern of assault of and course of behaviors that conclude sexual physical psychological attacks and even economic coercion to gain power and control over intimate partners intimate partners we're usually talking about people that have had sexual relations whether it's boyfriend/girlfriend husband/wife gay partners and anything like that one of the critical things that we see in these cases as I'm sure all of you are aware is the issue of intimidation ice very definition domestic violence is about controlling and intimidating the victim it's not simply an anger issue on the part of the offender but it's actual control and you probably have seen these sort of things in the domestic violence cases you've handled whether you've been in an individual courtroom handling a list of these cases or handling a jury trial this is sort of a slide that illustrates some of the ways that a man may exercise control over his intimate partner and it can go both ways women can do it and then can do it generally we see men doing it to women but you can see that they use things like intimidation you know it can be physical force but also looks actions you know things that trigger the memory of being intimidated emotional abuse you know taking away her ability to think for herself and to assert control isolating her minimizing the behavior and blaming her the behavior I've had cases where women will come into court and have been you know stabbed multiple times on prior occasions and will tell tell me well you know if I just didn't get them that angry you know that this is really sort of my responsibility which of course outside of the situation is absurd but if you're trying to control it without any power that makes sense hi everyone Diana and Paula nice to talk to you all I just wanted to add some of my experiences both as a prosecutor in the Domestic Violence Unit at the DA's office as well as the judge who handles these cases frequently I think one of the things that I see a lot is people who say I was only playing or I would never really hurt him or her and I think those are some of the more scary folks because they really are in fact hurting folks really badly and they're not even understanding the nature of how horrible and controlling and violent their actions are and you know our timing I guess couldn't be better than having the Ray Rice thing just come out for instance if you look on the left using the male privilege in part of his apology he said look you know I'm really sorry about what I did it's my job to leave my family it's my job to leave my wife so again you have that element of you know I'm in control and it's not just some sort of you know feminist ideology but it's it's something that's actually used concretely to control women to prevent them from leaving and economic control and the gray rice thing we can see the fact that he married her immediately after this incident as a way in effect to probably buy her cooperation and Ray Rice's wife just issued her own statement which I haven't read yet but it should be an interesting read yeah what she has to say about that yeah and it was I mean obviously that's a great example it sort of elevates people's awareness of it it's sort of like Jerry Sandusky did for child sexual abuse and hopefully people realize that it's a complex thing but also this the focus and and I'm a prosecutor but the book so I don't be unfair but the focus needs to be sort of an offender accountability it doesn't mean everybody goes to jail doesn't mean everybody is convicted but we do need to intervene in these situations as a society perpetrators will creating exploitive victims dependent and emotional dependence can be things such as reducing her self-esteem you're ugly you're stupid you're nothing without me isolating her from others you'll often see these and these are all things that you can look at in terms of risk factors as well for RIA fence or for lafalot II or severity of you know future possible abuse against that woman or another woman down the road tend to isolate victims so in serious cases often as your honors all know he'll be checking her cell phone when she comes home he'll be dropping her off at work and picking her up from work he won't let her leave the house without him being present when she comes home he's checking you know the computer where she's on the computer where she is on her cell phone economic dependence we see that as a huge issue and from an economic perspective it can make sense for a woman to stay in a relationship even at the risk of her own life when she has two or three kids with a child he's providing the home or apartment his job is the source of benefits and he's providing the income we see this a lot with frankly with police officer abuse so where an officer may punch her or beat his wife it's very hard to get the wife to participate in the prosecution because the she knows the officer is going to be fired she's going to lose all her benefits they're going to lose their income so you know those are really serious issues finally you know offenders will use family dependents as well so in other words you know don't take me away from our children the children need me he'll exert pressure through his family and a victim's own family often will assert influence in other words the woman doesn't want to necessarily talk about the difficulty she's having so she's going to hide it and be embarrassed research it's interesting they're two primary reasons that the domestic violence victims don't come to court and this is from the practice implications of current domestic violence which was a 2009 study of studies done by the Department of Justice when I started doing domestic violence cases 15 years ago there was all sorts of different theories and things that I was taught as a young prosecutor and it was interesting to look at this study and see that a lot of the things I thought I knew were wrong the two biggest reasons they will not have the fire come to court is a fear of the abuser which I think we all are aware of a second and it's often bigger than the fear of abuser is the fear of speaking in court particularly about personal issue and the interesting thing is neither of those relates to whether the victims going to be safe in the future in other words if she's absolutely terrified she's less likely to come in and she may be at more risk if she's afraid of speaking in court that has nothing to do with whether or not she's in danger or what the situation is that's a totally separate issue so as judges it's sort of important to recognize that it's not that easy to come into court and talk about someone that you love to beat you and then you had sex with them because you're trying to calm them down I think we're probably going to end up talking more about this shortly but we as judges have I think an obligation to try to address both of these reasons why folks any person who's afraid of coming to court speaking in court we have an obligation to try to make the courtrooms accessible to everybody and in doing that with regard to these kinds of cases there are definitely things that we as judges can do to make this process less intimidating to the victim and to sort of help with the fear issue and I think we're going to get to this later in terms of what we can do in the courtroom but it's I think our obligation to keep the courtrooms open to everybody and make sure that people are do the best we can to issue protection orders hold contempt hearings if it's violated expressed in clear and no uncertain terms what we mean about having contact with a victim before court and we can also you know take it to the next level if the circumstances warrant it by excluding people from the courtroom if it gets to that level so and also assuring the victims through the attorneys that we're going to be very conscious of anything that happens in and around the courtroom in order to make it safe to make the courtroom accessible to everyone so I think we're going to get to that shortly but that's just specific place to begin that conversation the victim fear is justified in domestic violence that studies show 40 percent of abusers re-arrested for abuse within one year the average rear esthe is only 29 days after the first arrest and in the weeks before trial preliminary hearing you're going to see 50% try to talk to victim out of testifying 30% stall and 9% threatened and of course you know it's hard to do these studies because there's a lot of underreporting but these numbers really show you that upon an arrest the incentive to pressure the victim goes up so the danger to the victim goes up significantly at the time after the arrest when it's before your honors and it's important to be aware of that and as judge and all the sand it's not only safety but safety for defendants as well if there's family violence we want to you know you want to elicit what the truth is so it can be addressed any kind of intimidation and the bench book is really nice really well done about that whether it's come from gang members or people in an intimate relationship is a direct attempt to try to subvert the whole process that you know you are the guy who results and I know this talked about we talked about recanting witnesses and really what this is more geared towards is just ways of trying to reduce and prevent victim witness intimidation in domestic violence courtrooms whether you're doing a Majors jury trial this domestic violence or running a list during Philadelphia we have lists of DV cases that are run and that's a good way to run it as well but it can be helpful in that area one key thing is having a separate waiting area for victims and witnesses in our courthouse we really don't have that we have a victim witness room but it's on the first floor so we have our courtrooms up you know nine ten eleven stories above that it's very hard to coordinate it if you can find a separate room that's accessible to the courtroom or someplace where victims can wait you'll reduce a lot of the outbursts that you'll hear in the hallway a lot of these cases are explosive intimidation happens off the hallway in the ante room on the way in before you even enter the court well I think want to be even before we get to the courthouse doors in terms of having victims there at the same time defendants are there we have to talk about what exactly we could do as judges to try to eliminate the statistics that are on the prior slides about nine percent threatened their victims and twenty nine days after the initial arrest and in the weeks before trial with luminary hearing we have 50 percent tried to talk 30 percent stopped and nine percent threatened the victim before trial now what can we do as judges to try to at least address some of these things and we have the power obviously to make sure defendants at the scheduling conferences number one are aware of what the conditions of bail are and immediately tell them at the scheduling conferences or wherever you have the first opportunity to lay your eyeballs on the defendant is to make sure that they understand that there will be no intimidation there's going to be no contact and there's going to be no contact even if the complainant tries to contact a defendant that it's the defendants responsibility not to talk to her and that hopefully the DA's office will try to negotiate with the complainant to try to make sure she doesn't have contact with the defendant but there's a lot of time that passes by and I always try to make sure that defendants understand that my order is that he not contact her and that if she contacts him he's not allowed to talk to her and have to tell her that so that I don't put any more burden on a complainant to try to smooth things over with the defendant because that's in many respects and I know I'm totally generalizing but we are many cases just trying to put the fire out and keep things as calm as possible so that we don't incite something later on down the road and I see that a lot of times with victims so that's why I always tell defendants when I have the opportunity that they're not allowed to contact and if they do a condition of their bail is that I will revoke bail if they violate a condition of that you know we can issue other kinds of protective orders telling the defendants family he can't contact the complainant and the law is pretty clear about that and that's as 18 pence a consolidated statutes 49:54 and it permits a trial judge to prohibit acts of intimidation directed at a witness or victim that occurs outside the courtroom so use that if in fact that's going to be helpful in your particular case to limit that amount the percentages that we talked about earlier so doing those two things then you have indirect content when someone who is not the defendant violates that protection order if they the defendant doesn't have anything to do with it but defendants mom or defendants dad defendants friends brothers whomever go and try to contact complained it if your order is clear that it prevents everyone from doing that obviously these things are very fact-specific but it's things to keep in mind ways that we can control what happens in and around the courtroom and even before we get the complainants in the courtroom I always make sure that people understand who are in the courtroom for trial what my expectations are concerning what their behavior should be like inside the courtroom because understanding that these are very intense people's emotions are involved and there's a lot at stake and there are children's lives at stake and folks are going to jail and sometimes long-term relationships are have exploded and things are it's kind of a mess and you sort of have to understand that and when you tell people ahead of time what your expectations of them are if they're going to stay in the courtroom and what your expectations of them are right outside the courtroom because again in my experience we've had just as many incidents outside the courtroom as we've had inside the courtroom with folks just getting very intense it's very volatile and so I always tell people that in and around the courtroom there's no picture taking then we'll talk about cell phones too as we go along because in our courthouse that's a huge problem we have so many policies in place to try to situate this problem but quite honestly none of them are actually working real well but some people take pictures and they take them outside the courtroom and it's a real problem so as Diana was pointing out that we would recommend you set the expectations at the beginning court every judge has their own sort of practice but it can be helpful to have your crier give these particular warnings before you even take the bench and then for you to repeat whatever specific warnings you want as the first act you take on the bench because it can really set the tone of the day well and I also think that in addition to this suggestion that Jim's going to bring what we as judges need to also be paying attention for and perhaps mention in addition to this suggestive warning is that any other kind of threatening sort of gesture any kind of staring at people I just had a case of domestic case the other day it wasn't exactly the same but it was a family violence case a father and his daughter and one of the other siblings who was watching the case whenever the complainant was testify and she was terrible with numbers right is giving the dates the birth of her children and you know saying oh he was born in 2012 he's five and then the people in the audience were so violently shaking their head and just kind of like ah it's aspirated that she would be so stupid and all the jurors were turning to look at these two people in the courtroom and I didn't mention no head shaking no gesture and I should have prevent this so instead I had to like stop the proceedings take the jury out admonish the people and tell them if they did it again they were going to be taken out now that's a minor point but I think it's one of those things where at first blush it may seem kind of minor but it also goes back to that whole power and control and it's that whole thing about making a victim feel stupid or you can and get this right you know about the ages of your children and it really is very impactful to have somebody sitting in the courtroom it's her sibling it's her sister who's sitting on the side of the defendant and be innately shaking her head disagreeing with something that she's saying even though it's about something innocuous it is a kind of intimidation subtle intimidation techniques that people use in a courthouse or even a defendant staring at a witness as they're testifying or any other kind of person who's with the defendant making just gestures or smirks or holding up hands to show a gun or anything like that it's very important that we sort of pay attention to that and warn people ahead of time what will happen if in fact this is brought to the court's attention and we're going to get into talking about contempt but certainly if these kind of warnings are given at the beginning of court I would suspect that we would have the evidence that we would need centrally to have contempt hearings that's how serious this stuff has to happen when you're talking about statistics like the ones that Jim showed us with regard to why a victim's fear is justified and if you think about it the victim had is in a cycle of being intimidated and being scared and then to come to court and then be subject again to that kind of intimidation I've had cases where women basically just the crime is reported to police she got beaten severely police did stuff and then she you know went back he continued to stalk her she actually got back together with him because she felt that's the only way I'm going to stay alive because he had been arrested for this crime and he still doing this and nobody is stopping it so you know the idea is that in the courtroom you rule the courtroom you set the demeanor you set the tone and recognizing that a lot of victims are afraid to speak in public putting them in front of an audience of strangers or family members only heightens that problem now one of the first suggestions and this is from North Carolina at a domestic research group was a lot of times victims will come to court and believe that they can drop the charges and if they do believe that and if the defendant believes that that only increases the reasoning that the defendant should go after the victim and try to intimidate her if we as the court or we at the Commonwealth specifically are saying hey it's up to the victim then we're only encouraging defendants to intimidate the victim more so the fact is the Commonwealth are the ones to bring the charges so it can be very helpful if you're running a domestic violence list or any kind of domestic violence case to instruct them the charges against the defendant are prosecuted by the Commonwealth victims and witnesses are not party to the case and therefore do not have the authority to drop criminal charges that can be escalate the whole thing the idea is that if the Commonwealth's fault that this guy is in here it's the Commonwealth fault that the victim has to come in and testify and that can get us closer to what the actual truth is also to say you know to make sure that you give victims a chance to be heard at some point during the process because they can oftentimes say you know I'm doing what I'm supposed to do because they say the infamous they subpoenaed me and making sure as prosecute that the prosecutor or that the judge has told the victim that they will get a chance you know I sort of would do this a lot with with victims who were you know a little hezekiah be like look you could tell the judge you don't want to testify you could tell the judge that you know you want to drop the charges but just tell them the truth - so we as judges have to be probably a little bit more patient with these types of cases than we are with some other cases just because people there is so much at stake so like making sure that victims have a chance to tell the judge and that sometimes will help deescalate some of the tension as well you're not removing the victim from the equation I mean the member it shows that what the victim wants to see happen case is not always the best outcome in terms of our own safety however the victim is a good predictor of her own safety so you know she may want to drop charges but it may not be the best outcome in terms of our own safety is the DA's office Jim then draw that balance between not forcing domestic violence victims to testify versus having an abbess and interest in prosecuting violent criminals I mean we would have contact with the victim shortly after the arrest so we have a process for doing that where we can get input but the main thing you want to gather is the background of the case and what their history is so like the average person to apply for a PFA the average woman she's gone through 12 to 13 acts of being beaten before she even goes to get a PFA that's what the research shows so the problem you handle as a judge is you don't know exactly what you have in front of you you could be handling a violation of a PFA where he came to the house and yelled a threat and it doesn't look that serious but she's not telling you the fact that the reason she's so scared is he stabbed her or burned her before he never went to the hospital so you need to know the history of the relationship as a prosecutor and as a judge I mean we're asking you to make sentencing decisions based on what you think is going to happen and what's best for both parties and quite frankly what the research shows and this is off the topic a little bit is you know sometimes incarceration is necessary for a lengthy period but also there ways you can put someone on probation with a whole lot of conditions all right you got to go to batterers intervention program you can't be drinking I'm going to have drug tests on you and if you do those things and you have type supervision or even status listings where he's got to come back and tell you how he's doing once he makes a mistake in other words he comes back with a hot urine for pot or he misses to batterer intervention batterer treat and the PIO lets you know you can intervene at that point and it doesn't mean you put him in jail for six years or a year but it does mean you bring them in and maybe you verbally reprimand them maybe you put them in jail for that day but there needs to be immediate consequences for him dropping off the wagon the idea is that it's like a canary in the online so you want to intervene before he takes the final action of killing her or getting more assaulted and stuff and that's good for him as well you know a lot of these men they're good men they're good people they have serious serious problems and they need to be addressed and if they're not addressed they're going to end up in prison for the rest of their lives that's just a side point but returning for the warnings and you know you would do these however you want but these are some of the suggested one in the bench book any criminal conduct will be referred to for arrest the fact that you can hold people in contempt move to the next one if you misbehave you can be excluded from the courtroom and probably the most important one of all time is any cell phones or other electronic devices that are not powered off and out of sight will be confiscated and searched and may result in criminal contempt or your expulsion from the courtroom I guess we could in order to talk a little bit about cell phones at this point so if anybody out there have any interesting ways they handle the courtroom cell phones because here in Philadelphia obviously we have a lot of people coming in and out of our court house every day I don't even know the numbers but I suspect it's in five or six thousand people every day and everybody has at least one cell phone folks are coming into the courtroom to the courthouse and they have their phones with them and they're told to turn them off so nine times out of ten what they do is they turn them on vibrate and then they continue to text and like games or bring their children with them so they're watching cartoons with their children so we obviously have to do something about that and usually you know we tell people you got to turn it off and I during trial will always say to people before I bring a jury out I give you 30 seconds now to power your phone off not to put it on vibrate not to turn off this volume but to turn it off because if you look at your phone from this moment on I'm going to assume you're doing something not so good with it and then people be like oh okay I didn't get it so then they'll turn their phone completely off I have had in my courtroom a person take a picture of a witness outside right outside my courtroom on the bench outside the courtroom and one of the witnesses knew that it happened so it happened heard it happen and heard the person say yeah his picture they brought it into the courtroom for me and I talked to the woman about what was on the phone and she assured me that there would be no pictures of the witness on the phone and I said look you know here's how we're going to do it we're either going to get a search warrant for your phone or you can allow the Commonwealth to take a look at your phone and she said by all means go take a look at my phone and lo and behold I don't know what she was expecting but there really was a picture on the phone of the witness so the Commonwealth brought charges against her and treated it very very very seriously I've also had people in my courtroom take pictures of me on the bench which you know fortunately the flash went off and so I saw the picture being taken but if the person who did it had used his brain and not and turned the flash off I probably would have known fortunately in this situation my staff saw it I thought we were able to do something about it right away this is such a huge problem because people tape what's going on I'm not exactly sure how we're going to handle it taking a photograph or someone can basically be intimidation and what we're seeing with gang violence and domestic violence is people then post the photograph to Facebook or Instagram or some social media site and say this snitch is talking go get up and so we see that happening and you might ask well what gives you the permission to ban cellphones from your courtroom well it's Pennsylvania rule of Criminal Procedure 112 section a and what that does is it prohibits the taking of photographs or videos of any judicial proceedings or in the hearing room or courtroom or its environs during judicial proceedings so having a phone that's on gives you the potential to take photographs and you don't need to actually I think prove that they've taken photographs there's no way that you can control whether they're taking photographs as Joe Sample indicated it also says it prohibits the transmission of communications by phone or other technology from the courtroom or its environs during the progress of or in connection with any judicial proceedings whether or not the court is actually in session theoretically that can include texting what somebody is saying it conclude taping it and posting it to a website it can include recording it that is the grounds that you would cite for all phones have to be off and includes the environment is not just the courtroom but it's also the ante room and the hallway outside the courtroom that's the justification for it if you give that warning that look you're either going to be held in contempt and it may be seized if you see a phone in violation of what you've directed them you should seize it store it together with photocopy the owners identification and then it can be searched I actually don't think there's any need to take a phone you're not willing to also search in many regards you make an announcement that your phone has to be off and out of sight and not taken out or otherwise it will be searched because quite honestly if you give that warning and someone violates that warning they're not doing it to watch cartoons on the phone they're doing it for some reason that they shouldn't be doing it if we're taking phones and you're like oh you can come back at the end of the day and you're handing a phone that has a picture of the victim on it so that it can be posted on Facebook or Instagram or any of one of those things that's a real problem just reminds me when Jim mention about Facebook I always try to include in warnings given that you can't have contact with victims you can't talk about cases on Facebook Instagram Twitter or any of that because people I got in contact her I just posted naked pictures of her on Facebook and that's a violation of what we should be concerned about your honor you have asked if anybody had any ideas about taking the phones away during court and one judge any phones turned on in the courtroom are confiscated by the sheriff and returned at the end of the proceeding with no exceptions and also counsel wishing to have phones in the courtroom must file a request for saying which is approved by the court that's a great that's good because you do have that difficulty with attorneys using their phone or you're not quite as concerned because they're officers of the court of them abusing the privilege have you seen that be an issue where people are like well the attorneys have it why can't I yeah for sure when we give our admonition in the beginning of the day I try to tell people who's allowed to have a cell phone anybody who's not there working if you're not there as a police officer or you're not there as an attorney you're not allowed to use the phone and I say that to people because I don't want them to think that I'm not being like oh this side can use this and this I can't we have a lot of plainclothes officers in the courtroom they're using their phones because that's the way the DA is get in touch with you know our police officers have 16 rooms that they need to be in sometimes and TAS will text them or call them and our D is the same thing like they're everywhere so that's a way that we stay in contact with each other obviously or the DA's office stays in contact with their witnesses or each other so it is important to let people know that there are some people in the courtroom who will have phones but they're not witnesses and they're not your with witnesses or people here with defendant I do take phones people will come back lawyers will say Oh judge this case is finished for the day and the mother of my client please have her phone back and I say no I say you got to come back at 4:30 that is when courts over and if I have 30 cases on my list you know some of them are extremely serious and I can't be worried about who gets their phone back at 12 and who gets their phone back at 4:30 and so I tell everybody 4:30 couple weeks ago had a lady come back at about 4 o'clock to get her phone and she parked illegally outside the courthouse so she went out to get her phone from my court room and my staff was waiting for her so was she came back downstairs and when she got there police Coast quad was towing her car so she was not on her phone she had it all right yeah so she was not happy with me this is another thing that we had talked about just be aware it often you know you may have an impulse to ask the victim in open court well what do you want to see happen I see her here with him that sort of thing I would strongly recommend not doing that because again you're heightening the level of intimidation and you're putting more control to the defendants hands separating the parties in court all of you have a way of separating victims and defendants and that sort of thing the variety of different ways of doing that you can announce it can be victims behind the prosecutor and it's behind the defense attorneys that sort of thing you can also have an area that's just for victims a buffer zone can be helpful so one of the ideas is Diana was talking about is you know when people are glaring or they're making hand gestures obviously you want to stop that immediately but if you can create some physical distance between witnesses and spectators that can help so you can limit the to rose to being attorneys thrash students people that don't have necessarily a dog in the fight and that can be helped if key thing is that as Diana has indicated he calls me Diana by the way because I used to be his he used to be my boss at the DA's office I'm not his boss but he'll never get used to homie judge or judge no you don't have to like so it's just these people don't know us so we don't write bad to judge said it's important to prompt went to that misconduct if you let any of it go on other people going to see that and pick it up if you single someone out early on don't want to lock them up if you single them out that really sets the tone staggered release I'm sure you're all familiar with that it's not a great idea to have everybody leave at the same time when there are two warring families unless you're going to have five sheriffs on the hallway just waiting for it because you will hear it in your courtroom so you can ask the spectators to leave the courtroom for any other people or let them with the defendant and his family leave first however you want to do it continuances are a huge issue in these types of cases and certainly their reasons that a Commonwealth or the defense may legitimately need a continuance but there is no question the continuance is raised the danger to victims defendants may use multiple court dates as a way to access the victim or delay the case in hopes of intimidating or wearing down the victim so in other words if she's got to come in three separate times or every time she comes in and gets continued because the defense attorney is not available or the defendant needs further investigation you're not only frustrating the victims ability to get any kind of justice but you're also extending the danger period by extending the period of time that this case is in litigation which is the most dangerous time for pick every time that there's a listing of the case the risk of intimidation and danger to the victim goes up in the days preceding that listing so if you give it three continuances you're talking about three different dates where you had chances of additional danger there is a variety of ways and various studies have shown that if continuances are real serious concern and nearly domestic violence not just because people get back together and you know that's fine if they want to get back together but you know it is a cycle you must submit a request for continuance 48 hours ahead of time in writing facts it's my office if you set those sort of requirements it will reduce number of continuances that you actually end up granted most can also include requiring that all motions be made in writing which prevents extraneous motions you can limit how many continuances each side is going to get but just have some rules on that judicial demeanor this again is based on this meta study of about 400 different studies indicating that the judges demeanor is crucial and they study judges who just really did not take domestic violence cases seriously did not believe there should be in court thought it should be just dealt with by the family and they found statistically that it reduced the number of arrests in the community and prosecutions in the court it sent a message and it it really reduced the enforcement of the law and every every judge is different I'm sure you're all good nature the deeds are attributes that facilitated victim cooperation in good nature not being overly formal not being overly rigid not overly authoritative are you supportive and informative towards the victims as well as anyone else in the courtroom and that includes the alleged abuser and once somebody is found guilty being firm with abusers not allowing any kind of intimidation to occur in the courtroom judge Ann ho talked about this obviously as a conditional bail there should be a stay-away order and one key thing is to include in that your magistrate or your district justice that's making that determination is including that no Facebook contact no text contact no phone contact as a judge said you need to take these violations seriously it can be difficult but if you're going to issue that order you need to respond to it so as as your honor indicated you can hold without bail you can increase bail you can put a person on house arrest you can even have a hearing where the defendant has counsel and you can be held in contempt for violating it one thing I would note is that we've all seen cases where the victim is reaching out to the defendant the defendants calling her back and it's back and forth and judges often will say look I'm putting a stay-away order on the victim as well well technically you don't have the authority to do that you should feel free to call the prosecutor up and say you got to tell her to cut this out and it's reasonable I would expect as a prosecutor to be told that and for me to go out and frankly reprimand the victim and say you got to cut this out I just had to come up in a case last week with it wasn't a domestic case but it was a case two people knew each other lunch allegedly shot the other one the jury acquitted and the defense attorney asked me and the victim was in the room at the time and the defendant was there and the defense attorney said judge could you issue a mutual stay-away order and I looked at him and I said under what authority do you want me to just say you stay away from him him he'll stay away from you and give people a false sense of security and I think that we have an obligation to match us through the major thing was just to say you stay away from him because you can't enforce that obviously so that's why I specifically tell a defendant say who's in custody you can refuse a phone call you can refuse a visit and that's your obligation to do that because your job is to stay away from her I don't care what she's trying to do your lawyer will find out if she's coming up to the prison to try to see you and he'll use that if he thinks it's appropriate but your job is to not take phone calls or not call her obviously he can't take Austin prison but is to not take visit if she shows up the problem becomes many times is that she has control of the child right so they won't defendants want to see their kids and stuff that presents a different kind of problems I always feel like we need to just have a status quo we just need to chill everything out until we can have an adjudication of the case because much as we don't like to be helpers it's kind of hard in our role I think as judges to do all that once you have an adjudication of the case I sort of have to rely on social services to help the woman or help the victims navigate what's going to happen that when he gets out of prison and things like that to encourage people to get PFA is sure but there's a lot of other factors that are going on behind the scenes that's how I handle the stay-away order is to really tell the fence what my expectations of them are because I can't control necessarily I can in a protective order for outside the courtroom but I can certainly have control with respect to the defendant and I've also taken phone calls visits away from people in prison and that is a huge thing that we judges can do to prevent intimidation when it's really bad I had a guy who's planning to kill the witness against him well he's not making any plans now because the only person he's talking to his lawyer the key to this is to have hearings where you prove in a Content hearing obviously beyond a reasonable doubt that violations have happened or prove at a bail no motion to increase bail certainly level of proof is a little left and you can then use these things but you've got to have hearings let people put this stuff on the record so that you can make informed decisions when there are potential violations these are some of the pre-trial conditions that you should be aware of prohibit intimidation come up vs Lynch is something that we wanted to talk about it the recent case just came out from the Superior Court and what's unique about it is this was basically a case a man had beaten his girlfriend really severely with a baseball bat and then subsequently called her from jail while awaiting trial on that and was asking for her to not go to court but not threaten days later he's calling and sending her letters from prison begging her not to come to court so he could return home let me help with the kids I'll get more stability I'll use our income tax refund to start fresh with you and the kids in that case he was charged separately with intimidation for those letters and those phone calls and he was convicted of intimidation despite the fact that he didn't make explicit threats of violence and the spirit court upheld it and said that the defendants promises of providing improved household stability and financial support for her and the children including sharing their tax refund was an offer of pecuniary benefits to the victim to not appear in court and thus was a violation basically there are really two things that come out of this one is that even apologies and pleas for compassion and forgiveness where you're asked the victim to not come to court can be interpreted depending on the circumstances as being a veiled threat it's significant that you need to know the dynamic between the two individuals and the circumstances of their history to determine whether when he's saying I'm not going to do this again we can get back together whether that's actually a veiled threat and then the second point there was an actual pecuniary benefit so the spirit court rule that the promises to be better and if the apology the request to reunite the family could be seen as veiled threats based on the danger based on their history of violence but they also said that promising to share the tax refund and promising to provide stability in the home life in terms of finances was an attempt to bribe sect of lis it was an attempt to offer pecuniary benefit if she decided not to come to court so that's something that's extremely significant to know that type of manipulation not in every case but can be seen as intimidation and at the very least it can be seen as consciousness of guilt a jury charge is appropriate when people do this sort of extracurricular contact with a complainant before court if it doesn't rise to the level of guilt beyond a reasonable doubt with respect to proving intimidation consciousness of guilt and the behavior of the defendant showing that he knows if she shows up you're going to believe her that's how I would argue that as prosecutor and I would expect that that's how I give the consciousness of guilt to recharge with respect to that kind of behavior obviously your honors are all aware that you know if a victim is there or witness and they are getting on the stand and telling a completely different story that the prosecutor can introduce under Brady Lively their statement and if they adopt it that can be used as substantive evidence so that feels more with the recanting witness who comes to court has totally changed their story and I don't want to add power into it can't for that sort of thing can't you have the detective who took her statement who says she adopted it at the time she gave it you don't have to adopt it in court that's the important piece to that I think that she was enough she can adopt it at the time she gives it so she gets on the stand and says I didn't get the statement but I and this is what really happened if you can present if the prosecutor presents the detective to say that's her she signed it this is her statement that can be used to hold the case for trial and again a lot of people a lot of victims go south and the dynamics are understandable however we run a real risk if there being a homicide or further injury if the state doesn't step in and try to stop this cycle now we want to talk about four ways to proceed when a victim is not present and this is detailed in the intimidation bench book these are some of the mechanisms if you're dealing with intimidation of a victim or buy a case can still proceed the first is former testimony where the victim is unavailable the second is defendants forfeiture by wrongdoing 3 as excited utterance and 4 is admission by the defendant this is under rule 804 B 1 so there has to be established that the witness is unavailable then it has to be determined that the testimony that's being offered previous being offered his former testimony namely that the defense had a full opportunity to cross-examine the witness at the time of that cross-examination that they weren't missing extremely material materials that would be a basis for cross-examination and that their cross-examination was not severely limited the first step in this process is your honors would have to make a factual determination in your determination whether the victim is unavailable and they can be unavailable prosecution can the Commonwealth can show attempts to try to find the person if those are reasonable and they're unable to locate them that itself can be a finding of unavailability likewise and good faith effort is left to the discretion of the court it's also important to realize that unavailable also can mean a witness who refuses to answer questions despite being held in contempt despite having a recollection refreshed a person who just gets on the stand and says I got nothing I'm not testifying and speak no words that can be unavailable that's Commonwealth versus Nelson in 1995 Superior Court case and there's others that say the same thing and in addition if a witness is unavailable because of the threat that makes them unavailable and you can present the former testimony now what is qualifying former testimony your honors are all familiar with this but I'll touch on it briefly is testimony given as a witness at another hearing taken in compliance of law and the party against whom the testimony is now offered had an adequate opportunity and similar motive basically the same party to develop the testimony by direct cross or redirect examination and this is parallel for the Federal Rules which were the basis for the Pennsylvania rules well just to add in here too as well in the bench book it talks a little bit in there about whether or not we would allow adult witnesses to testify in the same manner that sometimes we do children in terms of post circuit television or remotely and it's very interesting to me because although if the question is don't you need a rule of Criminal Procedure to allow you to do that and how does the court obviously ensure a defendant's right to confront witnesses and interestingly enough other jurisdictions have done it despite the absence of a rule of Criminal Procedure specifically allowing them to do it so in the case where a witness is say a domestic violence witness has left the jurisdiction refuses to tell anybody where she is the Commonwealth can't subpoena her because they don't know where she is or they know where she is she's outside the ability for them to subpoena her there is some arguments we've made there's a New York case that talks specifically about if the state or the Commonwealth here can show a compelling interest in justifying the absence of live testimony there's a few examples here that you can look at yourself this is one where a deceased eyewitnesses limit hearing testimony was introduced because there was a full opportunity to cross-examine even when some of the materials were not provided to the defense they have to be material so this was a case the defense did not have her medical records or the DNA test result at the time of the hearing but the court the spirit court said it was still proper to admit the complainants preserved hearing testimony at trial the second area is forfeiture by wrongdoing which is under Rule 804 B 6 this is a situation where the defendant by his own wrongful conduct has made the declarant or the witness or the victim unavailable this can range from threatening the victim to killing the basically the court would conduct an evidentiary hearing outside the jury's presence obviously to determine if the statement is admissible your honors it would apply the standard whether the Commonwealth is proven by a preponderance of the evidence that one the defendant was involved in or responsible for procuring the unavailability of the declarant and to the defendant acted with intent of procuring the declarants unavailability is an actual potential with so as your honors all know you can't win by trying to manipulate the system so if you intimidate a witness if you kill a witness if you prevent a witness from testifying and that is your goal you don't get the benefit from that a lot of these cases are federal cases because the Pennsylvania rule is predicated on the federal one and they're identical this is a Hawaiian case where a DEA agent was allowed to testify where the witness was unavailable because he refused to testify because he had been threatened there's an interesting case in the Superior Court which is Conkle where a murder victim statements to his child custody were admitted where the defendant had murdered the victim to make him unavailable for the custody here so he was the father mother killed him and you had she there for for four different right to confront him so Jim how does this play out when it's obviously not a murder but how have you seen it would primarily be in situations where a witness is not coming into court and we can present for instance prison tape of conversations they've had or other people that they have contacted who have on their behalf asked them not to come to court there has to be a separate finding not only that the person is not absent just because they're sick which would be a different type of unavailability but they're absent because of this type of conduct that was intimidating them and then the second step is you have to show that it connected to the defense it can't just be some other person intervene you can show kites or letters in jail where the defendant is asking people to go intimidate someone or kill someone you can also if a victim comes into court and they refuse to testify they maybe want to testify outside of everyone's hearing and a hearing about what the actual threats were in the intimidation and that might be sufficient as well it is unusual but we're seeing is there larger technological as well as aggressive attack on the ability of the courts to have witnesses come in and tell what happened just get the truth that's all that you're looking for these are people that are really trying to prevent that from happening on the entire system these are just some of the tools it's not an easy thing to show and there's a few more examples there you would have to show that the defendant was involved in this is an interesting case where they had to show that not only did the person kind of kill the witness but that he killed the witness because he didn't also want him to testify in the underlying case so he might have had other reasons for killing him like I hate him or he stole money from me so I murdered him but by the way I also had this AG assault case where he was the victim and that's a bone so that was sufficient to bring that incited utterance your honors are all aware of a spontaneous declaration by person subject overpowering motion in more serious cases where the Commonwealth says we need to proceed with this case because there's a real danger to this person either she's not able to protect herself she's too scared to come in whatever the reason and it shouldn't be done flippantly but the fact is there are many cases that have to be pursued even where the victim doesn't want pursue and often we can present those cases by presenting testimony from the responding police officer from the responding medic as to what the victim said at the time that you just been hit what has to be shown is that it's made in reference to some phase of that occurrence it's not something saying I hate my grandma when I was a little girl it has to be related to what just happened and it has to be so close to the occurrence and time and place to exclude the likelihood that they would have had time to think about it and make something up you might think that that's only like the 10 minutes that happened while the victim is bleeding that's not the case Eggman's of victims and witnesses to shootings to emergency room personnel and to police have been admissible statements to emergency room there are several hours after the assault held to be excited utterance you're going to look at what was the demeanor of the declarant as its described by the officer or the medical technician were they upset were they tearing up were they shaking what was their complexion like what had they just perceived how upsetting was that actual at to determine whether they're saying this as a reflex rather than as some sort of planned deception 9-1-1 call tapes again those can also be introduced although the Commonwealth must prove that the caller actually saw the shooting that they're describing and in even questioning by the dispatcher will not render it non excited others the next area by the admission by the defendant often you will have see cases where victim the 48 officers as we call them respond to the scene the victim is bleeding from the head she says hey nothing happened nothing happened and the defendant says I punched that [ __ ] in the face I'm going to beat her ass again now the victim doesn't come to court the case can be put up with the officers stating what the defendant said at that time and their observations of the injury which would be the corpus to establish that the confession is to a confession to a crime that actually occurred so that's another way the cases can be put up without a victim being something that judge and hall talked about which is this is not a way of proving the case but that acts of intimidation come in to show conscience of guilt at trial and there's a case Commonwealth vs. flamer where the trial court was actually reversed because it refused to allow in acts of intimidation that occurred to the victim at the hands of the defendant up to the time of trial and an interlocutory appeal was taken and the court reversed that and said no that all has to come in the defendant has to be in some way responsible for the act so here's just a couple examples testimony the defendant had offered a bribe to the witness come to court well that's constants of guilt so again under Lynch case the promise of I'll share the tax return with you we'll get ourselves financially together that could come in as conscious of guilt threats towards the witnesses obviously would come in to show as conscious of guilt I don't want you to test mark well why not because what you're telling is the truth evidence that they threatened to kill the witness if she testified that with aussolas there was one thing I wanted to talk about when we talked about what we can do in the courtroom and something that comes up often time in our courtroom is excluding people from the courtroom the exclusion of spectators and obviously we're balancing public trials and the sixth amendment as well as the First Amendment freedom of the press obviously that relieves other people as well versus our responsibility to maintain a fair and safe and secure courtroom so in balancing those things this is where the content process comes in where people who make faces and the just stick you lations and the staring and any other visible reactions to testimony those folks can easily be removed from the courtroom number one and number two they could potentially have contempt contempt hearings but if you're just going to exclude people from the courtroom you must obviously make a full record and make explicit findings describing what the offending conduct is hold a hearing obviously outside the presence of the jury and make a factual record so you need to exclude just the offending person and also consider what other steps can be taken to ensure a safe courtroom for example do you need to get more sheriffs in the courtrooms you need to have police come and sit in the courtroom not good enough to just take the word of the DA I always say to the DA's who want to tell me what happened outside the courtrooms have a hearing put a witness up let me swear somebody in and get them under oath so that you're covered for appeals I know at least myself I would rather not write Appeals but when I do write Appeal Appeals I like to make sure I did it the right way so knowing that you've had some kind of hearing that address is not just a generalized fear but or not just your preference not to have the defendants mom and dad and entire family sit in the courtroom but you have to talk specifically about having that specific threat or as a specific reason why you want to try to exclude somebody from the courtroom but it certainly is an and that we have in our Arsenal to keep our courtrooms so that folks have access to justice I would just know one thing in the meta study if you look it up in the sites in the PowerPoint as judges it's difficult to predict who's going to Rio fend who's a locality residues not and a lot of research it's interesting shows that any prior criminal record whether it's DV or not DV is a strong indicator of risk so a lot of time judges prosecutors and defense attorneys will think well you know he's got a string of robberies but they're not domestic violence-related so he's not a real risk for domestic violence and the research shows the opposite so you want to look at his entire criminal record because again you're trying to predict how best to protect community of what it's needed first-time DV misdemeanor offenders with no prior record they're a low risk to reassess a couple other interesting things if there were previous threats to assault with a firearm with 20 times more likely a homicide threats to kill it's 15 times more likely to result in homicide prior times to strangle it's 10 times more likely on the side escalating violence over time five times more likely hard to control over date say five times more likely to be a homicide docking is a real red flag and a firearm in the house makes it six times more likely that you can see a homicide drug and alcohol addiction increases the risk eight to eleven times so if the guy drank that day the risk of violent goes up eight to eleven times what it would be if he had not taken drugs or alcohol so that's why it's so complicated but those are just some indicators of what are and are not respect and so that's why at sentencing you can make no drugs no alcohol no firearms in the home and any of those other risk factors that Jim just mentioned you could try to regulate that with whatever sentence that you give all right thank you thank you I would like to thank James your honor and Walt for being the presenters and we greatly appreciate it thank you thank you