By Criminal Defense Lawyer Jeremy Rosenthal
In domestic violence trials, prosecutors know typically their case is only as strong as their complaining witness.
You can read other blogs about defending domestic violence charges and an index to the other blogs here.
Most family assault cases will have the prosecution calling to the witness stand the accuser, one or more police officers who were presumably on the scene, and increasingly expert witnesses who are often what we characterize as “blind.”
Exhibits will consist typically of photos taken the evening of the arrest of the complaining witness, the defendant and often of the place the altercation, if any, occurred if there is damage. We also might see media in the form of 911 calls or body-cameras from police.
Because the accuser is the main witness – the prosecutor obviously attempts to show the jury as much evidence as they can which corroborate that witness’ account. It could be physical injuries, cuts or scars. It could also be physical evidence on the scene such as broken items or the location of other evidence or debris from an altercation.
Medical records exist in many cases but not all. Obviously those are valuable pieces of evidence a to which a prosecutor will point if it fortifies their case.
Often times the corroboration might include statements the accused makes whether or not it is consistent with a true confession.
“The Cycle of Violence” and “Power and Control Wheel”
The cycle of violence and power and control wheel, which I’ve blogged about before, are central tenants of the Duluth Model and are loaded with assumptions and weaknesses.
The cycle is a theory which says domestic abuse goes through cyclical patterns which include assaultive abuse, a honeymoon phase, and then increasing tension followed again by assaultive abuse which is often worse than before.
The power and control wheel describes underlying motivations which include power and control by the abuser
These are generally incorporated into the prosecution’s case in AFV trials. The prosecution attempts to fit aspects of the cycle and the wheel into the facts of the case. Sometimes their evidence fits and sometimes it doesn’t.
True Story — I once had a prosecutor argue to a jury that when my client filed for divorce after she’d accused him of assault that it was because he was trying to control her. I include it because it shows just how far the prosecution might reach and jam any fact they can into the “power and control wheel” whether it fits or not. You would think filing for divorce would also be evidence of wanting to not be around another person at all (because they just had him falsely arrested for assault) and would be the complete opposite of trying to control them.
“Blind Lumper” Expert Witnesses
The “blind” expert is often a person who either works with law enforcement or as an advocate for domestic violence victims. They are blind for the reason they usually don’t know any of the facts of a specific case until they hit the witness stand. They are “lumpers” because academics tend to either “lump” everything into one-size fits all or they tend to “split” and show how one case differs from the rest.
They are then lobbed hypotheticals by the prosecution. The unshackling result is the blind lumper witness then molds the hypothetical into how it fits the Duluth Model which shows, according to them, defendant is guilty.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Super Lawyer by Thomson Reuters.