Presentation Transcript

1. CRIMINAL DOMESTIC VIOLENCE

2. § 16-25-20 (A) It is unlawful to: 1) Cause physical harm or injury to a person’s own household member; or 2) Offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
3. § 16-25-10 As used in this article, household member means: Spouses, Former spouses, Persons who have a child in common, OR Male and female who are cohabiting or formerly have cohabited. * *City of Columbia order for Ticket 3:31264EQ signed April 21, 2010, allows unborn child to be included as a household member in the definition of “child in common.”
4. § 16-25-10(continued…) Cohabitating is defined as “the fact or state of living together, …usually with the suggestion of sexual relations” (Black’s Law Dictionary, Eighth Edition). The following would not qualify: Same-sex relationships regardless of sexual intentions; and Opposite-sex roommate situations that have no sexual relationship involvement; and Siblings, parent-child, other family member relationships.
5. § 16-25-20(B)(1) CDV 1st Misdemeanor Up to 30 days OR $1000 to $2500 fine Fine may be suspended upon successful completion of a D.S.S. approved Batterer’s Treatment Program. (List of approved programs on D.S.S. website) Jurisdiction: Summary Court CDV 1st conviction is eligible for expungement after 5 years (SC Code § 22-5-910) DSS Approved!
6. § 16-25-65 CDVHAN Guilty of CDVHAN: Felony Imprisoned not less than a mandatory minimum of one year nor more than ten years. The court may suspend the imposition or execution of all or part of the sentence, except the 1-year mandatory minimum sentence, and May place the offender on probation conditioned upon the offender completing a batterer treatment program (offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services) CDV High and Aggravated Nature (CDVHAN): Assault and Battery with 1) A deadly weapon OR 2) Which results in serious bodily injury to the victim; OR Assault with or without a battery which reasonably would cause a person to fear imminent serious bodily injury or death.
7. § 16-25-20 A conviction in SC within the previous ten years for a prior CDV, A conviction within the previous ten years for a CDVHAN, or A criminal domestic violence offense in another state which includes similar elements to our CDV statute. We can enhance a sentence from a CDV 1st to a CDV 2nd, or a 3rd and subsequent with any of the following:
8. DSS Approved Batterer Treatment Batterer treatment programs should work around the defendant’s work schedule to ensure successful completion. BATTERER treatment, not anger management. NO Defendant may be denied treatment due to their inability to pay. Some courts may require a guilty plea or conviction to begin treatment (rather than a no contest plea).
9. DSS Approved Batterer Treatment RED FLAGS: Signs that a BTP is Not Working No case management services / classroom only approach Confrontation curriculum Untrained facilitators Victims complain they cannot get any information No communication from provider to courts No rapport between clients and provider No reduction or monitoring of recidivism
10. SUPREME COURT ORDER re: btp Solicitors can provide valuable input in determining which BTPs are most effective in rehabilitating CDV offenders. Solicitors shall approve in their jurisdictions (in addition to DSS approval) BTPs which are “most suitable for judges to order treatment.” Solicitors shall provide the list of approved programs to the chief magistrate and/or municipal judge, who “shall distribute to all judges within their municipality or county.”
11. 18 usc 922 (g) (9) The Ultimate Penalty Persons who have been convicted in any court of a qualifying misdemeanor crime of domestic violence are generally prohibited from: Possessing any firearm or ammunition in or affecting commerce, Shipping or transporting any firearm or ammunition in interstate or foreign commerce, OR Receiving any such firearm or ammunition. Violation is a federal offense up to 10 years in prison. A misdemeanor crime of domestic violence (as defined in 18 U.S.C. 921(33)(A)): Misdemeanor, “Use or attempted use of physical force, or the threatened use of a deadly weapon,” Committed by a household member. US v. Shrader, No. 10-5169 (Decided April 4, 2012) Shrader argued that because guns were locked in case in house he did not have constructive possession or control of them – only “proximity.” Court refused this argument…”in house” =“in possession”
12. § 16-25-70(D) The Primary Aggressor Rule: What if both parties report injuries? Determine the PRIMARY AGGRESSOR! The officer should evaluate each complaint separately to determine the primary aggressor. Only arrest the primary aggressor. The OFFICER MUST consider the following (and include in the incident report!): prior complaints of domestic or family violence; the relative severity of the injuries (remember, some injuries may not be visible); the likelihood of future injury; possibility of self-defense; and household member accounts regarding the history of domestic violence
13. Judicial Determination of Primary Aggressor Can the judge Determine the Primary Aggressor? When two or more household members are charged with a crime involving Domestic or Family Violence arising from the same incident, the court, if appropriate, may dismiss charges against the other party or parties. (§ 16-25-70(G)). The Court may determine the primary aggressor (SC Code §§ 16-25-70(D) and (G)) using these factors: Prior complaints of domestic or family violence The relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of investigation The likelihood of future injury to each person Whether one of the persons acted in self-defense Household member accounts regarding the history of domestic violence
14. If a CDV-1st Is Actually a cvd-2nd Get a new warrant for CDV-2nd, 3rd, etc. and show up for your regular CDV court appearance. Ask the judge for a bond to be set on the amended charge. Make sure the victim is present and understands why the case is being “sent up.” Dismiss the original warrant for CDV-1st.
15. § 17-15-30 Bond Hearings (usually) The purpose of a bond hearing is to set conditions of release that will reasonably assure appearance of the defendant and not pose an unreasonable danger to the community. In all bond hearings, the court MAYconsider: The nature and circumstances of the offense charged AND Family ties, Employment, Financial resources, Character and mental conditions, Length of residence in the community, Record of convictions, and Record of flight to avoid prosecutions or other failure to appear.
16. § 17-15-30 Bond Hearings (CDV) The Court MUST consider: The accused’s criminal record, Any charges pending against the accused, All incident reports generated as a result of the offense charged, and Whether the accused is an alien unlawfully present in the US. Prior to, or at the time of the hearing the law enforcement officer, local detention center officer or local jail officer MUST provide the following if available: The accused’s criminal record. Any charges pending. All incident reports related to the offense charged, and Any other information that will assist the court.
17. § 16-25-120 Bond Hearings (cont.) The court MUST look at the factors in §17-15-30, and The court MAY look at the following (when the person has been charged with a violent offense, the victim of the offense is a household member, and the person is subject to a RO or OOP at the time of the offense OR has a previous conviction for violation of OOP or RO): Person has history of DV or violent offenses, Mental health of the Defendant, Whether the person has a history of violating the orders of the court, and Whether the person poses a potential threat to others.
18. § 16-25-120 Bond Hearings (cont.) The Court MUST consider whether to issue a RO or OOP based on the factors listed in the previous slide. The Court MUST Inform the Defendant of right to counsel or of their right to have counsel appointed, and Provide the Defendant with written notice of the shelter prohibitions that apply to anyone charged with CDV or CDVHAN who is subject to a restraining order or an order of protection.
19. Hearsay and defendant’s 6th amendment right to confrontation
20. Can you “DO” the two-step? STEP TWO:Hearsay 3. Inquiry is whether the out-of-court statement can come into evidence AND 4. It does NOT MATTER whether declarant is in court. STEP ONE:6th Amendment Inquiry is whether the Defendant’s constitutional rights have been violated AND It MATTERS whether the declarant is in court
21. The sixth Amendment “In all criminal prosecutions the accused shall enjoy the right to […] be confronted with the witnesses against him […].” (6th Amendment, U.S. Constitution)
22. The sixth Amendment Is “Eye to Eye” Necessary? NO – Prior to 2004 (Ohio v. Roberts, 448 U.S. 56 (1980)) YES – Since 2004 (Crawford v. Washington, 541 U.S. 36 (2004))
23. Crawford v. washington124 S.Ct. 1354 (2004) Evidence Issues In a landmark case the United States Supreme Court overruled Ohio v. Roberts to the extent it dealt with testimonial hearsay, holding: “Out of court testimonial statements are admissible only when the declarant is unavailableand there has been a prior opportunity for cross-examination of the declarant.” Crawford issues arise ONLY when: There is an out-of-court statement Made by someone who is not available to testify in court about the statement
24. Crawford v. washington124 S.Ct. 1354 (2004) Evidence Issues Key Issue: Can the out-of-court statement come into evidence without the witness being in court to testify?
25. Crawford v. washington124 S.Ct. 1354 (2004) Evidence Issues MAYBE It depends on whether the out of court statement is “testimonial” hearsay or “non-testimonial” hearsay. Testimonial statements will NOT generally be allowed into evidence unless: The witness who made the statement is in court, or There was a previous opportunity for cross-examiniation Non-Testimonial hearsay statements MAY be admitted without the witness being in court to testify, provided the hearsay rule is satisfied.
26. When is a statement testimonial? Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial when circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
27. Examples TESTIMONIAL statements (therefore, inadmissible unless declarant is in court): Plea Allocutions Grand Jury Testimony Affidavits Police Interrogations (at the station)
28. Examples NON-TESTIMONIALstatements (therefore, admissible, provided you can satisfy the other requirements): Statements made to neighbors or family members…generally NON testimonial Statements made to law enforcement at the scene…it DEPENDS!
29. Michigan v. Bryant131 S.Ct. 1143 (2011) On 2/28/11 the US Supreme Court reinstated Bryant’s conviction: 1) Primary Purpose test reaffirmed (“Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency....” Davis v. Washington, 547 U.S. 813 (2006)). 2) Objectiveevaluation (“we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties”): Location of interrogation (at scene or at police station), Time of interrogation (during emergency or afterward), Nature of weapon involved (separating two parties where weapon was ‘fist’ or two parties in different rooms where weapon is ‘gun’), and Whether there is an ongoing threat to public and police (ex., defendant still at large). 3) Existence of an ongoing emergency is among the most important factors to consider, but not the only factor. Consider, for example: Medical condition of victim or Degree of formality of the statement (A harried 911 call or a station-house interview) 4) The statements and actions of the declarant AND the interrogator must be analyzed. Both might have “mixed motives,” but we are looking at a “reasonable victim”
30. Williams v. Illinois(no 10-8505, decided June 18, 2012) Forensic evidence was admitted via a report without the person who made the report coming to court to testify. The Confrontation Clause makes formal forensic reports testimonial, SO: Drug, blood alcohol, fingerprint, ballistics, autopsies, etc., that are incriminating on their face aren’t admissible without their author’s presence to testify. If the forensic testing involves multiple steps usually the author of the final report can testify without calling all persons involved. Hammon’s “primary purpose” test still binding, but …the Court may be backing off of their Crawford holding. Stay tuned!
31. “Hearsay:” What is it? Rule 801: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. She told me that…
32. “Hearsay:” What isn’t it? *According to Rule 801 (d) Hearsay is NOT: Prior statement of a witness The witness must testify at trial and be subject to cross. Statement MUST be: Inconsistent statement OR Consistent statement if offered to rebut claim of recent fabrication and made priorto 2nd statement. Admission by a Party Opponent Party’s own statement OR Statement party “has manifested an adoption” OR Co-conspirator’s statement.
33. Hearsay: Exceptions If a statement is hearsay it still MAY come in, provided it meets one of the exceptions. Exceptions are listed in SCRE 803 (1-24) and may include: Excited Utterance Related to startling event or condition While declarant is under stress of excitement. Present Sense Impression Statement describing event WHILE declarant is perceiving it. Medical Diagnosis or Treatment Describing medical history, past or present symptoms, or the character of the cause or source of pain as is “pertinent to diagnosis.” Marriage, Baptismal and Similar Certificates Public Records and Reports This does NOT include incident reports. Family Records
34. Recent SC Case law Post-Davis US 4th Circuit Ct. Appeals US v. Udeozor, 515 F.3d 260 (2008) SC Supreme Court State v. Ladner, 373 S.C. 103 (2007) State v. Washington, 379 S.C. 120 (2008) State v. Stokes, 381 S.C. 390 (2009) The 4th Circuit and the State courts of South Carolina have looked at the issue and have begun to create a body of case law defining “non-testimonial statements.” Most statements to police officers are presumptively testimonial, however in Udeozor the 4th Circuit determined that the question is whether the witness would expect their statement to be used at trial. If the witness expects their statement to be used for prosecution, then we may look to the intent of police officers to determine what their purpose was in asking the victim/witness the questions they asked. A statement made to another person (neighbor, etc.) would be presumptively non-testimonial according to Fuller v. US, 2009 WL 4333205 (D.S.C.), or US v. Hanna, 2009 WL 4301344 (C.A. 4 (S.C.)).
35. Questions??? Kelly W. Hall (803) 734-3685 Khall@scag.gov
36. Pro Bono Program Handbook