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Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges

Published June 2009

Chapter 6. Prosecution Responses

Section  9 — What evidence is typically available to prosecute domestic violence cases?

One of the challenges domestic violence prosecutors face is the lack of evidence accompanying their cases. A study of domestic violence across Rhode Island in 2002, based on 6,200 police incident reports involving adult victims under 50 years of age, found the following evidence reported in cases: victim photos (17 percent), crime scene photos (16 percent), suspect photos (3 percent), physical evidence (8 percent) and weapons collected (11 percent), medical reports (9.4 percent), witnesses' interviews (37 percent: adults 24 percent, children 12 percent), suspect statements (18 percent) and signed victim statements (53 percent). [138] The Rhode Island data are not unique.

In the Mecklenburg County, N.C., study, researchers found that presentation of physical evidence to the special domestic violence prosecution unit was rare. Photos were available in only 15 percent of the cases submitted by patrol officers and only 30.5 percent of cases submitted by the police department's specialized domestic violence unit. Medical evidence was available in less than 10 percent of the patrol cases and 34 percent of the special-unit cases, which selected out the more serious cases such as those involving injuries. Given the fact that most domestic violence incidents occur in private, it is not surprising that witnesses were available in only 16 percent of the patrol cases and 19 percent of the special-unit cases. [68] Similarly, the Ohio court study found that photos of injuries and damages were available in only 14.3 percent of the cases, 911 tapes in only 2.2 percent, medical records in 1.7 percent, eyewitness testimony in only 1.6 percent, and police officer testimony in only 6.7 percent of the cases. [11]

One reason medical evidence may be limited is because of medical staff's poor handwriting. A study found that in records of medical visits containing indications of abuse or injury, one-third of the notes written by the doctors or nurses contained vital information that was illegible. [127]

Implications for Prosecutors

Especially in light of Crawford v. Washington, 541 U.S. 36 (2004), prosecutors must work with law enforcement to gather as much evidence as possible and accurately identify all potential witnesses and ways to contact them, or identify third parties who will remain in touch with them. Vital witnesses may include third parties whom victims spoke to at the time of the incident. Statements that victims make to third parties are generally nontestimonial and therefore admissible at trial. Children may also be potential witnesses. The presence of children may also allow prosecutors to file additional charges against abusers for endangering the welfare of the child or allow them to file a similar charge that can go forward, even if the original charges cannot. (Research basis: Few studies review domestic violence evidence as a separate issue; these studies suggest that evidence collection can be dramatically improved.)

Consequently, prosecutors must rely on victims. In the Ohio court study, victim testimony was the evidence most frequently relied upon by prosecutors, available in 48 percent of the 2,952 domestic violence cases studied. [11] In Rhode Island, victims provided signed statements in 53 percent of the incident reports. [139] A Canadian study of a Toronto Domestic Violence Court found that, although having witnesses or corroborating evidence does not increase the likelihood of prosecution, if the victim cooperates, the odds of prosecution increase by a factor of 8, compared to cases in which the victim does not cooperate. [43] In Chicago, prosecutors achieved a 73-percent conviction rate for domestic violence cases when the victim showed up in court, and significantly less (only 23 percent) when they did not show. [107]

Generally, lack of cooperative or available victims is cited as the prime reason prosecutors drop or dismiss domestic violence cases. In the Quincy, Mass., arrest study, a quarter of the arrested abusers were not prosecuted by the district attorney's office. When indicated in the court file, the most common reason given was "victim denies abuse" (18.8 percent), married victims invoked their marital privilege not to testify against their husband suspects (12.9 percent), or the victim could not be located (10.6 percent). [23] In the large Ohio study, 70.5 percent of cases were dismissed because of victim "unavailability/failure to attend." [11] In another Ohio study, in Toledo, analysis of a sample derived from 1,982 misdemeanor domestic violence cases before the municipal court found that 70 percent of dismissed cases were dismissed because the "victim failed to appear." [216] In North Carolina, victim opposition was reported as the key factor in reducing the likelihood of prosecution. [119]

Implications for Law Enforcement

Prosecutors must work with local law enforcement to identify and obtain critical evidence whenever it is available, including information on how to locate and contact victims and other potential witnesses. (Research basis: Several large court and statewide studies in disparate jurisdictions indicate law enforcement's failure to provide available evidence.)