Webinar presenter Hilary Weinberg and Donielle Wright answered a number of your questions after their presentation, How to Handle Recanting Witnesses. Here are just a few of their responses.
Audience Question: How do you work with HIPAA rules to get medical records and statements?
Hilary Weinberg: HIPAA is not going to be an issue when it comes to domestic violence. There are exceptions that are built in there so you can get the victims medical records. If you’re dealing with like a medical domestic violence case or a case of child abuse, it’s different rules that apply for those. Just always be cautious not to get like if both parties are hurt don’t get your hands on the defendant’s medical records. We’re just not entitled to those. Certainly the victims in a domestic violence event, there are no issues in getting the victim medical records.
Audience Question: When you have a situation where the witness is recanting, do you suggest calling any of the children as witnesses?
Hilary Weinberg: It depends. It’s like my favorite color is black. It just depends on the age of the children, what they saw. If you have a potential witness who is a child, I will tell you, I did a two-part webinar for Justice Clearinghouse a few months ago with Patrick Beumler from Glendale. Don’t make the first time you ever talk to a child when you have to put them on the stand. Certainly, you want to do a little bit of trial prep if a child may be a witness. Certainly, if you think you can go without a child, you might want to not call them. You certainly want that child ready and prepared to come into court if it is something that you think you want to do. Again, it’s going to depend a lot on your interaction with that child ahead of time. You want to have met that child at least a couple of times before court. If you got a good rapport and that child will talk to you. I have kids come in before and chat with me. I’m like I think I can do this. If you have a distraught kid who you just can’t put on the stand, that’s a decision and something you are going to know before you even get to the point of whether my victims will show and cooperate with me at trial.
Audience Question: Is there a law stating that doctors and medical staff have a legal liability to report domestic violence understanding that you can only say what Arizona has in place?
Hilary Weinberg: There are mandatory reporters. If you are at a hospital and you disclose to somebody that this is an act of domestic violence or there was something that some kind of statement that’s made. There are mandatory reporters and I believe emergency room doctors and nurses and those types of staff, forensic nurses, those people will be obligated to report. It also applies to people like teachers, some counselors. There are a number of mandatory reporters. A lot of them do come from the medical field.
Donielle Wright: A lot of times, victims won’t report the abuse. They’ll just go to the emergency room and the police will be notified by the staff at the hospital that we have a suspected- this woman reported her boyfriend punched her in the face. We’re treating her for a fractured nose. Oftentimes they will only get the information from the hospital staff. Yes, there is a requirement in Arizona that they report.
Audience Question: Would a prosecutor who has a victim to give testimony along with evidence have a better chance of winning the case than a prosecutor who has just to go on the evidence without the victim present in court to testify?
Hilary Weinberg: It depends. There are some times where we are saying that I hope she doesn’t show because she is not going to present well and she is going to muddy the water and be difficult for the sake of being difficult. I’ve got enough to prove the case without them. There are some cases where if you have a cooperative victim, sometimes they are a little too gung ho that makes it difficult as well. They come across as having some kind of an agenda. One of the scenarios we see all the time is people who are maybe going to the divorce and maybe it’s getting ugly. Sometimes that doesn’t work out as well either. In general, there are times when not having the victim is more on the plus column because of some of the difficulties and issues, the things that they might say that are just going to confuse the jury.
Donielle Wright: Yeah, you to have evaluate your victim. I have a victim, she did not present well. It would’ve been better had she not shown but she did and we dealt with it. You can’t really say whether you have a better shot of winning the case with or without a victim. You just have to evaluate each case individually and how that victim’s going to present. You don’t know that if you have not met with your victim.
Audience Question: Have you been able to protect victims from facing the offender directly in the courtroom? Abusers have many subtle ways of intimidation.
Donielle Wright: That is a big problem. I had a case a few years ago. It was a really really bad physical abuse case. We tried to stand in kind of his line of sight when we were doing our direct exam of the victim. They keep objecting because he does have a right to confront his abuser. In Arizona, we have the dogs that can come in and provide support, we have victim advocates. I don’t know if we can necessarily prevent them from looking at the victim while the victim is testifying. Certainly, we can object if there is any kind of facial expressions or gestures being made, things like that. We can certainly bring it to the court’s attention and object to that, have a sidebar with the court and the defendant can be instructed that that’s not acceptable.
Hilary Weinberg: If it gets bad enough, if he is misbehaving that badly during the course of the trial, the court can order them removed. You have a right to be present for your trial. There’s not a right to be disruptive. We do tend to watch for those things. I’ve had to approach the bench many times to say Judge while the victim is up there the defendant or his family members who are sitting behind him are making gun-like gestures towards the person on the stand. All of our courts now are on video so we have a video system here. There are sometimes we can go back and watch and see what people are doing. Unfortunately, it doesn’t pick up every area of the courtroom at the same time. It usually sticks up like while somebody is speaking it triggers that microphone. That is one tool that we have at our disposal if something unusual happens that we can use to substantiate that something is going on. I will say 99.99% of the time that the victim has to walk in the courtroom where the accuser is. Some of our cohorts right now are in a trial where a victim walked in saw the defendant, freaked out and almost tried to run out of the building and fortunately one of them have some athletic abilities and was able to cut her off at the elevator and guide her back into the courtroom. It is tough. It can be very very traumatic for the victims. We understand that. Usually, they do have to go in there and the defendants get to face the accusers.
Audience Question: When a witness recants during the trial, have you ever declared them a hostile witness and question them adversely?
Hilary Weinberg: Yes, that has happened occasionally. You do want to try to show to the jury that you are keeping control of it. When the victim starts saying this didn’t happen. You have to be ready. You probably know before you head into the trial that there’s a chance that they are going to recant. You have to be prepared. “No, he didn’t really hit me.” On this date, you told officer so and so this. Then you told this person this. And you start committing them to, “You told them this right?” You get them to commit to it because you can ask those types of questions because the judge knows that then you are setting up your impeachment. There have been occasional times when we declare the witness hostile, I think for me it was probably when I was doing gang prosecution, I had to do that a little bit more than I had my domestic violence cases which is more trial by impeachment. There are cases where yes you would have the court to declare the witness as hostile.
Audience Question: If you can talk a little bit more about how to question a recanting witness on the stand? Again, I think you touched on that but I didn’t know if you want to add anything to that.
Donielle Wright: You’re going to try and get as many concessions on the front end as you can. Things like is who this person is, what their relationship is. Do you have kids together? You want to get as many confessions on the front end as you can. When the victim starts giving you a bit of trouble, then you’re going to go back to using impeachment. “Do you remember talking to an officer so and so on this date? Did you tell him this? Did you tell him that? Do you remember calling 911?” Use the photos from the forensic nurse examination, “Is this a picture of your face?” Things like that. You’re going to have to impeach them with their prior statement. You are going to do it respectfully. Sometimes they are going to get really obnoxious. You have to maintain that decorum. Just be respectful and kind as you can. Not let them get away with stuff. A lot of times they are going to say, “I don’t remember.” Then you are going to say, “Will listening to your recorded interview with officer refresh your recollection?” They are going to say, “No, it won’t.” They are going to try everything they can to avoid the whole circumstance. You just have to take it step-by-step. Slowly. Hold them by the hand. Do the best that you can. The jury is going to see what’s going on.
Hilary Weinberg: That’s because it’s very obvious too. If the witness is just completely fighting you on all sorts of things, the jury gets the sense of what’s going on. They are not reading a transcript. They have the in-person exchange that’s going on. They tend to get it.
Donielle Wright: You can also ask the victim. Isn’t it true that you love this person? Isn’t it true that you just had your third child with this person? Isn’t it true that you wrote to the courthouse to the person today? The jury is going to see yes, she is trying to protect him.