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GEORGIA COMMISSION ON FAMILY VIOLENCE

2 Martin Luther King Jr. Drive

Suite 1570, East Tower

Atlanta, Georgia 30334

(404) 657-3412 (phone) * 404-656-3987 (fax)

A MODEL PROSECUTORIAL PROTOCOL

FOR FAMILY VIOLENCE INCIDENTS

INTRODUCTION

Family violence is abuse that occurs between family members or unmarried partners. One

person in the relationship gains power and control over the other by using physical, sexual and/or

emotional force. Family violence can occur between husbands and wives, ex-spouses, dating

partners, adult children and aging or ailing parents, same-gender couples, parents and children or

caregivers and clients. The vast majority of victims are women.

I. POLICY STATEMENT

It is the policy of the department to fully investigate and prosecute to the fullest extent family

violence incidents; to operate under objective, consistent and definable policies not governed by the

subjective considerations of reluctant victims; to move to provide protection and assistance to

victims of family violence; and to inform involved parties of the various services that may be

available to them within the Criminal Justice System, from social service agencies and other

community services.

(ADMINISTRATIVE DIRECTIVE)

The administration of each prosecutor's office should write

a policy statement directing implementation of the policy.

II. DEFINITIONS

A. Official Code of Georgia Annotated, ∋19-13-1 defines family violence as the occurrence

of one or more of the following acts between past or present spouses, persons who are

parents of the same child, parents and children, stepparents and stepchildren, foster

parents and foster children, or other persons living or formerly living in the same

household:

1. Any felony; or

2. Commission of offenses of battery, simple battery, simple assault, assault, stalking,

criminal damage to property, unlawful restraint, or criminal trespass.

The term "family violence" shall not be deemed to include reasonable discipline

administered by a parent to a child in the form of corporal punishment, restraint, or

detention. (Ga. L. 1981, p. 880, ∋ 1; Ga. L. 1988, p. 1251, ∋ 2; Ga. L. 1992, p. 1266, ∋ 3;

Ga. L. 1993, p. 1534, ∋ 3.)

B. A protective order, relating to acts of family violence, is described in Official Code of

Georgia Annotated ∋19-13-4 as follows:

1. The court may, upon the filing of a verified petition, grant any protective order or

approve any consent agreement to bring about a cessation of acts of family

violence. The orders or agreements may:

a. Direct a party to refrain from such acts;

b. Grant to a spouse possession of the residence or household of the parties and

exclude the other spouse from the residence or household;

c. Require a party to provide suitable alternate housing for a spouse and his or

her children:

d. Award temporary custody of minor children and establish temporary

visitation rights;

e. Order the eviction of a party from the residence or household and order

assistance to the victim in returning to it, or order assistance in retrieving

personal property of the victim if the respondent's eviction has not been

ordered;

f. Order either party to make payments for the support of a minor child as

required by law;

g. Order either party to make payments for the support of a spouse as required

by law;

h. Provide for possession of personal property of the parties;

i. Order a party to refrain from harassing or interfering with the other;

j. Award costs and attorney's fees to either party; and

k. Order either or all parties to receive appropriate psychiatric or psychological

services as a further measure to prevent the recurrence of family violence.

2. A copy of the order shall be issued by the clerk of the superior court to the sheriff

of the county wherein the order was entered and shall be retained by the sheriff as

long as that order shall remain in effect.

C. A protective order issued pursuant to this Code section shall apply and shall be effective

throughout this state. It shall be the duty of every superior court and every sheriff, every

deputy sheriff, and every state, county, or municipal law enforcement officer within this

state to enforce and carry out the terms of any valid protective order issued by any court

under the provisions of this Code section. Ga.L. 1993, p. 788, S 1.

D. Penalties are provided for violation of protective orders issued by the Court. According

to Official Code of Georgia Annotated ∋19-13-6(b), "[a]ny person who violates the

provisions of a domestic violence order which excludes, evicts, or excludes and evicts

that person from a residence or household shall be guilty of a misdemeanor."

III. PROCEDURES FOR PROSECUTING FAMILY VIOLENCE CASES

Violent behavior in the home or in intimate relationships is criminal behavior and it will not be

tolerated, minimized or mediated solely because of its characterization as a "domestic matter." The

following are general statements of the procedures which will be utilized to facilitate this basic

philosophy regarding family violence cases:

A. The victim in a family violence case cannot "drop" charges or "press" charges once the

case is submitted to the prosecutor from the law enforcement agency. The decision

whether or not to proceed with prosecution of the case is made solely by the prosecutor.

B. Charges will be prosecuted without victim cooperation if there is deemed to be sufficient

independent evidence to prove the elements of the crime(s) without the victim's full

involvement.

C. Once subpoenaed, if a victim fails to appear in court he/she will be treated as any other

witness who fails to submit to an authorized subpoena. The case will not be dismissed

solely due to the victim's failure to appear.

D. The prosecutor will not offer or agree to reduce a family violence charge to a lesser

offense unless after a thorough investigation and a discussion with the victim it is

determined that the ends of justice are served thereby. This policy recognizes the

seriousness of this type of crime, and communicates that to the extent violent behavior in

the home is deemed criminal, it will not be tolerated.

E. Once an indictment has been returned, or an accusation has been filed, the prosecutor

will not move to dismiss the charges merely because a victim is reluctant to cooperate.

The case will proceed until the defendant either enters a plea or is tried by a judge or

jury.

Identification and Assignment of Cases

All paperwork concerning family violence matters should be clearly designated as such before

it is transferred from the law enforcement agency to the prosecutor's office. If "family violence"

paperwork has not been previously so designated, then as soon after receipt as it is realized to be

such, it should be prominently marked as a family violence case, e.g., by use of the designation

"F.V." or use of a family violence cover sheet.

Once identified, family violence matters should be assigned, whenever possible, to an attomey

who has been designated to deal specifically with these types of cases. From the time of assignment,

strong preference should be given to "vertical prosecution"; i.e., if an attorney is initially assigned a

particular case, then that attorney should handle the case until its final disposition.

Larger offices are, of course, in a better position to establish a family violence prosecution unit, or otherwise

provide a specialized response to these cases. However, even if a single prosecutor only handles family violence

cases part-time, the use of a designated and specialized person consolidates the handling of the cases. Specialization

will also afford consistency for judges, law enforcement officers and - most importantly victims as they deal with the

prosecutor on family violence cases.

Initial Screening and Case Preparation

Cases, once assigned, should be initially reviewed by the prosecutor, if possible, within three

days of their receipt. Those cases with photographed visible injuries or documented medical

treatment should be given priority

. Any medical treatment that was received needs to be

documented in the reports of law enforcement which are submitted to the prosecutor. This

documentation should include a copy of medical records and the pre-hospital patient intake form. In

addition, the investigating officer should identify by name, address and phone number any

emergency medical services personnel who dealt with the victim at the scene.

In conducting the initial screening of a case, the prosecutor should consider the facts of the

case in light of the following:

A. The extent or seriousness of the injuries;

B. Use of a gun or other weapon;

C. Defendant's prior criminal history;

D. Past history of violence, whether charged or uncharged;

E. Existence of court order affecting case (e.g. temporary protective order, peace bonds,

etc.);

F. Status of defendant's arrest;

G. Victim cooperation; and

H. Presence of independent evidence of the extent of any violence.

Every effort should be made by the prosecuting attomey to contact the victim within five days

of receipt of a case. During the initial contact, the following information should be reviewed with the

"Visible injuries" refers to scratches, bruises, abrasions or contusions which the victim suffers from a family

violence incident. "Medical treatment" refers to treatment of the victim by emergency medical services personnel

(paramedics, fire fighters, etc.) or medical personnel (doctors, nurses, etc).

victim:

A. From this point on, he/she does not "press" or "drop" charges;

B. His/Her sole responsibility is to testify truthfully in court regarding the incident;

C. He/She is a witness to criminal conduct;

D. The parties in the action are the State of Georgia and the defendant;

E. Ask the victim when the defendant first talked to her/him after the incident; and what

was said;

F. Ask about defendant's family and the victim's; who has called victim; what they have

said; e.g., have there been threats, promises or requests made to the victim to induce

him/her to drop the charges;

G. Evaluate the impact of threats, intimidation, economic support issues, children, length of

the relationship, history of abuse, low self-esteem, drugs or alcohol;

H. Convey to the victim that he/she is not responsible for defendant's violence - the

defendant bears the responsibility for his/her behavior;

I. Do not try to get the victim out of the relationship;

J. Make sure the victim understands how kind and loving defendant will be while the case

is pending;

K. Encourage victim and tell him/her they are not alone;

L. Determine whether victim has received a victim assistance pamphlet and, if not, furnish

the same to them

. If available, offer referral to the nearest shelter or victim witness

assistance program. The victim should be advised that cooperation with the prosecution

is a prerequisite to the possibility of receipt of any victim compensation.

M. Explain the consequences which may follow if the victim refuses to abide by a subpoena

issued by the Court.

A sample of a victim assistance pamphlet is included as Attachment 1.

If the victim relays information to the prosecutor about the incident, this information should be

recorded or reduced to writing, signed and dated by the victim. If at all possible, this interview

should be videotaped.

In the event that the victim is hostile or otherwise unwilling to cooperate with the attorney in

the prosecution of the case, it will then be necessary for the prosecutor to determine if there exists

sufficient independent evidence to prove the elements of the crime(s) charged. Such independent

evidence may include:

A. Injuries observed by a person other than the victim;

B. Medical reports which indicate injuries;

C. Eyewitnesses to the crime(s);

D. Witnesses who heard noises indicating that a family violence incident was occurring, i.e.,

screams, furniture being thrown, etc.

E. A 911 tape with statements of a victim, witness, and/or defendant;

F. Presence of physical evidence, i.e., weapon, broken furniture, disarray, torn clothes, etc.;

G. Admissions by the defendant;

H. Any and all photographic evidence gathered at the scene or subsequently.

If sufficient independent evidence exists, then criminal charges should be pursued by the

prosecutor, irrespective of the desires of the victim. If such evidence is not available and the victim

is unwilling or unable to cooperate in the prosecution of the case, then the prosecutor should dismiss

all charges and immediately notify the victim of this action. Even if a lack of evidence requires

dismissal, however, the prosecutor should maintain on file information concerning the incident. An

index should be kept, referenced by defendant's name and cross-referenced by the victim's name.

Finally, if a victim indicates that he/she will cooperate with the prosecution of a case, then charges

may be pursued even without the existence of independent evidence.

Notwithstanding any of the foregoing, the prosecuting attorney should file an Affidavit and

Accusation or proceed to the Grand Jury once the following preparations have been made:

A. Corroborating witnesses have been interviewed;

B. Names, addresses and phone numbers of all witnesses are included in the case file;

C. A complete criminal history of the defendant is included;

D. 911 tape has been ordered;

E. Medical treatment reports have been obtained;

F. Reports of prior incidents of family violence by the same defendant are attached;

G. A copy of the temporary protective order and proof of service - when applicable - has

been obtained;

H. Photographs of the victim's injuries have been received and reviewed;

I. Contact has been made with the victim-witness assistant, shelter personnel, etc. assigned

to handle the victim's case.

Pre-trial Proceedings

Bonds and Bond Revocations.

The prosecuting attorney's position as to bond will, of course, be based on the specific fact

situation presented in a case. In making this decision, the prosecutor must be thoroughly informed as

to:

A. Whether or not there is a history of abuse;

B. The seriousness of the current offense;

C. Use of a weapon;

D. Substance abuse;

E. Whether or not there have been death threats; and

F. Whether or not the victim is afraid of the defendant.

If the Court indicates an intention to grant a bond to the defendant, the prosecutor should,

whenever possible, argue for those conditions and prerequisites which will assure the safety and

welfare of the victim, e.g., such as "no contact" provisions, requiring the defendant not to have any

contact with the victim, providing possession of the residence to the victim and excluding the

defendant while the criminal case is pending, requiring the defendant to make payments to support

his/her minor children as required by law, etc. In addition, the attorney should inform the victim as

to the possibility of civil remedies, such as temporary protective orders and restraining orders, and to

provide information as to those agencies which would be able to assist in obtaining such relief.

If the conditions of a bond previously set have been violated, the prosecuting attorney should

immediately file a Motion To Revoke Bond, and should actively participate in the bond revocation

hearing.

Preliminary Hearings

The prosecutor should use preliminary hearings, when feasible, to corroborate and protect the

State's case; however, this must be balanced against the welfare of a particular victim. For instance,

as a general rule the victim in a family violence case should testify at preliminary hearings to

preserve their testimony and to allow them to experience testifying in a setting resembling a trial.

However, if the defendant and his/her family intend to threaten and harass the victim into not

cooperating with the State, it would be wise to limit the victim's contact with the defendant,

especially in cases involving small children. Even when a victim is cooperative and testifies at a

preliminary hearing, his/her testimony should be recorded for later use if necessary.

Motions

When a defendant has engaged in similar transactions - whether or not they have involved the

current victim, and whether or not they have resulted in convictions - the prosecuting attorney

should give notice of his/her intention to introduce the same at trial. A hearing pursuant to Uniform

Superior Court Rule 31.3, should be held as soon as possible after an affidavit and accusation or

indictment has been filed. Often, a defendant will attempt at trial to put the victim on trial by placing

her/his alleged misconduct before the jury. The prosecutor should move in limine to provide the

victim with protection against such tactics to the full extent that the law allows. Notices regarding

similar transactions of the defendant, motions in limine, and any other motions of the prosecution

should be in writing.

Trial

A. General Considerations.

Once a family violence case has been set for trial, the victim should be informed by the

prosecutor or a victim-witness assistant regarding the trial date and the nature of the

victim's responsibilities regarding the testimony at trial. The victim's address should be

verified at this time and he/she should be served with a subpoena. If a victim who has

been served with a subpoena subsequently fails to appear on the day of trial, the assigned

prosecutor will request a warrant be issued for his/her arrest. The charges will not be

dismissed by the State if the victim fails to appear for trial after being subpoenaed. At

times, a victim may be cooperative soon after the trial, but later become uncooperative

with the prosecution. If this occurs, or there appears a likelihood that it may occur, the

prosecutor should inform the victim - and defense counsel - that the change in attitude

For instance, a defendant=s notice to the State regarding intention to place in evidence the character of victim.

Of course, an alternative response to the victim=s failure to appear could be the issuance of a citation for

contempt.

will not result in dismissal of the charges; the prosecution will proceed until the

defendant pleads guilty or is tried by a jury if there was, in fact, a reasonable likelihood

of conviction at the time charges were filed. Any young children who are either to testify

as a victim or witness should be introduced to the courtroom and its surroundings prior

to trial.

B. Trial Notebook

Each District Attorney and Solicitor's office should develop a Family Violence Trial

Notebook to assist their family violence unit or individual attomey in the prosecution of

family violence crimes. The notebook should be updated semi-annually by the

prosecutor(s) assigned to handle these cases. Pertinent case law, statutes and other

information should be indexed for quick access. Although the particular format for the

notebook will depend on the preferences of individual prosecutors, the following is a

sample index of topics and the considerations which should be included:

1. PRE-TRIAL

a. Bond-Prerequisites

b. Temporary Protective Orders

c. Bond Revocations

d. Similar Transactions

e. Prior Difficulties

f. Motions

g. Voir Dire

2. TRIAL

a. Opening

b. Victims

c. Spousal Immunity

d. Unavailable Witnesses

e. Hearsay

f. Experts

g. Medical Records

h. Child Witnesses

i. Other Witnesses

j. Cross-examination of Defendant

k. Rebuttal

1. Jury Charges

m. Closing

3. POST-TRIAL

a. Sentencing

b. Probation Revocations

C. Jury Selection

The jury selection process should be used to focus jurors on the fact that the State is

prosecuting the case, the victim is not a party in the action, victims do not press charges,

family violence is a crime and not "merely a family matter", etc.; questions should be

framed so as to relay this information and to identify those prospective jurors who may

disagree with these principles. Although it is impossible to identify a person opposed to

these concepts simply by occupation, sex, etc., there may be some potentially weak

jurors which the prosecutor should be aware of in making selections for service. For

example, a survivor of family violence may be less sympathetic to the victim if the

survivor left the relationship without intervention of the criminal justice system; the

"good ol= boy" may view concerns with family violence as a threat to the family;

professional women may view the chronic female victim negatively due to a difference

in personal philosophy or motivation. The prosecutor's observations and other

information in this regard should be included for reference in the Trial Notebook.

D. Strategy Considerations

The particular strategy to use in prosecuting a family violence crime will depend, of

course, on the specific facts and nuances of each case. However, there are certain

considerations which the prosecutor should review in every case in developing his/her

trial strategy:

1. Consideration should be given to having the victim seated. at the table with the

prosecutor during the trial in appropriate cases, if the Court permits.

2. The ordering of witnesses should be done so as to emphasize the State's role in the

case. For example, putting officers on the stand first should accomplish this goal.

3. Uncooperative victims should be treated carefully. Questions to him/her should be

phrased in a manner which will develop their motive to lie to protect the defendant.

4. Avoid characterizing the batterer as a devil or a complete reprobate; seek to convey

that on the stated dates and times he committed crimes against the State of Georgia.

5. Decide whether to develop a broad picture of the relationship between the victim

and defendant, or whether to keep it narrow. This may depend on the nature of

other violent incidents and/or unsympathetic acts committed by the victim.

6. Consider using expert testimony on victim and offender dynamics.

7. Consider ways to use hearsay exceptions when confronted with an uncooperative

victim. For example, statements the victim made to officers, neighbors, children,

etc. as coming within the excited utterance or res gestae exceptions; emergency

room records, 911 tapes and printouts, paramedics and fire department records, etc.

as medical or business record exceptions.

8. If children are the victims of or were present during the crime, determine the

feasibility of using them in proving the State's case. In making this decision,

See Attachment 2 for a sample Bibliography of available resources.

consider the following:

a. Competency and credibility of the child;

b. Type of rapport the attorney has with the child;

c. Whether using the child at trial will increase the risk of future abuse;

d. What protections and support are available for the child after he/she testifies;

and,

e. Whether the benefits of the child's testimony outweigh the emotional trauma

he/she will suffer, and/or the effect it will have on the parent-child

relationship.

Sentencing

Upon a plea or verdict of guilty, the prosecuting attorney should explain to the victim what are

the parameters of the defendant's sentence. Every effort should be made to incorporate the victim's

concerns into the State's recommendations. Care should be taken not to unintentionally punish a

victim as a by-product of punishing the defendant, e.g., seeking a large fine will effect the

defendant's ability to pay on an existing support order. If appropriate, work programs should be

sought as part of the sentence, to allow for ongoing financial support of the family. Whether or not

incarceration is requested by the State, long-term counselling for a batterer should always be

included in the State's recommendation to the Court. The length of counselling should be determined

by the counselor with the approval of the Court. This counselling should not include couples

counselling or family counselling, and whenever possible should only be conducted by a therapist

who is specially trained in family violence.

O.C.G.A.∋24-3-16; ∋24-9-5; Shaver v. State, 199 Ga. App. 428(1991).

Appendix F

Attachment 1

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Appendix F

Attachment 2

Bibliography

Browne, A. (1987). When Battered Women Kill

. United States: The Free Press, New York, New

York.

Crocker, Phyllis, L. (l985). "The meaning of equality for battered women who kill men in self

defense." Harvard Women's Law Review, 8, 121-153.

Ewing, C.P. (1987). Battered Women who Kill: Psychological Self-Defense as Legal Justification.

Lexington, Massachusetts: D.C. Heath.

Gillespie, C. (1989). Justifiable Homicide. Columbus, Ohio: Ohio State University Press.

Jenkins, Pamela and Barbara Davidson. (l990). "Battered Women in The Criminal Justice System:

An Analysis of Gender Stereotypes." Behaviora1 Sciences and the Law, vol. 8, 161-170.

Jones, A. (1980). Women who Kill. New York: Holt, Rinehart and Winston.

Jones, A. (1994). The Next Time She'll Be Dead: Battering and How to Stop It. Boston: Beacon

Press.

Sanders, Robert (1989). "Self-defense. Battered Woman Syndrome." The Advocate, August, 37-45.

Schecter, E.M. (1986). "Describing and Changing: Women' s Self-defense work and the Problem of

Expert Testimony on Battering." Women's Rights Law Reporter, 9, 195-222.

Walker, L.E. (1984). The Battered Woman Syndrome.

New York: Springer Publishers.

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