Journal of Police Crisis Negotiations, 12:103–121, 2012

Copyright © Taylor & Francis Group, LLC

ISSN: 1533-2586 print / 1533-2594 online
DOI: 10.1080/15332586.2012.717047

Domestic Violence Is Different: The Crucial

Role of Evidence Collection in Domestic
Violence Cases

RICHARD R. PETERSON
New York City Criminal Justice Agency, Inc., New York, New York, USA

DEIRDRE BIALO-PADIN
Kings County District Attorney’s Office, Brooklyn, New York, USA

Collection of evidence in domestic violence cases requires special

police attention because these cases have unique features. This ar-
ticle provides information and recommendations about evidence
collection in domestic violence cases based on prosecutorial ex-
perience in Brooklyn, New York. It also provides the results of re-
search showing the value of specific types of evidence for obtaining
a conviction. Police departments should establish regular training
programs and have arresting officers record defendant and victim
statements, take photos of victim and defendant injuries as well
as property damage, and collect corroborative evidence needed for
specific types of cases, such as strangulation or stalking.

KEYWORDS Domestic violence, evidence collection, police

INTRODUCTION

Arrests for domestic violence have increased substantially across the United
States as a result of the enactment of mandatory arrest and “preferred” arrest
legislation over the last 3 decades. The law enforcement response to domestic
violence (DV) cases has also evolved during this period, but these cases still
pose formidable challenges. One aspect of the law enforcement response in
DV cases—collection of evidence—requires special attention because these
cases have unique features, including the dynamics of the relationship be-
tween the victim and the offender and the need for corroborative evidence.
Unlike incident-based crimes such as gun possession or car theft, in DV cases

Address correspondence to Richard R. Peterson, PhD, New York City Criminal Justice
Agency, Inc., 52 Duane Street, New York, NY, 10007, USA. E-mail: rrpcja@gmail.com

103
104 R. R. Peterson and D. Bialo-Padin

there is usually an ongoing relationship between the parties: They share a

history and, in all likelihood, a future. The likelihood of future violence and
rearrests is therefore significant. Children are often witnesses and may them-
selves become victims or perpetrators as adults. Knowing that the victim is
not necessarily going to participate in the prosecution of his or her batterer,
evidence collection in DV cases is vital to a successful prosecution, and suc-
cessful prosecutions of DV cases have the potential to reduce recidivism and
the escalation of future violence.
This article discusses strategies for evidence collection in DV cases by
drawing on both research and practice. The first author (Richard R. Peterson)
conducted a research study of the value of defendant statements and other
types of evidence for obtaining convictions in DV cases in Brooklyn (Kings
County), New York (Peterson, 2012c). The second author (Deirdre Bialo-
Padin) has had over 25 years of experience as a prosecutor in Brooklyn,
including over 15 years prosecuting DV cases. As Chief of the Domestic Vi-
olence Bureau in the Kings County District Attorney’s office, she has helped
develop and implement District Attorney Charles J. Hynes’s policies and prac-
tices for both the police and the DA’s office to improve evidence collection
and strengthen the prosecution of DV cases.
We address the following questions about evidence collection in DV
cases:

1. What kinds of evidence are especially valuable in DV cases?

2. What programs should a police department implement to improve the
quality of evidence collected in DV cases?
3. What routine steps should police officers take to collect evidence in DV
cases?

UNIQUE FEATURES OF DOMESTIC VIOLENCE CASES

Fatality reviews of Brooklyn intimate partner homicides suggest that although

many DV homicide victims are isolated by their abusers and never reach out
to the criminal justice system for assistance, in the cases where they did
reach out, the injuries were usually minor, and the defendant was charged
with a low-level offense. Intervening effectively in low-level offenses has the
potential to address the cycle of violence that characterizes so many ongoing
relationships in DV cases.

The victim is lying in a hospital bed, attached to an IV, just out of

surgery to remove the bullet from her chest; her face is swollen beyond
recognition because her husband broke both orbital bones and her lower
jaw.
 Domestic Violence Is Different 105

A teenage boy sits in an ambulance, bleeding from multiple gaping

wounds after his girlfriend slashed him with a razor.

Everyone—from the responding officer to the jurors sitting in deliber-

ations months later—recognizes the seriousness of these injuries and finds
these cases compelling. The extent of the injuries means that the defense will
not be able to persuasively claim self-defense or argue that these wounds
were self-inflicted. Felony DV cases like these generally have strong evi-
dence, and prosecution is straightforward.
The more difficult challenge is prosecuting cases in which the offenses
are not life-threatening, the victim’s injuries are minor, or the defendant has
only made threats or menaced the victim with a weapon. What challenges
do prosecutors face as they attempt to build cases and obtain convictions
in nonfelony DV cases? How do these DV cases differ from other non-
felony cases, including cases of interpersonal violence between strangers or
acquaintances?

Most DV Victims Don’t Want to Testify Against Their Batterers

The primary focus of the criminal justice system is to hold the perpetrator
accountable for his or her actions. Only secondarily are the needs or interests
of the victim addressed. Victims of DV call the police because they want the
violence to stop. They do not necessarily want their batterer arrested. They
often do not understand the criminal justice system, don’t know about the
range of possible dispositions, and may not know what resources and social
services are available to them. But they do know that in most cases their
batterers will be unlikely to spend much time in jail. It should therefore be
no surprise that victims of DV are seldom interested in testifying against their
batterers (Wills, 1997).
In the early 1990s, a survey of prosecutor’s offices in large jurisdictions
in the United States found that half of the offices said that 40% or more of
DV victims did not participate in the prosecution of their cases (Rebovich,
1996). One third of prosecutor’s offices reported that 55% or more of DV
victims did not participate in the prosecution. Several studies of specific
jurisdictions have confirmed that nonparticipation rates are relatively high,
usually around 40% to 50% (Belknap et al., 2000; Buzawa, Hotaling, Klein, &
Byrne, 1999; Dawson & Dinovitzer, 2001; Ford & Regoli, 1992). In jurisdic-
tions like Brooklyn, New York, that use mandatory case filing for DV cases
(filing charges for all DV cases that meet the legal threshold regardless of the
victim’s wishes) and mandatory prosecution (recognizing that victims change
their minds and defendants may reoffend, cases are kept open for as long
as allowed by statute so that batterers are monitored by the court and law
enforcement, protective orders are issued on behalf of victims, and victims
106 R. R. Peterson and D. Bialo-Padin

are provided with ongoing access to social services), nonparticipation rates

are even higher (Peterson, 2012c).
There are many reasons why victims of DV may be ambivalent about
actively participating in a criminal prosecution. Emotionally invested in the
relationship, a victim may hope that the abuser will not be violent in the
future. The victim may be economically dependent on him, or may be under
pressure from the abuser, family, friends, and community to stay in the
relationship. The abuser knows what makes the victim vulnerable: where
she lives and works, her routines, where her children go to school, where
her family lives, etc. Even if the victim is ready to end the relationship, her
abuser may continue to represent a danger to her and those closest to her.
DV victims may stay in violent relationships because they instinctively know
that it may be more dangerous to leave the relationship (Campbell et al.,
2003).

She Said, He Said: Victim Statements and Jurors’ Preconceptions and

Prejudices
Although the defendant has the right to remain silent in a criminal trial, the
reality is that jurors want to hear both sides of the story. While a defendant
can be convicted based solely upon the credible evidence of one witness,
there is an unspoken assumption that the existence of a relationship between
the parties means that the victim may have a motive to lie. In cases where
the jury doesn’t hear from the defendant, they want some assurance that
the victim is telling the truth. For this reason, evidence to corroborate the
victim’s statement is crucial.
Jurors want and expect additional evidence so that they can evaluate
the credibility of the victim and witnesses by comparing and contrasting
their testimony with other evidence. After watching countless reruns of CSI
and Law and Order on television, jurors expect that Miranda warnings will
be issued as soon as someone is placed in handcuffs. Jurors expect law
enforcement to question witnesses and suspects; to identify, collect, and
preserve physical evidence; to conduct scientific tests including DNA and
blood analysis; to take fingerprints; and to document what they have seen
and done. If officers don’t collect this evidence, the jury may believe they
haven’t done their jobs, and that makes them less credible. Alternatively
jurors may wonder whether the failure to collect evidence means that the
officers didn’t find the victim believable.
In most jurisdictions, few DV cases actually go to trial, so defendants
rarely face a jury. However, plea bargaining occurs in part in the context of
what would be likely to happen if the case were to go to trial. What induces
defendants to plead guilty is the weight of the evidence against them. If
they know that significant credible evidence of their guilt exists, and that the
 Domestic Violence Is Different 107

prosecutor can proceed to trial with or without the victim, the defendant and
his or her attorney may be more willing to engage in plea negotiations and
more inclined to plead guilty rather than going to trial.

EVIDENCE COLLECTION IN DV CASES

DV cases are difficult to prosecute. When victims are participating in the

prosecution, evidence is needed to corroborate their testimony. Because
victims are often reluctant to testify against their batterers, they frequently
do not participate, and the entire case may depend on other evidence.
In these “evidence-based” prosecutions, collection of evidence to corrob-
orate the victim’s statement made at the time of arrest is even more
important.
A study of over 3,000 DV cases in 16 large jurisdictions in the United
States in 2002 examined the types of evidence available in misdemeanor DV
cases (Smith & Farole, 2009). The study found that in about two thirds of
cases, physical evidence was available, most commonly photos of the victim
and/or defendant (47%), a recording of a 911 call (25%), and photos of the
scene (10%). (These percentages overlap because multiple types of evidence
are available in many cases.) Less common types of physical evidence were
recovered weapons (3%), medical records (2%), forensic evidence (2%), and
“other” evidence (not specified, 8%). Aside from the physical evidence, wit-
ness statements (usually from the victim) were available in 43% of the cases.
Statements from the defendant were much less common (10%). Perhaps the
most notable finding was that in 18% of misdemeanor DV cases, there was
no evidence of any kind—no physical evidence was collected, and no wit-
ness or defendant statement was available. These results suggest that there
is considerable room for improvement in the collection of evidence in DV
cases.
What types of evidence are most important for obtaining convictions in
DV cases? Smith and Farole’s (2009) study is one of only a few to address this
question. They found that having a defendant statement was the strongest
predictor of conviction and that having physical evidence also increased the
likelihood of conviction. Victim statements had little effect on convictions.
Unfortunately, because Smith and Farole’s study collected information from
so many prosecutors’ offices, it could not obtain detailed data about each
type of evidence. Was the defendant’s statement based on a Mirandized in-
terview with the defendant, or was it a pre-Miranda spontaneous statement?
Was it oral or written? Was a video or audio recording made? Were some
types of physical evidence more valuable than others? Was the victim willing
to testify, or had the victim decided not to participate in the prosecution?
Answers to these questions are vital to prosecutors seeking to build a DV
case.
108 R. R. Peterson and D. Bialo-Padin

In Brooklyn, which files charges in, and prosecutes, almost all DV arrests
whether or not the victim is participating, the DV Bureau has placed a high
priority on developing strategies for collecting evidence to obtain convic-
tions with or without victim participation. This prompted the Kings County
District Attorney’s Office to begin obtaining post-Miranda video statements
from selected DV defendants. To assess the value of corroborative evidence,
District Attorney Charles J. Hynes supported research into the impact of de-
fendant statements and other types of evidence on convictions. The results
of the research confirm what DV prosecutors already know: Any evidence
that corroborates a victim’s statement can only increase the likelihood of a
conviction, and the availability of evidence other than the victim’s testimony
may enable a prosecution without the victim’s active participation (Peterson,
2012a, 2012b, 2012c).
In the following discussion, we provide information and recommenda-
tions about evidence collection in nonfelony DV cases based on the ex-
perience of the DV Bureau in Brooklyn. Where available, we also provide
information about the research findings showing the value of specific types
of evidence for obtaining a conviction.

Defendant Statements
In November 2007, the DV Bureau of the Kings County District Attorney’s
office (KCDA) established a video statement program for defendants in cases
involving intimate partner violence and elder abuse. Under this program, an
Assistant District Attorney asks selected defendants to make a post-Miranda
statement about the incident that led to the arrest. These statements are
recorded on video and retained for use as evidence in the prosecution of
these cases. Because capacity is limited, the program interviews about 14%
of defendants in DV cases.

WHY WOULD A DEFENDANT MAKE A STATEMENT TO LAW ENFORCEMENT?

Occasionally, a criminal suspect may confess or make admissions to the po-
lice because he knows he has done something wrong and feels remorseful.
More typically, a suspect talks because he knows someone has said some-
thing that caused the police to focus their attention on him and to take him
into custody. Not knowing exactly who has come forward, what has been
said, or what evidence has been collected, he has an incentive to “talk his
way out” of the situation or limit his responsibility for the crime by offering
an explanation or an excuse for his actions. Many DV suspects talk to law
enforcement because they don’t think that they have done anything wrong
(“I have the right to keep my wife in line”), and they believe that they will
 Domestic Violence Is Different 109

eventually be able to induce the victim to become uncooperative. Some even

feel that they are the true victims.

ANY STATEMENT IS BETTER THAN NO STATEMENT AT ALL

Although some defendants confess, most of the videotaped statements are
self-serving: Defendants make admissions that unwittingly inculpate them.
Such statements are useful, and provide a wealth of information (potential
witnesses, the nature and history of the relationship) that can be used to in-
vestigate the case and evaluate the credibility of the defendant and witnesses,
as well as the victim.
When a suspect says that he knew there was a protective order in effect,
but his girlfriend invited him over, he has admitted to violating a court order.
When a defendant explains that there was an argument because his wife was
cheating on him and that she attacked him with the knife first, he has placed
himself at the scene, identified all parties present at the time of the assault,
provided the motive (the existence of which helps prove intent and lack
of mistake or accident), acknowledged physical contact, and admitted that
a weapon was used. When a suspect offers an explanation for his actions
(shifting blame to the victim while minimizing his own actions, claiming acci-
dent, lack of intent to injure, or suggesting she misinterpreted what he said),
he is conceding that something happened. By doing so, he corroborates the
victim, who may not have sought medical attention, or whose injuries may
not have been photographed. The defendant’s statement will effectively limit
cross-examination of the victim at trial: The victim can no longer be accused
of exaggerating or fabricating the incident. It has also offered a preview
of defenses at trial (self-defense, alibi, consent, intoxication), enabling the
prosecutor to anticipate and prepare for cross-examination of the defendant
at trial.

GIVE THE SUSPECT AN OPPORTUNITY TO REVEAL HIS TRUE SELF

If a defendant is given an opportunity to talk, he will reveal himself for who
he is, opening a door into his mindset and the victim’s day-to-day reality.
At the same time, the goal is to lock the defendant into a story, to obtain
as detailed a statement as possible. By doing so, certain defenses will be
precluded at trial. The defense cannot claim alibi when the defendant has
admitted being present during the incident. The victim’s wounds cannot
be accidental, self-inflicted, the result of a preexisting medical condition,
or caused by someone other than the defendant, if the defendant makes a
statement claiming self-defense. In many ways, it is irrelevant whether the
defendant is lying. The more statements a defendant makes, the more people
he talks to, the stronger the argument is that the statements were voluntary,
110 R. R. Peterson and D. Bialo-Padin

and not the result of threats or coercion. Furthermore, the more contradictory
statements made by a defendant, the easier it is to attack the defendant’s
credibility at trial. For this reason, all statements (both spontaneous and
during questioning), no matter how insignificant, should be documented. At
trial, the prosecutor will be able contrast the victim’s statements with those
of the defendant. If the defendant’s statements are internally inconsistent, in
all likelihood there will be a “reality gap” between the defendant’s version
of events and the physical evidence.

WHAT DO DEFENDANTS SAY IN THEIR STATEMENTS?

Research on defendants’ video statements in Brooklyn found that nearly
4 out of 5 defendants waived their Miranda rights and made a substan-
tive statement on video (Peterson, 2012b). Because there was considerable
overlap among individual items involving admissions, substantive statements
were classified in broad categories, and some were classified in multiple cate-
gories. Among those who made a substantive video statement (see Figure 1),
about 80% admitted being at the scene, 35% admitted having an argument
with the victim, 30% admitted using physical force against the victim (not in
self-defense), and 9% admitted knowing about or violating an order of pro-
tection. About 13% of defendants confessed to most of the charges against
them, while 6% claimed self-defense, and 18% denied the charges. These

80%

35% 30%
9%

Admission: Admission: Admission: Admission:

At the Scene Had Argument Used Physical Knew There
Force (Not in Was Order of
Self-Defense) Protection

13% 18% 14%

6%

Confession Self-Defense Denial Missing

Statement
Summary

FIGURE 1 Content of video statement for defendants who made a substantive video state-
ment, excluding cross-complaints (N = 1,878).
 Domestic Violence Is Different 111

findings indicate that most defendants made admissions that supported one
or more elements of the prosecution’s case.

WHAT IMPACT DO DEFENDANTS’ VIDEO STATEMENTS HAVE ON CONVICTIONS?

Research on the impact of defendant statements found that the conviction
rate for nonfelonies was 5.2 percentage points higher in video cases than
in nonvideo cases (Peterson, 2012c). After considering the effects of other
types of evidence and other predictors of conviction (e.g., type and severity
of the charges, defendant’s criminal history), the predicted conviction rate
was 30.9% in video cases and 25.7% in nonvideo cases.1 The study counted
as a video case any case in which the defendant was placed in front of the
camera for a statement, even if the defendant refused to make a statement
(Peterson, 2012a). A more detailed analysis of the video cases found that the
conviction rate was higher when the defendant made a substantive statement
(33%) than when the defendant refused to make a statement (28%). These
findings show that defendant statements are a valuable tool for obtaining
convictions in DV cases.

HOW DOES THE CONTENT OF DEFENDANTS’ VIDEO STATEMENTS AFFECT THE

CONVICTION RATE?
After controlling for other predictors of conviction, we found three cate-
gories of statement content that affected the likelihood of conviction (Pe-
terson, 2012c). Not surprisingly, those who confessed were more likely to
be convicted, but only 13% of defendants confessed. Those who admitted
using physical force against the victim were also more likely to be con-
victed, and nearly one third of defendants made such an admission. The
study also found that defendants who denied the charges were less likely
to be convicted. These findings help us to understand which types of de-
fendant statements had a large impact on the conviction rate. However, in
individual cases, other types of statements may also have been critical to
obtaining a conviction. The statistical analysis can only indicate which types
of statements were generally useful across all DV cases. Moreover, state-
ment content alone was not determinative of the outcome of a case. When
a defendant confessed, the conviction rate was 41%, and when a defendant
admitted using physical force, the conviction rate was 38%. Although these
conviction rates are higher than average, these DV cases often did not end in
conviction. This highlights the importance of having corroborative evidence,
even when the defendant’s statement is a confession or an admission of the
use of violence.
112 R. R. Peterson and D. Bialo-Padin

IN WHICH CASES ARE DEFENDANTS’ VIDEO STATEMENTS MOST USEFUL?

Research on Brooklyn DV cases found that when the victim was not par-
ticipating, not contacted, or the participation status was unknown, the con-
viction rate was about 6.0 percentage points higher in video cases than in
nonvideo cases. The predicted conviction rate was 22.9% in video cases and
16.9% for nonvideo cases. However, when the victim was participating with
the prosecution, the conviction rate was similar in video and nonvideo cases.
These findings suggest that defendant statements are valuable for obtaining
convictions in the most difficult, and most common, DV cases, i.e., those in
which the victim does not participate in the prosecution.

PHONE CALLS FROM JAIL

Correctional facilities should consider recording inmate phone calls and

make these recordings easily accessible to law enforcement. Inmates of-
ten make admissions during phone conversations with friends, family, and
even the victim. Recorded inmate phone conversations can corroborate a
victim’s testimony. They can be used to charge defendants and their agents
with violating protective orders, witness tampering, coercion, and conspir-
acy. When the defendant has induced a victim not to testify by means of
threats or persuasion, these recorded calls are crucial evidence in support of
an argument that the defendant has forfeited the right to confront the victim
at trial.

Victim Statements
There are also opportunities for obtaining statements from victims during a
police investigation, and these may prove vital if the victim subsequently
chooses not to participate in the prosecution.

EXCITED UTTERANCES
To fully comprehend the impact of a defendant’s act of violence upon the
victim, jurors need to hear a description of the victim’s physical condition
and emotional demeanor shortly after the incident. If the victim is visibly dis-
traught and in pain, if she is still experiencing the stress of the encounter, her
statements to the first responders may be admissible as “excited utterances,”
an exception to the hearsay rule, whether or not the victim testifies in court.
For this reason, it is vital that officers document the victim’s physical condi-
tion and emotional demeanor. Recorded 911 calls should be preserved and
easily accessible. These calls also may be admissible in court as exceptions to
hearsay (excited utterances [Farrell, 1995, § 8–603; Federal Rules of Evidence,
 Domestic Violence Is Different 113

1975, § 803(2)]) or present sense impression (Farrell, 1995, §§ 8–604–8–609;

Federal Rules of Evidence, 1975, § 803[1]), or even as declarations against
penal interest (if the perpetrator called 911). They can be riveting evidence,
especially when the call captures the aftermath of a violent encounter (the
victim’s obvious pain, distress, and fear), or the crime as it is actually un-
folding (the defendant yelling at the victim, the sounds of the assault or of
furniture being broken, the victim’s screams for help, the sound of children
crying). All 911 operators should be trained to ask the identity of the caller,
the name of the perpetrator, and the caller or victim’s relationship to the per-
petrator. Research on Brooklyn DV cases found that having a 911 recording
in the case file increased the conviction rate by nearly 12 percentage points,
after taking into consideration all other factors that affected the likelihood of
conviction (Peterson, 2012c).

VICTIMS’ WRITTEN STATEMENTS

In New York State, police officers must complete a Domestic Incident Report
(DIR) for every domestic incident they respond to, whether or not they
make an arrest. The DIR includes a page for the victim to write a statement
explaining what happened during the incident. Officers are required to offer
the victim the opportunity to write a statement, but victims may refuse to
do so. Research on Brooklyn DV cases found that having a victim statement
on the DIR increased the conviction rate by nearly 7 percentage points,
after taking into consideration all other factors that affected the likelihood of
conviction (Peterson, 2012c).

Corroborating Evidence
INJURIES TO THE VICTIM
In a DV prosecution, the goal of the defense will be to minimize the violence
and shift blame to the victim: “She is exaggerating, it was just a verbal
disagreement, he only pushed her, it was an accident, she slipped and fell,
she bruises easily, she attacked him first, he was just defending himself,” etc.
When a criminal case comes to court weeks or months later, the defense will
use to their advantage the fact that injuries fade and the victim’s emotional
reactions will have become muted because of the passage of time and the
formal setting of the courtroom. Photographs can be used to undermine these
defenses and provide a visceral understanding of the victim’s experience at
the time of the assault.
If available, medical records can add to the value of photographs. Re-
search on Brooklyn DV cases found that having medical records of victim
injuries in the case file increased the conviction rate by about 12 percent-
age points, after taking into consideration all other factors that affected the
114 R. R. Peterson and D. Bialo-Padin

likelihood of conviction (Peterson, 2012c). However, unless injuries are life-

threatening, many crime victims will not seek medical attention. When an
ice pack and aspirin will reduce the pain and swelling, a long wait in the
emergency room may not seem worthwhile to a victim who has no medical
insurance and is overwhelmed with lack of child care and a safe place to
live.
Medical records tend to focus on the most serious injuries. Unlike an
autopsy report, medical records often don’t describe in detail the dimensions,
shape, path, and depth of wounds. Bruises, scratches, abrasions, redness, and
swelling may not be documented in detail unless medical staff is properly
trained; words and line drawings cannot capture the actual damage caused
to the victim. Photographs are crucial, especially in the absence of medical
treatment. Photographs bring home the physical and emotional impact of the
perpetrator’s act of violence upon the victim: disfigurement, swelling, pain,
fear, helplessness, and the inability to break free from an assailant’s grip.
Documentation of the nature, location, and extent of injuries can be
used to establish elements of the crimes charged (intent to disfigure or inflict
injury, lack of mistake or accident), as well as document the amount of force
used. Photographs can tell a story and corroborate the victim’s statement
or testimony. If property is damaged during a struggle or as a means of
intimidation, if the struggle moves from one room to another, the victim’s
path of flight can be traced in photographs. Telephones pulled out of the
wall or cell phones lying broken on the ground are evidence the perpetrator
tried to prevent the victim from calling for help. Multiple injuries from head
to toe speak of a prolonged assault and establish the perpetrator’s control
over the victim. Such images will negate a claim of self-defense or that there
was no struggle. Research on Brooklyn DV cases found that having photos
of the victim’s injuries available in the case file increased the conviction rate
by over 8 percentage points, after taking into consideration all other factors
that affected the likelihood of conviction (Peterson, 2012c).
In cases of strangulation or smothering, it is crucial to capture the in-
juries that result from applying pressure to the neck, or covering the mouth
and nose so that the flow of blood and oxygen to the brain is interrupted
(Strack & McClane, 1999). Photographs should be used to document indicia
of strangulation, such as petechiae (broken blood vessels under the skin),
subconjunctival hemorrhaging (broken blood vessels in the eye), and ligature
marks, as well as injuries sustained when the victim tried to break the grip of
the assailant (scratch marks on the victim’s neck; bite marks, scratches, and
bruises on the perpetrator’s arms, legs, etc.). Most strangulation cases have
no visible injury, so assessing for nonvisible injuries and symptoms is even
more important. Less visible injuries can be identified using ultraviolet light
or infrared photography. Police should inquire about (and document) other
symptoms of strangulation, such as loss of consciousness, loss of voice, in-
voluntary urination or defecation, hoarseness, sore throat, difficulty breathing
 Domestic Violence Is Different 115

or swallowing, dizziness, swollen tongue, trouble focusing, impaired vision,

headaches, etc. Items used as ligatures, such as electrical cords and belts,
should be recovered.

DEFENSIVE WOUNDS
When a victim raises his arms or hands to ward off blows or grabs a knife
blade to deflect it away from his body, the resulting injuries demonstrate that
he was trying to protect himself from his assailant.

DEFENDANTS’ INJURIES OR LACK OF INJURIES

The defendant’s entire body should be examined and photographed. If the

victim sustained a severe beating, the defendant’s hands are likely to be
swollen and red, the knuckles lacking definition. If a defendant claims self-
defense, it is crucial to document the location, extent, and nature of injuries
(as well as the lack of injuries) to both parties.

WEAPONS
DV often involves the use of weapons of convenience. Common household
items such as furniture, scissors, kitchen utensils, knives, electrical cords,
shoes, stockings, rope, duct tape, belts, and razors are used to torture, re-
strain, gag, threaten, or injure the victim. These items must be recovered
and/or photographed.

DOCUMENTARY EVIDENCE
Threats communicated via letters, e-mail, instant messages, text messages,
voice mail messages, and messages on social networking sites should all be
retrieved before they are lost or deleted. Photograph or have the victim print
out all communications. If a victim has documented prior abuse in a log or
diary, voucher it to rebut a claim by the defense of recent fabrication. These
records may also help to establish a pattern of stalking.

EVIDENCE OF STALKING: IS IT A LOVE LETTER OR A THREAT?

The defense will claim the victim is overreacting or exaggerating or that
he has misunderstood or misinterpreted the defendant’s actions. In stalking
cases, the stalker’s conduct must be understood in the context of the re-
lationship between the parties. In intimate partner stalking cases, the most
116 R. R. Peterson and D. Bialo-Padin

dangerous situations are those where there has been a separation event that
precedes the stalking. While the investigation begins with an in-depth inter-
view of the victim, it must also include interviews of neighbors, landlord,
friends, family and coworkers, all of whom may have seen or spoken to
the stalker. What evidence is there that the defendant knew the victim did
not want her to contact him? Have all incidents of stalking been identified
(including conduct of which the victim may be unaware)? How can the iden-
tity of the stalker be proved? If the victim changed his routines, how did the
stalker find him, who did she talk to? What is it about the stalker’s conduct
that instills fear in the victim? Does the love letter reference prior incidents?
Is there a history of violence? Has the violence escalated? Has the stalker
voiced suicidal thoughts, does she abuse drugs or alcohol? Only by answer-
ing these questions can law enforcement do a realistic risk assessment and
come up with an investigative plan in order to develop a successful stalking
prosecution.

SURVEILLANCE VIDEO
Images from surveillance cameras must be identified and preserved before
they are deleted. Most surveillance cameras save images for only a short
period of time.

SUMMARY OF RECOMMENDATIONS FOR EVIDENCE COLLECTION

Given the difficulties of prosecuting DV cases, early investigative and ev-

idence collection efforts by the police are crucial. Research supports the
experience of DV prosecutors that certain types of evidence are especially
valuable.

Recommendations for Police Departments

The most important step a police department can take is to establish regular
officer training programs that focus on the unique nature of DV cases, mo-
tivate officers to recognize the importance of these cases, and address the
critical need for early evidence collection to obtain convictions in these cases.
Training that addresses the dynamics of DV provides officers with crit-
ical background information. When officers respond to a DV incident, they
are often entering volatile and emotionally charged situations that are po-
tentially dangerous for both the victims and the officers. If a victim lashes
out at law enforcement, if she doesn’t want her abuser arrested, it is easy
to understand how the police may become disengaged or may emotionally
 Domestic Violence Is Different 117

distance themselves from the situation: If the victim doesn’t seem to care
what happens to her, why should the officer? In order for law enforcement
to appreciate the importance of evidence collection, training must explain
the context for victims’ varied reactions and address how police officers
can respond to victims while remaining focused on making an arrest and
collecting evidence.
Officer training should also address why evidence collection is impor-
tant, especially in low-level DV offenses. An offender may continue to have
a relationship with his victim after the disposition of a case. They may have
children in common, he may seek to resume the relationship, or he may
retaliate against the victim for ending the relationship or calling the police.
Because of this potential for continued contact, one of the goals of law
enforcement in these cases is to reduce recidivism and the escalation of vio-
lence. The office of the Kings County District Attorney focuses on low-level
offenses from two different approaches: addressing safety concerns by pro-
viding victims with access to resources and social services, and at the same
time working with law enforcement to expand the collection of evidence so
that these cases can be successfully prosecuted with or without victim par-
ticipation. Even if the victim does not participate in the prosecution, linking
her to services and resources may encourage her to report future incidents
and perhaps to participate in a subsequent prosecution.
Finally, officer training should address how various types of evidence
can be used to build a case, and explain the need for special types of corrob-
orative evidence. Training also should stress the importance of procedures
for collecting evidence that can withstand defense motions to exclude the
evidence or to overturn a conviction on appeal (Garvey, 2012).
In addition to training programs, police departments should develop
programs to collect defendant statements. Recording defendants’ statements
electronically is especially valuable (Sullivan, 2012). Recordings provide a
more accurate and complete record than oral or written statements and
document the Miranda warning. They also protect interrogators from charges
of coercion or improper techniques and enhance the likelihood that the
statement will be admissible. Brooklyn’s video statement program highlights
what most patrol officers and detectives already know: DV defendants will
talk, and when they talk, they have a lot to say. Nearly 4 out of 5 DV
defendants in KCDA’s video statement project made substantive statements.
The New York City Police Department is obtaining comparable results in
their own video statement project; since March of 2011, detectives from the
67th Precinct in Brooklyn have successfully obtained videotaped admissions
from the majority of DV defendants arrested for felony assaults. In recognition
of these results, NYPD recently launched an initiative in Brooklyn requiring
patrol officers to seek to obtain post-Miranda statements (oral and written)
in DV arrests, resulting in a noticeable increase in the documentation of such
statements in the first 4 months.
118 R. R. Peterson and D. Bialo-Padin

Police departments should also establish programs to obtain state-

ments from victims. If not already required, a form should be created to
record spontaneous statements, victims’ physical condition and emotional
demeanor, and to allow victims to make a written statement at the scene of
the incident. All 911 recordings, which may include spontaneous statements
by the victim, should be preserved and made accessible quickly and easily
to investigating officers.
To establish the nature and extent of injuries, police officers should have
cameras available for photographing victim (and defendant) injuries as well
as property damage. These photographs should be made available quickly
and easily to prosecutors for use at arraignment, as well as at subsequent
hearings.

Recommendations for Police Officers and Detectives

Make a record of all spontaneous statements made by defendants. After Mi-
randa warnings, ask the defendant to make a statement. If a video statement
is not possible, ask the defendant to write a statement, or take notes on oral
statements.
Document all spontaneous statements made by victims. Ask the victim
to write a statement and sign it. Encourage the victim to include in the
statement a description of any of the defendant’s prior acts of DV in the
relationship. If the victim does not want to write a statement, take notes on
any oral statements she makes. Obtain alternate contact information from the
victim, so that she can be easily reached (this is important when the victim’s
phone has been destroyed, or when she is compelled to move as a result of
the violence).
Have a camera available when responding to DV incidents, and take
photos of injuries—both the victim’s and the defendant’s. Document, with
photos if possible, any property damage, so that the nature of the altercation
is accurately captured. Record information about any EMS assistance pro-
vided at the scene, whether the victim (or defendant) was transported to the
hospital, and the name of the hospital, if known. Collect additional corrob-
orative evidence needed for specific types of cases, such as strangulation or
stalking. Identify and take statements from any third-party witnesses, includ-
ing children or other family members at the scene, neighbors, bystanders,
etc. Obtain contact information for future use by prosecutors. Be sure to
recover weapons at the scene, including any household items that may have
been used as weapons.

CONCLUSION

The past 20 years have seen a significant improvement in evidence collec-

tion in DV cases in many jurisdictions (the availability of cameras, accessible
 Domestic Violence Is Different 119

databases of protective orders and digital photographs, mandatory documen-

tation of police response to incidents of DV). However, the perception or
assumption by law enforcement that evidence collection is not as important
in DV cases as it is in other crimes seems to persist. There is still a struggle
to change the culture not just in the community and the court room, but in
the local police department as well.
Even after substantial efforts to improve evidence collection in Brook-
lyn, the percentage of post-Miranda statements taken by police is signifi-
cantly larger when a crime is committed against a stranger as opposed to
an intimate partner. Given that the results of both NYPD’s and the District
Attorney’s office’s video statement programs demonstrate the willingness of
DV defendants to talk to law enforcement if given the opportunity to do
so, why aren’t these defendants routinely questioned by law enforcement?
Is greater importance placed on obtaining defendant statements in stranger-
on-stranger crimes as opposed to DV cases, and, if the answer is yes, then
why? From a prosecutor’s perspective, such evidence should be collected in
all criminal cases, regardless of the nature of the relationship between the
parties.
When a crime is committed against a stranger, the questions for law
enforcement and the jury will be: Has the right person been arrested? Is this
the person who committed the crime? Has the victim accurately identified
the perpetrator, or is she confused or mistaken in her identification? At
trial, the focus will be on the victim’s recollection and description of details,
demonstrating her ability to accurately observe and remember circumstances
of the crime. Perhaps the importance of confirming or corroborating the
victim’s identification of a stranger prompts the police to collect defendant
statements and physical evidence to corroborate the victim’s identification of
the perpetrator and to reassure the jury.
When a crime is committed between parties who are known to each
other, identification is no longer as much of an issue, but evidence collection
is no less important. The focus shifts from identification to what happened:
Does the fact that the perpetrator and the victim have a shared history mean
that the victim has a motive to lie? At trial, the defense will use everything
they know about the victim to attack her or his credibility during cross-
examination. And absent corroborative evidence, the jury will be quick to
accept the idea that a victim has a motive to lie (consider, for example,
stereotypes about divorce court and family court).
Collecting evidence to obtain a conviction in a nonfelony DV case sends
an important message to the defendant and documents the offense for the
prosecution of any future DV offenses. When low-level offenses are success-
fully prosecuted, defendants are monitored and held accountable for their
actions. Their convictions establish a record that may be used in subsequent
cases, or may increase the penalties for future convictions. Prosecution of
120 R. R. Peterson and D. Bialo-Padin

low-level offenses provides an important opportunity to discourage defen-

dants from continuing or escalating the violence, and may possibly prevent
future homicides.
Recognizing the complicated issues raised by DV cases and the limita-
tions of the criminal justice system to address them, we have emphasized the
importance of evidence collection in these cases and provided recommenda-
tions for police departments and police officers to improve the collection of
evidence. The recommendations are based on both practical experience and
research. We hope they prove useful in making changes to police practices
and that they encourage police departments and police officers to develop
new strategies for evidence collection in DV cases. Ultimately, of course, we
hope that the recommendations contribute to saving lives and preventing
injuries.

NOTE

1. This analysis excludes cross-complaints, which are difficult to prosecute and rarely end in
conviction, as well as cases in which the defendant was never released prior to disposition, which are
easier to prosecute and usually end in conviction (Peterson, 2012c).

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