I never read a textbook on how to have a sit-down with a family violence victim. I never took a law school course about the delicate nuances of interacting with folks who are fragile or frightened or fighting me—or all of those at once. I never heard any learned professor pontificate on the history of attorney-victim dialogue, reverently noting the watershed moments of enlightenment that dragged our Western legal tradition out of the murky depths of barbarism and into a refined contemporary model of effective interviewing. And I can’t give any of that to you now if you’re in the same boat. What I can do, though, is tell you some of what I’ve learned the hard way about interviewing victims.
Doing your homework before an interview is absolutely essential, which means insisting on a format where preparation is possible. Although victims will regularly show up at court hearings or your office unannounced, it’s best to insist on a later appointment unless this one represents a fleeting opportunity to make contact with someone you’ve had trouble finding. At the very least, have them speak with an advocate or investigator while you get ready.
Postponing the interview gives you the opportunity to thoroughly review the case beforehand so that you know all of its details and quirks. Look at the photos, listen to the 911 recording, and take a close look at any other evidence you have. You need to know what to follow up on and be able to tell if she’s1 lying to you. In fact, take the time to learn everything you can about the victim, the defendant, and their relationship outside of the case at hand. What’s their history? What are their criminal histories (including the victim)? Are children, job security, mental health, or any other issues likely to be in play? Try to answer these questions yourself before you meet with her.
Also think about where to conduct the interview. Ideally, it should be a clean, quiet, well-lit place with enough room for comfort. Try to avoid spaces with a lot of distractions, from foot traffic to noise to bold decorations, and steer clear of environments that are overly formal. Even your own office isn’t ideal if it puts you behind a clunky desk. You want to be able to sit close to the victim with no obstructions between you. If you usually take notes on a laptop, scrap that and use a notepad if that’s feasible, or better yet, don’t take notes at all if you don’t have to. And do actually sit; standing over the victim isn’t going to make you seem approachable.
Block off enough time for the interview and hold off on answering calls, texts, or emails—the victim shouldn’t feel as though you’re ignoring or sidelining her concerns. Finally, recruit a victim advocate, investigator, or preferably another attorney to attend the meeting with you. Another person will provide an additional perspective during your talk in case you overlook something, and they can back you up if a dishonest victim accuses you of doing anything inappropriate. If you don’t have access to a “second chair” for the interview, then at least record it, which you can do with or without the victim’s knowledge or permission.2
All this planning might make it seem like an interview is some stiff, formal affair, but it’s just a talk you’re trying to be smart about. I look at this interview as really three mini-interviews (which I’ll explain further), each with its own focus, and it needs to start like any conversation: introduce yourself, shake hands, make small talk, and relax. Don’t go overboard—the victim isn’t your buddy—but the interview isn’t going to be effective if you don’t establish some rapport in the beginning.
Once you’re ready to get down to business, ask the victim to tell you how things started (that is, what was going on that day that led up to the crime) and have her take it from there chronologically. I call this the “first interview” because it, well, comes first and because it goes straight into what happened on the day of the offense. Don’t go into the background of the relationship before the crime or what’s happened since; doing that now can distract the victim with thoughts of happier times, which might make her think twice about cooperating with you. Just ask her to tell you what happened and then let her. For now, you absolutely shouldn’t interrupt, no matter how important your question or comment is.
Keep in mind that this is just the first pass through the story—pay attention to the big picture. What does the victim emphasize? What sticks in your mind about her recollections? How’s she going to come across to a jury? Get a handle on the broad strokes and make note of the things you want to follow up on.
Unanswered questions and small details are what the “second interview” is all about. Loop back to the beginning, right where she started her narrative, and tell her you want to make sure you understood everything she told you. Then repeat her story back to her and ask open-ended questions as you go so that you really get a clear picture of what happened; never just assume you got it right. For example, you might ask, “Earlier, you said that he grabbed you by your shoulders as you were walking into the house. Where was your purse then and what happened to it?” Clarify the sequence of events and the particulars that might be important during trial.
This is a great time to review any evidence you’ll introduce through the victim. If you’ve got pictures you’re going to ask her about, show them to her and explain exactly how it’ll work. If you’ve got medical records that she’s going to say something about, make sure she’s comfortable reading, understanding, and pronouncing everything you’ll be going over. Have her do some tactile work, too. She should draw a map or diagram of the place things happened so she can show you where everyone was as things progressed. It might be useful for her to create a simple timeline or even write out how things happened so that it clears up any confusion. All of that will help her memory and your understanding.
Once you’ve gotten through the victim’s narrative twice, you’re ready for the “third interview”: everything surrounding the crime. Tell her you’d like to talk about how things got this bad, and ask her to go all the way back to how they met and take it up to the present. Be sure you know exactly what sort of interaction they’ve had since the crime and what issues are out there—child custody, residency status, employment issues, and so forth.
Also cover cross-examination. If trial is the endgame here, prepare the victim for a defense attorney attacking her story and her credibility. Be sure to couch it in those terms—that you believe her, but that the defense will be trying to make her look like a liar. With that caveat, you can really go after every issue in her account of things: “The defense is going to say that there was no way he was strangling you for that long because you would’ve passed out. How do you explain that?” Give her some guidance about how to respond to defense tricks and emphasize how important it is for her not to become angry or confrontational during cross. She should also be warned about embellishment. It’s easy for a victim to exaggerate without even meaning to when she feels like someone else is diminishing her experience, so make sure she knows to keep that in mind.
When the three interviews are complete, it’s “what’s next” time. Tell her what to expect as far as the timeline of the case, upcoming court settings, subpoena service, and the like. And find out what’s next for you. Can she bring you any additional evidence? Are there other important witnesses (including for punishment) whom you don’t know about but she can put you in contact with? Don’t conclude an interview until both of you know exactly what the game plan is.
The subtle stuff
If everything above is what to talk about, there’s still a lot to be said for how to talk about it. Your first consideration is your tone throughout the interview. For you, this is a conversation with just another victim; for her, it’s one of the most important things going on in her life, with real consequences that are going to stay with her long after you’ve moved on to another trial. Make sure you adopt her perspective and that it comes across in how you treat her. On the other hand, you need to temper compassion with objectivity if you want to do a good job and command the victim’s respect. No matter how heartbreaking her tale of abuse is, keep your emotions in check or you won’t be in control of the interview.
Improve your communication throughout the interview by paying attention to the way she describes things and responding in kind. Some call this “mirroring.” Make an understated shift in your style, cadence, and word choice to match whatever she’s doing. Don’t do anything silly—no fake accents or inauthentic slang—but do try to adjust. Also, use sensory language when asking questions, and try to key in on the descriptive mode she’s using most frequently. If she’s always talking visuals, ask how things looked; if she keeps discussing emotions, focus on how things felt. These cues will help her remember more of the information you might be looking for.
Sometimes, what the interview needs to cover is traumatic and difficult for the victim to talk about. When you broach those topics, don’t drag her through a gauntlet of distressing memories unnecessarily. You don’t want to “waste” tears in an interview room when they should be in front of a jury, and that’s a real risk: The more times she tells her story, especially in detail, the more comfortable she’ll become telling it. You as a prosecutor might recognize a victim who’s numb to the pain on the stand, but a jury might see a flat affect that seems dishonest. When you’ve got a tough topic, carefully tailor your questions to get out only the information you need, even stopping her narrative if necessary. This is an exception to the “don’t interrupt” rule from earlier. You might even need to go away from the story into something mundane as a bit of distraction to calm her down before returning to the gritty details. Use a delicate touch.
That should be a solid foundation for interviewing some family violence victims—the whopping 15 percent who are cooperative. Unfortunately, the vast majority are going to be uncooperative or even outright hostile. Explaining why would take a lot more space than I’ve got, but it’s worth learning about elsewhere—it’ll definitely make you care more about these cases. What matters here, though, is that most victims are going to be against you.
If you have a victim who doesn’t want to talk to you at all, then all you can do is try to change her mind. Empathy and respect are the keys to unlocking that door. Failing that, subpoenas, writs of attachment, and material witness warrants are ways to batter it down if you have to. When you do get a conversation going, the principles above are still applicable, but there’s an additional playbook you’ll need to be effective with antagonistic victims.
It goes all the way back to setting up the meeting. An outright refusal to talk is relatively rare; as soon as a victim decides she doesn’t want to prosecute, she’ll probably want to tell you about it. But wait until very close to your trial day. That way, if you convince her to cooperate, it has a good chance of “sticking.” (If you flip her to your side six months before trial time, she’ll have flipped back by then.) Waiting until you have a firm setting is also best because you can serve her with a subpoena for trial if you still want her to testify. Wait until the end of the interview—it’ll just make her angry if you haven’t earned her trust first—but if you get her personally served, she’s more likely to appear and you’ll have the option of applying for a writ of attachment if she doesn’t. (See the article on page 27 for more on writs of attachment.) Note too that any recantations constitute Brady material that must be disclosed to the defense.
As you begin the interview, use the same techniques I described above to get her talking. An additional concern here, though, is your safety. It’s rare, but it’s always possible that an angry victim might make the move from verbal hostility to physical violence. Always listen to your gut; if something you can’t quite put your finger on has you worried, end the interview and be ready to call for help in the meantime.
Let her tell her story. As she does, you’ll quickly figure out whether she’s telling the truth (perhaps with some minimization) despite not wanting to prosecute or whether she’s peddling an outright lie. Whichever way she goes, withhold judgment and don’t interrupt. It’s crucial that you listen closely. Most importantly, she might be telling the truth now—maybe the defendant really is innocent. Usually, though, you’ll need to listen for clues about why she doesn’t want to cooperate. You’ve got to get some solid insight into her motivations if you want to make any headway during the interview. Also, keep your ears open for holes in her story because those can be useful later on. (While a desire not to prosecute doesn’t mean anything procedurally,3 some statements do. If at any point during the interview she recants or provides a legal excuse for the assault, such as saying she attacked the defendant first, you’re obligated to disclose that fact to the defense immediately.4)
Once she gets completely through her explanation, delve into everything surrounding the case as the second interview instead of the third. Gather all the information you can to understand her interests and the pressures she’s struggling with, and getting a handle on the background of the relationship is a big part of that. If nothing else, it might yield a treasure trove of impeachment material for when she takes the stand if she remains uncooperative.
The next step requires a bit of a different approach. Like the second interview I talked about before, you’ll still be doing the bulk of the talking here, but this time it’s going to be something of a confrontation. The reasons why she doesn’t want to prosecute will let you know what approach you should take. It might be simple. If she doesn’t want to go forward because she’s worried that the defendant will lose his job or be away from the family serving of a prison sentence, you can undercut that by showing her and explaining the written recommendation you’ve made if it’s for probation.
Often, she’s uncooperative because she still loves the defendant and thinks he’ll change. That’s where a little verbal jujitsu comes in handy: Turn her concerns back around on her. If it’s a probation case, get her to identify the problems in the relationship and show her how community supervision can address them. Probation means that the defendant is going to have to stop drinking, get a job, stay home at night, take care of the kids, attend counseling, and so forth. If this is a case that’s likely to end in prison time, you might need to take her through all of his prior criminal history—the failed opportunities for him to change—so that she appreciates that his own actions (not hers) brought him to this point, that this kind of big wake-up call may be his last chance to become a better man, and that without it you’ll be sitting down with her again soon for the next, worse bout of violence.
When any reason leads her to lie, and especially when her non-cooperation comes from the defendant’s prodding, confront her with the consequences of lying and proof of the truth. This takes some finesse to do conscientiously—there’s a fine line between protecting a victim and threatening her. Your office will have to decide its policy on prosecuting recanting victims for false report or perjury. Given the rock-and-a-hard-place situation that family violence victims are often stuck in, my position has always been that it’s wrong to prosecute real victims, regardless of what they say, but it’s imperative to punish real liars who actually make false accusations. If you think a crime happened, don’t victimize her again. If you don’t, then this “victim” is undermining our entire system of justice and you ought to go after her with everything you’ve got.
When you have a true victim who’s changing her story, it’s perfectly fine to explain the possible consequences of false report or perjury to her. Make sure she knows that you don’t represent her and that she should consult with her own attorney (not the defendant’s),5 and never directly threaten to charge her with anything.6 Instead, put the focus back on the defendant. Emphasize that things are this way because of his choices and actions then sweep aside her lies and excuses using the evidence you have. Recantations rarely take into account that the emergency call was recorded, that officers took pictures of the injuries, and that there’s a police report documenting everything. Show her systematically what you’ve got and how it disproves her lies, and don’t let her come up with new ones. She’ll soon start trying to refine, qualify, or expand on her story, and you need to cut off these new denials immediately or you won’t get anywhere. Point out that her children deserve the example of a mother telling the truth and standing up to abuse, that you know what really happened given the evidence you have, and that you want the whole truth from her now. Does she really want to risk getting in trouble for a man who hurt her? If you’re convincing, her answer will probably be “no.”
Again, you can serve her with a subpoena for trial at the conclusion of the interview if you want, but the next steps depend on how things went. If she’s had a change of heart and wants to prosecute or if she tells the defendant about the recommendation (which his attorney may not have done accurately for any number of reasons), you might find the case turning into a plea. Take extra care to explain the trial process to her, though, to make her as comfortable as possible with her reluctant testimony. If she doesn’t change her mind (and even if she does—it might change again!), assume that what she’s told you will be a big part of the defense’s case at trial and prepare for it.
These techniques may or may not get an uncooperative victim on your side. You’ll have a lot better chance of turning her around, though, if you acknowledge the impossible situation she’s in, both explicitly and through your tone and demeanor. She’s under an incredible strain already, and if you’re going to ask her to hop onto an emotional rollercoaster, you can’t push her—you’ve got to hold her hand and make her feel like it’ll be OK. Family violence victim interviews are some of the most difficult you’ll ever have, so put in the effort they deserve and don’t abandon common sense. If you give some real thought to your approach, listen to your instincts, and connect with the victim as human being, then what seemed like an obstacle will absolutely become an opportunity.
Editor’s note: For more information about dealing with family violence victims, see Family Violence Investigation & Prosecution by Ellic Sahualla and Patricia Baca (© 2012), available at www.tdcaa.com.
1 There are lots of male victims. Abuse in the home isn’t restricted to any gender, race, sexual orientation, or religion, and all victims deserve recognition and justice. However, the fact remains that the overwhelming majority of family violence victims are female, so this article will use those pronouns rather than sacrificing readability on the altar of gender-neutrality.
2 Texas is a “one party consent” state. Tex. Pen. Code §16.02; Tex. Civ. Prac. & Rem. Code §123.001(2); see generally Tex. Code Crim. Proc. art. 18.20 (providing relevant definitions). In other words, if you’re a party to a conversation and you consent to its recording, you don’t have to get permission to record from anyone else who’s involved.
3 See Easterling v. State, 710 S.W.2d 569, 574 (Tex. Crim. App. 1986) (victim’s desire not to prosecute was inadmissible at trial); Iness v. State, 606 S.W.2d 306, 310–11 (Tex. Crim. App. 1980) (Brady doesn’t require disclosure of inadmissible evidence).
4 Ex parte Johnson, No. AP-76153, 2009 WL 1396807, at *2 (Tex. Crim. App. May 20, 2009) (not designated for publication); see also Ex parte Zapata, 235 S.W.3d 794, 794 (Tex. Crim. App. 2007) (plea involuntary where no notice of victim recantation given in sexual assault case). Note that this doesn’t apply to potential impeachment evidence, such as information that might show bias—that only needs to be disclosed if and when you go to trial. United States v. Ruiz, 536 U.S. 622, 633 (2002); Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000); Johnson, 2009 WL 1396807, at *2.
5 See Tex. Disciplinary R. Prof’l Conduct 4.03 (describing duties towards unrepresented persons).
6 If you do, that gets awfully close the prohibition against tactics used solely “to embarrass, delay, or burden” potential witnesses or “methods of obtaining evidence that violate the[ir] legal rights.” Id. 4.04 (a).