By Philip McLemore
Assistant District Attorney in Brazos County
From 2019 to 2021, I was an intake attorney tasked with reviewing the family violence cases presented to our office. What follows in this article are some lessons I learned—or that were reinforced—during that time of reviewing probable cause statements and warrant requests, discussing investigations with officers, and presenting cases to grand juries. I make no warranties or promises that applying these lessons will make prosecuting family violence cases easy, but I will warranty and promise that applying these lessons will better position prosecutors to see that justice is done in arguably some of the most difficult cases we will ever be assigned.
Family violence cases age like bottles of fine wine—bottles that have been left outside in the Texas sun. As we recognize this reality, it is important to collect as much evidence as possible at the time an assault is reported to better equip prosecutors to see that justice is done. I cannot stress enough the importance of explaining to officers why we need that evidence, training them on how to best collect that evidence, and consistently expecting that evidence. To paraphrase Benjamin Franklin, an ounce of effort during intake is worth a pound of argument at trial.
Lesson One: Assume the victim will be uncooperative.
The one question that pervades the conversation about family violence prosecution more than any other has to be, “If she doesn’t want to prosecute, why should we?” In fact, that’s the title of an article that appeared over a decade ago in this very publication. Many factors contribute to a victim’s reticence or resistance to cooperate in the prosecution of her abuser. Internal factors, such as the threshold effect and learned helplessness, and external factors, such as financial concerns, separation from friends and family, and fear of what will happen if she leaves can create a barrier to prosecution that may seem insurmountable to a victim.
It is also important to remember that the victim has an emotional connection to her abuser and may have significant history with him. Otherwise, you probably wouldn’t be evaluating a family violence case. She loves him, and, in many cases, he is the father of her children and the breadwinner for the household. This dynamic can make it difficult for a victim to demand punishment when the person on the receiving end of said punishment is someone she loves and relies on.
It is important at this juncture to acknowledge my use of pronouns. We should all recognize that family violence victimizes both women and men. According to the Centers for Disease Control and Prevention, approximately one in five women reported severe physical violence from an intimate partner while one in seven men reported the same. Anecdotally, any prosecutor who regularly handles family violence cases can confirm that the majority of victims are women. In recognition of that reality and to maintain consistency throughout this article, I have elected to present these lessons in the context of female victims and male abusers. However, that election is not intended to diminish the existence of male victims or imply that these lessons don’t apply where the abuser is female.
A victim will never be as cooperative as she is immediately following an assault. Assuming that a victim will be uncooperative and training officers to make that same assumption encourages them to gather as much evidence as possible at the scene. To combat and overcome the challenges that a later-uncooperative victim presents, evidence-based prosecution is of utmost importance to hold an abuser accountable regardless of the victim’s cooperation. And if you ever find yourself second-guessing whether to prosecute a family violence assault case just because the victim is uncooperative, replace the words “family violence assault” with “murder” and ask why the answer to those two questions should be any different. After all, when’s the last time a murder case went unprosecuted just because the victim was uncooperative?
Lesson Two: Evidence-based prosecution requires evidence.
More fully stated, evidence-based prosecution requires evidence that proves each element of the offense beyond a reasonable doubt. Often an on-scene investigation will end shortly after getting a statement from the victim detailing the assault. However, that statement is probably testimonial and inadmissible without the victim testifying later at trial. Assuming that the victim will be uncooperative and that statement can’t be used as evidence, what is left? Potentially a lot if the investigation goes beyond just the victim’s statement.
911 calls. It’s a fair bet that most police responses to family violence assaults follow a 911 call. Get those recordings. They can be a treasure trove of information. If the victim made the call, what was her demeanor on the call? Was she having trouble breathing, scared, crying, coughing, or complaining of pain? What information did she give about the assault? Depending on the situation, the recording of the call may be admissible as a present sense impression, excited utterance, or other exception to hearsay. Those calls are typically nontestimonial and will not raise a Crawford issue. And from an advocacy standpoint, it will be a rare occasion that the testimony of a victim from the witness stand, cooperative or not, will match the genuine emotion captured on that call.
It’s not just 911 calls from victims that can be of use. I reviewed several cases where a neighbor called because they heard a physical confrontation or because the victim came to their residence to escape an assault. Just because a witness didn’t see the assault doesn’t mean they can’t provide any evidence to help prove that an assault occurred. Moreover, many witnesses have no connection to the victim or her abuser and therefore aren’t as susceptible to the defendant’s pressure to drop the charges.
While we’re on the topic of calls, train officers to ask a victim if she called anyone other than the police. Did she call her mom or sister after the assault and tell them what happened? Excited utterances to police are generally testimonial and not admissible without the victim, but her excited utterances to friends or family could be admissible.
Witnesses. Witnesses can also be a treasure trove of information—if someone speaks to them. Get those statements. In addition to the information a witness can provide about the assault, they may have knowledge of prior assaults or relationship history. In the case of neighbors, the incident that prompted them to call 911 may not have been the first time they heard a physical confrontation or interacted with the victim after an assault. Family members may have never witnessed the victim be assaulted, but maybe they have noticed unexplained bruises or behaviors indicative of abuse that now make a lot more sense.
Some witnesses have an uncanny ability to be present during an assault but not see, hear, or remember anything. I handled a case where a defendant shot his girlfriend in the leg as she stood on her porch. Her neighbor took her to the hospital but left before police could speak to her. An officer spoke to the neighbor when she arrived home but was told that she didn’t have much information about the assault. However, because the entrance to her residence was still behind crime scene tape, the officer had her wait in his patrol vehicle until the scene was cleared. Fortunately, the officer also turned on his in-car camera, which captured a phone call between the witness and someone else discussing what happened.
Turned out, not only did the neighbor witness the shooting, but she also described the entire assault during that phone call. She’d been standing near the victim when the defendant shot her and had felt something fly past her own head during the shooting. When we met with her ahead of the trial, we showed her that video before ever asking her a question, and she turned out to be a key witness, albeit begrudgingly. Even “forgetful” witnesses can have epiphanies when presented with their statements.
Medical records. If medics responded to the scene or someone went to the hospital, victim or abuser, get those records. Medical personnel may observe signs of an assault that are not visible, especially in the instance of a strangulation. A victim may provide more details about an assault to medical personnel than she did on scene. After all, there’s a logical reason Texas Rule of Evidence 803(4) exists. That same logic is also why prosecutors can call medical personnel to testify to what a victim told them.
In the case of the abuser, you may just learn that that injury he claimed was from the victim attacking him isn’t all that fresh or the explanation for his injuries he gave to medical personnel is different from what he told officers. His statements are admissible as party-opponent admissions.
Jail calls. I am convinced that next to every inmate phone in the jail is a script for abusers to follow when calling their victims—it would be comical if not for the tragic circumstances. An “I’m sorry” followed by a gaslighting technique or two with an “I love you” sprinkled here, there, and everywhere to distract from his efforts to blame the victim for the assault. These calls usually end with the abuser donning the martyr’s crown while lamenting that he’s going away forever unless she drops the charges. Get those calls. A victim may be able to eloquently testify about her abuser’s verbal and emotional abuse, but even the most eloquent testimony pales in comparison to hearing that verbal and emotional abuse come directly from the abuser’s mouth, even when he knows he’s being recorded.
Be forewarned, family violence abusers can be prolific jail callers. An abuser needs to control his victim, and his ability to do so is hampered while he takes up residence in jail leaving little else but phone conversations for him to exert that control. Focus on calls made shortly after the arrest and before and after important court settings. If a defendant is going to ignore the warning that his calls are recorded, it will most likely be on those occasions.
Photos. Photos can be either the best pieces of evidence or the most frustrating. They can show the redness, scratches, and finger impressions on a strangulation victim’s neck that the officer observed on scene. They can also show none of the redness, scratches, or finger impressions that the officer observed on scene. Maybe it was poor lighting, a bad angle, or a smudged lens. Or, as is most often the case, it’s simply because what we see with our own eyes is rarely captured as vividly in a photo. Regardless, get those photos. If they show the victim’s injuries, you have powerful evidence. If the photos do not show the victim’s injuries, you still have the officer’s observations of those injures. Sure, you’ll have to address why the photos don’t clearly depict what the officer clearly saw, but that doesn’t mean the victim didn’t have clear injuries or that the officer didn’t clearly see them. Otherwise, why would the officer have bothered to take the photos?
Photos are important even when the victim is uncooperative on scene. It is not an uncommon occurrence to read in a report that no photos were taken because the victim refused to cooperate. Have officers take photos even if the victim tries to obscure or hide the injuries they’re trying to photograph. If there’s nothing to hide, what’s she covering up? Even if those photos don’t capture her injuries, they can help to capture the emotion of the situation.
An important grammar note: Photos is the plural form of photo. You want multiple photos of the victim’s injuries and the scene. Gone are the days of Kodak Instamatic cameras with a flash stick or 12-exposure disposable cameras. So it would always confuse me when I received a case to review with scant photos as if there was a mandatory rationing of digital images I was unaware of. No one is asking or expecting officers to double as professional photographers, but we do need to impress on officers the need for multiple photos of the victim’s injuries from multiple angles.
Same goes for photos of the scene. Photos preserve the scene and limit the ability of a defendant to later describe a scene different from the one responding officers walked into. Photos will show the hole in the wall where a defendant punched it with his fist or the dent where the victim was pushed into it; overturned furniture or knocked-over items that evince a physical struggle; or just the layout of the location where the assault occurred. If there are photos of the scene to show jurors, they have a single scene to picture rather than six or 12 different scenes created in the mind’s eye of each individual juror.
I would be remiss if I didn’t also mention photos of the victim taken in the days after the assault. Either taken by the victim, a friend or family member, or by someone during a follow-up interview, those photos will often complement the photos taken on scene. A reddish bruise the day of the assault may have turned purple or yellow. Scratches or lacerations may have scabbed over. Inflammation or swelling may be more pronounced. In addition to showing the progression of the victim’s injuries, those follow-up photos are taken under far less stressful conditions for both the victim and photographer than those taken on scene, which can result in far better photos.
The more evidence you can gather, the better off you’ll be—because you’re going to hit dry holes. According to the American Oil & Gas Historical Society, despite advances in seismic surveys, geology, and petroleum engineering, more than one-third of modern exploration wells, each costing millions of dollars to drill, end up as dry holes. Family violence prosecutors, too, will hit dry holes. A deleted 911 call, witnesses who didn’t witness, medical records that say a lot but tell us nothing, a defendant who heeds the warning that all jail calls are recorded, or photos taken with the beer-goggle filter turned on. In these cases, the dry hole rate will probably exceed the one-third threshold. Keep drilling because you’re not seeking profit, you’re seeking justice.
Lesson Three: Photograph with a camera and paint a picture with words.
A picture can be worth a thousand words, but you need words too. This is especially true in strangulation cases. Many of the signs and symptoms of strangulation will never show up in a photograph. Difficulty or the inability to breathe, seeing stars, or an urge to urinate or defecate during an assault will never be captured in a photo. A raspy or hoarse voice, dizziness and headaches, or a loss of memory while speaking to an officer will never be captured in a photo. Yet all of those are important signs and symptoms of strangulation. Painting a picture of a victim with words is important, particularly where outward injuries are minimal or non-existent.
This isn’t limited to strangulation cases. The behavior and demeanor of the victim and abuser are important aspects of the investigation that cannot always be adequately captured in a photo. Was her voice quivering or did she break down crying as she recounted the assault? If her abuser was still on scene, did she continue to glance in his direction fearfully or to check if he could overhear what she was telling the officer? Did the abuser claim that he was the victim but act in a way inconsistent with someone who had been assaulted? These non-photogenic observations are the glue that connect the photos, videos, recordings, statements, records, and other items we naturally gravitate to as evidence to prove a case.
Lesson Four: Look people in their optic stems.
Whether it’s a result of increased caseloads, a response to the events of the past couple of years, or a combination of the two, during my time in intake I noticed an uptick in the number of interviews conducted with victims, suspects, and witnesses alike over the phone. That uptick was accompanied by an uptick in the number of cases submitted for review that contained some variation of the following: “I called [X] and left a voicemail. I have not received a call back. I am now submitting this case for review.”
On those occasions where phone contact was made, I always thought back to The Office episode entitled “The Secret.” For those of you not familiar with that episode, Dwight Schrute is tasked with investigating whether one of his co-workers, Oscar Martinez, is faking sickness to get out of spring-cleaning day (in January) at the office. After calling Oscar multiple times, Dwight explains:
There are several different ways to tell if a perp is lying. The liar will avoid direct eye contact. The liar will cover part of his or her face with his hand, especially the mouth. The liar will perspire. Unfortunately, I spoke to Oscar on the phone so none of this is useful.
Despite our knowing that in-person interviews are far superior, phone interviews are becoming more and more commonplace. Surely no one would argue that a good investigative technique is to call a suspect in an aggravated robbery to ask if he is the person on the video with gun in hand pointing it at a teller demanding money from the register. Or to call a victim of sexual assault and have her describe over the phone one of the most violative acts that could be perpetrated upon a person. Should that same mentality not also apply to family violence cases?
As Dwight comically observed, so many investigative tools are useless during a phone interview. What nonverbal cues was the person giving? If speaking to a victim, was her abuser standing there telling her what to say or influencing how much information she provided? Did the suspect, who was no longer on scene when officers arrived, have any injuries that would corroborate the victim’s statement?
There will be instances where an in-person interview is either not possible or not necessary, but the expectation should be that those instances are the exception, not the norm. Did I get pushback when I told officers I needed them to speak to people face-to-face before presenting their cases? All. The. Time. But I was always open about why that was my expectation. To the credit of many of those officers, they acknowledged the superiority of in-person interviews, especially when it came to family violence investigations, and they endeavored to speak to victims, suspects, and witnesses in person.
Another area where this lesson is important is victim contact by victim assistance coordinators (VACs). Victims often call our office asking to get family violence charges dropped, and our response has been to schedule a time for the victim to meet with our VAC in-person to discuss the case and sign a non-prosecution affidavit (NPA). This in-person meeting serves multiple purposes. First, you would be surprised how many abusers (or their mothers) “accompany” the victim to our office to get charges dropped, which we wouldn’t notice if that meeting was done over the phone. Not to mention, if there are bond conditions that prohibit the defendant from having contact with the victim, there’s now evidence of a new offense.
Our VAC also uses this conversation as an opportunity to complete a standardized Family Violence Information Sheet. She doesn’t challenge the victim on her answers but rather lets her tell her side of the story, both good and bad. The purpose of the conversation is not to guilt the victim into being cooperative or to build a false report case. It builds rapport and we learn what the victim’s motivations are for wanting the charges dropped, and it often lets us know what the defense case will be.
On that note, do not be afraid of the NPA. An NPA doesn’t mean the assault didn’t occur. It doesn’t mean the case can’t be proven. It doesn’t mean that the victim doesn’t really want the case prosecuted. Our VAC often learns through her conversations with victims that they aren’t motivated to sign an NPA because they don’t want anything done. Often a victim is being pressured to sign an NPA and doing so can ease that pressure. Signing an NPA allows her to tell her abuser that she’s done everything she can to get the charges dropped and put the blame on our office for continuing to pursue the case. It can create some modicum of peace and safety in a situation where a victim hasn’t left her abuser. An NPA can be a shield for a victim, so let her wield it.
Lesson Five: Remember the children (and witnesses) and come to your senses.
Show of hands, who’s read something akin to this in a family violence report: “[Victim] said that her kids were in the house but didn’t witness anything” followed by nothing about what the kids say they saw. Or heard. Or know.
In another case I reviewed, officers responded to an assault call and spoke to a witness who’d been staying at the house and heard the victim and defendant arguing downstairs. As he walked down the stairs, he heard the victim gurgling and making squeaking noises. However, by the time he made it downstairs the defendant had already walked away from the victim and she told the witness that the defendant had just choked her. The victim’s son had also heard the argument and overheard the defendant tell his mother that he would kill her and put her in the ground. Neither person was an eyewitness to the strangulation, but both provided valuable evidence that she was strangled.
Less than a month after the assault, the victim met with our VAC to get the charges dropped. She said that she started the fight by “poking the bear,” that he was just trying to calm her down but didn’t strangle her, and that what she reported on scene was said out of anger because she wanted the defendant to go away. Had the officers not spoken to the witnesses that evening and gone beyond asking about what they saw, it is less likely that this defendant would have been held accountable for assaulting his girlfriend. In part because they did, this defendant pled guilty, cannot have contact with the victim, and now has an affirmative finding of family violence.
Any parent knows that children pick up on far more than we realize. They see and hear things we thought were kept hidden from them. Often their honesty about what they have observed is delivered with straightforward, descriptive language that creates an image no camera could ever adequately capture.
Several years ago, I was in trial on an Evading with a Vehicle case connected to a family violence charge. The defendant had gone to his ex-girlfriend’s house in violation of a protective order and taken their three kids, all under the age of 10. He piled them into the back of his van without any seatbelts or car seats and drove away. When officers located the van, the defendant evaded before wrecking into a ditch. The defendant’s son testified at trial and described how his grandfather, who was recovering from a stroke, tried to stop the defendant from taking him and his sisters and said that his father had driven like a NASCAR driver. The jury had already seen the in-car video of the pursuit, heard the testimony of the grandfather and ex-girlfriend, and seen photos of the children crying in the back seat of a patrol vehicle, but even the defendant recognized the power his son’s words had on the jury and asked to change his plea to guilty mid-trial.
Never underestimate the importance and power of the information a child, or any witness, has even if they didn’t see the offense. And never forget that, while a child may not be a named victim in a family violence complaint or indictment, children are victims in family violence situations, too. Give children (and witnesses) a voice and then listen to them.
Lesson Six: What we fail to learn from history is that we fail to learn from history.
In my life before law, I was a high school history teacher. History is a subject that jockeys for first place with math on any most hated or most boring school subject list. Whether you hate it, are bored by it, or both, history is important. Important to know, important to learn, and important in family violence cases. Over 40 years ago, Dr. Lenore Walker wrote The Battered Woman in which she defined the cycle of violence. She wrote that there are three phases of the cycle—tension building, acute explosion, and honeymoon. Law enforcement usually responds during the second phase. If we know the cycle, then we need to learn what happened during all three phases.
A useful guide for learning that history is the power and control wheel. Is there a history of the abuser destroying the victim’s property, isolating her from friends and family, or limiting or preventing her access to their finances? To be fair, no officer will ever have enough time to do a deep dive into the history of the relationship while on scene. They’re there to investigate an assault and make sure no one is in further danger, but that doesn’t mean that they can’t begin sketching an outline of the relationship history to be filled in later. This can be accomplished by having officers complete a standardized Domestic Violence Supplement and Lethality Assessment, which can provide useful information, such as whether there have been prior assaults, identifying information for any children or witnesses, and if the victim is in high danger. That information can then be used to guide any further investigation so that prosecutors and VACs can fill in that relationship history.
Another necessary step in learning from history is to review historical sources. In the family violence context, that means learning about the dynamics of the relationship and any prior criminal behavior of both the abuser and victim. Friends and family members, even if they’ve never witnessed an assault, may have important information about the relationship. Has their contact with the victim been limited or cut off since she began the relationship with her abuser? Does the abuser treat her more like a servant than a partner? Have they witnessed forms of abuse other than physical, such as belittling comments or mind games? Friends and family members are usually aware, or at least suspect, that a victim is in an abusive relationship before a physical assault is reported and can be good historians for those tension building and honeymoon phases. That information, as well as expert testimony about the cycle of violence and the power and control wheel, may be admissible under Texas Code of Criminal Procedure Art. 38.371.
Prior reports can provide a historical record of the abuser’s criminal behavior, particularly any prior assaults, but prosecutors also need to know whether the victim has anything in her past that could affect the case because rest assured that her abuser will let his attorney know. A victim with criminal history doesn’t necessarily devastate the case, and it certainly doesn’t make her any less a victim. Family violence abusers will seek out those they can control, and who better to control than a someone the abuser can readily discredit because of a criminal past? Both history and abusers tend to repeat themselves, so make sure to have the latest edition of the textbook.
Family violence cases can be some of the hardest and most frustrating cases to prosecute. There are only so many times you can bang your head against that wall before you start to question if any of your efforts matter. Applying these lessons won’t make that wall any softer, but my hope is it’ll help answer the question. To paraphrase a quote oft-attributed to George Orwell: Would-be victims can sleep safely in their beds only because police and prosecutors stand ready to visit justice on those who would do them harm. Stand ready.
 Dr. Michael Vandehey & Shelly Wilbanks, “If she doesn’t want to prosecute, why should we?,” The Texas Prosecutor journal, September–October 2010.
 See id.
 Preventing Intimate Partner Violence, Centers for Disease Control and Prevention 1 (2021), www.cdc.gov/violenceprevention/pdf/ipv/IPV-factsheet_2021.pdf.
 See William Knight & Allenna Bangs, “Taking a closer look at intimate partner violence,” The Texas Prosecutor journal, March–April 2021, at 18 (“[I]n the family violence realm, [evidence-based prosecution] refers to creating a case without a complaining witness”).
 See Phyllis Niolon, PhD et. al., Preventing Intimate Partner Violence Across the Lifespan: A Technical Package of Programs, Policies, and Practices, Centers for Disease Control and Prevention 10 (2017), www.cdc.gov/violenceprevention/pdf/ipv-technicalpackages.pdf (“Data from U.S. crime reports suggest that 16 percent (about 1 in 6) of murder victims are killed by an intimate partner, and that over 40 percent of female homicide victims in the U.S. are killed by an intimate partner”).
 Davis v. Washington, 547 U.S. 813, 822 (2006) (“[Statements] are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution”).
 Id. (“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency”).
 B.A. Wells and K.L. Wells, First Dry Hole, American Oil & Gas Historical Society (last updated Jul. 15, 2022), https://aoghs.org/technology/first-dry-hole.
 See Signs and Symptoms of Strangulation, Training Institute on Strangulation Prevention, www.familyjusticecenter.org/wp-content/uploads/2017/12/Signs-and-Symptoms-of-Strangulation-2017.pdf.
 “The Secret,” The Office, NBC television broadcast Jan. 19, 2006.
 See Tex. Penal Code §25.07.
 See, e.g., Blake Griffin Edwards, “Alarming Effects of Children’s Exposure to Domestic Violence,” Psychology Today (Feb. 26, 2019), www.psychologytoday.com/us/ blog/progress-notes/201902/alarming-effects-childrens-exposure-domestic-violence.
 Step by Step Guide to Understanding the Cycle of Violence, https://domesticviolence.org/cycle-of-violence (last visited Jul. 27, 2022).
 Power and Control Wheel, Domestic Abuse Intervention Project, www.theduluthmodel.org/wp-content/uploads/2017/03/PowerandControl.pdf. See a further discussion of prosecuting family violence cases and the Power and Control Wheel in Family Violence by Staley Heatly (TDCAA © 2020), available for purchase at www.tdcaa.com/product/family-violence-2020.