Tips for Trying Family
Violence Cases to
Judges and Juries
Dana Nelson
Assistant District Attorney
Travis County, Texas
Dana.nelson@co.travis.tx.us
Dana’s Motto
 Has
a crime occurred?
 Can I prove a crime occurred?
 Should I prove a crime occurred?
Proof for Trial:
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
Identify Defendant
Identify Victim
Manner and Means
Injury
Other witnesses
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Statements by D
Tangible evidence
911 recording
Prior FV history
D’s conduct after
FV Expert
Evidence of offense is credible and corroborated
Identify Defendant and Victim
 Defendant



Photo of D from scene
V’s statement of name and relationship
Other witnesses: past g/f of D or relative of V
Victim
-
-
Someone who will always know how to
contact
All ways to contact: email, cell, pager, work
Witnesses:

Who called 911?
 Who was present for any part?
 Children



Use their excited utterances
Safety concerns if testify at trial
ALL officers at scene
 Who translated?
 Emergency Medical Treatment/Firefighters
Tangible Evidence:
 Hair
that was pulled out
 Use demonstrative version if actual item
not collected
MUTUAL COMBAT IS NOT IN
THE PENAL CODE
Determine the primary aggressor:
1. Offensive v. defensive wounds
2. Do you have both sides?
3. Which version is consistent and
corroborated?
Victim Categories
 Cooperative
 Reluctant
but truthful
 Reluctant but minimizing or self-blaming
 Recanting



Did not happen/ “I lied because…”
Different person committed assault
S/D “I hit first…”
Affidavits of Non-Prosecution
 Use
Office Form
 Accept Defense Counsel Affidavits
 Pre-requisites before sign
 Allege facts?
 Defense attorney for victim at trial
TRIAL
 Jury
Selection
 Jury Charge
Jury Selection
 BE
the Squirrel!
 SCARE UP THE NUTS!!
 Jurors do the talking
 We want jurors to be truthful
 Ask the strike for cause question: The law
is X can you follow that law?
 Listen to panel. Do not try to persuade or
change mind of juror who could be struck
for cause.
Topics to Cover
 State
of Texas v. _______
 Elements of offense
 Credibility of Witnesses
 Circumstantial v. Direct Evidence
 Burden of Proof
 History of Family Violence for panel
member
State of Texas v. ______
 Criminal
v. Civil cases
- Civil cases are for money
- Civil lawyers have to do what their client
wants
- Who does the prosecutor work for?
Opportunity for privacy
 Anyone think State should not be involved
in “family violence”?
Elements of Offense
 Do
elements in context of strangers first
 Pain is enough
 Ask jury to describe how one person can
assault another
 Then narrow down their examples to your
case
 Ask what evidence they would WISH for to
prove those elements. Then identify what
a particular juror would require.
Credibility of Witnesses
 Everyone
on equal ground
 Give them the language: After you hear
about the particular person testifying then
you can give that person more credibility
 HYPO: Has any panel member
interviewed a person for a job? How
assess their credibility in interview? How
verify application/resume?
 Testimony is credible and corroborated!
Credibility of Witnesses
 HYPO
A tourist was robbed in the parking
lot at the mall at gunpoint after dark.
Victim does not want to come back for trial
and is not afraid. State can prove the case
without victim’s testimony.
 Should the State dismiss the case? Why
not?
Circumstantial v. Direct Evidence
 HYPO
Chocolate cake on counter
 HYPO TV news anchor, remember Walter
Cronkite. What they say is hearsay but we
believe it. Why?
Burden of Proof
 Law
does not require State to prove case
a certain way
 Accept our burden – confidence
 Defendant’s right not to testify
 Defendant’s right to subpoena
 Law and Order: No notice of defensive
theory to State
 CSI
 Discovery process
Family Violence History
 “Have
you, your family, friends, neighbors
or co-workers had any experience with
family violence?”
 “Based on your experience can you serve
as a fair and impartial juror?”
 Let victims of family violence be struck for
cause
Panel Busters
 One
Witness Rule
Only ask if you really only have one
witness.
 Prior conviction limiting instruction. Make
the defense handle this one.
Order of Witnesses
 Chronological:
reporting or occurrence
 Start and finish strong: victim?
 Admissible hearsay first
Jury Charge
 Result
of Conduct offense?
 Unanimity
 Lesser-included offenses
 Verdict Form: relationship and/or family
violence finding?
BREAK