Jury trial #25 took back to the all too familiar, and uncertain, terrain of domestic violence. The facts were fairly straight-forward. Our victim contacted 911 after having locked herself in a room. She was audibly upset and told the dispatcher that defendant was “hitting on her” and that she was tired of him beating her. While on the phone she reported the defendant said he was going to get a knife and kill himself.

Law enforcement arrived and the victim told the officer that she had made the defendant some coffee before driving him to work and defendant was tired and irritated and did not want it. A verbal argument ensued and the victim ended up throwing the coffee cup into the yard, breaking it. This upset the defendant who picked up the victim by her throat and slammed her into the ground. The victim described losing consciousness: she said she was “seeing blue.” While on the ground the victim described the defendant kicking her several times.

The victim was able to get up and went to the couch inside with her phone. The defendant followed and punched her several times. At that point the victim then locked herself into a room and called 911.

There was a restraining order in place at the time this all took place.

The victim had been in contact with me and our victim’s advocates throughout the criminal court process and was seemingly cooperative-until she took that stand.

While testifying the victim became visibly uncooperative with me. She would not make eye contact, she remembered some things but not others, and minimized the entire event. The trial strategy had to be completely reworked mid-trial, it became a trial of inconsistencies.

There is a mechanism in the evidence code that allows attorneys to impeach a witness on the stand with prior statements that are inconsistent with what a witness is testifying to in front of a jury. You must first develop the original statement, then confirm with the witness that previously they had made a statement contrary to it, and finally you must given them an opportunity to admit the inconsistency, try to explain it, or deny that it was made. From there the prior statement can be introduced in a variety of ways: through the person it was originally told to and/or through audio or video recordings, or through physical evidence contrary to whatever the inconsistency was.

Here we had a 911 call that was made and a statement made to law enforcement. Both were introduced here to impeach our victim with her inconsistencies.

Unfortunately, this procedure is one I have become quite familiar with in jury trial and domestic violence. Victims often feel immense pressure when faced with testifying against someone they love. To do so, doesn’t just mean they must face their abuser, it also has real world consequences. They could lose the only means of support for themselves and their children, they could lose their home, and it could potentially break up their family.

We explain this to the jury as well in a trial of inconsistencies. And it is a concept I believe a jury fundamentally understands. A victim has motive to lie at trial. The danger was abated when law enforcement responded. Victim’s are faced with an uncertain future if defendant is convicted at trial.

In this case the prior inconsistent statements were enough to convict the defendant on some of the charges. Without the victim’s testimony the charges related to injury and strangulation did not survive. This is also a familiar scenario in domestic violence jury trials. You end up with guilty verdicts on some charges and not others, depending on the strength of the case without the victim.

Domestic violence trials almost never go smoothly because relationships are messy, life is messy, and the key witness is often pulled in competing directions. It is the lament of the domestic violence victim because in some sense the verdict will always result in some kind of loss.