Evidence in Domestic Violence Cases

It is important to keep all evidence of the alleged incident, such as:

  • Copies of all medical reports regarding any physical injuries for both the victim and alleged offender;
  • Names of all witnesses;
  • Photographs;
  • Copies of text messages or emails regarding the incident;
  • Social Media Messages
  • Telephone records;
  • Reports from expert witnesses;
  • Written statements made or forms filled out by the alleged victim;
  • Any physical evidence (torn clothing, broken items, etc.);
  • Any other materials related to any of the alleged victim’s claims

Once the attorney gets your side of the story, he is going to be filing a Crim. R. 16 discovery request for any evidence that the prosecution has against you.  This way, he or she can get a bird’s eye view of the case and can rest assured that there will be no evidentiary surprises at the trial.  If there are 911 audio tapes, the attorney will get a copy of them.  The attorney will get and review copies of all police reports.

If there are pictures of anyone’s injuries, the attorney is going to be reviewing those to see if the injuries are consistent with the witness statements and the police reports.

The first thing an attorney is going to do after getting the facts of what happened from you, will be to analyze the manner in which the evidence was gathered.  If the evidence was gathered in a manner that violated your rights under the Ohio or U.S. constitutions, then chances are that evidence will have to be suppressed.  This is accomplished by the attorney filing a motion to suppress the evidence.  Once that is done, the prosecutor will have the burden of showing that the manner of gathering evidence was permissible under the constitution.  If the prosecutor can’t make that showing, then the evidence will never see the light of day at the trial.

Evidentiary Problems in DV Cases

Domestic Violence cases have their own unique evidentiary problems for prosecutors and defense attorneys.  There are always exceptions, but most domestic violence takes place inside of a private residence.  Thus the police and/or disinterested witnesses usually don’t see the behavior alleged. 

911 Call

The first evidence that the police usually get in a domestic violence case is the call from the victim or a witness to a 911 operator.  These calls are always recorded and maintained as accessible evidence for prosecutors.These tapes provide the prosecution with two big advantages.  First, though out of court statements offered into evidence at trial for their truth are usually inadmissible hearsay.  Hearsay is an out of court statement offered into evidence for its truth.  Courts have long found hearsay to be inherently unreliable because a) the statements are not made under oath and subject to the penalties for perjury, b) it is impossible for the other side of the case to cross-examine the person making the assertion, since that person is not present, only the person who heard the assertion; c) the judge or jury does not get to see the actual person who made the assertion testify, therefore leaving open the possibility that the statement was taken out of context or made in a sarcastic or otherwise not serious manner, 

But there are exceptions to hearsay, and these occur when the out of court assertions take place under certain limited circumstances in which their trustworthiness is sufficiently enhanced that such statements can be permitted.  Two of these exceptions are often present when it comes to 911 audio recordings. 

First, there is the “excited utterance” exception.  When a person is under the stress of events, the things that person says are usually said without reflection upon the consequences of saying them, and therefore are often an accurate portrayal of what occurred. 

For an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) an event startling enough to produce a nervous excitement in the declarant; (2) the statement must have been made while still under the stress of excitement caused by the event; (3) the statement must relate to the startling event; and (4) the declarant must have personally observed the startling event.  State v. Taylor (1993), 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316.

Additionally, when deciding whether a statement qualifies as an excited utterance, consideration will be given to such factors as "(1) the lapse of time between the event and the declaration; (2) the mental and physical condition of the declarant; (3) the nature of the statement; and (4) the influence of intervening circumstances."  See Staff Note to Evid.R. 803(2); State v. Humphries (1992), 79 Ohio App.3d 589, 598, 607 N.E.2d 921. Courts are mindful that the test for an excited utterance is often applied liberally to out-of-court statements made by child declarants who are alleged to have been sexually assaulted. State v. Shoop (1993), 87 Ohio App.3d 462, 472, 622 N.E.2d 665.  See also, Taylor, supra at 304. The rationale for doing so is based on the recognition that a young child's limited reflective powers make it more likely that a given statement is trustworthy.  Taylor, supra, at 304; State v. Wagner (1986), 30 Ohio App.3d 261, 264, 30 Ohio B. 458, 508 N.E.2d 164.

But the factor that controls over all of the above, what all of these factors are trying to say collectively, is that the controlling factor is whether the declaration was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection. Much of what is on a 911 audio tape often meets the criteria set out by the Ohio Supreme Court above. 

Second, there is the “present sense” exception.  If a person is describing events as they unfold, almost like a sportscaster during a baseball game, the courts have found that few people will lie during such statements as they have not had the chance to reflect upon what they are saying.  Thus, even if a person is not excited, but is calmly reporting that he is seeing person A striking person B repeatedly, this present sense impression will often make its way into evidence.

Outside of hearsay, often the device recording the phone call will pick up and record background sounds that will be direct evidence of what is going on.  These sounds may tend to prove or disprove the prosecution’s case.

Friendly and Unfriendly Witnesses

Witnesses in DV cases often change their testimony for various reasons.  They are angry when the domestic violence first occurs and can tend to exaggerate what happened out of anger.  But after time passes and there has been a chance for sober reflection of the consequences of a domestic violence conviction for the other person, what was at one time a prosecution friendly witness will switch sides and become the defendant’s best friend.

Think of a defendant with a high paying job.  Perhaps the victim, his/her spouse, has no job or a job that pays very little.  That spouse makes allegations of domestic violence.  It does not occur to the spouse that the allegations may cause a suspension from employment without pay for the family breadwinner.  If the actions complained of take place during a time of financial hardship, the loss of income may have devastating results for the family, including the children.  A spouse who was facing a slowly fading black eye is now facing foreclosure and relocation to a much lower socio-economic standard.

The thought of the kids having to make new friends and not having college funds can make the victim switch sides.  The prosecutor has little to offer in response.

Biased Witnesses

Witnesses to DV cases are usually biased in favor of one side or the other.  These are family members or those living together as if they were family members.  Rare is the case where a person without a dog in the fight can get up on the stand and tell it like it happened.  Some witnesses are so biased towards both defendant and victim that they don’t want to testify and/or they would feel terrible about not testifying.    Children often fall into this category.

A victim may exaggerate what happened because he or she wishes to get custody of the children in domestic litigation that could be going on in another court.  A relative of the victim may exaggerate because he or she has had a long and deep seated dislike for the defendant and finally has a chance to vent.

Spotting and dealing with these biases is difficult and should be left to an attorney experienced in such matters.  


Joslyn Law Firm | Columbus Domestic Violence Lawyer

Evidence is one of the most important aspects of a domestic violence case. The quality of the evidence can make the difference between a guilty and not guilty verdict. It is important to consult a skilled, competent attorney with trial experience when preparing a domestic violence defense. An experienced attorney will properly identify helpful evidence and dispute unfavorable evidence against you.

Brian Joslyn, experienced trial attorney at the Joslyn Law Firm, possesses the necessary experience to achieve the best possible result in your case. He and the team of attorneys at Joslyn Law Firm have extensive experience representing clients faced with challenging domestic violence charges.

Brian Joslyn represents individuals with domestic violence charges through Ohio, including Delaware County and the surrounding counties, including Pickaway County, Madison County, Franklin County, Licking County and Fairfield County.


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