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ANALYSIS
Preparing evidence for use as exhibits at
trials involving domestic violence
Toby Kleinman and Daniel Pollack | April 7, 2022
No one likes to think they may have to go to trial, especially in a family
matter. The fact is that most family cases resolve amicably. Of those that
don’t settle by agreement and go to trial, many involve issues of domestic
violence and/or child abuse. Domestic abuse and child abuse are co-
morbid. In other words, even after the adult parties separate due to
interpersonal violence, there is a strong connection between
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perpetrators who batter their partners and those who abuse their
children. Therefore, any and all potential evidence should be maintained,
organized and useful for trial.
Children are also known to suffer from the battering of their parent even
when they themselves are not physically injured. Therefore, in cases
involving domestic violence, while not inevitable, a trial is more likely
and child protection may be at the heart of the trial. Accordingly, detailed
preparation is critical, especially for victims where there are children in
need of protection. Attorneys need to be prepared, and they must
prepare their clients. Documentary evidence assists the trier of fact. It
can shine a light on the credibility of the victim and therefore the child’s
need for protection. In doing so, it can also cast doubt on the credibility
of the abuser.
Trial preparation begins with knowing the victim client’s detailed
relationship history with their adult abusive partner. The client should
write the history of the relationship, describing not only the physical
violence, but what incidents or behaviors lead up to the violence
regarding each incident. This history should go back to the relationship
before the marriage as that is often where coercion and threats begin
even before physical violence has been used as a means of control. In
cases of emotional abuse without physical violence, the history should
also be written. Details such as name calling, humiliation, labeling
followed by apologizing, and gas-lighting behaviors, as well as how an
argument started, are important to contextualize events. That history is a
critical guide. It is a guide for pretrial and a guide for a trial where the
well-being of children is at issue. That evidence is the telling of the story
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of how the violence began, escalated, continued, and why the matter
requires a court to intervene and protect.
The client should also provide any writings between the parties even
before the separation that illustrate their history, especially if threats or
coercion were used. It is important to note in the written history any
behaviors by the client which an observer might see as negative so they
can be explained to the court. These writings are the beginning of
preparing for trial through documentary evidence. Often, where a
relationship is more problematic, the violence is more intense, shifting to
control of a child and their welfare. Putting the history of the
deterioration of the relationship together with escalating violence
creates an important picture for the court where child protection is at
issue. This can often be seen in writings between the parties and are all
potential trial exhibits. Some will be introduced pretrial. For example,
whether or not a protective order is sought, it may be indicative of
reasons to limit a violent partner’s access to a child. They may also show
problems a child has had during this same period, which may have
started as the violence began. Other documents will be used to tell the
client’s story later with proofs, and some will be used for cross-
examination either to refresh the recollection of the violent party or to
show the veracity of your non-violent client’s testimony. Noteworthy,
credibility is always within the purview of the trial court. In that regard,
batterers rarely admit their battering behavior even where there is
proof. They tend to make excuses and blame the non-violent parent
either as having provoked them or having caused the victim accidental
injury. Regarding the child, they often make up reasons for an impaired
relationship where one exists and accuse the victim of having alienated
or manipulated the child during the marriage to parrot the victim and try
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to discredit the child. With regard to emotional abuse, a written history
of harassment can show patterns of behavior and the long-term effects
on adult and child victims. Name calling in texts and vulgar language are
often forms of intimidation.
While putting together a chronological history, the client should include
names of any witnesses as well as any calls to law enforcement, the
department of social services, or similar calls to family or friends. A trial
exhibit file should be created and indexed by date first, and later by
subject matter, including this data. Phone logs, emails and texts are all a
part of these exhibits. When an abuser tells an untruth, lie or misleading
statement, knowing the detailed facts from these documents and having
these written documents can mean the difference in a cross-examination
between a court finding the party credible or not.
Collecting documents at the beginning of the case and having the client
forward each written contact between the parties and potential
witnesses thereafter serves as advance preparation for trial. It is work
typically not done by family lawyers but is critical where there has been
abuse. A lawyer’s assistance in writing is also helpful. All of these
documents will assist in formulating motions as they arise, and later at
trial, to tell the story about how the relationship broke down and why.
While it may not directly point to physical battering at any one moment
it may show other forms of emotional abuse, coercion and control.
Abusers often use questioning as a form of non-overt “threats.” The same
question may be repeated over and over again in separate emails or texts
or the same requests made again and again separately by the batterer.
Each email or text may seem innocuous enough unless one sees the
entirety of those writings. Those contacts will be used invariably to
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either push the abuser’s “story line” or to accuse the protective parent of
something such as non-cooperation. Therefore, attorney awareness
during the pendency of a matter is critically important to assist the client
and to deal with opposing counsel in advance of trial to stop the
continuing victimization of a victim.
These documents, and the need to confront opposing counsel on these
issues, will also be the proofs of credibility for the victim. When the
parties separate, even temporarily, the client should not send any angry
emails. Attorneys need to coach their clients in this regard. These days,
emails can demonstrate a lot. They can show cooperation as to
parenting, threats, and other continuing patterns of behavior. In child
custody matters, details matter. Phone calls to schedule doctors or dental
appointments for children and calls to the parents of friends to make
play dates are important as well to show the status quo ante. Be sure to
have the client keep a separate calendar that deals only with their issues
and the children as far as divorce issues. This calendar can be shared
with discovery but it is also a guide to person’s parenting style.
Emails and texts can also show attempts at cooperative parenting or
failure or obstruction to it. They can show the ability to compromise and
put one’s own needs aside for the welfare of a child. These can become
critical issues with regard to a best interest standard where a batterer
says they were a primary parent and are able to
compromise. Remember, those who batter often show self-interest and
attempt to make themselves be seen as victims. They often present
charmingly in public. Therefore, carefully written emails by victims with
the help of counsel can make this more evident in email and text
conversations.
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Throughout litigation, the attorney should be guiding the victim to
neutral-type writings, despite understanding the ordinary feelings of
anger and frustration at being a victim of someone else’s control. This is
true even where there is a protective order and written contact is
allowed or required.
In these circumstances a survivor is likely angry, but that anger can be
seen and judged negatively by the court, and therefore the written
contacts should be without any vitriol. They should be written neutrally
so that when presented to the court they create a video of the mind for
the court in a positive light for the victim. Where anger has been shown,
an attorney must be able to still use that evidence and present the anger
as normal.
If the issue at hand is victimization of a child, then evidence of a
protective parent’s responses is important, especially where anger is
voiced by them. This anger can then be easily be explained and used as a
potent cross examination tool.
Failure to pay child support or make other payments can also be a form
of control. Note in the client chronology where support payments are
made late or missed altogether. There may not be financial parity
between the parties. Whether or not the batterer is the primary financial
support of the family, use and abuse of family funds need to be noted.
Consequently, bank records may serve as a way of showing the assertion
of a batterer to control a family’s resources. Everything is important as a
potential exhibit: payments to the gas or phone company, rent or
mortgage payments. Make notes of who takes the children to
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appointments, play dates, and athletic events, and other after-school
activities, and who pays the bills both before and after separation.
Occasionally, there are medical records of adult victims and child victims.
While these may seem pivotal on their face as proof of an abuser being
an abuser, victims may have lied to medical personnel about the nature
of the cause of their injuries or their child’s injuries. This is a double-
edged sword as it makes your client seem deceitful where truth to
medical personnel is presumed. That makes records between the parties
at that time or near to that time even more important as there may have
been threats of additional violent harm.
An evidence file for cross examination of the batterer is also
important. Some evidence can be used for both direct examination and
cross examination. Sometimes evidence may be objected to during your
client’s testimony. Anticipating this and preparing for it is important.
This evidence can be used to impeach the batterer. An example of this
may be information in a medical report that questions how an injury
occurred. Additionally, where a batterer denies any harm or threats, but
emails make direct or even indirect threats, these should be used to
impeach his testimony.
By the times trial arrives, all these potential exhibits will be in date order
and ready to present as evidence to a court as your client testifies, and
will be able to create a narrative for a court. Most importantly, every
exhibit must be seen as a part of a solid trial strategy to show the
victimization and need for protection of a child whether or not the child
had been actually treated violently. At trial, it will be important for the
attorney to make the connection between the adult interpersonal
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violence and the impact and harm to children, and the continuing risk to
both.
Attorneys generally try to avoid going to trial. Yet, if trial becomes
inevitable, your client is an invaluable resource in trying a case with
well-prepared, straightforward documentary evidence.
Toby Kleinman is a New Jersey attorney and partner at Adler &
Kleinman. Daniel Pollack, MSW, JD is a professor at Yeshiva University’s
School of Social Work in New York. They can be reached
at toby@adlerkleinman.com and dpollack@yu.edu, respectively. This
column is written for general informational purposes only and should not
be construed as New York-specific legal advice.