After the Webinar: Evidence Based Prosecutions. Q&A with Lindsay Gephardt

Webinar presenter Lindsay Gephardt answered a number of your questions after her presentation, Evidence-Based Prosecutions: Building Your Case One Puzzle Piece at a Time. Here are just a few of her responses.


Audience Question: How do you help a victim understand that even though they may not want to testify, or they don’t necessarily want what, unquote, justice, for themselves as an elder abuse victim, how do you help them understand that there’s a greater need to society serve that justice, regardless? 

Lindsay Gephardt: Sure. So, one of the things I think is super helpful is getting their advocate involved right away. I cannot tell you how many times that the advocate has been the saving grace. They have great tools and great resources in order to help the victim get them some counseling and treatment. And I can tell you I had victims starting at the prosecution not involved, but six months later, after working with their advocate and working through some counseling sessions that they finally got on board. What I will tell you is, understanding the bigger picture is important, phrases like, you don’t want this to happen to someone else or if they have children, this is going to be impacting your children. And what that really does is it sets a future for the victim, because they’re living in a moment where all they can think of as self-preservation, which is right here and right now. And this is what needs to happen. In giving them the little bit of, there’s a future involved here, there’s time in advance, really helps them get a perspective of engaging with the process a little bit more.



Audience Question: Lindsay, you said that evidence-based prosecutions rely on the notion that the first account of the victim at the scene is usually the most accurate. But we also know that victims’ memories can become clearer as they, as things evolve as time goes on. So, in a number of people asked, isn’t inconsistency actually consistent with trauma? How do you reconcile these two seemingly competing concepts theories? 

Lindsay Gephardt: So, it is. So, we do know that, and we know a lot with sexual assault cases that things come back in bits and pieces for sure. With victims, specifically, in domestic violence cases, it may all just seemed trauma where they hold everything in. What we mean by it relies on that first version is just because the victim adds things later on or has more insight about what happened to them later on. That doesn’t really take away from their initial story. It just grows that story and makes it better. The initial story is more of the premise that when the victim comes back and is thwarting prosecution and saying it didn’t happen, he didn’t do it, or she didn’t do it. Or I attacked them first, that the concept is to support that story, where she is not, she was protecting herself at that moment versus later on when she might be protecting other interests. And I say she and he interchangeably, we know victims of domestic violence or other cases can be anyone, and so, I just want to clear that up, as well.



Audience Question: If you could go back in time to your first trial what advice would you give yourself about non-participating victims, knowing the jury will not see the victim or the victim appears to be uncooperative to the jury?  

Lindsay Gephardt: Well, yes. It’s a growing experience and I will say that while you’re super important in educating your victims, especially in domestic violence cases, if you know your victims aren’t going to be around asking questions, like, if you don’t hear from a victim today, would that change the way that you view this case and the facts that evidence. Would you still be able to make a fair and unbiased or impartial decision and come into your conclusions? Framing them as, we’re going to have a lot of witnesses here today, some of which are going to explain different roles and events. Are you able to listen to all of them and come to a conclusion, or are you going to have to hear from the victim instead? I also, in all of my opening statements, if I know I don’t have a victim, I’m going to let the jury know that upfront so that they’re not anticipating that and that puts it out there. It gives them the kind of the firm ground of where they need to stand and then they can be educated about why as the trial progresses. It’s all about education and continuing to inform them of what is going on with that victim and still keeping that victim a person to the eyes of the jury.



Audience Question: Are statements made to medical professionals covered by privacy laws? 

Lindsay Gephardt: So, yes and no, obviously the victim still has their rights regarding, you know, HIPAA and things like that. But when it comes to domestic violence situations, there’s good case law, and I believe, the case in Arizona Superior Court versus Benton. And I don’t know if there are any additional case law and other jurisdictions, but I’m sure there’s similar stuff, which basically says that in the need, the need for prosecution in these types of cases, now allow for the presentation and the getting of those medical records and those statements. And really what they’re being offered for is not for the medical treatment situation so much as inconsistency with the victim if they’re recanting or thwarting recantation. So, yes, there are concerns but the overriding need to be more successful in these prosecutions and using that type of information outweighs that.



Audience Question: How do we convince the cold experts to participate in your trials? So, for example, gerontologists, when they are already overworked and very limited in their industry.

Lindsay Gephardt: So, it is difficult, and I will say that there is the kind of idea that they want to be paid for their time. And they should be paying for their time. But my experience personally has been that these types of experts who are involved in these cases generally have prior work in the public service, or at least have been, because of their expertise, have seen these victims before, and so they have a compassionate place for these victims and wanting to make sure that these victims are safe. And so, if you really play it up and that type of thing that you’re doing, this good public service, that you’re helping us out, we need this, we need your time, a lot of them are willing to do it. Unfortunately, you might have to pay them for their time, but it does kind of help that out. But I will say though, is if you have specialized detectives, especially in the areas of sexual assault or domestic violence or gains, they have so much training and education on these topics that they can be your witness as well. In my case study, like I said, we had our specialized detective actually talk about the cycle of violence because it was a domestic violence case. And he was just as good as putting on another expert because he was able to still educate the jury. Same thing with child abuse experts. Most of your doctors and medical providers can talk about all sorts of those things, and there are also fact witnesses for you. So, it goes both ways, and that’s just one way to keep those guys on the hook, is really presenting it as a public service and a justice issue.



Audience Question: In cases requiring a preliminary hearing, how should a prosecutor go about establishing forfeiture by wrongdoing or that early-stage hearing? Is it a pre-hearing brief? Should prosecutors bring witnesses of past conduct? It seems difficult to establish it being so early on and because of limited time and resources.

Lindsay Gephardt: So, preliminary hearings are tricky because if you’re going to put your victim on the stand and you want to lock them in to their statements and they’re cooperative, that’s great. But if they’re not going to cooperate with you, you might want to be thinking about getting that probable cause determination through other means. I would say if you already have very clear, forfeiture evidence that someone else can testify to other than the victim absolutely put that witness on it. Especially if it’s like an investigator or your detective or maybe it’s jail calls and you get those jail calls in. And I always brief the core. I know that there are limited time and circumstances. But I think everything is better in writing because at least that gives the judge an idea of what you’re asking for before you just go ahead and try and do a hearing. I’m not ever put on forfeiture evidence and a preliminary hearing like that. Generally speaking, that’s more for trial is where I’ve it. That doesn’t mean you can’t do it. But I would say a brief to the court and advances. Always, they always like that.



Audience Question: How does laboratory ISO accreditation help evidenced-based prosecution? ISO meaning the International Standardization Organization. How does that accreditation help? 

Lindsay Gephardt: Well, with any laboratory evidence, it’s really important to make sure that what you’re allowed is doing is good to go, and that it’s reliable, right? I’m not super familiar with the accreditation. I know all of your laboratory witnesses will be able to recite it back and forth. And so, if you have questions, it would be probably best to go to them about whether or not their standards are meeting the criteria. But what that does is, it allows for the trier of fact, or the jury whoever’s making the determination, it gives that just a little bit more authenticity, and to get them to really hold the evidence to a little bit higher standard. Which just gives more credibility to your witness, and then your case as a whole.


Click Here to Watch a Recording of Evidence-Based Prosecutions: Building Your Case One Puzzle Piece at a Time



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