Investigating and Prosecuting Strangulation Cases

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Investigating and Prosecuting Strangulation Cases

• Bridget Healy Ryan
• Violence Against Women Policy Advisor
• Cook County States Attorneys Office

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ACKNOWLEDGEMENTS

• The great and fabulous Mark Wynn
• Gael Straeck (San Diego, Family Justice Center)
• Dr. George McClain (San Diego)
• Dr. Dean Hawley (Indianapolis)
• Federal Law Enforcement Training Center (Glynco,
  GA.)
• National Sheriffs Association (Alexandria, VA.)

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The Lethality of Strangulation

• The use of an object in strangulation increases
  the likelihood of lethality. Similarly, if the
  victim blacks out, she/he is in great danger of
  not regaining consciousness or sustaining brain
  damage from lack of oxygen.
• George McClain, MD, San Diego Emergency
  Department

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Strangulation StudySan Diego, CA

• Studied 200 strangulation cases over a five year
  period.
• 62 of victims had no visible injury.
• 22 of victims had minor visible injuries.
• 16 had significant visible marks.
• 199 of the strangulation suspects were male and
  the average age was in the mid-twenties.

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Strangulation vs. Choking

• Many victims will report they have been choked
  when in technical terms they were the victims of
  strangulation.
• Choking an internal obstruction of the airway.
• Strangulation a form of asphyxia characterized
  by closure of the blood vessels and air passages
  of the neck as a result of external pressures on
  the neck.

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Types of Strangulation

• Hanging
• Ligature
• Manual

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Obstruction of Carotid Artery

• Most common cause of strangulation
• Results in unconsciousness
• 8 pounds of pressure cuts off oxygen flow to
  brain (less pressure than used to pull trigger of
  handgun)
• Oxygen flow cut off for only 8 seconds can cause
  critical injury

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Vessel Occlusion

• Carotid artery
• occlusion 11 pounds of pressure for 10 seconds

• Jugular vein
• occlusion 4.4 pounds of pressure for 10 seconds

UNCONSCIOUSNESS
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Obstruction of Trachea

• 33 pounds of pressure completely obstructs
• Can cause tracheal fracture, death
• Brain death results if strangulation persists for
  4-5 minutes

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No Visible Injuries

• Officers should always call EMS due to potential
  internal injuries, that can be fatal, and might
  not be apparent.
• Because of underlying brain damage by lack of
  oxygen during strangling, victims have died up to
  several weeks later.

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Signs and Symptoms

• Sore throat
• Hoarse, raspy voice
• Loss of voice
• Difficulty swallowing
• Fainting, unconsciousness
• Nausea, vomiting
• Loss of bodily function
• Miscarriage
• Lung damage

• Scrapes, scratches, claw marks, chin abrasions
• Thumbprint bruises
• Bruises behind ears
• Red, linear marks (often 3)
• Petechieae (red dots on eye)
• Rope, cord burns
• Behavioral changes

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Actual Strangulation Clip

• 8 lbs. of pressure for 8 seconds.
• Victim told police nothing happened.
• Offender ultimately convicted of Assault 2nd
  Degree.

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Dangers of Minimization

• Professionals
• Victims

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Proving Strangulation Cases without an Autopsy

• Never Let A Victim Die in Vain
• Dean Hawley, MD, Forensic Pathologist
• George McClane, MD, Emergency Physician
• Gael Strack, JD, Director, SD Family Justice
  Center

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The Law
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Strangulation Demands a Felony Arrest Law
Supports It.

• Assault with force likely to produce great bodily
  injury. (PC245)
• People v. Covino (1980) 100 Cal.App.3d 600 (force
  of defendants assault by choking was likely to
  produce a serious injury although victim only had
  redness to neck and pain to throat).
• Attempted spousal abuse (PC273.5) does not
  require injury.
• People v. Kinsey (1995) 40 Cal.App.4th 1621

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Missouri, Chapter 565, Offenses Against the
Person, Section 565.073August 28, 2003

• Domestic Assault, second degree
• (1) Attempts to cause or knowingly causes
  physical injury to such family or household
  member by any means, including but not limited
  to, by use of a deadly weapon or dangerous
  instrument or by choking or strangulation or
• Domestic Assault in the second degree is a class
  C felony.

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Minnesota, HF 963, Effective August 1, 2005

• Domestic Assault by Strangulation.
• Subd. 1. Definitions. Defines the terms "family
  or household members" and "strangulation."
• "Family or household member" includes spouses,
  former spouses, parents, children, blood
  relatives, persons with a child in common,
  persons residing together, persons who formerly
  resided together, and persons who are or have
  been involved in a significant romantic
  relationship.
• "Strangulation" means "intentionally impeding
  normal breathing or circulation of the blood by
  applying pressure on the throat or neck or by
  blocking the nose or mouth of another person."
• Subd. 2. Crime. Provides that domestic assault by
  strangulation is punishable by five years
  imprisonment and/or a 10,000 fine. ("Domestic
  assault" is an intentional act to cause fear of
  immediate bodily harm or death or an intentional
  act to inflict or attempt to inflict bodily harm
  upon a family or household member.)

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Idaho Code Section 18-923

• ATTEMPTED STRANGULATION. (1) Any person who
  willfully and unlawfully chokes or attempts to
  strangle a household member, or a person with
  whom he or she has or had a dating relationship,
  is guilty of a felony punishable by incarceration
  for up to fifteen (15) years in the state prison.
  
• (2) No injuries are required to prove attempted
  strangulation.
• (3) The prosecution is not required to show that
  the defendant intended to kill or injure the
  victim. The only intent required is the intent to
  choke or attempt to strangle.
• (4) "Household member" assumes the same
  definition as set forth in section 18-918(1)(a),
  Idaho Code. 20
• (5) "Dating relationship" assumes the same
  definition as set forth in 21 section 39-6303(2),
  Idaho Code.

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New Laws

• Missouri
• Oklahoma
• Washington
• Idaho
• Minnesota
• North Carolina
• Alaska
• Hawaii
• Florida
• Connecticut
• Louisiana
• Oregon

• Pending
• California

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Premeditation

• Commonwealth v. Serino, Supreme Judicial Court,
  Docket No. SJC-07310, March 28, 2002
• Evidence that the defendant manually strangled
  the victim to death was sufficient for jury to
  find deliberately premeditated murder.
• The defendant murdered his girlfriend by
  strangling her. In describing the incident to the
  police, the defendant admitted that he put both
  hands around the victim's throat and choked her
  for "about a minute".
• At trial, the medical examiner testified that
  death by strangulation would result only after
  choking for five to eight minutes.
• The testimony regarding the length of time it
  takes to cause death by strangulation allowed the
  jury to infer that death was not instantaneous
  but rather the result of sustained pressure
  applied to the victim's throat for several
  minutes, thereby allowing the defendant time to
  reflect on his decision to kill.
•  

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• Likely Defenses in a Strangulation Case

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Potential Defenses

• Self-inflicted injuries
• she is trying to set me up. Ask why?
• Autoerotica
• Evidence of a ligature mark or a hanging
• Look for evidence at the scene
• Consent Applied or monitored by sexual partner
• she likes sex that way
• Bondage
• choke holding during anal intercourse

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Trial
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Trial Preparation

• Notice to Defense Attorney
• Copy of Experts CV
• Meeting with expert
• The Facts of Case
• Questions to Ask
• Charts
• Pre-trial motion with Judge
• Information is Relevant
• Expert is Qualified

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PURPOSE OF THE DIRECT EXAMINATION

• Persuasively tell the story
• Establish the elements
• Leave the jury with a clear understanding
• of how the crime occurred and why the
  defendant is guilty

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THE PRE-TRIAL INTERVIEW Part I

• Prepping for the interview
• Read and review all reports and evidence
• Prepare a timeline
• Identify the strengths and weaknesses of each
  witness

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THE PRE-TRIAL INTERVIEW Part II

• Prepping the witness
• Put your witness at ease (demonstration)
• Give witness the big picture
• Remind the witness that the jury is a blank slate
  the witness needs to fill in all blanks
• Stress the importance of telling the truth even
  when they would rather not!
• Make sure to show the witness all exhibits
• Dont forget the basics

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ANTICIPATE THE CROSS

• Address the weaknesses
• Explain the inconsistencies
• Its okay to say I dont know to stupid
  questions
• Treat the defense attorney with respect (even
  when they dont deserve it)

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ORGANIZING THE DIRECT

• Introduce the witness
• Humanize the witness
• Front the baggage
• Set the scene

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ORGANIZING THE DIRECT, contd

• Lights, Camera, Action
• Lead the witness without asking a leading
  question
• Identify the defendant as early as possible
• Make a ten second crime ten minutes
• Keep the questions short
• Never forget your witness is the star
• End strong

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TRIPLE DIRECT

• Take the witness through the story from start to
  finish
• Tell the story again using exhibits
• Diagram of scene
• Weapon
• Photograph
• Clothing

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TRIPLE DIRECT, CONTD

• Have victim tell story for the third time through
  her sensory perception
• OBJECTION!!!! Asked and answered???

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ORDER OF WITNESSES

• Think outside the box
• Start strong
• Bury the weaker witnesses
• End strong

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DONT DO THE DONTS

• DONT use weak words
• DONT redirect (unless you absolutely, positively
  have to)
• DONT end on a sustained objection
• NEVER ask a question that you dont intend to
  argue

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DIRECT OF VICTIM

• Remember these cases are usually he said, she
  said
• Take direct slowly corroboration is in the
  details
• Deal with challenging facts up front
• Should ask many of the same questions that
  responding or follow up officers asked

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Developing your Local Expert

• Emergency room physician - Specialist
• Medical Examiner
• Certified Forensic Pathologist
• Forensic/SANE nurse
• Paramedic
• DV Detectives
• Anyone else?

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Direct Examination of Expert
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Foundation of Expert

• Current position and duties
• Prior work experience
• Education
• Training
• Licenses certificates
• Teaching experience
• Published writings
• Affiliation to professional Organizations

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Attempted Strangulation Questions

• Received training specific to strangulation?
• Examined patients who have reported being
  strangled?
• Applied your training to the examination of those
  patients?
• How many patients have you examined who reported
  being strangled?
• Previously testified as an expert?
• How many times?

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Use suggested questions customize to your case
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Use Charts
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Vessels arteries veins

• HYOID BONE

CAROTID ARTERY
THYROID CARTILAGE (with fracture shown)
JUGULAR VEIN
TRACHEAL RINGS
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Exact Anatomic Location of Applied Force
Quantity of Applied Force
Surface Area Of Applied Force
Duration of Applied Force
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Defense Questions

• Make a long list of potential defense questions

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Friendly Fire Questions Preemptive Strike Set
up for the Spike?

• Come on doc, arent we just talking about pink
  eye?
• Isnt that bruise to her neck, just a hickey?
• Isnt true, she could have a sore voice from
  yelling at the defendant?
• Isnt it true a person can hold their breath for
  several minutes and die?
• Do you know if the victim was intubated?
• But if she were intubated, could the treatment
  obliterate your findings?

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Ask defense questions first

• How much are you getting paid?
• Do you consider yourself a professional witness?
• Testified only for the prosecution?
• You havent qualified in a felony case, have you?
• You havent qualified in a death penalty case,
  have you?

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CROSS OF DEFENDANT

• Concessions first (def will usually tell the
  truth all the way up to the point where he gets
  in trouble)
• Pose questions in terms of HIS behavior not HERS!
• Work your theme in hell give you something!
• You didnt stop when she lost consciousness

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OPENING AND CLOSING

• Opening Tell a story your first chance to
  begin to recreate the victims reality of that day
• Closing Homerun time. Take your whole offender
  focused prosecution and leave the jury no choice
  but to despise him!

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Life after Crawford v. Washington124 S. Ct. 1354
(March 8, 2004
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Forfeiture by wrongdoing

• Defendant forfeits the right to object that the
  victim is unavailable and he did not have the
  opportunity to cross examine her if
• Victim is unavailable because of his actions,
  threats, intimidation, harassment.
• Happens in every case but how to prove it?

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