May the Record Reflect
May the Record Reflect
66. Representing Survivors of the "Hidden Crime," with Barbara Barron
Content Warning: This episode discusses, in non-graphic terms, representing intimate partner violence survivors.
Being a trial lawyer is one of the toughest, most demanding professions out there, and when you’re representing family members in distress it’s even more so. Hofstra Law professor Barbara Barron discusses advocacy challenges faced by lawyers working with survivors of intimate partner violence, or IPV. Although some details are particular to IPV survivor representation, trial lawyers in nearly every practice area will find Barbara’s reflections on supporting reluctant or intimidated witnesses during testimony, dealing with pro se opposing counsel, and handling emotional witnesses or clients to be applicable to their own high-stakes cases.
Topics
4:00 What is IPV?
6:56 How IPV survivors differ from other crime victims
11:23 Implicit biases judges or jurors might have about IPV
12:24 Types of evidence
14:39 Special accommodations against intimidation
16:09 Defendant as pro se counsel
19:42 Preparing for direct and cross-examination
23:22 Emotions, or none, during testimony
26:12 Preparing for anxiety
29:16 Counsel and vicarious trauma
31:53 Public Interest Award and advocacy programs
Quote
“In the case of the pro se defendant, and dealing with that person and having to answer questions on cross, the questions may not be as pristine as an experienced or talented trial lawyer’s may be, and it may not be as controlling a situation as anticipated. If the questions are such that it allows the witness to answer more than yes or no, where’s the control?” Barbara Barron
Resources
Barbara Barron (bio)
Building Trial Skills: New York–Hofstra (program)
Half-Day Intensives: Online (programs)
on
Marsi Mangan:today's episode of may the record reflect
Barbara Barron:you ask if they need a break you ask if they need some water i mean it's uh it would be with any person on the stand who suddenly gets emotional i mean being A witness at trial, or even in a deposition, but at trial, is an emotional experience for anyone, whether you are the victim of a crime, whether you are a plaintiff or a defendant in a civil case, or whether you're a witness. I mean, you're under oath, you're in a courtroom, there's a judge next to you, you may have jurors looking at you, and there may be an audience. It is incredibly stressful, and imagine how you feel if You're staring across from your partner with whom you share children.
Marsi Mangan:That was Barbara Barron, and this is May the Record Reflect. Welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, Marci Mangan, and in this episode, I am with Barbara Barron to discuss examining one of the most challenging witnesses of all, survivors of intimate partner violence, or IPV. Although the subject matter is specialized and difficult, it nevertheless involves situations that any trial lawyer might encounter in their practice. such as dealing with pro se opposing counsel, supporting reluctant or intimidated witnesses in their testimony, and handling emotional witnesses or clients under oath. Barbara began her legal career as a New York prosecutor, then spent time in private practice specializing in complex commercial and matrimonial litigation. Her career then turned toward teaching, both as a professor of skills at her alma mater, Hofstra Law, and as a member of NIDA's faculty leadership. Her career then turned toward teaching, both as a professor of skills at her alma mater Hofstra Law, and as a member of NIDA's faculty leadership. In addition to teaching in the United States, she has developed or taught at advocacy skills programs in Japan, the Republic of Georgia, Bosnia, Turkey, and Kosovo. Barbara also wrote Slovin vs. Slovin, a matrimonial case file used at NIDA to teach advocacy skills in a case involving child custody, financial issues, and marital tort. For the trial skills program we hold each summer at Hofstra, Barbara developed a specialized track for lawyers working with IPV survivors. It received the 2024 Best Public Interest Award from the Association of Continuing Legal Education. Now she's with me to discuss examining IPV survivors. Here's our interview. Our guest today is Barbara Barron. She teaches with Hofstra Law, and she is here to talk about advocacy issues faced by lawyers working with IPV. survivors of intimate partner violence, or IPV. Welcome to the podcast, Barbara. Thank you, Marcy. It's so great to have you here. Let's start off with a definition of terms. What exactly is meant by intimate partner violence? Is it the same as domestic violence? Well, intimate
Barbara Barron:partner violence is, I will say, the more accurate term for the overarching abuse that is domestic violence, because domestic violence can also take into account violence in the family. It doesn't have to be between the partners, between the spouses, or between life partners. It could be the abuse between siblings. It can be the abuse that is perpetrated upon children by adults. It could be the abuse perpetrated on elder adults by family members. So I would say that the overarching name would be more family violence, of which intimate partner violence is a subset.
Marsi Mangan:What acts or behaviors then are considered intimate partner violence?
Barbara Barron:It ranges from physical to emotional. And when I say physical, that's clear. It's physical abuse, assault, murders, rape. It can be robbing your partner, literally. It goes from that sort of physical to psychological abuse whether it's the constant verbal abuse whether you are cyber stalking or actually stalking the victim so that the the abused partner is frightened is scared is terrified it can be emotional abuse using threats using other ways to prevent the partner from exercising agency and autonomy. That could be financial abuse, where you control every aspect of your partner's life, whether it's visiting the workplace so the person can't work, or has difficulty working, or has difficulty keeping a job because of issues created by the abusive partner. It could be controlling the money, literally controlling the bank accounts, literally controlling the credit cards. It ranges to psychological abuse when it comes to birth control and abortion and pregnancy.
Marsi Mangan:Barbara, what you're describing sounds quite all-encompassing. It just... covers a whole range of physical and psychological issues. How does representing an IPV survivor differ then from representing victims of other types of violent crimes?
Barbara Barron:It's difficult and challenging in that you have to not only represent that survivor in terms of legal issues, but you also have to offer and help the survivor maintain that level of autonomy and agency. Otherwise, the survivor feels the pull, whether it's financially, whether it's emotionally, and the lawyer has to help that survivor continue. When you are a prosecutor dealing with a survivor in a criminal case, that survivor is not your client, but a witness. And you have to deal with other issues as well. It's maintaining the survivor's ability to proceed in order to go forward, in order to extricate themselves from the situation is a great challenge.
Marsi Mangan:The relationship between the person who is abusing and the abused is so intertwined. They've got, as you said, emotional, physical, financial, familial, all of these different aspects intertwined. And it makes prosecution, I would imagine, uniquely stressful as a result. I read that in approximately 80% of reported cases, the survivor recants or ends up refusing to cooperate with the prosecutor.
Barbara Barron:Well, that's a problem. Now, we have in this area of criminal law, the law has essentially stepped in to help the survivor not only make the choice but deal with those issues. And basically virtually every state has what's called mandatory arrest laws. And those arrest laws are that if the police arrive or the police are called and there's probable cause to arrest, the police will have no discretion in deciding whether or not to arrest the abuser. What had happened in the past is that Police, in fact, the courts, in fact, we as a society, did not want to get involved in what we thought was a family matter, a domestic disturbance. And the prevailing practice was to have the parties or the person who was designated or determined to be the initial aggressor walk around the block. And they decide, you know, it's a family matter. Walk it off. Walk it off. Walk around the block. And unfortunately, that has not worked. And as a result, and as a result of the awareness of society in terms of this sort of abuse, that in the United States, there is what's known as mandatory arrest. Now, in my jurisdiction in New York State, we have mandatory rest, and most, if not all, the prosecutor's offices have what's called a no-drop policy, that if you bring in a domestic violence case, you just can't drop it. Now, that creates evidentiary issues if, indeed, the witness, the victim, doesn't want to proceed. But there are other reasons why a victim doesn't wanna proceed and that also has to be explored by the prosecutor.
Marsi Mangan:Well, since we're talking about legal proceedings now, I would like to ask you about implicit bias because at NIDA we talk so much about how implicit bias may affect the outcome of a legal proceeding. So what are the biases that judges or jurors in the case that this might go to trial have about IPV survivors that we need to consider? The
Barbara Barron:question any juror would have, in fact, you would have, I would have, would be why didn't they leave? Yeah. Why didn't they leave? Why are they telling this now? Why are they here now? And it's that credibility issue that I think may affect jurors. And it's up to the lawyer to Whether it's a civil case, whether they're unmarried, for example, and the abuse survivor sues the abusive partner for a tort, whether it's a criminal case where the prosecutor has to build their case beyond a reasonable doubt, it's up to the lawyer to persuade and prove and answer that question because that's part of the burden.
Marsi Mangan:So what types of evidence are considered most persuasive in these cases?
Barbara Barron:Well, actually, it's going to depend. If we're talking about the criminal case, what you need, number one, the burden is proof beyond a reasonable doubt, and the prosecutor is charged with proving that up. The defendant doesn't have to do anything. What you need... is persuasive, credible testimony, and other types of evidence, whether they're third-party witnesses, whether they're medical records, whether there are writings, whether there are texts that are threatening, whether there are social media posts available. There's a wide range of evidence. Now, what happens is if there is an inconsistency in the behavior of the abuse survivor, the prosecutor may feel it necessary to call in an expert to testify as to that inconsistency of behavior. For example, when we talked about the question or the bias of why didn't they leave? Or why didn't they report this immediately? Or why did they wait five months? Or why did they change their stories? Why did they say one thing in the ER? Why did they tell the investigator something else? And why did they want to drop the charges? And why now are they testifying to the original account of what happened on the stand? You may have to call an expert who would testify as to what was deemed battered woman syndrome to what is now battered person syndrome, which is alike rape trauma syndrome, where the person is so traumatized by the traumatic event that the person acts inconsistently with what one would normally think would be a reasonable victim in that circumstance.
Marsi Mangan:Are there special accommodations that are available to protect IPV survivors who are terrified to be in the courtroom or any room with their accused abuser?
Barbara Barron:Well, that is an issue. And honestly, I don't know. It will depend on the jurisdiction whether they would be allowed to. testify remotely or in a different room or be shielded. But the defendant, as we have to remember, does have a right to confirm witnesses. And that right is not absolute. However, there may be accommodations in, not accommodations, but maybe attitudes or behaviors of the defense counsel that may be called into check by the judge and by the prosecutor in order to prevent, I'll call it harassment and bullying from the defense.
Marsi Mangan:Well, speaking of harassment and bullying, that leads perfectly to my next question, which is that for a variety of reasons, the accused may opt to defend themselves, exercise their right to act as their own counsel in proceedings. But in cases involving IPV, examination by the accused, acting as their own attorney could be seen as a way to menace or harass and continue to re-traumatize the IPV survivor. What is your recourse in that situation when somebody is acting as pro se counsel?
Barbara Barron:Well, first of all, in that situation, I would imagine that the judge would appoint a legal advisor if the defendant is adamant in representing themselves. However, just because you are a pro se litigant, although you have, I'll say, wider latitude or given wider latitude by the court, the court would shield the witness from harassment and abuse through questioning and that would be the same for a lawyer and that should be the same for a pro se litigant in whether it's a i'll call quasi criminal proceeding which would be an order protection hearing and even though that may be held in family court the abuser may choose to represent themselves and question the witness it's up to the judge and it's up to the lawyer representing the victim to make the objection for the judge to consider and to remind the pro se litigant as to what the parameters are in a criminal case that should be the same as well but there are other considerations
Marsi Mangan:in preparing for this episode i read about a washington state case where the court cross-examined the witness using questions that the defendant submitted the the judge was acting as a conduit have you heard of situations like that before
Barbara Barron:well judges are allowed to question witnesses and in that situation certainly that would be less threatening or less menacing, to use your words, so that the witness has to answer the questions unless the questions are objectionable. By having the judge ask the questions, the judge must have thought that that would be a way to ameliorate what could be a volatile situation.
Marsi Mangan:As I was thinking about it, it it was interesting to me to think about how cross is used to control your witness in any kind of case. And in this situation, if the defendant is acting as their own counsel, then again, it's another opportunity to control the witness in a case that is all about controlling the witness.
Barbara Barron:Yeah, that's true. But in the case, unless, you know, in the, in the, case of the pro se defendant and dealing with that person and having to answer questions on cross, the questions may not be as pristine as an experienced or talented trial lawyer's questions may be, and it may not be as controlling a situation as anticipated. Because if the questions are such that it allows the witness to answer more than yes or no, where's the control?
Marsi Mangan:Yeah, that's a very good point. So what must you do then to prepare your witness for examination at trial? Let's start with direct.
Barbara Barron:Well, the person has to be able to answer the hard questions. And you have to basically... provide the witness with the confidence to go ahead and do it. Because most of the battle, the facts are the facts, and you can only deal with what you have. But you have to make the witness believable, you have to make the witness reasonable, you have to make the witness likable. And you can't coach the witness by any means, but you certainly can explain to the witness what will happen, what the courtroom will look like, what the role of the judge is, what the role of the defense attorney is, and prepare the witness, I'll say psychologically, for the harder questions. Because even on direct, you have to deal with, I'm going to call the good, the bad, and the ugly. There may be incidents or facts that are not solely clear before the victim. There may be behaviors that the victim exhibited. There may be acts that the victim did that aren't aligned to what I'm going to call a pristine victim of violence. There may have been conciliatory behavior. There may be violent behavior on the victim's part in self-defense. And those are facts that may not be attractive. You still have to get them out on direct because you don't want them hanging and you don't want them obscured from the jury's consideration only to come out on cross and that will make the victim seem less credible and less likable. So admitting one's faults or admitting past behaviors that may not be perfect would be something that you would want to prepare the victim for. And I say victim in this case because when you are a victim of a crime, you want to refer to the person not so much as the victim as opposed to a complainant. It's a special victim. It's a special witness. And just like in sexual abuse cases, an IPV survivor is a special victim. In fact, if not in terminology.
Marsi Mangan:And what would be the way to prepare for cross?
Barbara Barron:Well, you have to explain to the witness that they're entitled to cross-examine you. And there are areas where you have to answer truthfully. But if you, as with any witness on cross, if the answer calls for a yes or no, you answer the question. If you can't answer it yes or no, then you don't answer it yes or no. But the bottom line is, whether it's direct or whether it's cross, the person has to tell the truth. And that may be hard for a victim and the victim may not want to testify or may not want to admit it. So you have to explain to an IPV survivor that it's crucial to the case.
Marsi Mangan:How should you respond when the witness is emotional on the stand, if they're crying, for example?
Barbara Barron:You ask if they need a break. You ask if they need some water. I mean, it would be with any person on the stand who suddenly gets emotional. I mean, being a witness at trial, or even in a deposition, but at trial is an emotional experience for anyone, whether you are the victim of a crime, whether you are a plaintiff or a defendant in a civil case, or whether you're a witness. I mean, you're under oath, you're in a courtroom, there's a judge next to you, you may have jurors looking at you, and there may be an audience. It's stressful no matter what. It is incredibly stressful. And imagine how you feel if you're staring across from your partner with whom you share children.
Marsi Mangan:How about the reverse, where someone is describing the horrific experiences that they've had that have shaken their core, and they are stoic. They're not showing any emotion at all. Is it possible that that plays poorly to the... the jurors?
Barbara Barron:It could, but that's the lawyer's job to ask questions and then to use those facts in closing to explain the behavior to the jurors. I mean, it would be if the person is stoic and is reporting what happened coolly and calmly, the comment to the jurors would be, you observed, you deserved the person's demeanor on the stand. Why didn't they cry? Why didn't they stop? Why didn't they scream? Why did they remember everything? Because what happened was true. Because they are here, because they are surviving and survived and was able to pull themselves out of the abusive environment. That's why they could talk to you because they spoke the truth.
Marsi Mangan:It seems to always come back to that, doesn't it?
Barbara Barron:It does. It does. I mean, when we know that, you know, I tell my students that truth will set you free. Well, I believe that the truth here will set them free. I mean, the issue is not one so much of how they appear on the stand, but when they don't appear on the stand, and then you have issues in trying to prove your case.
Marsi Mangan:Do you have any advice then about how to prepare on the front end for the emotional side of being in court? How to teach them to expect their anxiety and then manage it while under examination?
Barbara Barron:Well, unfortunately, lawyers are not required to have a dual degree in in psychology, clinical social work, or psychiatry. And a lot of that is unfortunately part of the lawyer's role when it comes to dealing with special victims or special circumstances, whether you're dealing with children of child abuse, whether you're dealing in family law situations outside the criminal arena, you act In addition to your legal advisory role, you have to provide emotional support. And I think it will depend on the person and it depends on the witness as to what and how you go about providing that emotional support to have them testify. And I think getting them on the stand is the more important thing. I think once you ask them the questions, you hope, number one, that they answer the questions, and number two, that they have the strength to carry on. And I think it's important to remind the person of their bravery in coming forward and extricating themselves from what could be an extraordinarily or lethal, dangerous or lethal situation. because there's so much reportage on what I'm going to call separation homicide, where the abused finds the strength to leave and the abuser subsequently kills as a result of the separation.
Marsi Mangan:The danger escalates when they leave.
Barbara Barron:Yes. And there are many statistics. And of course, I can't quote you any, but there are many statistics. And if you were to go on, it's a matter of just Googling. It's just astounding as to the number of what I'm going to call separation homicides that occur.
Marsi Mangan:This summer, you are teaching a public service program for... Thank you so much. talk to you about the issue of dealing with their own stress and sadness or anxiety from working with clients who have been abused. Can you talk to us a little bit about how to deal with your own vicarious trauma in doing this work?
Barbara Barron:Well, I think it takes a special lawyer dealing with a special victim. And I think that you have to have that inner strength. And what I've concluded based on conversations I've had with my colleagues who teach the course with me, who are dealing with survivors of partner violence in various ways, whether they are the, I'll call them the prosecutors of civil or civil claims, or they are witnesses in criminal cases, or if they're defendants. who felt under duress in behaving a certain way due to the pressure and abuse, or whether they act in self-defense in response to what they reasonably believed was an imminent fear of physical injury, serious injury or death, that they are there because they want to help. And I think that people, warriors who provide legal services to survivors are not only strong, but they are just dedicated, dedicated to eradicating this sort of abuse and not just eradicating, but making sure there's justice. And it's the justice portion that is just incredible for me because just imagine they work very hard. They have lots and lots and lots of clients. There are loads of cases and yet they stay and they're devoted because they're there to help. I had a student who I was prepping for job interviews and I said to that student, the question would be, why do you want to work here? Why do you want to be a lawyer? And the answer was, I want to help people. And of course, that sounds like a totally disingenuous answer. But indeed, that person wanted to help people. And I think that these lawyers who provide legal services for abuse survivors just want to help.
Marsi Mangan:Yes, I think it takes a very special type of soul, a very brave soul to do this kind of work. I mentioned your IPV public service program, which is coming up in June, and I want to share with listeners that you won an award last year. It's a public interest award given to CLE educators, and we submitted your program as an example of great public service work, and you received the award. So congratulations, and that is certainly... a testament to the quality of work that you're doing in this trial advocacy space. Thank you so much. You teach a number of programs for NIDA and your program director. I think you might be like the top banana in our program director department, because when I look at you and our database, your job description is not faculty member. Most of the time it's program director. In fact, right before this recording, you had just finished teaching one of the the courses that you teach for NIDA. And so I wanted to give you just an opportunity to describe some of the programs that you do and what we listeners should know about each one.
Barbara Barron:Well, I would say my greatest, not achievement, but the one that I feel the strongest about is the NIDA Building Trial Skills New York program that we run every August on Long Island at Hofstra Law School. That was one of the first trial skills programs, and it remains, I think, a fabulous trial skills program. It's a five-day intensive course where we cover direct, cross, expert witness, opening summations, and we do full jury trials. We also have an ethics component and an implicit bias component, and we run the gamut in terms of providing skills to beginners, people with some experience, people who've had experience, who need refreshers. And I think we have a superior faculty of lawyers who volunteer their time to come and work with the students, not students, but lawyers. But you really feel like you're back in law school because not only are you in a law school, but you have the camaraderie of other people who are struggling and studying and then achieving something marvelous, which is doing a trial, having learned and then applied those skills. And I mean, I think it's a terrific way of learning and I hope and I think that we provide a valuable service to those who take the course. I also created and this was born out of our pandemic, online series of courses known as intensive courses where I'm going to say they're purely improvisational. That once a month I meet with a group of people who want to hone their skills and evidence in trial examinations, in trial arguments, I mean opening statements and closing arguments, and want to practice and develop their ability to deal with experts. And we started this to provide online trial training and education for lawyers when we were all dealing in a virtual world, and that apparently has become quite popular and continues to this day.
Marsi Mangan:It has. I think we've got one program, one of these intensive programs running each month.
Barbara Barron:Yes, we do. I just, in fact, the one you mentioned, I just did one on opening statements and closing arguments.
Marsi Mangan:Yeah. And so those are half-day programs online. Yes. You don't need to do any prep work. You just need to be ready to jump in and get on your feet and practice.
Barbara Barron:Totally. What I say, you know, the program syllabus is, I think, about five lines, and the materials are your pad and your pen. Excellent. And it's a series of improvisational exercises, and sometimes we just riff off of what people are working on because those are the questions that nag them the most that prompted them to take the course.
Marsi Mangan:Well, I know that they're a lot of fun. If you are listening and you are interested in any of these programs, I will be sure to list links for the Hofstra trial skills program that Barbara mentioned, as well as some of her upcoming intensive programs, which are held online. So I want to thank you so much, Barbara, for spending time with us to talk about this very difficult subject matter. I know that these suggestions will help listeners who are working in this space, and hopefully there are also takeaways for anyone who might work with a witness or a client who is emotional during testimony, or perhaps they feel reluctant or intimidated by the prospects of giving testimony at all. So thank you very much.
Barbara Barron:Thank you for having me, Marci.
Marsi Mangan:As always, thank you so much for tuning in and subscribing. I hope you'll be back next month for my interview with Silicon Valley trial lawyer John Farrell. John has written a series of three articles about taking and defending depositions, and we will be talking about how to use and mark exhibits during depositions, step by step, in detail, and maybe with a demo or three thrown in for illustration. Until then, we at NITA wish you the very best of luck in your depositions, motions, and trials. Happy lawyering. May the Record Reflect is a NITA Studio 71 production. NIDA. We are advocacy enhanced, mentorship reimagined. Welcome to the community.