Raw and emotional on-the-spot video statements from victims of family violence are credited with a sharp increase in the chances of offenders pleading guilty.
The 18-year-old endured 45 humiliating minutes before abandoning the interview and going home. “It was the most stressful, painstaking ordeal I have ever been through. It was horrible.” She finally completed the statement later that night in a private room at another police station. It took two and a half hours.
It was October 2017, just before the district completed its move to victim video statements, which police believe is a world-first innovation that is producing better evidence, increasing the chances of offenders entering early guilty pleas and reducing the odds of complainants recanting – often under pressure – before trial.
Swale has experienced both types of interview. When her boyfriend was charged twice more with other offences against her in the three months that followed the first attack, she recorded two video statements and says, given the choice, she’d opt for having her evidence filmed every time. “Give me half an hour to talk openly versus two and a half hours of sitting in an office. It’s a no-brainer, really.”
She is now one of more than 3000 people – most of them women – who have made video statements in the past two years. Last year, Darren Walton, an associate professor of psychology at the University of Canterbury, analysed outcomes in 168 cases in which victim videos had been used and compared them with 109 cases in which traditional written statements were taken. He found the video statements increased by 77% the odds of a defendant entering an early guilty plea to the charges against them.
The reasons for that are still unclear, he says. “One might be that it’s a more accurate account of the events of the time, and that is more difficult to challenge.” He believes it may also reduce the likelihood of a victim retracting, which happens often in such cases. The published, peer-reviewed paper attracted interest from around the world, Walton says, because the change of police practice was so “leading edge”.
Counties Manukau Police Acting Detective Inspector Ross Ellwood, who is in charge of national implementation of video statements, says they’re about putting victims first in family-harm cases. “We are saving them the stress of retelling their story.” When the videos are played in court, it means complainants don’t have to give evidence in chief [evidence in support of the case outlined by the prosecutor], although they must still be available for cross-examination.
Watching the video evidence can be a gut-wrenching experience, even when the violence involved might seem relatively low level. In one video viewed by the Listener, a young woman wept in the back of a police car as she was being filmed describing how her brother had threatened her and trashed her home after accusing her of being “a little snitch”.
“I walked off to my room and closed my door and then I heard loud banging, shaking the whole house. He started yelling and chucking everything and then he was telling me to come outside.” She stops and her voice breaks. “I’m going to cry,” she says, before whispering through her sobs: “He was saying that I’m not his sister.” It seems for her a more painful thing to say than what came next. “He was saying he doesn’t give a f--- about my house. I just heard him chucking my shelves around and more punching … I was calling the police and he says, ‘Call the police, I don’t give a f---.’ He wrecked everything …”
This young woman was not physically harmed but the raw emotion in the 2017 video – just six minutes and 17 seconds long – conveys the impact on her far more powerfully than the 11-line summary of facts. After seeing the video, the woman’s brother pleaded guilty and was jailed for seven months. It has not, however, changed his behaviour long-term – Ellwood says the man has been involved in seven more family-harm investigations since then, although not all have resulted in charges being laid.
“This lower-level type of offending still has a huge impact on our victims, and that is the important part,” says Ellwood. “We have talked about the effect on justice and police efficiency, but at the heart of all this is the victim, and if we can make this whole process better for them, and save them some stress and angst, that’s got to be a good thing. It’s a shorter process for them and they are really appreciative that we can play a video in court rather than them essentially having to go through a memory test by giving evidence 12-18 months later.”
Ellwood says he’s been struck, when watching the videos, by the strong sense that the victims are telling the truth. “It’s 100% the truth because there isn’t the opportunity for them to have made anything up or be gilding the lily, because it’s on the spot.” He’s also had cases in which victims have wanted to retract but changed their mind after watching the video again. “I would sit down and play it back to victims as part of briefing them for court and it was really rare that they wouldn’t break down in tears and be taken back into that emotional space. That’s the real power of it. It’s hard to resile from it. The minute we started this and I began to get the videos through, I was sold and invested in it.
“We have had victims who’ve come into a police station to report fresh offending and have asked to do a video statement because they know it’s the best evidence and they don’t want to give themselves the opportunity to try to resile from what they’re saying at a court hearing further down the track. That’s obviously a big issue for us, and if you look at any international research, there are really high numbers of victims wanting to recant after charges have been laid.”
But it’s not just about getting the best evidence to lock up the bad guys. Ellwood says shortening the court process can help families stay together. In about 80% of cases involving intimate-partner violence, he says, the couple don’t want to split up. “It’s really tough to maintain those relationships when they are going through a court process and the defendant is bailed to not associate with the victim. If we can get those families back on track in a meaningful way and do some work with them, a shorter court process has to be good for them.”
Although at present videos can’t be used outside family-violence cases, he believes they will eventually become the norm in policing, but there would need to be a law change and improved technology throughout the justice sector. “There is a lot of scope to do this. We have had some media over the past few years about dairy robberies – there is a strong argument to say dairy owners are vulnerable victims as well and why wouldn’t we afford them the opportunity to be recorded on video as best evidence.” The technology does come at a cost – an estimated $4.7 million over the next five years – and that would only increase with wider use, but Ellwood says it saves police and court time.
The practice made the news for all the wrong reasons in August, however, when a strangulation charge against high-profile offender Mark Cropp – best known for the “Devast8” tattoo inked across his face – was dropped after the complainant said the officer who interviewed her had deleted her first video interview. All the videos must be retained.
Ellwood says the complainant had talked about historical events in the first video and the officer thought the second recording had made the first redundant. “That opens us up to all sorts of allegations and a perception there is a lack of transparency. In the heat of the moment, sometimes we simply get it wrong and that was a good lesson for us. We’ve spoken to the officer and there was certainly no ill-will on his part – he wasn’t intending to hide evidence.”
Cropp’s lawyer, Graham Reid, told the Listener that although he couldn’t talk about that case, he has concerns about some of the legal requirements for lawyers when accessing videoed statements. The videos are uploaded to cloud-based storage run by an Arizona-based company, Axon, and made available through a platform called evidence.com. But Reid says before lawyers can sign up, they have to agree to indemnify Axon in the event of any security breach that might be traced back to them, “and that has implications for lawyers’ insurance cover”.
His colleague, Shane Cassidy, agrees: “Police are basically contracting out storage of all evidence of the complainant statements. I don’t know if complainants are being told this is going to be stored on a server in the US and it’s not part of our government or the US government. It’s a private company, a bit like Facebook. The FBI has been hacked and so has the National Security Agency. If someone wants to hack it, they can.”
Ellwood says police have been using Axon’s evidence.com, originally called Taser International because they provided police with tasers with built-in audio and video recording, without a problem since 2010. “Without wanting to sound like a salesman for Taser or Axon, it operates in 100 countries and I’m not aware of any security breaches.”
He says there have been legal challenges to the terms and conditions required before users could sign up to the digital platform but in the Papakura District Court in February, Judge Paul Mabey ruled they were not an impediment to the use of the site by lawyers.
Cassidy says police have offered to forward him a link to the platform. “I said, ‘I’m sorry, I’m not interested. Please send me a transcript.’
“You’re being asked to contract to cover their legal costs in case something goes wrong. I’m just not prepared to do that. The police will thrust this upon everybody thinking it’s a good idea, but I’m saying you have a statutory obligation to disclose it and that doesn’t come with conditions.”
He has heard of a case in which a lawyer didn’t have a password to the site and a prosecutor sat with him and his client showing the video statement on his iPhone in an interview room at court. “It’s far from satisfactory to be viewing evidence in a courtroom on a borrowed phone with a policeman there. You’d want to stop and start the video and talk to your client about it, but you can’t do that with a cop sitting there because anything that is said could be used against them.”
Cassidy is also concerned that videos capture a snapshot that could be used out of context and elevated to a different evidential level. He’s known of cases where men had been living with alcoholic partners who’d become argumentative and upset and then threatened them with a breach of a protection order. “They would say she gets wound up and gets on the phone to police screaming and crying. Police turn up and she is hysterical and they’re sitting in a corner, sober, watching TV. They interview her but don’t interview him on video – they don’t see he is calm and collected.”
Cassidy says judges are required not to take witness emotion into account and to advise jurors that while they could take demeanour into account, “you’ve got to be very, very careful with it. What underlies this videotaping of statements on the night is quite clearly, in my view, whether they will admit it or not, aimed at trying to convey emotion and somehow trying to influence the judge.”
But Reid says for a lawyer doing legal aid, when clients can sometimes barely read or write and have trouble understanding written statements, the videos can be useful. “They can hear and understand what’s been said whereas a written statement sometimes means nothing to them.”
A former police prosecutor, Reid worries about the possibly prejudicial impact of videos of recently traumatised victims. “If it’s going in front of a jury and [the victim] is covered in blood, for example … It could be a very minor injury but it looks horrendous. A little bit of blood can go a long way.”
Ellwood says under the Evidence Act, lawyers are not entitled to be given a copy of a video record – police are simply required to offer the evidence for viewing. “We have some important obligations to meet around record-keeping, keeping interviews secure and preserving victims’ privacy. Evidence.com/Axon is like any other digital platform or software we use every day – they all require users to sign up to some form of terms-of-use agreement. It’s part of operating in the digital age.”
He says there are no onerous terms in Axon’s agreement that differentiate it from anything else police use – a position upheld in the judge’s ruling. “If lawyers refuse to sign up, we would invite them to the police station or other place to view the video.”
As to the videos being used to influence jurors through the emotion and demeanour of the witness, Ellwood says it’s completely natural that assessing the way someone gives evidence is an important part of assessing their overall credibility. “If we wanted to take demeanour completely out of consideration, then we wouldn’t have witnesses giving evidence at all. Video statements are about getting the best and most reliable and accurate evidence in front of the court. These are statements taken immediately after an event when memory is fresh, and are recorded in the complainant’s own words.”
Acting Superintendent Bronwyn Marshall says police have seen the voice of family violence victims lost “all too often. We want them to be able to reveal the abuse they have suffered in the most effective and practical way. And this is one of the ways we can ensure their voice is heard by police, the court, counsel and the perpetrator.” She says victims retain the option to make a written statement if they are more comfortable with that.
Jane Drumm, the general manager of Shine, an organisation that aims to stop domestic abuse, is a big supporter of the change, saying videos taken immediately after an incident are compelling. “When people are highly stressed, the words just come out and you can see the bruising, you can see the marks, you can see the tears, you can see what the room looks like, you can see the blood up the wall, you can see the doors kicked in. So, even if the woman – and it is usually, but not always, a woman – does not want to give evidence, there is still this very compelling testimony.”
Having the videos taken at the time, often at the victim’s home, is more convenient than making them visit a police station, she says. “You have little kids, it’s the middle of the night and you have to make a time to come in – those are huge barriers.”
A former probation officer, Drumm says victims who are terrified and have been seriously assaulted are under pressure to be the pivotal witness in family-harm cases. If their alleged assailant pleads not guilty, they have to withstand months of pressure and stress ahead of a court hearing. “It’s saying to people who’ve been assaulted or have serious enough crime perpetrated against them, ‘We take this seriously, we understand that this is very hard for you as victim of a crime and we are going to take as much as possible off your shoulders in order to keep you safe and ensure there is some kind of accountability.’”
Makeup to hide the bruises
In March this year, Jaime Swale’s former partner was sentenced to eight months’ home detention on 11 charges related to his abuse of her. Most women in her position never see a judicial conclusion. Swale says after his first attack on her, it took her three days to go to the police – she was living at home and would wake up early to put on makeup to hide her bruises. “One morning, I didn’t wake up in time and Mum came in, saw the bruises and took me to the police station straight away, pretty much.”
She says she’d called the Shine helpline the night before and was considering making a complaint but “I was scared of the backlash from him, the threats he made … whether he would carry them out or not. At this point, I was pretty dependent on him because I’d been isolated from my friends and wasn’t open with my family about it. Every time my mum tried to stop me from seeing him, it was pretty much useless. I was in love with him – as messed up as it was.” She had met her boyfriend at school, and started going out with him when she was 16.
Swale says even after she went to the police, she was in contact with him, despite having a temporary protection order. “He went all sweet and was trying to convince me it would never happen again and if I put this thing on his name it would look really bad and hold him back in the future.” He wasn’t asking her to retract her evidence, she says, “but just to say things weren’t as serious as they had been”.
Swale, who is now studying design at Victoria University of Wellington, says watching the videos of her tearful testimony helped her before she gave evidence in the court case. She had to testify because in the first incident – the most serious – she had made a written statement. She endured seven hours of cross-examination by her ex-boyfriend’s lawyer.
“It might seem counterproductive bringing up those emotions again, but that’s what helped me most on the stand. They [police] don’t want you to be cold and formal. They want you to do your best to tell them how you felt, even though, by then, it was 18 months down the line.”
Seeing the recordings again shocked both her and her mother. “Seeing how weak, thin, unhealthy and tired I looked was shocking. Watching them brought up all the anger and betrayal and hopelessness I had felt at that point. But it made me feel a bit braver and proud of myself. I thought, ‘This was where I started, and now we are in the court and about to go and do this. You’ve got to do this for the person in that video.’”
The harm at home
Officers investigated nearly 120,000 incidents in 2016 – about one every five minutes – an increase of more than 8000 on the year before. There were about 102,000 investigations in 2014, up 6000 on the year before. It is not clear whether the violence itself is increasing or the number of incidents being reported.
Of the recorded assaults against women and girls, 76% are committed by an offender who is identified as family and about 70% of family-harm incidents involve intimate-partner violence.
In Counties Manukau alone, police record an average of 27 video statements from victims of family harm each week. A video statement is made in 62% of family-harm arrest cases – but arrests occur in only about 10% of the incidents officers attend.
Police anticipate that when the national roll-out of the technology occurs by the middle of next year, staff will be recording 8500 videos a year.
This article was first published in the October 26, 2019 issue of the New Zealand Listener.