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EspañolShould I gather evidence before filing my court case?
If it is safe to do so, you could gather evidence and decide which witnesses could help you prove your case even before you file. However, if you need to file immediately, you can begin to gather evidence right after you file.
Once you begin to gather evidence, you should keep track of any witnesses by writing down their names, contact information, and what they know about your case. Make sure to photograph any injuries you suffered or any damage to your property. If you still have the damaged property, keep it. If it’s small enough to be brought into court, you might be able to enter it as evidence instead of the photograph of it. Remember, as the plaintiff or petitioner, you are the one who will have the legal burden to prove that what you are alleging in your petition/complaint actually happened, so the more evidence you have, the better.
While the abuse, stalking, or harassment is happening, one thing that you can do to better prepare your case is to keep a log or a record of the details of each incident as the incidents occur. You can make a list of the date and time of each incident, what the abuser did or said, what actions, if any, you took, what witnesses or evidence you have, etc. This way, if you have to prove the pattern of events in court, you will have an organized list with all of the information that you could refer to. You can also save any related voicemails, emails, or text messages that are sent as further proof of the abuse. Take screenshots of any posts made on social media to preserve them in case the person who posts them later deletes them. We have more information about documenting digital evidence in How should I document the abuse?
You can download a blank stalking log and cyberstalking log on our website, although you can also include other forms of abuse in those logs as well.
What kind of evidence should I have for my case?
Each state has its own laws about what evidence you can use in court. For example, you may need to get certified copies of documents you want the judge to look at, or you may only be able to enter information from certain parts of a document. If you are trying to get reports from police, hospitals, doctors, etc., you may have to get a subpoena signed by the judge or other court personnel to get those documents. Your state may require that subpoenaed documents be sent directly to the courthouse instead of you. If you are seeking records from third parties, like a phone company or an internet service provider, there may be additional hurdles or delays because of privacy laws or company policies regarding the storage of data. Due to complex rules of evidence, it may be hard to figure all of this out on your own – this is where having the help of a lawyer can be especially helpful.
In most states, evidence can include:
- testimony in court, from you or your witnesses;
- medical reports of injuries from the abuse;
- police reports for when you or a witness called the police;
- pictures of your injuries;
- household objects torn or broken by the abuser;
- pictures of your household in disarray after an episode of domestic violence;
- pictures of weapons used by the abuser against you;
- tapes of calls you may have made to 911, which can be subpoenaed;
- certified copies of relevant criminal convictions of the abuser;
- a personal log, diary, or calendar in which you documented the abuse as it happened; and
- anything else that might help prove the abuse and that is allowed under your state’s rules of evidence.
Generally, the more evidence you have, the better. However, the evidence should be directly related to the issue that the judge is considering. For example, if you are filing for a restraining order, evidence of the abuser cheating on you likely won’t be relevant to prove s/he abused you. A good rule of thumb is to always keep in mind what you have to prove according to the law, and then to remember that your evidence only has to convince the judge that it’s “more likely than not” that the abuser did what you claim. Also, remember that even if you have no documents or witnesses, your testimony is evidence. Don’t be discouraged from pursuing your case if the “only” evidence you have is your testimony.
Who can be a witness? How do I contact potential witnesses before the hearing?
Anyone can be a witness – a friend, a family member, an emergency room nurse, a doctor, a stranger who saw or heard the abuse, a law enforcement officer, etc. If your witness is a child, the court may limit what a child can testify to or have certain rules or procedures you must follow. For example, you might be required to tell the judge what the child would testify to and why only the child can provide that information. The judge might also require the child to testify in the judge’s chambers (“in camera”) without the parties being present.
Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify. Court clerks usually have subpoena forms that you can fill out, and the subpoena may have to be signed by the judge or other court personnel. There may be specific rules in your state regarding how witnesses have to be served with the subpoena and even how many days before the hearing they must be served. Be sure to ask the clerk or the judge for this information. In some states, the sheriff’s department will serve the subpoena. In other states, you may have to get someone over 18 to serve it or a process server. You can ask the clerk of court how to have your subpoenas served.
Let the judge know if the people you subpoena do not come to the hearing. The judge can penalize them for not showing up or postpone the hearing until they do appear.
How can I prepare myself to testify?
It is important to practice telling your story. Even though you lived through the abuse, you may never have had to sit down and talk about all of the incidents in an organized, clear way. By practicing in front of another person or in front of the mirror, you may be less nervous to tell your story to the judge in court. Also, as you begin talking about it, often times you will remember new details that may be important for your court case.
Tell your story in your own words, and try to speak clearly. For example, in a restraining order case, try to focus on the relevant details of the incidents of violence, threats of violence, or any harassing or stalking behavior that you included in your petition. When describing an incident where the abuser hit you, for example, tell the judge how you were hit, where on your body you were hit, how many times, what type of pain or injuries you suffered, if s/he used a weapon or object, etc. If you are describing threats that the abuser made to you, don’t paraphrase the threat by saying, “S/he threatened to kill me.” Try to remember exactly what s/he said and give those details, such as “S/he threatened to slit my throat and throw me into the river.” Details often make testimony seem more believable (credible) to judges.
You may want to also practice at which point in your testimony you would offer each piece of evidence you have, such as screenshots of text messages or photos of injuries. Hopefully, this would lessen the chance that you would forget to offer them to the judge while you are actually testifying in court. Be prepared to tell the judge what the evidence is that you are offering, how you came upon it, and why you are asking the judge to look at it. You can find more information on how to enter evidence during the hearing in Is there a process to admit evidence other than testimony?
You may want to make an outline or notes of the history of violence to bring with you to court. Depending on your state’s rules of evidence, even if you cannot read from the notes during your testimony, you may be able to refer to your notes when testifying to refresh your memory. Before taking your notes with you to the witness stand, be sure to ask the judge if it’s OK to bring notes with you in case you need to remember a date or other detail. However, be prepared to testify without them if the judge says, “No.”
