Part one in a three-part series covering investigating and prosecuting homicide cases without the victim’s body from Michelle Kaszuba an NYC prosecutor, advocate for unsolved cases, and board member for PI for the Missing and the American Investigative Society of Cold Cases. Follow along as she shares her insights to help Citizen Detectives better understand the law on investigating and prosecuting “no body” homicide cases.
There are stories of missing people that the true crime community knows, in our gut, who did it.
Susan Cox Powell.
Natalee Holloway.
Jennifer Dulos.
Stacey Peterson.
The answers are so simple. The perpetrator is so obvious. But there is no arrest. And the community cries out in frustration. This shouldn’t be a cold case—why haven’t they gotten anyone yet? Why isn’t someone in cuffs? We KNOW they did it!
Prosecuting any homicide case is a challenge. Each case has its own narrative, complications, strengths and weaknesses. Contrary to the popular catchphrase or anything that Law & Order may lead you to believe, I do not b there is any investigation or prosecution that is a “slam dunk.”
There are two main ways the prosecutor presents evidence. Direct evidence is a fact based upon the observation or knowledge of a witness. For example, the eyewitness sees the defendant take a gun from her purse and shoot the victim. The criminalist observes the stain on the victim’s shirt, swabs it for DNA, and gets a hit in CODIS. The medical examiner performs an autopsy and recovers the bullet.
On the other hand, circumstantial evidence is a set of facts and observations when taken together and examined as a whole, creates an inference that the matter asserted is true.
Picture this: You take the subway to work in the morning. When you walked down to the underground station, the sun had been shining. Now, you’re traveling underground, with several stops to go until you reach your destination. As the doors open at the next few stops, you see people entering the cars wearing raincoats, shaking water out of their hair or off their clothes, and carrying soggy umbrellas.
What are you able to figure out from this scene? It must be raining outside. You can’t see the rain; you’re underground on the subway. But you observe the raincoats, the soggy umbrellas, the wet passengers, and, in your mind, you put the pieces together. That’s circumstantial evidence.
So now imagine that you are tasked with the daunting job of preparing a murder case for a jury trial and you are taking stock of your evidence. And you find out that the body of your victim has never been found.
Prosecuting a case without a body is not impossible; however, it is not easy. Is there a scenario that exists where a witness or cooperator sees the perpetrator kill the victim and dispose of the body (direct evidence) even though the victim is never found? Of course. But when you are building a no-body case based on circumstantial evidence, here are some things to keep in mind:
Forensics (And The Lack Thereof)
I can say with a very high degree of certainty that, no matter what state or country you are in, to prove murder, the prosecution needs to show that the victim died. When there is direct evidence, when you have a body, that task is easily completed. But when there is nobody, how do you prove the one thing you need to prove murder? If an examination of a crime scene shows a massive amount of blood loss and you have a pathologist that can testify that a person could not survive that much bleeding, that testimony, taken in conjunction with other circumstantial evidence, makes a very compelling case for murder.
Your Gut Feeling Is Not Evidence
Instinct is one of the most powerful tools we have as human beings. It materializes in a hunch an investigator gets when he speaks to a potential suspect. It’s that nagging feeling that a mother has in the pit of her stomach when her son misses his curfew. It’s those things that we just know. Those feelings are valid, and our gut tells us things for a reason. But…it’s not evidence of a crime, and it cannot be testified to at trial.
Adults Are Allowed To Go Missing
This is something we have all heard time after time, and often, it seems to be a ludicrous suggestion. The mother of five children would never voluntarily leave them, family members will say. The loyal son who cared for his elderly parents would never abandon them, everyone insists. While logic dictates that certain people would never abandon family or responsibilities, how do we prove that person was abducted and murdered, absent forensics (see above), or any other direct evidence? Without the body, the possibility that the victim is alive and existing elsewhere provides a huge dose of reasonable doubt that, when exploited by a defense attorney, is very hard to overcome.
Lastly, this is something I want you to keep in mind. When a person goes missing, everyone almost immediately assumes abduction and murder to the exclusion of any other possible outcome. Keep your mind open to possibilities other than foul play when examining these stories. A myriad of reasons exist outside of malicious intent that could cause someone to act or react in an uncharacteristic way when presented with certain stressors. And sometimes, unfortunately, accidents do happen, and they are just that—accidents.
This post is the first of a three-part series that originally ran on the PI for The Missing blog.
Michelle Kaszuba has been a prosecutor since graduating from Hofstra University School of Law in 2010. She currently serves in the Financial Crimes and Money Laundering Bureau of the Suffolk District Attorney's Office and belongs to a specialized unit that investigates wrongful convictions and claims of innocence. Previously, she worked in the Queens County District Attorney's Office for 13 years.
The bulk of her career was spent in a specialized unit that investigated homicides, suspicious deaths, and vehicular deaths alongside NYPD homicide detectives, resulting in the indictments and convictions of many perpetrators. She has also worked with the NYPD cold case squad to investigate unsolved murders and disappearances.
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