Even when women have a good sense of the police role in their cases, they often become confused and intimidated when their case moves into the hands of the district attorney. The district attorney's role in violence against women cases is more abstract than that of the police, more hidden behind the scenes, and more obscured in legal terminology.
At the same time, the district attorney's handling of violence against women cases is just as critical to women's safety and justice, and more powerful than that of any other local law enforcement official. So when a case moves into the district attorney's office, women need to feel confident about evaluating the case progress. They need to feel at ease in voicing their opinions and needs. And if the case is being mishandled, women need to feel free and knowledgeable about speaking up and insisting that corrections be made.
This is all the more important because, unfortunately, it is still all too frequent for district attorneys across the country to reject or undercharge violence against women cases even when there is more than enough evidence to go forward with prosecution.
Your skillful advocacy for women in the DA phase of her case can not only give women confidence where there was intimidation, it can obtain justice and protection for her where she otherwise may have been ignored.
The following guide is designed to help both victims and advocates monitor, evaluate, and advocate for violence against women cases as these cases move through the district attorney's office. We hope the guide helps you see that once you get beyond the legal terminology, the process isn't nearly as complex as it first seems, and that your common sense plus a few tips will guide you through the district attorney handling of most all violence against women cases.
Note: The terms 'District Attorney', 'DA', 'prosecutor', 'deputy district attorney' or 'assistant district attorney' are often used interchangeably. To be more exact, however, 'the District Attorney' is the elected public official who heads the district attorney's office. 'The District Attorney' has a number of attorneys working for him or her who handle the actual cases. These attorneys are referred to as 'deputy district attorneys' or, in some regions, as 'assistant district attorneys'. All of these attorneys are often referred to as 'the prosecutor'. Prosecutor is a general term that pertains more to the attorney's function of prosecuting defendants for crimes. Throughout this text we'll be using the term 'district attorney' or 'DA' to refer to all of the attorneys who work in the district attorneys office. But when you hear any of these other terms used on your case, you'll know it's all the same person.
Part 1 ~ A few general points of information for Dealing with the DA
The following general information should help give you an overview understanding of the district attorney's role in violence against women cases. If you need immediate help in dealing with a particular case go to Part 2 ~ Advocating for Victims at the District Attorney's Office during the Pre-prosecution Phase, or to Part 3 ~ Advocating for Victims at the District Attorney's Office during the Prosecution Stage.
1. The District Attorney's Job. The district attorney's job is to protect the public's safety and to pursue justice for the community by prosecuting persons who commit crimes against the community. (All crimes, by definition, are offenses against the community.) The district attorney does this by first reviewing the evidence gathered in police crime reports in your district. Then, based on that review, the district attorney decides which, if any, criminal charges to file against the suspect. If criminal charges are filed, the district attorney then prosecutes the accused on those charges in court. The district attorney and all the attorneys in the district attorney's office are public law enforcement officials paid for by your taxes. The district attorney is the chief law enforcement officer in your community.
2. District Attorneys in the U.S. have near absolute 'prosecutorial discretion'. What this means for victims of violence against women is that the district attorney has no legal obligation to file charges in your case, even if there is a mountain of evidence to prove that the crime was committed. This unrestricted district attorney power of 'prosecutorial discretion' is usually a major surprise to people. Most people aren't aware that once in office district attorneys have this immense and virtually unchecked power to pick and choose which crimes and cases they want to prosecute, which they want to ignore, and which they want to treat lightly, even when there is more than enough evidence to prosecute fully. This broad discretionary power explains why it is so easy for district attorneys to routinely dump perfectly good violence against women cases. They are acting within their discretion to do so. And there's no way to hold the district attorney legally accountable for refusing to file your case, no matter how abundant the evidence. The district attorney is the single, ultimate gatekeeper in your community as to which victims get access justice and which do not.
What makes matters particularly bad for women is that violence against women cases are often a district attorney's least favorite cases to work. Therefore, violence against women cases are the cases that district attorneys are most likely to reject, undercharge, or mishandle. Sexist attitudes, a distaste for dealing with highly traumatized victims, archaic beliefs that violence against women is no big deal, the time it takes to do these cases; all this and more add up to many district attorney offices that wholesale dump perfectly viable violence against women cases. They don't wanna do it. They don't gotta' do it. And they know no one can hold them legally accountable for failing to do it.
So you can begin to see how this power of prosecutorial discretion can be, and so very often is, very dangerous to women. The district attorney, on no more than an arbitrary whim, can legally, single handedly, lock women out of all access to protection and justice. This is why it is so terribly important that victims and advocates watchdog the district attorney at every step, know how to pressure the DA for proper handling of your case, and not be afraid to do so.
If you want to learn more about how and why this discretionary power of district attorneys poses such a huge obstacle to women's safety and justice, see Obstacles to Criminal Justice for Women
3. The district attorney is not the victim's attorney. This is another fact that often surprises people. The district attorney is the community's attorney. This means that, strictly speaking, it's not the district attorney's job to represent the specific interests of the victim. The district attorney's job is to represent the interests of the community. Crimes, although committed against individual victims, are offenses against the whole community. The victim of the crime is a witness in the district attorney's efforts to prosecute the defendant on behalf of the community. This is why criminal cases are named in the form of 'The People versus John Doe'. The district attorney is representing 'the People', i.e. the community. This district attorney is not representing the victim.
Most of the time this distinction doesn't make much difference. The goal of the district attorney in representing the community is usually much the same as the victim's goal, i.e. the goal of holding perpetrators accountable for their crimes. However, there are circumstances when the fact that the district attorney is not the victim's attorney can have significant consequences for the victim.
First, there is no attorney client privilege between the district attorney and the victim. In fact, if the victim expresses to the attorney any information or provides evidence which may minimize or detract from the defendant's guilt, the district attorney is obligated to turn that information over to the defense.
There are also times that the victim's interests and the people's interest are in direct conflict, even when the DA is properly doing his or her job. For example, the district attorney may want to use a victim's diary to help prove the case, but the victim wants to protect her right to privacy, and doesn't want her diary used in court. Or another example, the district attorney may want to keep the victim's mother out of the court room because he or she believes the mother's presence may undermine the victim's credibility with the jury. But the victim wants to exercise her right to have her mother present in court when she testifies.
It's important for victims and advocates to understand that, different from situations of DA misconduct, these conflicts are inherent in the fact that the district attorney is not representing victim. They are legitimate conflicts, and victims should never feel shy about asserting their rights and interests when these conflicts arise. For example, in the case of the diary, before turning her diary over to the district attorney, it is completely legitimate for the victim to refuse to do so, and to ask the judge to make the decision about whose right should prevail; the district attorney's right to use the diary as evidence, or the victim's right to her privacy with the diary.
4. The DA is at the top of the local law enforcement hierarchy. The district attorney is the chief law enforcement officer and the most powerful law enforcement official in your county. The district attorney, more than any other official in your county, controls how violence against women cases overall are handled in your county. The district attorney is not only the gatekeeper who makes the ultimate decisions about which individual victims have access to justice, the district attorney controls how these crimes are responded to overall by other officials and by the community at large.
If the district attorney routinely rejects or undercharges violence against women cases, this signals all law enforcement officers in the county that it won't be worth their while putting time and effort into violence against women cases. It's human nature. Even the most diligent officers are not going to write up endless reports in a crime category they know ahead of time the district attorney is just going to disregard. Similarly, if the district attorney routinely slights violence against women cases, the entire community, perpetrators, victims, neighbors, family members, and every one, are signaled that violence against women is no big deal.
If, on the other hand, the district attorney routinely treats violence against women cases seriously and files appropriate charges, this signals law enforcement officers throughout the county that it is worth focusing their effort into thorough and competent handling of these cases. And the whole community, too, gets the message that violence against women will not be tolerated. That is the power of justice. The uniquely powerful role of the district attorney in determining a community's response to violence against women is too often overlooked by activists. Most district attorney elections take place with little or no vetting of the candidates' views on violence against women. It's a huge missed opportunity in the struggle to end this violence.
There are also times when the district attorney's position as chief law enforcement officer can come into play in your individual case. Because the district attorney holds considerable sway over all law enforcement officials in your county, you can often appeal to the district attorney to intervene when you have problems you haven't been able to resolve at other points in your case; whether it be a problem of police dragging their feet on your case, or failing to investigate properly, or a case being ignored by probation or parole, etc. Though it's not routinely done, the district attorney does have the power to take over the investigation of a case at any point. The district attorney is also usually the primary investigator of crimes where the alleged perpetrator is a law enforcement officer or other public official. As you might suspect, you sometimes have to push pretty hard to get the district attorney to even open these cases. But it is their job, and they should do it.
5. Plea Bargains are standard procedure in the criminal justice system. This fact also comes as a surprise to many people, especially to those who watch too many TV crime shows. In real life, the vast majority of criminal cases, whether misdemeanors or felonies, never go to trial. Most cases end in plea bargains - sometimes referred to as a 'plea deal' or simply a 'deal'. In most all criminal cases where the defendant doesn't plead guilty early on the district attorney will offer the defendant a plea deal in an effort to push the defendant to plead guilty and to avoid having the case go to trial.
This is important to know for a number of reasons. First, many victims, right from moment they call police, are gripped by the fear of going into a high stakes trial like they see on TV. It often helps a lot to explain to victims early and often that the chances of their case ever going to trial are small to nil.
Second, when a plea bargain is offered, some victims immediately feel their case is being mishandled. So it's helpful to explain again that plea bargains are the routine resolutions of criminal cases, and that they can result in a full measure of justice.
Third, the devil is in the details of the timing and terms of the plea bargain. Some plea offers are fair and just. But, especially in violence against women cases, many plea deals are not. They are far too often 'give-away; deals that deny women safety and justice as much as any undercharging of the case in the first place. When a plea bargain (a deal) is being offered to the defendant in your case, it's very important that you know and evaluate all the details of the offer. Later on in the text we provide tips for evaluating these plea offers in violence against women cases.
6. Paying attention to the evidence in your case is key to advocating for victims with the District Attorney. At all points as a case goes through the district attorney's office, it's crucial to know as much as you possibly can about the evidence in the case. Trying to advocate for women in the district attorney's office without knowing the evidence in the case is like trying to play poker without looking at the cards in your hand. Know the evidence in your case.
Make your state's Penal Code your new bible. Own it! Read it! Keep it warm in your hands! Also, learn how to access and search all your state's codes on the internet. The Evidence Code, Family Code, the Juvenile Code, and other codes also frequently come into play in violence against women cases. To learn more about monitoring and evaluating evidence. See Monitoring, Uncovering, and Entering Evidence into the Case Yourself
7. Keep an open notebook and pen in hand! This is important at all points in the criminal justice process. But it's especially important when the case is in the hands of the district attorney. When the district attorney starts talking about '415 hearings', 'prelims', 'harvey waivers', 'SOR', 'pre-trial motions', that's too often the point where women start tuning out and giving up hope of having any meaningful part in the process. But this is precisely the time to tune in, open a notebook, ask questions, and write it down.
When you take the time and ask what these things mean, you'll find out that the meaning behind these terms is usually very simple and common sense. Anyone can understand all of it. In addition, asking questions and taking notes signals officials that you're paying attention. And that, alone, is effective in preventing abuse. Moreover, if you keep asking questions, it's just a matter of time before you've provided yourself a good legal education compliments of the county. Ask! Ask! Ask!
Also, one of the best things you can do for your client is write down and explain the basics of the case for her. Not only does this boost her sense of control, but when victims can speak knowledgeably about their case, officials at every level of the system are going to treat your client so much more carefully and respectfully. And so too will her family, friends, and associates.
8. The district attorney's role and powers are pretty much the same throughout the United States. If you are in the United States, the tips in the text that follow should apply fairly accurately to your situation. And though the basic work of prosecutors is the same around the world, there are some significant differences in the powers of prosecutors from one country to the next. For example, in some countries prosecutors do not have the broad prosecutorial discretion held by prosecutors in the U.S., i.e., the same powers to arbitrarily reject viable cases. And in some countries, prosecutors take a more active role in the case investigation than they do here in the U.S.
We hope this quide will be useful to women everywhere. But you should always double check, especially if you're not in the United States, to be sure that specific guidelines apply in your jurisdiction.
Go to: Part 2 ~ Advocating for Victims at the District Attorney's Office during the Pre-prosecution Phase