to Part ll
Advocating for Victims at the District Attorney's Office
During the Prosecution Phase
The Good News
Once the district attorney files charges, the case enters the prosecution phase. In the prosecution phase, the district attorney takes the case into the courtroom and works to prove that the defendant is guilty of the crimes that have been charged.
Before getting into the details of prosecution, it's worth a minute to note that the filing of charges is an important landmark in the case that has special significance for the victim. Here are some advantages for the victim of reaching this critical point.
- Even if the defendant is never convicted, once charges are filed, those charges, with very few exceptions, will be permanently and publicly on his record. Anyone who looks up his name at the courthouse records office will be able to see that the defendant was charged, along with complete information as to the nature and severity of the charges. This record can be extremely helpful to the victim, and to the community, for years to come, and in all kinds of circumstances. The victim no longer has to rely solely on her own words to show that she has been a victim of a crime or that the named defendant is the likely perpetrator. She now has an official document on the public record that the district attorney, after reviewing the evidence, is convinced that the defendant did the crime(s).
Many important courts and institutions will accept the filing of criminal charges as a strong indication that it's likely the defendant did the crime. Family courts, juvenile courts, administrative courts, schools and work places, housing offices, victim services, etc., all of which operate on a much lower standard of evidence than criminal court, will often stand on this record of charges filed by the district attorney. As such, the filing of charges is not just a step toward justice, it's a permanent element of justice that will always be there whenever the victim or the community needs it, even if the defendant is not ultimately convicted.
So once charges are filed, the victim should obtain a printout of the record of the charges being filed, make copies, and keep them on hand. She can obtain this record by requesting it from a victim advocate in the district attorney's office or by going to the criminal records office in the courthouse. She should also know that she can always go back to the courthouse and get a copy of this record at any time in the future.
- The filing of charges is important, also, because in taking this step of filing charges, the district attorney makes a public, on-the-record, commitment to the case. The district attorney now has a much greater interest in the case because from now on case activity will be carried out in the public arena of a courtroom. This shift from back office work on the case to public commitment in a public arena generally makes the attorney assigned to the case more motivated, more open to communication, concerns, and suggestions from the victim, and more open to any additional evidence that may be available.
- This doesn't mean that the victim and advocate can kick back and trust that the case is on automatic. There are many factors in the prosecution phase that can still lead a district attorney to mishandle, under prosecute the case, settle for give-away plea deals, or unnecessarily dismiss the case. This is especially true in violence against women cases because of the sexism that still pervades most district attorney offices. But if and when any of these things may occur, it's usually easier now that charges have been filed to get corrections made when they're needed. Officials high up in the district attorney's office are also more likely to respond to any complaints by victims and advocates once the case has officially moved into the courtroom.
- Keep in mind that even after charges have been filed, the district attorney can still add, subtract, amend, or dismiss charges in the case. And if a case gets dismissed, charges can be refiled, up to a certain point in time, if new evidence is obtained. Don't hesitate at any point to argue for amending charges in your case, including by going to the attorney's supervisors. Even if you failed to make the same argument before charges were filed, remember, it will probably be easier now to get a serious consideration than it was before charges were filed.
Attempting to dissuade a victim is a crime!
Attempting to dissuade a victim or any witness from testifying or appearing in court is a crime, even when there is no use of force or threat of force. In California, the Penal Code section for this crime is PC136.1.
It is very, very common in violence-against-women cases for defendants to attempt to dissuade the victim from testifying or from appearing in court. This is because these defendants generally know the victim very well, and often continue to believe they can control and manipulate her. Because attempts to dissuade the victim are so common, victims should be informed about this law as a matter of routine, and informed that it applies from the time police open a case until the final disposition of the case. If the defendant, or anyone acting on a defendant's behalf, in any way attempts to get a victim or witness to withdraw from the case, this is always a crime, one that should be immediately reported to police. No force or threat is required to make it a crime. A simple attempt to dissuade is sufficient. For example, sometimes a defendant may make sweet promises to the victim if she'll agree not to testify. Or sometimes defendant's will get a relative to call the victim and try to talk her out of continuing with the case. This is all still a crime of 'dissuading a witness', including if the victim is not dissuaded.
Because this crime is so common in violence against women cases, and because law enforcement is often reluctant to write a new crime report when victims do report it, it's important for advocates to be familiar with the specifics of the law in your state or country. Advocates often have to step in and press law enforcement to take this crime seriously. The district attorney should also be informed of any attempt by the defendant or his allies to persuade the victim, or any other witness, to withdraw from the case. If officials are still reluctant to make an official crime report, have the victim write her own statement as to what happened, take it to a superior officer, and insist the report be taken properly. In general, according to the California law, if no force or threat of force is used in the attempt, the crime is a misdemeanor. And, in general, If force or threat of force is used, the crime is a felony.
The Arraignment, the first court appearance in the prosecution
The first time the district attorney will appear in court on the case will be at the arraignment. If the suspect is in custody, the arraignment will take place within 48 hours of the suspect's arrest (not counting weekends). (In some states, the time allowed before an arraignment may be up to 72 hours after the arrest.)
The main purpose of the arraignment is to officially and publicly inform the defendant of the exact charges against him or her.
We've already discussed the arraignment in more detail in other sections, which you can review at here. Here, we summarize just a couple of the main points as follows:
- The main purpose of the arraignment is to officially and publicly inform the defendant of the charges against him or her. Because arraignments are held so soon after a suspect's arrest, the victims, who are typically very traumatized at this point, often panic when they hear the arraignment is taking place. They're afraid that something important is taking place without them, and without their side of the story being told. So it's critical at this point that you be able to explain to the woman that the purpose of the arraignment is not to determine guilt or innocence. There is no fact finding activity at the arraignment; no evidence is presented, and no witnesses will be testifying.
- At the arraignment, if the defendant doesn't already have an attorney, or can't afford an attorney, he will be assigned a public defender.
- At the arraignment the defendant will generally be asked to enter a plea of 'guilty' or 'not guilty'. Most all defendants plead 'not guilty'. When victims hear that the defendant has pled 'not guilty', this is another point where many women are further beset with anxiety. Again, it's important to explain that this is standard procedure, and that defendants are, in fact, advised to plead 'not guilty'.
- Also, at the arraignment a date will be set for the next court hearing. If the defendant has asked for a bail reduction hearing, that hearing would likely come quickly within the next couple days.
- Remember also, the arraignment is not the final word on the charges against the defendant. Charges can be added or dismissed over time, depending on the evidence and circumstances of the case.
Despite the fact that the arraignment is generally inconsequential to the victim, there are two issues that victims and advocates should be alert to in regard to the arraignment. They are criminal protective orders and bail.
- Criminal Protective Orders: At the arraignment, the prosecutor can ask for and obtain a criminal protective order for the victim, and possibly for the victim's children. The victim does not have to be present in order for the prosecutor to obtain the order, nor does the victim have to fill out any forms or petition for the order. The fact that the DA has filed charges is sufficient evidence for the judge to sign the order. What is important is that the victim (or advocate) inform the prosecutor prior to the arraignment that the victim wants a criminal protective order. For more information on criminal protective orders, their advantages, and how to be sure to obtain them click here.
If, for whatever reason, a criminal protective order wasn't obtained at the arraignment, keep in mind that the district attorney can request a criminal protective order for the victim at any time throughout the process, including times outside of scheduled hearings on the case.
- Bail: Arguments about the amount and conditions of defendant's bail are often begun at the arraignment, and, if not agreed on, are often scheduled for within a couple days of the arraignment in what's called a 'bail reduction hearing'. The amount and conditions of bail are often vital issues for the victim. It's crucial that the prosecutor be informed about the victim's concerns regarding defendant's bail prior to the bail reduction hearing, and even better before the arraignment. For more information on getting these concerns communicated to the prosecutor, click here.
- The Victim and the Judge: Once the case is in the courtroom, the judge can become a crucial ally for the victim, especially if the prosecutor is failing to heed a victim's requests on such things as bail, protective orders, plea deals, and a whole range of victims' rights. The judge's job is to assure that the case is conducted fairly and safely. As such, the judge should have a special concern for the victim who is the primary witness in the case. Because the judge can be such an important resource for the victim, we are devoting a special section to that relationship, and on how and when to use it.
After the arraignment, if you haven't already done so, it's critical that you and the victim make your own review of the case for its strengths and weaknesses. Being able to monitor and evaluate the evidence in the case is critical to knowing if the case is correctly charged, to avoiding dismissals and give-away plea bargains, and to being able to argue for adequate prosecution of the defendant and protection for the victim. Good monitoring and evaluating evidence is such a vital skill for advocates, we've put together a guide for that purpose. See, How to Monitor, Uncover, and Enter Evidence into the Case Yourself.
Advise Victims About Defense Attorneys
and their Investigators!
Some defense attorneys will try to talk with the victim or other witnesses about the case. Or they may send an investigator who is working for them to talk with the victim or other witnesses. And some will cross the line into criminal attempts to dissuade the witness.
Victims and witnesses should be informed early on that there are never any circumstances when they have to talk with anyone connected to the defense team, except when they're on the witness stand testifying in front of a judge. Not only do victims always have the right to refuse to talk to the defense team, they should be strongly advised never to do so.
Some women understand immediately why it is always against their interests to communicate in any way with the defense team. And some women need the explanation that there's only one thing the defense is after when they talk to the victim, and that is something to use against the victim, or against the prosecution of the case, and to favor the defendant.
It's also critical to advise women to always ask for very specific identification before responding to anyone about the case. Too often members of the defense team will come on like law enforcement officials in order to trick the victim into talking. Always have the victim ask for names and positions AND the official's ID before talking about the case. Another thing members of the defense team will try to do is to corner the victim in the courthouse just before or just after the case is called. They may say something like, 'let's see if there's something we can do to get Tony (the defendant) the help he needs.' No matter what the approach, the victim should always walk away.
All defense team attempts to contact the victim should be reported to the district attorney assigned to the case. Depending on the nature of the contact, the defense team may or may not be crossing the line into criminal attempts to dissuade the witness.
From this point, we divide discussion into two parts. First we cover misdemeanor prosecutions and then felony prosecutions. This is because the process for each is quite different. But despite the differences in process, the ultimate success in either case depends on the same three main things; the strength of the evidence, the motivation and competence of the district attorney, and effective advocacy.
A couple starting points about misdemeanor prosecutions:
- In a misdemeanor case it's very unlikely the victim will ever be called to testify. The reason the victim is unlikely to be called to testify is because neither the judge, the prosecutor, nor the defense attorney want to spend the time and money putting on trials for misdemeanor cases. It would literally break the court system if misdemeanor cases regularly went to trial. So all the officials involved in misdemeanor prosecutions will be trying to avoid a trial like the plague. As a result, most all misdemeanor cases will be settled without the victim ever having to testify. The reason we mention this first is because so many victims are worrying themselves sick about having to testify. You can alleviate some of that stress by telling them that it's not likely.
Even though misdemeanor cases almost never go to trial, it's still important that you and the victim pay attention to the case progress and stay in communication with the district attorney assigned to the case. The main things to watch out for is that all the evidence has been entered into the case, that the case doesn't get suddenly dismissed for frivolous reasons, or pled out on slap-on-the-wrist deals, and that the victim remains safe.
- Assuming the victim wants prosecution, the main things to communicate to the district attorney is that the victim doesn't want the case dismissed, and that the victim is willing to testify if necessary. It's also important to communicate to the district attorney that the victim doesn't want the case pled out on a give-away deal. Two actual examples of what a give-away deal looks like: 11counts of restraining order violations pled out to 1 restraining order violation, or, 1 domestic violence count and 1 drug charge pled out to 1 drug charge. So make it clear from the beginning the victim doesn't want slap-on-the-wrist pleas.
- Most domestic violence cases will be charged as misdemeanors. Victims are often concerned about why the suspect is being charged with a misdemeanor when the police report says he was arrested for a felony. Without going into a full explanation here, the main point to communicate is that this is very common. As a very general rule, with many exceptions, a domestic violence case is charged as a misdemeanor when there are no serious or permanent injuries, and when no weapons have been used. If you or the victim thinks the case is being wrongly charged as a misdemeanor, protest the charging immediately.
- In cases where multiple charges have been filed, and one or more of the charges is a felony, the entire case will handled according to felony procedures.
- If your county has a special domestic violence criminal court, the case legal process will be basically the same as in a generic court. So what follows applies whether the case is handled in a domestic violence court or a generic court.
Here's how a misdemeanor domestic violence, misdemeanor sex crime, or misdemeanor child abuse case usually proceeds.
The first hearing after the arraignment is usually called a settlement hearing. Though different states may have different names for this hearing, the name 'settlement hearing' tells the story. The main shared objective of the district attorney, the defense attorney, and the judge is to get the case settled, if at all possible, as soon as possible. If you've attended these hearings, you already know that the misdemeanor courtroom may have 25 or more of these cases on the calendar for the day. The cases are called quickly one after another. The other thing you'll notice is that victims and witnesses are not present to testify in these hearings. The cases are being handled according to the evidence in the file.
At the settlement hearing, the district attorney seeks to get a conviction on the charge(s), or, at least, tries for a good deal on lesser charges. The defense attorney, public or private, is more than likely aiming for a dismissal, or for a good deal on lesser charges. And the judge will be pushing to move things along. The attorneys on both sides know that the day will go best if they are each ready to give and take on one after the other cases as the cases move along.
A misdemeanor courtroom may look like a big trading bazaar, and in many ways it is. But on closer look you'll see that evidence counts heavily in determining outcomes. As each case is called, the district attorney will argue strongly or weakly on a case generally depending on the strength of evidence in the file. This is why it is so very important that you and your client have reviewed the case before it goes to the hearing - to make sure the case file is as strong as it can be.
If the evidence in your client's case is strong, and if the district attorney knows the victim wants a conviction, the district attorney will be more willing to push and argue more vigorously on your client's case. If, on the other hand, the evidence is weak in your client's case, or if the attorney has never heard from the victim, the district attorney may decide that this is one of the cases where he or she will yield or submit to the defense, or even agree to dismiss the case, something that happens far too often in violence against women cases. Again, this is why it's so important to assure that all evidence has been entered into the case, and that the victim has communicated her wishes clearly to the district attorney.
Victims do not have to attend settlement hearings, though they can if they wish.
What about the defendant who isn't going for any of it and insists on his right to a trial, or won't accept the deal that's being offered? This happens fairly frequently since, in the beginning at least, most violence-against-women defendants hold tight to the delusion that this whole mess is all the victim's fault. And on top of that, at least at the beginning, these defendants believe they can prove it. But, if the evidence is strong, and the defense attorney has seen that the DA is willing to go to bat on the case, the defense attorney will likely turn to his or her client, and have a hushed conversation. They'll tell the defendant, 'Look, you've got a right to a trial if you insist. But they've got x, y, and z against you. If you take it to trial, you'll likely lose.' On the other hand, If the evidence is not that great, or if the DA has signaled disinterest in the case, the defense attorney can be emboldened and just as easily tell the court, 'my client wants to take this to trial.' So, again, you can see the critical importance of good evidence, and of motivating the DA to the case.
What about the defendant who, despite having been discouraged by the defense attorney, still insists on his right to a trial? The court has an easy answer for that situation. The court simply gives the defendant a trial date. But here's what your client needs to know. Just because the judge has given the defendant a trial date, it doesn't mean the case is going to trial. In fact, it's still highly unlikely the case is going to trial. Remember, neither the DA, the defense attorney, nor the judge want to go to trial on a any misdemeanor case.
It's worth repeating again and again. Just because a trial date has been set, it doesn't mean the case is going to trial. In fact, it's unlikely the case will go to trial.
The trial date, in all likelihood, will be another 'settlement hearing'. Usually, the DA and the defense attorney will have talked informally in the interim, and at the next court date, the DA will offer a deal, offer to dismiss the case, or, if the case is strong enough, will stick by his or her guns and say, alright, let's go to trial. At which point, the defense attorney will turn to his or her client for another hushed conversation, encouraging him to take whatever deal may be on the table, and discouraging him from going to trial.
If the case is strong, and if the DA has argued vigorously for the case, by this time the defendant is often starting to get the picture that the heavy boot of the state on his neck is not going to go away so easily, and the defendant pleads guilty to the original or lesser offense. Or, if the case is not that strong, or the DA not that motivated, this might be the point where the DA dismisses the case.
So you can see how all this back and forth in the procedure works to resolve virtually all misdemeanor cases without a trial, and without the victim ever having to testify. Victims often get very unnerved when they hear that a trial date has been set. But by being able to explain the dynamic, you can usually ease their minds. Another thing that often upsets victims is the amount of time it's taking for the case to be resolved. It helps to explain that sometimes this lag of time works to the victim's benefit. It's often time itself that brings a defendant to his senses regarding the evidence against him, and gets him to make a reasonable plea.
Having said all of this, you and the victim should keep in mind that every once in a while, a misdemeanor case will go to trial.
What if the misdemeanor case does go to trial? If, after all the officials' efforts to keep the case from going to trial, the defendant still insists on a trial, the defendant will get his trial. It's his right. But if the district attorney has let the case get to this point, it's usually because the DA believes the case evidence is strong. If the case evidence were not strong, the DA would have by now likely either dismissed the case, or would have offered a sweet deal. If you explain this to the victim, and go through the strengths of the case with her, it will bolster her confidence about testifying.
There's another thing that comes into play that also usually eases the tension of a trial for the victim. By the time the trial date comes around, usually so much time has passed that the victim has gotten much stronger, especially if, in the interim, you've gotten her connected to the services she needs, gotten custody legally assigned to her, and kept her protected from further harassment and threats from the perpetrator.
And one other point of preparation for the victim. Be sure and let her know that it's not unusual for the case to be settled right before the trial.
Preparing the victim for trial: If you and the victim have been able to maintain good communication with the district attorney, it's likely he or she will let you know the case is going to trial. If not, the victim will first find out when she receives a subpoena, a court order to appear in a given court, at a given time and date. The fact that she has received a subpoena still does not mean the case is going to trial. Last minute plea deals are very common. However, the subpoena ordering the victim to appear definitely indicates the possibility the case may go to trial, and the victim must respond to the subpoena at the time and courtroom ordered on the subpoena.
Most people have watched a lot of trials on TV. So women usually have a general idea about how it works, and along with that they also have usually picked up many misconceptions. To help answer the questions victims most often have, and to help make her testimony as strong as possible, we've put together a guide called Tips for Testifying, in English and Spanish, which we recommend as one way you can help them prepare for trial. You can click here for the guide, Tips for Testifying.
After you and the victim have gone over basic information and questions about the trial process, you or she should talk with the attorney assigned to the case to clear up any remaining issues. In fact, once the victim receives her subpoena to appear, it's especially important to stay in contact with the district attorney to keep on top of any last minute changes and concerns.
Prior to a trial, and during the trial, the judge can sometimes be extremely helpful when and if there is a critical need for intervention on any number of issues that directly affect the victim. It doesn't happen that often that a victim needs to turn to a judge for help, but the judge's intervention at those times can be so critical that we're putting together a special section on the victim and the judge.
Sentencing: When a defendant pleads guilty to a misdemeanor, or is declared guilty in a misdemeanor trial, judges usually deliver the sentence immediately. Still, it's not completely out of the ordinary for a judge to ask for a pre-sentencing report in misdemeanor cases. If the judge calls for a pre-sentencing report in your client's case, she has the opportunity to give input into that report and into the recommended sentencing that will be given to the judge. To advise your client on how to best provide input into the sentencing see: Victim Impact Statements and Pre-sentencing Probation Reports.
Overview of Key Advocacy Points for the Misdemeanor Prosecution Phase:
- Make sure the case has been charged adequately, and on each aspect of the crime(s).
- You or the victim should communicate early and regularly with the prosecutor assigned to the case, especially prior to each hearing. Let the prosecutor know what the victim wants regarding prosecution, and if she is willing to testify. Talk in person with the prosecutor to discuss, ahead of time, any issues and concerns regarding the possibility of a plea.
- Make sure you and the victim have gone over a copy of the police report. Know the strength of the evidence in the case. If the case evidence is weak, keep in mind that there is almost always more evidence available to add to the case. Make sure existing evidence has been entered into the case. See, Monitor, Uncover, and Enter Evidence into the Case Yourself.
- Keep track of the status of bail, criminal protective orders, the charges, case court schedule, and the district attorney's intents and motivation.
- Inform the victim early on about the usual course and dynamics of a misdemeanor prosecution.
- Monitor the victim's safety. If she is in any way being harassed, threatened, or pressured regarding the case by the defendant or his allies, she should immediately report that to the police and to the district attorney. And these officials, in turn, must put a stop to the behavior, properly record the acts (which usually means a new crime report), and protect the victim. If any of this does not occur, go immediately to the official's supervisor(s) and press hard for correction. Victim safety is paramount to a successful prosecution.
- Talk with the district attorney quickly if any concerns develop. Don't hesitate to go over his or her head quickly if you're not getting the responses that justice demands. Go to the head of the violence against women prosecution unit or to the chief deputy district attorney, and if that doesn't work, go to the District Attorney.
- Don't rely on district attorney victim advocates or victim assistance personnel to carry out these advocacy functions, unless you know the person well. Many of these personnel are very helpful in connecting victims to services. But their knowledge of the system varies greatly. And most significantly, because they work for the district attorney, or for a related government entity, these individuals are often unwilling to stand up to the district attorney and fight for the victim's rights.
VICTIM'S RIGHT TO ADVOCATE AND
A Powerful Right for Victims!
California Penal Code, Sections 679.04 and 679.05
One of the most valuable rights for victims of violence against women is the right to have an advocate and support person of her choice accompany her throughout the criminal justice process. This includes during all interviews with police, district attorneys, and all their agents. In California this right applies to sexual assault victims (PC 679.04), and more recently to domestic violence victims, too (PC679.05). There are rare occasions when law enforcement can ask that a particular support person be excluded, usually due to the fact that the particular support person may also be a witness. However, police and district attorneys can never deny the victim's right to be accompanied by the advocate of her choice.
This is a powerful right for violence-against-women victims for many reasons. One key reason is because one of the most common tactics malicious police and district attorneys use to get rid of these cases is to get the victim alone and tell her the case doesn't have enough evidence, or to insinuate it's her fault, or make her fearful of defense tactics, or in one way or another give her bogus reasons the case can't be worked. The most effective protection against this kind of malicious denial of justice, and other abuses of the victim by officials, is for the victim to have an advocate and support person with her in all contacts with police and district attorneys.
Because this right is so vital to women's right to justice, it's important that all victims be informed of this right. It's also important that the victim and her advocate have a plan ahead of time how to handle the situation when and if a law enforcement official attempts to deny this right.
BE AWARE! It's not at all uncommon for a police officer or district attorney, right at the last minute before a meeting, to suddenly say they need to meet with the victim alone. It's crucial that the victim and advocate (and support person) have a plan ahead of time as to exactly how you are going to handle that situation, so you can assure that the victim doesn't get last minute tricked out of her right to have an advocate and support person with her at all times. In general, the victim has to be ready to say directly to the attorney that she asserts her right to have an advocate and support person. And if that doesn't work, she should be ready to say she's going to a supervisor if the attorney won't abide by her rights. It's best if the victim is able to say these things herself. But, at the very least, if she wants you to do the talking, she has to be willing to indicate her agreement with you to the attorney. This is why it's important for victim, advocate, and support person to discuss this ahead of time.
The following link takes you to the text of the law as it pertains to sexual assault victims. Following the text are some additional notes and suggestions on how to handle an official's attempt to deny this right, see http://www.justicewomen.com/help_know_your_rights.html#4 Because the corresponding law that covers domestic violence victims is identically worded, the notes and suggestions for the one law can be applied to domestic violence victims too.
The procedures for felony prosecutions are generally lengthier and more rigorous than misdemeanor prosecutions because felonies, by definition, are more serious crimes, and the potential punishments for the defendant are more severe.
Although felony prosecutions go to trial more frequently than misdemeanor prosecutions, still the vast majority of felony prosecutions never go to trial. Overall, about 90% of all felony prosecutions are settled with a plea agreement.
However, even when felony prosecutions don't go to trial, they are almost always scheduled early on with a preliminary hearing. And victims almost always have to testify at preliminary hearings. There are sometimes special exceptions in the cases of child victims, and rare exceptions for adult victims.
NOTE: The Grand Jury System: In about half the states of the U.S., instead of a preliminary hearing, a grand jury is utilized in felony prosecutions to determine if the defendant should be held to trial. The key differences in the grand jury system are that citizens of the grand jury question witnesses, there is no judge, the defense attorney does not cross-examine, and the proceedings are held in secret. The victim does have to testify in the grand jury system.
Our discussion of felony prosecutions is based on the preliminary hearing system because that is the system in our state of California, and because other states are increasingly abandoning the grand jury system. If your state has a grand jury system, most of the victim advocacy will be basically the same as described below for the preliminary hearing system. But you should be sure and check the fine points of timing and victim rights for the procedures in your state.
The Preliminary Hearing: One of the most significant differences between a felony and misdemeanor prosecutions is the requirement that a preliminary hearing be held soon after the arraignment. In California the preliminary hearing must be held within 10 days of an arraignment, unless the defendant waives the right to the hearing altogether, or waives the right to the timeframe. Most defendants do not waive their right to the preliminary hearing.
The purpose of the preliminary hearing is to determine if the prosecutor (the district attorney) has sufficient evidence for the court to hold the defendant for trial. The key difference for the victim in a felony prosecution is that the victim usually always has to testify at the preliminary hearing. As mentioned above, exceptions are sometimes made for child victims, and much less commonly for adult victims.
Because preliminary hearings usually take place within a couple weeks of the crime date, and because the traumas of a felony crime for the victim are usually very serious, testifying at the preliminary hearing is often the single most difficult encounter victims have with the justice system. Preparation for the preliminary hearing is critical for both the victim and advocate.
The arraignment judge will generally set the date for the preliminary hearing at the arraignment. (If the defendant is also being charged with misdemeanors in relation to the same crime incidents, the misdemeanors will be included in the felony prosecution process.)
The preliminary hearing is often described as a mini-trial, but that's not entirely accurate. It's true that at the preliminary hearing the district attorney presents evidence against the defendant, including presenting testimony from the victim. And further, as in a trial, the defense attorney cross examines the prosecution's witness(es), including, of course, the victim witness. But there are a couple differences between a preliminary hearing and a trial that victims should be made aware.
In a preliminary hearing, a usual part of the district attorney's strategy is to present only as much evidence as the attorney believes is necessary to get the defendant held over for trial. The reason the district attorney doesn't give full view of the case is in part to save time. But also, the district attorney wants to expose as little as possible of the case testimony to the defense. In other words, the district attorney wants to give the defense as little as possible with which to design a counterattack before trial.
The reason this is important for the victim to understand is because once on the witness stand in a preliminary hearing, victims can feel slighted that the district attorney didn't ask enough questions to get her whole story on the record. And before the hearing, victims often become distraught when they discover that some or all of the witnesses to their story haven't been subpoenaed to testify. So it's crucial to explain ahead of time that at the preliminary hearing, the district attorney is purposely only going to put on the bare minimum of evidence needed to get the defendant held for trial. In effect, the district attorney is protecting the victim's testimony, so the defense attorney can't take the intervening weeks, pour through the transcript looking for minor inconsistencies, and prepare ludicrous attacks for the trial. When the victim understands this ahead of time, it makes all the difference in how she experiences these hearings, and also in how she measures her own words on the stand.
Another difference between a trial and a preliminary hearing is that the defense attorney, although present with the defendant, usually doesn't present evidence or witnesses on behalf of the defendant. This is because the purpose of the preliminary hearing is only for the district attorney to present enough evidence for the judge to agree that the defendant should be held over for trial. There can be surprises though, and some defense attorneys will put on more of a defense than others.
And perhaps of greatest relief to the victim, there is no jury at the preliminary hearing. There is only a judge who will be listening solely to determine if each element in the crime is present. And finally, there is no lengthy deliberation. Judges usually always makes their ruling right there at the end of the hearing. The victim will know right away on which charges, if any, the defendant will be held for trial, and which charges, if any, are dismissed.
Preparing for the Preliminary Hearing: The preliminary hearing will likely be the victim's most significant participation in the court case, simply because after the preliminary hearing most felonies don't go to trial. The majority of felonies, like misdemeanors, are ultimately settled in a plea bargain.
In addition to advising the victim on the above points, one of the most essential things you can do to prepare the victim for the preliminary hearing is to set up a meeting with the district attorney. District attorneys themselves also usually want to meet in person with the victim before the preliminary hearing. Unfortunately, many want to do so in the 15 minutes or so just before the hearing is scheduled. As far as the victims interests are concerned, this is a terrible way to meet. On the day of the preliminary hearing, the victim is nervous to start with, and too many district attorneys will just rush in at the last minute and roll over her with whatever agenda the attorney has.
When district attorneys meet with victims like that, in a rush just before the hearings, victims are often made more nervous than they already were, because they didn't understand everything the attorney said, or something the attorney said was upsetting, and there's no time to process any of it. In addition, if there are any problems that come up in the meeting, having the meeting just before the hearing doesn't leave any time to get the problems resolved.
So, make every effort possible to set up a meeting with the victim, advocate, and district attorney for sometime in the days leading up to the preliminary hearing.
Before the meeting with the district attorney, you and the victim should go over her rights; her right to have an advocate and support person with her in the meeting, her right to have support persons of her choosing in the courtroom when she testifies, her right to be informed of any plea the district attorney is planning to offer the defendant, - before that plea is brought to court, her right to testify in the language in which she is most comfortable, and any other rights that pertain to her situation.
In addition, go over the victim's key questions and concerns. Put them in a written list for the meeting agenda, and bring the written list into the meeting with you. Remind the victim that it's best if she can raise the issues herself directly to the district attorney, but that you're willing to help out if needs be.
Here are some of the common questions and concerns that should be covered.
a) A victim's principal concern is usually about testifying. So, as soon as possible, inform her about testifying, and have her read, Tips for Testifying. Then dig deeper to find out if she still has specific fears and questions. A particularly important point is to determine if there's any line of questioning she's concerned about. Explain that it's important to get these issues cleared up ahead of time so she doesn't get caught trying to handle an uncomfortable issue on the witness stand. Help her frame any such concerns for meeting with the district attorney. Also, if the victim has difficulty talking about certain aspects of her relationship with the offender, or certain acts that took place in or around the crime, she should discuss with the attorney how to handle these areas in the courtroom.
Remember, also, that an important part of these meetings is also for the district attorney and the victim to get a good feel for each other's style of communicating, to help foster a smooth question and answer rhythm in court. So the victim should carry the conversation as much as possible.
(Also, just as a general point for preparing for the preliminary hearing, one of the most effective ways of strengthening the victim is to remind her as often as needed of the power of telling her truth. Remind her how her testimony as to what really happened has the power to take a terrible wrong and to set things right, both in her own social circle, and for her whole community.)
b) The victims should be also be informed about plea bargains, and of her right to have the district attorney inform her prior to any deal being offered in court. This meeting with the district attorney is a good time for her to tell the attorney that she wants this right to be respected. In addition, she should make sure the district attorney has her full contact information, so when the time comes that attorney is ready to make an offer, the attorney won't have any difficulty locating her.
BEWARE any district attorney who says they want to go into the courtroom and offer a plea deal prior to conducting the preliminary hearing. Sometimes an attorney will come into these meetings and say they want to 'save the victim the trouble of having to testify', or other such nonsense. This is an affront to justice. What this attorney really wants to do is to save him or herself the trouble of having do the hearing, and of having to prepare for hearing. And what he's really doing is robbing the case of the power of the victim's testimony toward getting the justice the case deserves. In fact, the attorney is attempting to dissuade the victim from testifying.)
If a district attorney comes into your meeting with this suggestion, you and the victim need to be ready to argue it down right there, especially if the preliminary hearing is about to occur. If the district attorney insists, you should be willing to take the issue straight to the chief attorney in the office. This possibility is another reason it's so important you go over all contingencies and strategies with the victim before you meet with the attorney. The only rare exception where it might be reasonable to offer a plea before the hearing is if the victim suddenly can't talk, or a major piece of evidence is lost.
c) Ask any lingering questions about charges, evidence, and other witnesses. In general, it's a good idea to engage in some conversation about the evidence and witnesses, even if there aren't major questions. It lets the attorney know you and your client are paying attention, and it also gives you a good idea of whether or not the attorney has prepared for the case. You'd be amazed how many attorneys haven't fully read their cases. This is another important reason for having the meeting a few days before the hearing. It often prompts lazy attorneys to polish up their act, at least on the upcoming case. But, remember, it's important to keep in mind, too, that this is a preliminary hearing, and the district attorney is only going to be presenting a bare minimum of the case, just enough to get the judge to hold the defendant for trial.
d) At the meeting, the victim should inform the district attorney who she plans to bring with her on the day of the hearing, and who she wants to be with her in the courtroom when she testifies. This way she and the attorney can work out ahead of time any of the issues the attorney might have about other potential witnesses in the case being in the courtroom.
This is all a very big agenda for what often is a fairly short meeting. Especially when you consider that the district attorney will also be trying to get information from the meeting. Naturally, the attorney is trying to get a feel for the way the victim answers questions regarding the crime, and likely has a set of questions to fill in missing pieces of information in the file. So, it's important to be as well prepared as possible before going into these meetings.
The day of the preliminary hearing: One of the most difficult things for the victim that can happen on the day of the preliminary hearing, is that the district attorney walks into the witness waiting area and tells the victim the hearing has been postponed. She's psyched herself up to testify for days, made family arrangements, waited in the waiting room, and never even considered the possibility of a postponement. Unless you warn victims ahead of time of this possibility, it can be devastating.
Sometimes a postponement is an unavoidable consequence of what is happening that day on other cases completely unrelated to her case. And sometimes it's because the district attorney went into the courtroom and just rolled over dead to whatever circumstances were occurring when he or she should have been objecting and fighting back.
You should speak up and make it clear to the attorney the horrible effect the postponement has on his primary witness, and remind him or her that the victim also has a right to a speedy proceeding in the case. (California Constitution Article 1 Section 28)
Other than this, if you and the victim have prepared ahead of time, and covered the issues and concerns, the actual day of the hearing usually doesn't present new issues.
The Judge and the Victim: The victim may not interact with the judge at all during the whole prosecution process. However, when problems arise, either during testimony or even outside the courtroom, the judge can be the victim's best ally. Because the judge sometimes has a very critical role to play in the prosecution of crimes, we're putting together a section devoted to the details of how judges can be helpful to both victims and advocates in the prosecution of violence against women cases.
Between the preliminary hearing and the trial date:
Right at the end of the preliminary hearing, the judge will usually rule on whether or not the defendant will be held to trial, and on which charges. A date will be set for the defendant's arraignment in superior court. This second arraignment is usually insignificant for the victim. And a trial date will be set at that arraignment. Once again, it's important to remind the victim that just because a trial date gets set, even in a felony, the case is unlikely to go to trial.
Once the preliminary hearing is done, there is usually a big spread of time before the trial date. This is generally a time when the victim doesn't have to focus so tightly on the case. She can take a deep breath and finally begin putting her life back together.
Still there are some case issues that you and the victim should be alert to during this time:
a) Safety: In order for the victim to be able to successfully repair her life, it's key that the perpetrator be kept under complete control and pose no threat, pressure, or harassment to the victim or her family. If the defendant has been held to answer on significant charges following the preliminary hearing, this is often a time when it sinks in to the defendant's head that he's in big, big trouble and that he's likely going down. In his desperation he may start thinking seriously of ways to get the victim off the case, whether through use of force, persuasion, or intimidation. It's a critical time period in which to make sure the victim stays safe. Keep communication open, make sure necessary orders are in place, and go over basic information with her about the importance of reporting any contact whatsoever from the defendant and his allies.
b) The Plea Deal: The other thing you and the victim should be alert to during this phase is the near certainty that at some point, and often multiple points, the district attorney will be presenting the defendant with a plea deal. If your client wants to be informed of the deal prior to the deal being presented in court, as is her statutory right, she should inform the district attorney of this, if she hasn't already done so. In California this right is delineated in PC 679.02(a)(12). For complete text of the law, along with suggestions and notes on how to exercise this right, see, Obligation of District Attorney's Office to Notify Violent Felony Victims of Pending Plea Bargains.
Then, before the district attorney calls her to inform her of whichever deal he's planning to offer, you and the victim should talk over what she would most like to see in a deal, and what she would be unwilling to accept. Before she can clarify those parameters in her mind, she first has to have some basic information on the possibilities. The plea deal in a felony case usually involves more than just the question of on which charges the defendant will plead guilty. Two other common parameters in the felony plea bargain are 1. whether or not prison will an option in sentencing, and 2. on which charges will the defendant be sentenced. (Even if the defendant agrees to plead guilty on one of four felonies, for example, the deal could include that the sentence be based on all four felonies.)
Some deals are immediately obviously satisfactory, and others are immediately obviously unacceptable. With many deals, however, it takes a while to fine tune your sense of what is a just deal and what is not. Until you feel confident discussing this question with a victim it's good to have your own discussion with someone whose knowledge you trust about what a fair deal would look like in your case.
One very good piece of advice to pass on to your client is that when she gets that phone call from the district attorney, she shouldn't make a decision on the phone of whether or not she is in agreement with the deal. Instead, she should grab a piece of paper, ask the district attorney to slowly lay out all the terms, carefully write them down, and then she should tell the attorney she'll call back in the next day or two - after she's had a chance to think it over and discuss it with others.
Keep in mind that the victim does not have a right to veto a deal, she only has the right to be informed of the deal. However, if a victim strongly objects to a deal, there are a number of ways she may be able to get the attorney to reconsider. The obvious first step to objecting is to clearly express her objection to the district attorney. If that doesn't work, tell the attorney that you're going over his or her head to make your objection, or just do it. There are other ways too, to put pressure on the district attorney to revise an unjust deal. One other way is to go directly to the judge, in writing, or sometimes in open court.
Remind the victim that give-away, slap-on-the-wrist plea deals are not only an injustice to her. They send a terrible message to the community that violence against women is no big deal.
NOTE: No plea deal is final until the day of sentencing. Though it's unusual for judges to reject a deal after a defendant has agreed to the deal in court, it's important to know that judges have the power to do so right up to the day of sentencing, and many are willing do so when the circumstances merit. For example, we have had judges reject a deal when a victim informs a judge that the district attorney hadn't informed her of the deal, and that the deal was a complete give-away to the defense, and hence, totally unjust given the severity of the offense. It's never too late to go to the judge until after the sentencing. So don't hesitate to do so.
The Trial: If the defendant does not accept any of the pleas offered, the case will go to trial. (Dismissal at this point would be rare, unless for some extreme circumstance.) The trial experience for the victim will be different from her experience with the preliminary hearing in a number of ways:
a) In most all felony trials there will be a jury present during the victim's testimony. The presence of a jury is sometimes intimidating for victims of violence against women, particularly given that the details of these crimes are so personal and painful to talk in front of others. (Every once in a while, but not very often, a defendant will ask that the case be heard and decided by a judge only.)
b) The defense attorney's cross-examination of the victim will probably be more vigorous than at the preliminary hearing,
c) Unlike the preliminary hearing, the district attorney will try to elicit the full details of the victim's story in her trial testimony,
d) Other witnesses will be called to support her case,
e) The sentencing in the case will not be announced at the end of the trial. In most all violent felonies the judge will ask for a pre-sentencing report and sentencing recommendation from a probation officer.
Other factors, though, can sometimes make the felony trial experience less stressful for the victim than was her experience at the preliminary hearing. Most significant is that a lot of time has passed between the trauma of the crime and the trial. If she's gotten the support she needs in the interim, the victim is generally much stronger by the time the trial comes around. And she's usually gotten much more familiar and comfortable with the prosecution process.
Still, it's a very good idea to prepare for the trial by going through exactly the same steps as the preparation for the preliminary hearing. The victim, the advocate, and the trial attorney should meet in person, if at all possible, at least a few days before the trial, and go over the same points as are given for a meeting prior to the preliminary hearing. This is all the more crucial if the trial attorney is someone different from the attorney who handled the preliminary hearing.
Generally, there are two common upsets that can occur in the days leading up to the trail, and even on the day of the trial itself. The victim should be made aware of both.
- The defendant may accept a last minute plea. This isn't at all unusual. The impending trial date often weighs heavier and heavier on even the most obstinate defendant. He begins to see the real possibility of some serious time behind bars. Don't be surprised if even on the actual trial date, instead of a trial, the defendant takes a plea.
- In the days leading up to the trial it is also not unusual for the trial date to be moved and postponed. If this occurs, it's important to try to determine if this is unavoidable because of what has taken place on other cases, or if this is a district attorney who is just rolling over to whatever a defense attorney wants. Last minute changes in the court date are usually deeply disturbing to all the witnesses. It shakes their confidence in the process, not to mention the huge inconveniences it causes to all.
In addition to making sure the victim knows how to check up on the trial date either by calling the district attorney's office or by checking the court schedule on the internet, it's important to make sure the attorney is doing everything possible to make the trial proceed as scheduled.
The Verdict: Waiting for the verdict is the one thing about a trial that usually gets accurately portrayed on TV. It's tense. And it's dramatic. Once the verdict comes in, the victim should be informed of the verdict as soon as possible. It should be agreed on that the attorney will call her as soon the verdict comes in. If there has been more than one charge in the case, she should be informed of the full details of the verdict on each charge.
If the defendant has been found to be 'not guilty', the attorney should try to talk with the jury about their reasoning, and pass this information on to the victim. It's crucial to explain to the victim that a 'not guilty' verdict does not mean the defendant didn't do the crime. It only means the prosecution wasn't able to prove it at the high evidence standard required in criminal cases of 'beyond a reasonable doubt'.
Every once in a while, and thankfully not that often, the jury will be unable to reach a unanimous decision, or the jury will be dismissed before the verdict for any number of reasons, and the judge will declare a mistrial. When that happens, the district attorney may have to decide whether or not to retry the case, and the victim, of course, is exasperated.
Sentencing: If the jury has returned a guilty verdict, or if the defendant has agreed to a deal, the judge will set a date for sentencing, usually within 20 days of the verdict or deal. In most felony cases, the judge will also request a pre-sentencing report from the probation department. A probation officer will be assigned to research a broad profile of the defendant's life and crimes and a summary of the crime's effect on the victim. Upon completion of this review, the probation officer will cap this report with a sentencing recommendation to the judge, and return the report to the judge in the days before the sentencing date. The judge usually delivers the sentence that has been recommended by the pre-sentencing report.
Victims have the right to make a victim impact statement to the court at the sentencing hearing. But it is crucial that the victim understand that by the time of the sentencing date, the judge has already made his or her decision as to the sentence they will be giving out. If the victim wants to have real influence on the sentencing, and do more than vent at the sentencing date, she should make an appointment with the pre-sentencing probation officer so her opinion is fully incorporated into the pre-sentencing report and the sentencing recommendation that accompanies it.
Because this crucial point of participation for the victim is so often neglected, and victims are so often under the wrong impression that the victim impact statement is a point of influence, we've provided more information on Victim Impact Statements and Pre-sentencing Probation Reports here.