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Understanding Sexual Violence:Prosecuting Adult Rape and Sexual Assault Cases :
A Model Four-Day Curriculum

The National Judicial Education Program (NJEP)
NOW Legal Defense and Education Fund, in cooperation with The American Prosecutors Research Institute

Publication Date: 2001


Table of Contents


Faculty Manual: Day 2


Victim advocate/prosecutor relationship

Faculty needed: Victim Advocate

Format for unit: Lecture and discussion

Time allotted: Day II: 8:30 to 9:00 a.m. (30 minutes)

Content overview---Victim advocate/prosecutor relationship:

This unit explores how working effectively with victim advocates within and outside of the D.A.'s agency can help you make your case. A victim who feels emotionally supported by the prosecutor and victim advocate will be a stronger witness, thereby making your case stronger.

This Faculty Manual contains:

The Participant's Binder contains:

Special instructions for the faculty

Victim advocate/prosecutor relationship (lecture outline)

District Attorney's Office Sensitive Crimes Unit

  1. How does it operate? (role of advocates)
  2. Why was it established?
  3. Differences between in-house advocates and outside agency advocates
  4. Advantages of in-house advocates
    1. Close proximity
    2. Familiarity with criminal justice system
    3. Ability to work closely with prosecutors and establish team effort
    4. Credibility with outside agencies because of association with prosecutor's office
  5. Disadvantages
    1. Victims may see advocate as part of the system
    2. Outside agencies may see advocates as part of the system
    3. Difficulty in defining advocate's role
    4. Privilege/confidentiality issues

History of sexual assault advocacy work

  1. Grass roots movement
    1. Challenge to beliefs and attitudes about women and the acceptance of sexual violence against them
    2. Need for survivor?s experiences to be at the forefront of all efforts in this area
    3. Need for survivors and advocates in policy-making processes
  2. Movement was in response to poor treatment of victims by
    1. Police
    2. Prosecutors
    3. Medical Professionals
    4. Judges
    5. Defense Attorneys
  3. Changes that occurred
    1. Revision of laws
    2. Rape crisis centers
    3. Legal advocates
    4. Medical protocols
    5. Law enforcement and prosecutor training
    6. Coordinated Community Response

How the prosecution can best benefit from the work of victim advocates

  1. Define goals
  2. Healthy debates not power struggles
  3. Have advocates play a role in system advocacy, e.g., legislative changes
  4. Learn from each other, e.g., cultural competency
  5. Assistance with victim rights legislation implementation
  6. Training new prosecutors in victim issues
  7. Second opinions on difficult decisions
  8. Advocate as active member of prosecution team

Sample victim advocate disclosure form

Name of Victim:________________________________

D.O.B.:______________________

I acknowledge that_____________________________ (advocate's name) explained to me that information I discuss with__________________________ (your office) District Attorney's Victim Advocates may be shared with the assistant district attorneys and advocates in the Victim Advocates'Unit, law enforcement, court personnel, office staff, probation and parole agents, pre-sentence writers, Department of Human Services and Crime Victim Compensation.

The information shared will be for the purpose of assisting with the investigation and prosecution of the matter involving:

________________________________________________________________________ (Defendant's name or description of assault if defendant is not known):

____________________________________ (Signature)

____________________________________(Relationship to above, if other than victim)

____________________________________ (Date)

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Trial preparation and practice Part I: Educating and Supporting the Complainant

Faculty needed: Prosecutor Presenter(s)and Victim Advocate

Format for unit: Lecture and discussion

Time allotted: Day II: 9:00 to 9:30 a.m. (30 minutes)

Content overview---Preparing the complainant for trial:

Rape cases are stronger and the likelihood of conviction is higher if the complainant is made to feel an ally or partner in the process, with full support from the prosecutor?s office and other agencies involved in the case. The first part of this unit explores a victim-focused trial preparation procedure that can enhance the complainant's ability to provide the prosecutor with detailed information and testify effectively. Some of the topics covered are:

The second part of this unit briefly explores the prosecutor's trial preparation.

The Participant's Binder contains:

Special instructions for the faculty---Lecture outline:

Preparing the Complainant for Trial

Trial preparation and practice Part II: Thinking About Trial

Special instructions for the faculty---Lecture outline: Prosecutor's Trial Preparation

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9:30-9:45 Break


Direct examination of the complainant:Recreating the reality of the crime

Faculty needed: Prosecutor Presenter(s)

Format for unit: Lecture

Time allotted: Day II: 9:45 to 10:45 a.m. (1 hour)

Content overview---How to recreate the crime and victim's feelings for the jury

This unit focuses on goals for direct examination. An effective direct examination should achieve the following:

  1. Humanize the victim for the jurors. Have them "get to know" her.
  2. Allow the jury to see, hear and feel what the victim felt during the crime.
  3. Prove every element of every offense charged against the defendant beyond a Reasonable doubt.
  4. Explain the facts fully so that the jury cannot speculate about any issue.
  5. Make the witness invulnerable to cross-examination.

Visuals for unit: Slides are in Appendix 9, Direct examination.

The Participant's Binder contains:

Special instructions for the faculty---Lecture:

Thinking about the direct examination

Introducing the victim to the jury

Recreating the reality of the crime

How the attack ended

Refer Participants to the Resources Book: Other material relevant to this section is in Volume I, Tab 9, "Witness Preparation."

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10:45-10:55 Break


What do sexual assault forensic examiners do, and what can they do for you?

Faculty needed: Sexual Assault Forensic Examiner (S.A.F.E.)and Prosecutor Presenter(s)

Format for unit: Lecture, video presentation and plenary discussion

Time allotted: Day II: 10:55 a.m. to 12:40 p.m. (45 minutes)

Content overview---S.A.F.E.s: Their role and what they can do for your case:

Medical professionals specially trained to handle sexual assault cases can be critically important in presenting and explaining the physical evidence, or lack thereof, at trials. This unit of the curriculum covers medical terminology, the forensic examination including colposcopy, how to use this information at trial and how to get a S.A.F.E. program in your community. There are four parts to this unit:

Part I: Sexual Assault Forensic Examiner overview

  1. Lecture on the following topics:
    1. Role of S.A.F.E.
    2. Medical Terminology
    3. Human Sexual Response
    4. Colposcopy Slides
  2. Plenary discussion
    1. When is it too late for an exam?
    2. Is finding nothing and having to turn that information over too dangerous?
    3. If there are no findings of physical injury to the complaining witness, how do you deal with this issue?
    4. What myths does this raise?
    5. At what point in the trial would you address this?
    6. What voir dire questions would you ask?
    7. What could you say in your opening?
    8. Would you address this in your direct examination? How?

Part II: Videos: Forensic examinations

  1. "State of Art Forensic Examination of the Adult Sexual Assault Victim" shows the forensic examination of a female victim;
  2. An excerpt from "Sexual Assault Care: Sexual Assault the Health Care Response" shows the forensic examination of a male victim.
  3. Debrief the audience

Part III: Colposcope slides

Part IV: Bringing a S.A.F.E. program to your community

This Faculty Manual contains:

Visuals for unit: Slides are in Appendix 10, Sexual Assault Forensic Examiners.

The Participant's Binder contains:

Special instructions for the faculty:

12:40-1:40 Lunch

Introduction to the sexual assault forensic examiner role

by Donna A. Gaffney, RN, DNSc, FAAN

The role: The sexual assault examiner is a specially trained nurse or physician who provides comprehensive treatment to survivors of sexual violence. This professional is not merely a technician who collects evidence, but a knowledgeable and compassionate health care provider who understands every aspect of the victim?s experience. The sexual assault examiner?s skillful assessment techniques, thorough understanding of the dynamics of rape and the mechanics of injury provide a solid foundation for accurate evaluation of injury. Although this role prioritizes the importance of the victim's treatment and recovery, sexual assault examiners also recognize the importance of objective documentation and the need to provide testimony based on their professional expertise.

The educational preparation: The sexual assault examiner is well prepared in medical and forensic sciences as well as the legal aspects of sexual assault. The first training programs were developed over twenty years ago by professional nurses. It is important to note that information relevant to the assessment and treatment of sexual assault victims and the collection of evidence is generally not included in basic nursing and medical education curricula. Today there are accepted educational standards which guide the structure and information contained in sexual assault examiner courses. Programs must be a minimum of 40 hours and grounded in the most current research and theories in the field. There are also requirements for clinical skill development, ongoing education and supervision. Professionals working with child survivors must complete an additional 40 hour course. New Jersey, Texas and Maryland have mandated their own educational criteria for any professional who practices as a sexual assault examiner in their states.

Titles, abbreviations and acronyms:

The role of the sexual assault examiner

  1. Who can practice as a sexual assault examiner?
    1. A licensed professional nurse
    2. An advanced practice nurse: nurse practitioner, nurse midwife
    3. A licensed physician
    4. Physician's Assistant (only under the supervision of a physician)
  2. What does a sexual assault examiner do?
    1. Provides a comprehensive assessment/evaluation
    2. Collects evidence
    3. Provides treatment as needed
    4. Refers for further medical evaluation and treatment
    5. Provides testimony if necessary

Educational preparation of sexual assault examiners

(Note: The curriculum content listed below was developed by Donna Gaffney for "The Assessment and Evaluation of the Adult Sexual Assault Survivor," 1995. The course is five full days and offers 44 continuing education contact hours for participants. Course development was funded through the New York State Department of Health, and training was supported by the NY Division of Criminal Justice Services.)

Clinical Forensics and Forensic Nursing

Dynamics of Sexual Assault

The Psychological Aspects of Sexual Assault

The Elements of The Forensic Interview and Therapeutic Communication

Mechanics of Injury and Determinants of Injury in Sexual Assault

Assessment of the Sexual Assault Victim

Evidence Collection

Treatment of Sexual Assault Survivors

Special Considerations and Needs of Different Populations

The Law and Sexual Assault

Limitations of Expert Witness' Testimony

Professional Development Issues

Evaluation of competency of sexual assault examiners

  1. Pretest
  2. Examination/Case Study Review Post-Course
  3. Competency Based Preceptorship
  4. Peer Supervision
  5. Continuous Evaluation/Supervision
  6. Participation in Mutltidisciplinary Team Meetings
  7. Continuing Education
  8. Professional Memberships
  9. Adherence to Standards of Practice (professional, state, organizational)

Program locations and variations

  1. Services delivered through an on-call program or on-staff in hospital
  2. In a hospital emergency department, or room adjacent to the ED (St. Luke's-Roosevelt, Hospital Center, NYC)
  3. In a hospital clinic
  4. In a free-standing clinic or rape crisis center
  5. In school-based clinics or college health services
  6. In a private practice setting
  7. In a Police Department (Tulsa, OK)
  8. In a Prosecutor's Office (Monmouth County, NJ)
  9. Through a Visiting Nurses Service (Westchester County, NY)

References

American Nurses Association (1997) The Scope and Standards of Forensic Nursing Practice. ANA: Washington, DC.

Gaffney, Donna. (1995) The Assessment and Evaluation of the Adult Sexual

Assault Survivor. (Unpublished curriculum and resource manual).

Gaffney, D. (1997) Community Based Sexual Assault Intervention Programs.

SexualAssault Reports, 1 (September)

Gaffney, D. (1999) Educating Clinicians: The Case for Scholarship and Science. At-Risk Children and Families. Vol. 2, No. 5.

International Association of Forensic Nurses. (1996) Sexual Assault Nurse

Examiner Standards of Practice. IAFN: Pitman, NJ.

International Association of Forensic Nurses. (1998) Educational Standards for Sexual Assault Nurse Examiner Training Programs. IAFN: Pitman, NJ

Ledray, Linda E & Arndt S. (1994) Examining the Sexual Assault Victim;

A NewModel for Nursing Care. Journal of Psychosocial Nursing & Mental Health Services. 32 (2): 7-12.

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How an expert can help you support the complainant and prove your case more effectively

Faculty needed: Prosecutor Presenter(s)and Victim Impact Expert

Format for unit: Lecture

Time allotted: Day II: 1:40 to 2:45 p.m. (1hour, 5 minutes)

Content overview---How to use an expert to prove your case more effectively:

In order to successfully prosecute sexual assault cases, prosecutors often need to combat prevalent rape myths and victim blaming, and explain victims? counterintuitive behavior. Expert witnesses can help the prosecutor explain the victim's behavior and prove the element of lack of consent. This section focuses primarily on the use of psychological experts in sexual assault cases. We discuss key terminology, ways in which psychological experts can testify, and ways in which prosecutors can use an expert in a sexual assault case even if the expert will not be testifying. This section also addresses legal trends across the country with respect to the admissibility of expert testimony.

This Faculty Manual contains:

Visuals for unit: Slides are in Appendix 12, Expert Witnesses.

The Participant's Binder contains:

Special instructions for the faculty:

2:45-3:00Break

How an expert can help you support the complainant and prove your case more effectively

Presenter's outline

Using a psychological expert in a sexual assault case

  1. Deciding whether to use a psychological expert

    Women who claim they were sexually assaulted are often viewed with skepticism. Challenges to a sexual assault victim's credibility are common in the courtroom and in the community. 1 Sexual assault victims also often act in ways that are counterintuitive. Although the elements of resistance and corroboration have been removed from state statutes, many jurors still believe that a sexual assault victim should fight back and immediately report the incident. Stereotypes and myths about rape cause many to shift their focus from the rapist to the victim. In addition, where the defense is consent, prosecutors often need help rebutting the "he said ? she said" argument. For these reasons, expert testimony is often useful in sexual assault cases to explain the victim's counterintuitive behavior, to explain the complexities of sexual assault, and to respond to the defendant's claim that the incident was consensual.

  2. Key issues where expert testimony might be helpful 2

    Prosecutors across the country have used experts in sexual assault cases to address several key issues. Experts can address such issues as:

    NOTE: An expert should not testify about a particular witness?s credibility or whether an assault did or did not happen. Experts should never testify as to whether they believe the victim is telling the truth or whether they believe the victim was sexually assaulted. This type of testimony almost always results in a mistrial of the case or the reversal of a conviction on appeal.

Important terminology

There are several key terms which prosecutors must understand in dealing with sexual assault victims and preparing experts to testify in these cases. Unfortunately, there is a great deal of confusion about these terms, and courts have used the terms rather indiscriminately and in certain circumstances, incorrectly, when ruling on the admissibility of expert testimony in sexual assault trials.

  1. Rape Trauma Syndrome (RTS)
  2. Posttraumatic Stress Disorder (PTSD)
  3. Acute Stress Disorder (ASD)

Levels of expert testimony 10

  1. Level 1: Testimony about specific behaviors of sexual assault victims that are described as "unusual" by the defense
  2. Level 2: Testimony about common reactions to sexual assault and the general diagnostic criteria of PTSD or Rape Trauma
  3. Level 3: Expert gives an opinion about the consistency of a victim's behavior or symptoms with PTSD or Rape Trauma
  4. Level 4: The expert testifies that the victim suffers from PTSD
  5. Level 5: The expert opinion goes beyond a diagnosis (The Danger Zone!)

Examples where expert testimony was helpful and where it was not

Note to faculty: At this point in the presentation, you should call on the victim impact expert who presented in the earlier part of the program, as well as the prosecutor faculty members and the prosecutors in the audience, for a short discussion about cases in which the victim impact presenter testified as an expert or the prosecutors used expert witnesses. Quickly address the following topics:

Other types of expert witnesses

Lay witnesses to establish trauma response

Issues related to confidentiality and privilege

Issues related to confidentiality and privilege are very important in sexual assault cases.

  1. Privileged communication with the treating therapist
  2. Confidentiality of records

Using an expert who you will not call to testify

Even if you are not planning to call an expert to testify at trial, there are many ways you can use an expert to help you prepare for trial and to help support the victim through the process. Some examples are:

Other issues related to the admissibility of expert testimony

The case annotations contained in Expert Testimony in Sexual Assault Cases: Selected Case Law from Around the Country, provide numerous examples of cases in which courts found expert testimony admissible and cases in which the courts held that the evidence was not admissible. This section mentions a few other issues that emerge in these cases.

  1. Expert testimony about false reporting
  2. Expert testimony that the defendant does not fit the "Profile" of a sex offender

A prosecutor's checklist:Using a psychological expert in a sexual assault case

Use this checklist to prepare your expert for trial.

  1. Preparing your expert 12
    1. Meet with the expert far in advance of the scheduled trial.

      Before any expert testifies at the trial, you should meet with the expert and establish the scope and breadth of the expert's testimony. Interview your expert as soon as you possibly can. In this pre-trial meeting, discuss the following with the expert:

      • The types of questions the expert will be asked to establish the expert's credentials and expertise;
      • The boundaries of the expert?s testimony;
      • The types of questions the expert will be asked on direct examination;
      • Areas the expert will not be asked about;
      • Areas or types of testimony that the expert should specifically avoid;
      • How the expert should prepare for cross-examination; and,
      • Questions the expert can expect from opposing counsel.
    2. Review the expert's credentials and expertise.

      You need to have sufficient information about an individual to offer him or her as an expert witness. If you do not lay the proper foundation, the court will not qualify your witness as an expert. If the witness is not qualified as an expert, the witness cannot offer opinion testimony. During your preliminary meetings, ask the expert the following types of questions so you will have the information you need to lay the foundation for the expert's testimony at trial:

      • Educational/Professional background:
        • Education: university, graduate school, particular classes in area of expertise;
        • Degrees held;
        • Additional class work or training in the field of expertise;
        • Articles written on topics within the area of expertise;
        • Publication titles, journals and dates the articles were published;
        • Whether the articles were the subject of peer review;
        • Teaching experience;
        • Subjects taught;
        • Teaching location;
        • Length of teaching experience;
        • Memberships in any professional organizations; and
        • Types of professional organizations (invitation only or open to any interested person).
      • Area of practice:
        • Type of professional practice;
        • Length of time in professional practice;
        • Number of clients treated;
        • Number of sexual assault victims treated;
        • Define Rape-Related Posttraumatic Stress Disorder; and
        • Number of clients treated who suffer from Rape-Related Posttraumatic Stress Disorder.
      • Previous expert testimony:
        • Any previous courtroom testimony;
        • If so, explain:
          • when;
          • in which courts (state or Federal);
          • attorneys' names;
          • facts of those cases;
          • whether they were criminal or civil cases;
          • which side called the expert as a witness; and
          • whether your expert qualified as an expert in these other cases.
        • In any case where your expert has testified, it would be wise to obtain a transcript of the expert's testimony.
        • Find out whether any court ever refused to qualify your witness as an expert.
    3. You and your expert should talk to others who have testified as expert witnesses in court.

      If an expert has not testified before, the prospect can be very intimidating. You and your expert should contact other experts who have testified and ask them about their experiences, especially during cross-examination. Contact other prosecutors, professional associations, local state sexual assault coalitions or local rape crisis programs to get names of others who have testified.

    4. Prepare your expert for the courtroom experience.

      Tell your expert to use plain language while testifying. Jurors do not have the benefit of the expert's education and it is critical that the jurors understand what the expert is saying. If the expert has to use technical terms, remind the expert to explain the term?s meaning in plain English before continuing his or her testimony.

      During your pre-trial meeting, talk to your expert about the general practices of the opposing attorney and judge. If you can, tell the expert about defense counsel?s demeanor during cross-examination. Also provide the expert with the opportunity to observe the courtroom before the expert is scheduled to testify. If time permits, conduct a practice direct examination and cross-examination with the expert.

      Experts may feel that they do not need to prepare as carefully if they have testified before. It is crucially important for you to explain that each case is different, as is each attorney. You need to prepare each expert witness regardless of the number of times that witness has testified in the past.

    5. Use your expert to help you prepare for trial.

      Use what you have learned from your expert to craft questions for voir dire, to plan your direct examination of the victim and to plan your cross-examination of the defendant. Find out whether the defense attorney intends to call an expert and get that expert's name. If the defense is planning on calling an expert witness, use your expert to help you prepare for cross-examination. You and your expert should be familiar with the defense expert's background, credentials and written materials. Obtain a copy of the defense expert?s curriculum vitae and review it with your expert. In addition, get transcripts of the defense expert?s prior testimony and copies of any publications. Ask your expert to read the defense expert's articles and suggest areas for cross-examination. Also ask your expert to find out about the defense expert by contacting professional organizations or other sources to provide additional background information.

    6. Prepare your expert to discuss his or her fee while testifying.

      If your expert is charging a fee for his or her testimony, discuss the fee ahead of time with your expert. You may want to ask your expert about the fee during direct examination to avoid difficult cross-examination on the issue. If not, warn the expert to expect to be asked about the fee in cross-examination. The expert must be prepared to explain his or her fee in matter-of-fact terms, without getting defensive.

    7. Explain what you need to establish in court and define key legal terminology.

      Tell your expert exactly what information you need to have developed during direct testimony. After you have reviewed your questions with your expert, ask if you have missed any key areas of inquiry. Find out if there are other specific questions you should ask the expert at trial. Explain that you would appreciate any insight that will strengthen your case or help you avoid surprises. Use your expert to teach you about your case.

      In addition, explain the key phrases or terminology you will use or need your expert to use while testifying. Requirements vary from state to state about what key phrases are necessary before an expert can state an opinion. Explain the legal significance of such legal phrases as "within a reasonable degree of medical certainty" and "consistent with." Also explain the distinction between something that is "possible" or "probable."

    8. Make sure the experts understand the form their testimony will take.

      Prosecutors should be sure to explain to their experts whether the experts will be asked to provide background information about common reactions of sexual assault victims, opinion testimony, or testimony based on hypothetical questions. The type of permissible expert testimony varies widely from jurisdiction to jurisdiction and it is important that the expert understand the permissible parameters before testifying. Each type is summarized below:

      • Testimony to provide background information

        Here, experts can testify about general relevant principles. The judge or jury is then left to apply the principles to the facts of the case. Background information about such common characteristics as delayed reporting, self-blame, lack of physical injury, fragmented memories, recanting and minimization helps the judge or jury understand key issues of the case and allows them to choose whether to apply what they have learned in deciding the case before them.

      • Opinion testimony

        In general, experts can give opinions where lay witnesses cannot. Before an expert can express an opinion, the expert must possess a reasonable certainty about the stated opinion. The expert's opinion should not be based on guesswork or speculation, but the expert need not be absolutely certain. Different jurisdictions use different standards to determine the admissibility of expert testimony. Be sure you are familiar with your state's requirements and explain them to your expert during your pre-trial meetings.

        Remember experts should not give opinions about whether the victim in the particular case is telling the truth or has been sexually assaulted.

      • Testimony based on hypothetical questions

        Traditionally, many states forced experts to express their opinions only in response to a hypothetical form of questioning. Today, these types of questions are not used as often because they can be cumbersome and confusing. When used, these questions may be offered by either side, and may sound something like this:

        "Please assume the following facts?" (A set of facts will be given that may mirror the facts of the case.) "In your opinion, are these facts consistent or inconsistent with someone who has experienced sexual assault?"

        Warn your expert that if the defense attorney uses a hypothetical question during cross-examination at trial, the expert should listen very carefully to the question and articulate all distinctions the expert perceives between the hypothetical question and your set of facts.

    9. Review the relevant research and literature.

      There has been a great deal of research over the last several years about the psychological sequelae of rape victimization and the traumatic response. Recent advances in neurobiology demonstrate that traumatic memories are actually stored and retrieved differently than non-traumatic memories. Be sure that both you and your expert are familiar with and have reviewed the current research in this area before the expert testifies.

    10. Respect confidentiality and privileges, and determine if there is a conflict of interest in the case.

      An expert witness should be cautious about testifying about a patient in a criminal case. The dangers of violating confidentiality and privileged communication are high under these circumstances. If you do decide to ask a treating therapist to testify about a former or current patient, you must make sure that the patient has been fully informed about the confidentiality and privilege issues that may arise as a result of the therapist's testimony. This issue should be discussed in detail with the patient and the therapist. You should also file a motion asking the court to limit questioning of the therapist to the relevant time frame or topic. You need to carefully think through the implications of using a treating therapist as a witness in a criminal trial. It is often best to use an expert who has no connection to the case, so conflicts of interest can be avoided and the victim?s therapeutic relationship can be protected.

      Another difficult area that arises in sexual assault case is the confidentiality of the victim's therapist's records. Defense attorneys often try to gain access to the victim's records. Victims' therapy records may have information, unrelated to their sexual assault, which they do not want disclosed. If the therapist is associated with a hospital or mental health center, the therapist's Risk Management Department may become involved with any request for the facility's records. Each state's law varies on this issue, so you need to be familiar with your state's privilege and confidentiality laws. It is important that you do what you can to protect the victim?s privacy and the confidentiality of her therapy records.

    11. Caution your expert to be careful when using statistics.

      Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important that experts use accurate, reliable figures when testifying. The expert should be prepared to discuss where he or she obtained the statistics and how the results were determined. Experts should also cite statistics from the original source (professional journal, original research, government publication, etc.), NOT from a magazine or newspaper article.

  2. Courtroom logistics and scheduling

    Tell your expert where to park ahead of time. If possible, have someone from your office meet the expert at the courthouse door and bring the expert to the courtroom. If no one is available, give clear and specific directions from the courthouse door to the courtroom. Explain to the expert what he or she should do upon arrival (wait outside the courtroom or come inside and sit down).

    Explain that trials are often continued and schedules are often delayed. Tell the expert that you will make every effort to provide him or her with advance warning of any delays and accommodate the expert's schedule, but that it is not always possible. Explain that the judge, not you, controls the court calendar. Keep in touch with your expert.

  3. Qualifying your expert at trial 13

    When offering a witness as an expert, you must establish the witness's qualifications to the court's satisfaction. Usually this is accomplished by demonstrating the witness' knowledge and skill in a particular area. Some factors that the court may consider are:

    At trial, you will ask your expert questions that cover these topics, and offer the witness as an expert. The defense attorney then has an opportunity to question or challenge the qualifications, or voir dire, the witness.

    It is ultimately up to the judge to determine whether the person has been properly qualified as an expert. Never assume that the judge will permit an expert to testify.

Tips on working with a medical expert in a sexual assault case

If the victim received medical attention after the assault, prosecutors frequently call medical experts to testify at trial. These experts, either emergency room physicians, or, if your community has a Sexual Assault Forensic Examiner (SAFE) program, the SAFE nurse, describe their medical findings from their examination of the victim. The following suggestions are adapted from Dr. Michael Weaver's Optimizing Physician/Nurse Role in the Criminal Justice System, 14 which is included in your Resources Book in Volume I, Tab 7, "Expert Witnesses." From a physician's point of view, these recommendations are ways in which prosecutors can make it easier for the medical clinician to testify in a sexual assault trial.

Clinical issues

Professional courtesy

Checklist for prosecutors using medical experts 19

  1. Initial forensic clinician contact
  2. Formal case review
  3. Know your witness

Expert's checklist: Courtroom testimony in a sexual assault case 20

You have been asked to testify as an expert witness in a criminal sexual assault trial. Here are some basic guidelines, which will help you prepare for your testimony. These guidelines are very general. Each state has different rules about whether experts can testify and what they can talk about when they are on the witness stand. Ask the prosecutor who has requested your testimony to explain the specific requirements for this particular trial. The following suggestions are offered to help you prepare to testify:

Meet with the prosecutor far in advance of the scheduled trial.

Before testifying at the trial, you should meet with the prosecutor and establish the scope and breadth of your testimony. This meeting should take place as soon as possible after you have been contacted to testify. In this meeting, be prepared to talk about the following issues:

Be prepared to discuss your qualifications, education and experience.

The prosecutor needs to have sufficient information about you to offer you as an expert witness at trial. Be prepared to discuss with the prosecutor the following questions about your background:

Talk to others who have testified as expert witnesses in court.

The prospect of testifying in court can be very intimidating, particularly if you have not testified many times before. Even if you have testified numerous times, each attorney has a different style of questioning and cross-examination. Judges have different styles of managing their courtrooms and each case has different facts and nuances. You should contact other experts who have testified and ask them about their experiences, especially during cross-examination. Contact other prosecutors, professional associations, local state sexual assault coalitions or local rape crisis programs to get names of others who have testified.

In addition, ask the prosecutor about general practices of the opposing counsel and judge and ask to observe the courtroom before you testify. If time permits, ask the prosecutor to conduct a practice direct examination and cross-examination with you.

Find out whether the other side intends to call an expert and get that expert's name. Be familiar with that expert's background and credentials. Be prepared to suggest areas of inquiry for cross-examination of the other expert.

Be prepared to discuss your fee while testifying.

If you are charging a fee for your testimony, discuss the fee ahead of time with the prosecutor, and agree on the amount. Be prepared to discuss your fee during your testimony, either during your direct examination or on cross-examination. The prosecutor may want to ask you about the fee during direct examination to avoid difficult cross-examination on the issue. Be prepared to explain your fee in matter-of-fact terms, without getting defensive.

Find out what you need to establish in court and make sure you understand key legal terminology.

Find out from the prosecutor exactly what information you need to develop during your direct testimony. After the prosecutor has reviewed the areas of inquiry with you, tell the prosecutor if he or she has missed any key issues you would like to discuss. The prosecutor is relying on your insight to strengthen the case and avoid surprises at trial. Suggest other specific questions you think would be helpful. Keep in mind, however, that it is up to the attorney to decide which questions to ask.

Make sure the prosecutor explains the key phrases or terminology that he or she will use or needs you to use while testifying. Requirements vary from state to state about what key phrases are necessary before an expert can state an opinion. Make sure the prosecutor explains the legal significance of such legal phrases as "within a reasonable degree of medical certainty" and "consistent with." Also be sure you understand the legal distinction between something that is "possible" or "probable."

Prepare your testimony using plain language and understandable terminology.

You need to use plain language while testifying. Jurors do not have the benefit of your education and it is critical that the jurors understand what you are saying. If you have to use technical terms, explain the term's meaning in plain English before continuing your testimony.

Have the attorney explain the form your expert testimony will take. It will usually take one of the following three forms:

Remember you should never give opinions about whether the victim in the particular case is telling the truth or has been sexually assaulted.

Review the relevant research and literature.

There has been a great deal of research over the last several years about the psychological sequelae of rape victimization and the traumatic response. Be sure that you are familiar with, and have recently reviewed, the current research in this area before testifying.

Be aware of issues related to confidentiality and privilege, and determine if there is a conflict of interest in the case.

An expert witness should be cautious about testifying about a client in a criminal case. The dangers of violating confidentiality and privileged communication are high under these circumstances. If you do decide to testify about an on-going client, you must make sure that the client has been fully informed about the confidentiality and privilege issues that may arise as a result of your testimony. This issue should be discussed in detail with the prosecutor as well. It is often best to use an expert who has no connection to the case, so conflicts of interest can be avoided.

Another difficult area that arises in sexual assault cases is the confidentiality of the victim's therapist's records. Defense attorneys often try to get access to the victim?s records. Victims' therapy records may have information, unrelated to their sexual assault, which they do not want disclosed. If you are associated with a hospital or mental health center, your Risk Management Department may get involved with any request for the facility's records. Each state?s law varies on this issue, so you need to be familiar with your state's privilege and confidentiality laws. It is important that you do what you can to protect the victim's privacy and the confidentiality of her therapy records. Make sure you discuss these issues with the prosecutor, if the apply in your case.

Be careful when using statistics.

Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important to use accurate, reliable figures in your testimony. Be prepared to discuss where you obtained the statistics and how the results were determined. Cite statistics from the original source (professional journal, original research, government publication, etc.), NOT from a magazine or newspaper article.

Be familiar with courtroom logistics and scheduling.

Find out from the prosecutor where you should park and exactly where you should go when you arrive at the courthouse. Most courthouses have numerous courtrooms and you need to be sure you know where to go. Get clear and specific directions from the courthouse door to the courtroom. Find out what you should do upon arrival (wait outside the courtroom or come inside and sit down).

It is important that you understand that trials are often postponed and schedules are often delayed. You can ask the prosecutor to provide you with advance warning of any delays and accommodate your schedule, but that that is not always possible. You need to understand that the judge, not the attorneys, controls the court calendar. Witnesses often take longer than anticipated, cross-examination may take longer than expected and many other issues arise that affect a trial schedule. Keep in touch with the prosecutor and be patient. Delays are inevitable and unavoidable.

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State-specific law: Rape shield law, state-of-mind/experts

Faculty needed: Prosecutor Presenter(s)

Format for unit: Small group exercise and plenary discussion

Time allotted: Day II: 3:00 to 4:00 p.m. (1 hour)

Content overview---State-specific law:

To effectively prosecute these cases, prosecutors must be able to apply their own state laws regarding rape shield, admission of expert testimony, "state of mind" evidence, force, consent and prior bad acts. A key piece of evidence may be the defendant?s prior bad acts, an important topic that is covered later in the training. This segment covers rape shield, admission of expert testimony, force, consent and "state-of-mind" evidence. The exercises consist of hypotheticals which question the admissibility of various types of evidence under the prosecutors? state law. This unit gives participants an opportunity to apply their state law to the facts of State v. Michael Cates .

This Faculty Manual contains:

The Participant's Binder contains:

Special instructions for the faculty:

4:00-4:15 Break

Worksheet: State V. Michael Cates Rape shield exercise

Directions : Take fifteen minutes to jot down your responses to the questions below and discuss your responses with your tablemates. Be prepared to oppose the defense attorneys' motion. After the discussion, a reporter from each table will report on these responses to the full group. The reporter will be the participant whose last name is closest to the letter B, who was not a reporter for the earlier exercises. You are to assume the following facts for the purposes of this exercise only. Allow 15 minutes for the report back.

During trial preparation you discover that the defense attorney may attempt to introduce the following:

How do you handle these possible defense tactics?

Defense Counsel has moved to compel the State to turn over Ms. Brown's sweater and skirt.

What is your response to the motion?

Are you obliged to obtain these items from Ms. Brown?

Worksheet: State V. Michael Cates: State-of-mind/experts exercise

Directions : Participants are divided in half. Half the room is assigned to respond to question 1 and the other half is assigned to question 2.

Take fifteen minutes to discuss your responses to the assigned question below with your tablemates. After the discussion, a reporter from each table will report on these responses to the full group. The reporter will be the participant whose last name is closest to the letter F, who was not a reporter for an earlier exercise. You are to assume the following facts for the purposes of this exercise only. Allow 15 minutes for the report back.

Rather than Amanda Brown offering any verbal or physical resistance, she simply sat on the bed and did not say anything to the defendant. She just stared into space, her body stiffened and she cried during the incident.

During the interview she describes the defendant?s demeanor as very angry.

Ms. Brown describes the event as if she watched it from a corner of the room. She says she felt as if it was happening to someone else, but she also felt that her life was in danger.

  1. Resistance is not an element of the crime, but jurors often equate lack of resistance to consent. Using what you have learned in previous units of this curriculum, how would you use Amanda Brown?s "frozen fright" reaction in your case-in-chief?
  2. You want an expert witness to testify that Amanda Brown's reaction is consistent with frozen fright or dissociation which are frequently seen responses in victims of sexual assault. Under your state law, what arguments would you make to convince the judge to admit this testimony?

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How to keep on keepin? on: Overcoming vicarious trauma

Faculty needed: Various faculty

Format for unit: Lecture, plenary and small group exercises and video presentation

Time allotted: Day III: 4:15 to 5:15 p.m. (1 hour)

Content overview---How to keep on keepin' on

Rape victims are traumatized, and those who repeatedly prosecute these extremely difficult cases often experience vicarious trauma. This segment covers the need for prosecutors to acknowledge how stressful these cases are and to develop strategies to minimize their own traumatization. Therefore, this section should be fun.

The focus of this section should be on recognizing and preventing vicarious trauma. Humor, fun and "mental health breaks" are important prevention strategies.

This unit consists of:

This Faculty Manual contains:

Visuals for unit: Slides are in Appendix 13, Vicarious Trauma.

Special instructions for the faculty:

Special instructions for faculty

Day II ends here. Be sure that participants have completed and turned in their daily evaluations.

Conclusion Day II

Rules of the game:Family feud

"Family Feud" is an adaptation of the television game show of the same name. The object of the game is to guess the most popular answers to various survey questions , e.g.," Give me the name of a famous George ."

Each table constitutes a family. Each family must select a tablemate to represent it. Each family representative answers the questions for the family. Encourage the families to help their representative loudly during the game.

In each of 5 survey rounds, the family representatives attempt to guess the most popular answers to a question. A family earns points for correct answers along the way. For example, if a family's representative said, "Washington" to the question about "a famous George" and that was the most popular answer, that family would receive 100 points; if it was the second most popular answer, 80 points; third most popular, 60 points, and so on.

Each survey question will have the five top responses listed below it on the game board, each covered by a slip of paper. Each family representative submits one answer per round; if the answer is one of those 5 listed on the game board the family receives the corresponding points.

The family with the most points at the end of the game wins.

During registration on Day I of the conference, each participant was asked to fill out and return the survey found on page 95. The collective surveys provide the answer board for the game. At some point between registration and this unit, faculty analyze the surveys to see what the top five answers were in each category.

The five subject areas are:

  1. stressors at home;
  2. stressors at work;
  3. interoffice tensions;
  4. coping methods at home; and
  5. coping methods at work.

The game equipment and personnel consist of these components:

Playing the Game:

After the family representatives have been selected it is time to get ready for the Feud. The presenter announces the first question and states that "X" number of people (the number of students in attendance) were surveyed and the top five responses to the question are listed under each of the five flaps.

The presenter starts the timer as soon as the question is revealed, allowing 10 seconds for the representatives to consult with their families. Each representative must then submit an answer, which is his or her guess as to the most popular answer to the question. If a family representative guesses one of the top answers on the board, that answer will be revealed along with the number of people surveyed who matched that response. The presenter will list the points won by each family on the flip chart. Each family takes a turn. If an answer is missed, the presenter reveals it after all the players have completed the round. Each round should take no longer than 3 minutes.

The presenter adds the points won in each round and the family with the highest score wins. The presenter awards them a fun prize.

Prizes : Prizes should be simple and inexpensive, e.g., little stuffed animals and stress balls.

Handout:Survey

Directions : Please take a few minutes to answer the follow survey questions. A faculty member will collect these surveys to be used later during the conference.

Name five major stressors at home.

Name five major stressors at work.

Name five causes of interoffice tension.

List five coping methods you use to relieve stress at home.

List five coping methods you use to relieve stress at work.

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Footnotes

  1. Laura E. Boeschen, Bruce D. Sales, and Mary P. Koss, Rape Trauma Experts in the Courtroom , 4 Psychology, Pub. Pol'y and Law 414 (1998).
  2. This section was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women , by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton Rouge, Louisiana, April 13, 2000.
  3. Boeschen, supra note 1, at 416.
  4. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).
  5. Boeschen, supra note 1, at 417.
  6. Id. , at 418.
  7. Id. , at 419.
  8. Id.
  9. Id. , at 420.
  10. This section is adapted from Boeschen, supra note 1, at 424-428.
  11. Scott Wyatt and Donald G. Linton, Acquaintance Rape Investigation and Prosecution 54-58 (1999).
  12. This section was adapted in part from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women , by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton Rouge, Louisiana, April 13, 2000.
  13. This section was adapted from The Practical Use of Expert Witnesses in Casses Involving Violence Against Women , by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton Rouge, Louisiana, April 13, 2000.
  14. This section is adapted from Michael Weaver, Optimizing Physician/Nurse Role in the Criminal Justice System , National Non-Stranger Sexual Assault Symposium Proceedings Report, Denver Sexual Assault Interagency Council (April 2000). Michael Weaver, M.D., FACEP., is a member of the Kansas City Sexual Assault TasK Force and has lectured for the National College of District Attorneys on issues related to sexual assault.
  15. Id. , at 60.
  16. Id.
  17. Id.
  18. Id. pg. 60-61
  19. Id. pg.60-61
  20. This checklist was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women , by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton rouge, Louisiana, April 13, 2000.

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