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
    • Content overview---Victim advocate/prosecutor relationship:
    • Victim advocate/prosecutor relationship (lecture outline)
    • Sample victim advocate disclosure form
  • Trial preparation and practice Part I: Educating and Supporting the Complainant
    • Content overview---Preparing the complainant for trial:
    • Trial preparation and practice Part II: Thinking About Trial
  • Direct examination of the complainant:Recreating the reality of the crime
    • Content overview---How to recreate the crime and victim's feelings for the jury
  • What do sexual assault forensic examiners do, and what can they do for you?
    • Content overview---S.A.F.E.s: Their role and what they can do for your case:
    • Introduction to the sexual assault forensic examiner role
  • How an expert can help you support the complainant and prove your case more effectively
    • Content overview---How to use an expert to prove your case more effectively:
    • How an expert can help you support the complainant and prove your case more effectively
    • A prosecutor's checklist:Using a psychological expert in a sexual assault case
    • Tips on working with a medical expert in a sexual assault case
    • Expert's checklist: Courtroom testimony in a sexual assault case ²⁰
  • State-specific law: Rape shield law, state-of-mind/experts
    • Content overview---State-specific law:
    • Worksheet: State V. Michael Cates Rape shield exercise
    • Worksheet: State V. Michael Cates: State-of-mind/experts exercise
  • How to keep on keepin? on: Overcoming vicarious trauma
    • Content overview---How to keep on keepin' on
    • Special instructions for faculty
    • Rules of the game:Family feud
    • Handout:Survey

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:

• "Victim advocate/prosecutor relationship (lecture outline)," page 38. It should be used in the victim advocate's presentation.
• "Sample victim advocate disclosure form," page 39.

The Participant's Binder contains:

• "Victim Advocate's Outline" at Tab 7, page 7-10.
• "Sample Victim Advocate Disclosure Form" at Tab 7, page 7-11.

Special instructions for the faculty

• Refer Participants to the Resources Book: Other material relevant to this section is in Volume I, Tab 5, "Working With Victim Advocates."

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)

Return to top of the page

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:

• walking complainant through the trial process
• dealing with continuances
• affect and anger while testifying

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

The Participant's Binder contains:

• The outline for this unit is at Tab 7, page 7-14.

Special instructions for the faculty---Lecture outline:

Preparing the Complainant for Trial

• Reduce the victim's stress by explaining each phase of trial.
• First, explain what she will do during the trial. Explain that she will not be allowed to wait inside the courtroom but must wait elsewhere until she testifies. (Hopefully, your office has a victim advocate who has worked with the victim throughout the pendency of the case and will be with her during the trial). Tell her that she will be sworn in or, if she does not swear, can affirm an oath. Explain where she will be seated in the courtroom and where everyone will be in that courtroom.
• Special Circumstance---The Identification Case: Victims typically ask whether the defendant will be in the courtroom. If identity is not an issue in the case you should be sure to tell her that he will be there and she should prepare herself to see him. However, if identification is an issue in the case telling the victim that the defendant will be there and/or showing her a photograph will compromise the in-court identification. If, in an identification case, defendant will be in the courtroom, say only "If you see him in the courtroom, point him out or tell us." Defense attorneys in this type of case will ask the complainant whether the prosecutor told her that the defendant would be in the courtroom and where he would be sitting. If the victim says yes to either question the judge will disallow the in-court identification.
• Explain to the complaining witness that criminal cases are often repeatedly adjourned for reasons having nothing to do with her case, e.g., the court's calendar, the defense attorney on trial on another case, or witnesses are not available. Keep the complaining witness informed about the reason for each adjournment. Try to avoid adjournments, if possible, by requesting accelerated trial dates, if your jurisdiction permits, or ask for a trial date certain.
• Explain what "objections" are and what to do if either attorney objects to a question. Tell her what the words "overruled" and "sustained" mean. Explain that if she forgets she should ask the judge to clarify.
• Remind the victim to ask for an explanation of a word, concept, or question she does not understand, regardless of who asks the question. Assure her that it is okay to say she does not understand a question, or that she cannot remember something. She should also be assured that it is okay to disagree with any mischaracterization of her testimony.
• After you have explained the process to her, show her. Take the victim to court and let her watch someone testify. Ask her to critique the witness. Then, in an empty courtroom, have the victim sit on the witness stand. If the judge in your case is willing, have her meet the judge. Show her where you will sit. Ask her some introductory questions to get used to the acoustics in the courtroom. If a microphone will be used, have the victim practice answering your questions using it.
• You and the advocate may need to discuss clothing choices with the victim. Never attempt to overhaul the personality of a victim by having her dress in a manner that is not comfortable for her. You or the victim advocate can emphasize that it is important to show respect for the court and dress accordingly.
• Prepare the victim for cross-examination.
  • Remind her that the defense attorney may attempt to make her angry while she is testifying, or that he may be very sweet and make her feel as if she must agree with him even though he is mischaracterizing her testimony.
  • Remind the complaining witness to not assist the defense case by becoming angry with the defense attorney, whose job it is to challenge her credibility.
  • Have a colleague walk through a mock cross-examination with the victim.
• Refer Participants to the Resources Book: Other material relevant to this section is in Volume I, Tab 9, "Witness Preparation."

Trial preparation and practice Part II: Thinking About Trial

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

• Review the Criminal Jury Instructions for each element of the crime you must prove at trial.
• Create a summation folder. As you think of issues you want to use in your summation, jot them down and put them in the folder.
• Prepare your summation before constructing your voir dire , direct examinations and the defendant?s cross-examination.
• Create a folder for each witness you are going to present at trial. Put the evidence, e.g., medical chart, photos, or diagrams you hope to introduce through this witness in the folder along with the questions for this witness. If you think of a question just throw it into the folder.
• Craft the victim's direct examination with the expert witness' testimony in mind. Later in the program there is a unit about expert witnesses and how to use them. Prepare your questions so that the victim's response will be supported by the expert witness. If you are not able to admit an expert's testimony, consult with the expert to craft direct examination questions to support the theory of your case. In your summation, use the victim's testimony to conclude that her behavior was consistent with a traumatic event.

Return to top of the page

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:

• The outline for this unit at Tab 7, page 7-18.
• Relevant slides at Tab 7, page 7-22.

Special instructions for the faculty---Lecture:

Thinking about the direct examination

• On all your direct examinations use one of the following magic words to begin each question: Who, What, Why, Where, When, and How.
• Use simple language. No one cares how smart you are.
• Each question should deal with only one fact.
• Write out every element of each crime you must prove beyond a reasonable doubt.
• Determine how each bit of evidence you present will accomplish the goal of proving every element of each crime beyond a reasonable doubt.
• Know both the facts and the elements of the crimes you must prove.
• Direct examination should flow like a conversation. The prosecutor should not be too busy reading the next question to listen to the answers.

Introducing the victim to the jury

• Take time to introduce the victim at the beginning of the direct examination. Defense attorneys spend a great deal of time presenting their client in a sympathetic light to the jury. You should do the same for the victim.
• Show the jury that the victim is one of them. She has ties to the community, may attend school or church, and may have a family.
• This type of questioning does two things: it allows the jury to "get to know" the victim; and it allows the victim to "warm up" before she must testify about the facts of the rape.
• Introduce a victim's criminal history during the introductory portion of your direct examination. Neutralize this information by introducing it on direct, thereby defanging any defense strategy.
• Ask the victim about her relationship with the defendant.
  • How does she know him?
  • For how long has she known him?
  • How did she feel about him before the attack?
  • How does she feel about him now?

Recreating the reality of the crime

• Think of each witness' segment of the account of what happened as a movie:
  • Each segment is a series of frames in the movie.
  • Together they tell about the whole incident. The witnesses are creating moving pictures for the jury.
  • The more detailed the "picture" of the incident the complainant and other witnesses can paint, the more likely it will be that the jury believes them.
• Use sensory details:
  • The complainant's credibility is always at issue in sexual assault cases, therefore it is important to provide the jury with the sort of tactile, sensory evidence, listed below, that is hard to fabricate.
  • Break down her account of the facts into small segments. Try tying each segment to an element of the crime you need to prove.
  • Ask her to describe the sensory details connected with each segment.
  • Craft questions to elicit evidence regarding the smells
    • the floor; or
    • the bed, or the ground against the complainant's body.
  • Placement of various body parts during the incident:
    • where were her hands, legs, torso;
    • where were the defendant's hands, legs, torso; and
    • what method(s) the defendant used to restrain or strike Complainant.
  • Description of the defendant's body, starting from the head and working your way down to his feet. For example:
    • Hair: color, style, amount, density, pattern
    • Eyes: color, size, shape, unusual characteristics (crossed, etc.);glasses (type, style), eyebrows (bushy)
    • Nose: flat, thick, thin, broken, nose ring
    • Mouth: lips, moustache (thick, thin, type), beard (full, thin, thick, type)
    • Teeth: yellow, missing, gold, broken, crooked, spaces, braces
    • Voice: accent, speech impediment, harsh, refined, pitch, tone
    • Breath: odor (foul, sweet, alcohol, smoke, garlic)
    • Body: type (fat, thin, muscular); scars, marks, (tattoos, moles, birthmarks); odor (cologne, etc.)
    • Penis: color of his penis compared to the rest of his body (same, darker, lighter); circumcised or uncircumcised
    • Pubic hair: color; texture; hair pattern
    • Height:
      • As compared to the complainant, the ADA or police officer
      • Did the victim look up at the defendant?
      • Did she look down at the defendant?
    • Weight: as compared to the police officer, the ADA or the complainant
    • Jewelry: rings, earrings, nipple rings, nose rings, Prince Albert, bracelet, necklace, etc.
    • Clothing:
      • Brand, color, markings, designs
      • Shoes, (clean/new, dirty/old)
      • Suit, work clothes, shorts and t-shirt, gang colors, sweats.
    • Description of the surroundings:
      • What were the surroundings made of?
      • What were the stairs made of (metal, concrete, wood)?
      • Sounds she heard during the attack (traffic, trains, voices, music)
    • Weather conditions at the time of the attack:
      • Rain, sunny, cold, hot, windy
    • Anything else that the victim tells you happened during the attack should be presented during the direct examination.
• Use emotional details:
  • Use non-judgmental open-ended questions which allow the complaining witness to provide detailed responses to the questions.
  • Ask the complaining witness about her emotions during each stage of the attack.
    • just prior to the attack
    • as the attack continued
    • when it stopped.

How the attack ended

• Ask how the attack ended.
• Ask if the attack stopped because the defendant ended it or because there was an interruption.
• The defendant may have ended the rape or sexual assault by making threats, giving orders, warnings, or asking the complainant for a date.
  • The answer to these questions may provide important evidence to establish the defendant's state of mind, direction of flight or suggest other witnesses to corroborate the victim?s testimony.
• Ask the complainant the following questions and any other questions relevant to the facts of your particular case:
  • What did defendant say after the sexual assault was completed?
  • Did he gloat? Or apologize?
  • Did he go to sleep?
  • Did he ask for a date? Or when they could see each other again?
  • Did he take her home?
  • Did he tell her to follow any instructions?
  • Did he warn her not to tell anyone?
• What was his exact conduct after the attack?
  • Have the victim describe his demeanor.
• What was her emotional state of mind?
  • Have the victim describe what she did after the attack.
• Did she report it to the police?
  • How was the incident reported?
  • When?
  • If not reported immediately, why not?
• Ask the victim to describe the details of reporting the crime to the police.
  • The place where the report was taken.
  • How many people were around?
  • Were her children in the room?
  • Did she leave anything out of the report? If so, why?
  • Her emotional state during the reporting process.
  • How long did it take to report?
  • How long did it feel like it took?
• Ask if the victim received medical attention.
  • If not, why?
  • Describe the medical facility.
  • How did she get there?
  • Was she alone, with her children, friend, family, or police?
  • When did she go to receive medical attention?
  • How long had she been in the police station, before going to the hospital?
  • How many people were in the Emergency Department.
    • Was it crowded?
    • Empty?
  • What was she thinking?
  • How did she feel?
    • Emotionally
    • Physically.
• It is always a good idea to end on a strong point.

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

Return to top of the page

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:

• "Introduction to the Sexual Assault Forensic Examiner Role," a text outline to follow the visual presentation, on page 52.
• "Amanda Brown's Medical History" in Appendix 11.

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

The Participant's Binder contains:

• Related slides at Tab 8, page 8-2.
• Outline for unit at Tab 8, page 8-14.
• "Amanda Brown's Medical History" at Tab 8, page 8-19.

Special instructions for the faculty:

• Content outline/visuals: The 34 visuals provide an outline for the Identification of Sexual Assault Trauma portion of this unit. The expert's presentation should use these visuals as the outline of this portion of the presentation. These slides follow the text outline, Introduction to the sexual assault examiner role." This outline discusses the S.A.F.E.'s role, education and training, how to evaluate the competency of S.A.F.E.s, and where S.A.F.E. programs can be located.
• Explain "Amanda Brown's Medical History": Ask participants to read this medical history on their own and think about the difference between this medical history taken by a trained Sexual Assault Examiner and a medical history taken by an Emergency Department physician with no special training.
• Directions for showing the forensic examination videos: Explain that the purpose of showing the video is not to train prosecutors to perform a forensic exam, but to enable them to understand what an examination is like in order to describe it to a jury and defend against defense attacks on the conduct of the examination and the chain of evidence.

  The female victim in the first video sustained injuries other than the rape itself. This is atypical in that most victims present in the emergency room without bruises, lacerations or other physical injuries. Also note that sexual assault evidence collection kits vary from state to state.

  Two videos are shown during this presentation: the first, "State of Art Forensic Examination of the Adult Sexual Assault Victim" depicts a forensic examination of a female victim. Because the purpose of showing this tape is to provide a clear understanding of what a sexual assault evidence collection examination is like, show only the portions of the tape depicting the examination. Begin the tape at "Step 1" or about four minutes into the tape. Show the next 14 minutes and stop the tape before Dr. Brown examines the "wet prep slide" under the microscope.

  The second video, "Sexual Assault Care: Sexual Assault the Health Care Response," is used to show prosecutors the sexual assault evidence collection examination of a male victim. (The same procedures are followed for an examination of a male victim or defendant.) Begin about 41 minutes into the tape, after a yellow balloon is inserted into the female victim's vaginal vault. Play the tape for about two minutes. Stop the tape before the physician swabs the male victim's mouth.

  To order a video of the adult female victim, "State of Art Forensic Examination of the Adult Sexual Assault Victim," contact:
  Dr. Randall L. Brown, Medical Director
  STOP Rape Crisis Center
  District Attorney's Office
  233 St. Ferndinand Street
  Baton Rouge, LA 70802
  phone: (225) 389-3456
  fax: (225) 389-5685
  email: jwood@ebrda.org

  To order the 53 minute Swiss video, "Sexual Assault Care: Sexual Assault the Health Care Response" contact:
  Institute of Legal Medicine, University of Bern
  Buhlstrasse, 20, CH-3012 Bern
  Switzerland
  phone: (41)(31)631-8412
  fax: (41)(31)631-3833
  email: dna@irm.unibe.ch

  Cost: approximately $90.00 U.S. Request the medical version #ISBN-3-95-21547-0-9.
  This video presents forensic examiniations of both a male and female victim.

• Debriefing from the "State of art forensic examination of the adult sexual assault victim" video. Ask participants:
  1. Reactions to seeing the film.
  2. What about this examination was good/bad from the prosecutor's point of view? List the responses on a flip chart.
  3. Discuss the bad points.
  4. Assume you are the defense attorney. How would you challenge this examination?
  5. From the prosecutor's point of view, what did you like/dislike about the doctor's interviewing technique?
• Colposcope slides and fact patterns: The S.A.F.E. Presenter should utilize slides from other presentations or her own or others' practice to carefully illustrate what a colposcope is and what it can show under magnification. This presentation should give meaning to terms such as "posterior fourchette" discussed under medical terminology in Part I of this unit and teach prosecutors how to use this resource in court.
• How to develop a S.A.F.E. program in your community: To develop a Sexual Assault Forensic Examiner Program in your community, contact:
  • Office of Victims of Crime, Training and Technical Project at (800) 627-6872. The Office of Victims of Crime offers a one-day technical assistance program to any community that wants to develop a Sexual Assault Forensic Examiner site program; or
  • Contact Linda Ledray, Ph.D., R.N., F.A.A.N. at the Sexual Assault Resource Service, Minneapolis, MN, (612) 347-5832.
• Refer Participants to the Resources Book: Other material relevant to this section is in Volume I, Tab 6, "Sexual Assault Forensic Examiners, S.A.N.E. and Medical Evidence."

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:

• S. A. N. E.:Sexual Assault Nurse Examiner
• S. A. R. T.:Sexual Assault Response Team
• S. A. F. E.:Sexual Assault Forensic Examiner
• S. A. E.:Sexual Assault Examiner
• S.A.R.C.:Sexual Assault Response Clinician
• S.A.R.S.:Sexual Assault Resource Service

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

• Standards of Practice, Current Forensic Issues
• S.A.F.E., S.A.N.E., S.A.R.T. Programs
• Rape Crisis Programs and the Role of the Advocate

Dynamics of Sexual Assault

• Historical Overview
• Offender and Victim Behaviors
• The Mythology of Sexual Assault
• Intimate Violence and Domestic Violence

The Psychological Aspects of Sexual Assault

• Consent: Developmental and Cognitive Factors
• Cognitive Processing of Traumatic Events, Brain Chemistry
• Symptoms of Trauma, Acute Stress Disorder
• PTSD and Risk Factors
• Vicarious Traumatization

The Elements of The Forensic Interview and Therapeutic Communication

• Documentation of Behaviors (verbal and nonverbal)

Mechanics of Injury and Determinants of Injury in Sexual Assault

• Terminology and Mechanics
• The Role of the Human Sexual Response
• Factors Related to the Victim, Offender and Circumstances
• Documentation of Injury

Assessment of the Sexual Assault Victim

• Strategies for Taking a Comprehensive History
• The Head to Toe Examination
• The Pelvic Examination (speculum and bimanual)
• The Male Examination
• Colposcopy and Other Technology

Evidence Collection

• Forensic Analysis, DNA & Challenges of Evidence Collection Process
• Steps in the Process
• Chain of Custody
• The Rape Evidence Collection Kit

Treatment of Sexual Assault Survivors

• Sexually Transmitted Infections
• Post-Coital Contraception
• HIV Prophylaxis and the Sexual Assault Survivor
• Referral, Follow Up and the Long Term Effects of Sexual Assault
• Interpersonal Violence: Referrals and Follow-up

Special Considerations and Needs of Different Populations

• Alcohol, Drugs and Sexual Assault
• The Influence of Developmental Stage and Disabilities on the Assessment Process
• Date Rape and Adolescents
• The Influence of Cultural Diversity and Sexual Orientation on the Assessment Process
• Gay, Lesbian, Bisexual and Trans-Gendered Survivors

The Law and Sexual Assault

• State Laws
• Role of Law Enforcement
• Rape Shield Law
• Court Procedures
• Strategies to consider when the Judge will not permit the S.A.E. to testify as an expert
• Legal and Ethical Responsibilities
• Consent
• Testimony: Fact Witness and Expert Witness

Limitations of Expert Witness' Testimony

• May never conclude that the victim was raped, or that injury means lack of consent

Professional Development Issues

• Community Interventions
• Goals of the Precepted Experience and Setting Up a Preceptorship

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.

Return to top of the page

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:

• Lecture outline: "How an expert can help you support the complainant and make your case more effectively" begins on page 59.
• "A prosecutor's checklist: Using a psychological expert in a sexual assault case" begins on page 70.
• "Tips on working with a medical expert in a sexual assault case" begins on page 77.
• "Expert's checklist" begins on page 80.

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

The Participant's Binder contains:

• Copies of all slides for this unit at Tab 8, page 8-29.
• "How an Expert Can Help You Support the Complainant and Make Your Case More Effectively" at Tab 8, page 8-36.
• "A Prosecutor's Checklist: Using a Psychological Expert in a Sexual Assault Case" at Tab 8, page 8-47.
• "Tips on Working with a Medical Expert in a Sexual Assault Case" at Tab 8, page 8-54.
• "Expert's Checklist" at Tab 8, page 8-57.
• Local Law Case Annotations at Tab 8, page 8-63.

Special instructions for the faculty:

• Tailor this lecture to your state's case law : This material addresses general issues related to expert testimony in sexual assault cases. The presentation should be tailored to and supplemented with the local law and practice from the jurisdiction where the training takes place to make it more useful for the participants. Certain sections may not apply, depending on how developed the state?s law is on the subject. The presenter will need to make the necessary adjustments after reviewing the state?s law where the program is being given.
• Note on four checklists: These materials include four checklists for prosecutors to use in interviewing and preparing psychological and medical expert witnesses for a sexual assault trial. The first three of these checklists are for the prosecutor. The fourth, "Expert's Checklist: Courtroom Testimony in Sexual Assault Cases," is to be given to the expert to help him or her to prepare.
• Refer Participants to the Case Annotations Included in the Participant's Binder: The Participant's Binder contains a collection of case annotations related to the admissibility of expert witness testimony and issues of confidentiality and privilege. These annotations come from selected states throughout the country where the National Judicial Education Program has presented its Understanding Sexual Violence curriculum to judges. The document also contains annotations of more recent cases that address these issues.
• Give the Attorney's Caveat: This is a rapidly changing area of the law and each jurisdiction is different. You need to carefully review your own state?s statutes and case law before you attempt to introduce expert testimony in a sexual assault case.
• Refer Participants to the Resources Book: Other material relevant to this section is in Volume I, Tab 3, "Victim Impact," and "Expert Testimony in Sexual Assault Cases: Selected Case Law from Around the Country" which is in Volume I, Tab 7, "Expert Witnesses."

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:

   • Why victims delay reporting;
   • Why victims blame themselves;
   • Why victims minimize the events and their injuries;
   • Why victims have incomplete or inconsistent memories of the incident;
   • Why victims do not always physically resist or escape;
   • "Frozen fright";
   • Why victims may continue contact with the perpetrator, especially if they had a previous relationship based on trust;
   • The victim's behavior as compared with behavior of other sexual assault victims;
   • The victim's lack of physical injury;
   • The victim's demeanor after the assault;
   • Posttraumatic Stress Disorder and other common psychological reactions to trauma; and,
   • Why victims recant.

   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)
   • The phrase was originally used by Ann Burgess and Lynda Holmstrom to describe common reactions they observed in rape victims seen in the emergency room. ³
   • RTS refers to the victim?s stages of recovery, not symptoms.
   • These stages were defined to aid in the therapeutic process, but the terminology was used in courts to explain common reactions to rape to the jury.
   • RTS is not a psychological diagnosis that is recognized in the field.
   • RTS is not included in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). ⁴
   • RTS is more vulnerable to attack because of the research upon which it is based.
   • RTS should NOT be used by experts in court.
   • However, many legal opinions and legal articles still use RTS terminology. These materials must be read carefully before drawing conclusions about the admissibility of expert testimony.
   • Courts are also still admitting expert testimony about RTS, reflecting this confusion.
     • See, e.g., State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject to motions for reargument and formal revision) (rape trauma syndrome is professionally recognized as a type of posttraumatic stress disorder).
2. Posttraumatic Stress Disorder (PTSD)
   • PTSD is the primary trauma-related diagnosis included in the DSM-IV.
   • It is an Axis I diagnosis (Clinical Disorders; Other Conditions that May Be a Focus of Clinical Attention) in the DSM-IV.
   • Diagnostic criteria include exposure to a traumatic event and certain associated reactions and symptoms.
   • Duration of symptoms is more than one month.
   • Originally developed to address the psychological trauma of Vietnam veterans. ⁵
   • PTSD is the preferred diagnosis for expert testimony.
   • PTSD does not include all of the symptoms (such as depression, anxiety, anger, guilt, humiliation, sexual dysfunction, and disruption of core belief systems) that are also common among sexual assault victims. ⁶
   • The expert needs to clarify that sexual assault victims often suffer from symptoms other than PTSD.
   • Experts also need to explain that not all sexual assault victims suffer from PTSD.
   • Experts should use any other accepted diagnoses that apply (such as depression).
   • PTSD may be caused by a trauma other than sexual assault.
   • Many victims suffer from multiple traumas. Therefore, it is difficult to say with certainty that a specific trauma caused the PTSD reaction. ⁷
   • An expert can try to show the symptoms' cause with a thorough assessment of the temporal sequence of events and symptoms and a detailed description of the victim's intrusive symptoms. ⁸
   • Symptoms may overlap with the criteria for several other clinical disorders. ⁹
   • Courts often confuse this diagnosis with RTS.
   • Testimony about PTSD has been admitted in many courts.
     • See, e.g., State v. Liddell , 211 Mont. 180, 685 P.2d 918 (1984) (expert testimony from a psychiatric nurse admitted to aid the jury in determining whether there was consent).
     • Lane v. Commonwealth, No. 2161-98-2 (Va. App. Sept. 28, 1999) (expert testimony about the victim?s PTSD diagnosis being consistent with sexual abuse permitted since the expert did not opine that the victim had been abused).
   • Testimony is deemed admissible by statute in at least one state.
     • See Ill. Rev. Stat. Ch. 5 115-7.2. "In a prosecution for an illegal sexual act perpetrated upon a victim, testimony by an expert, qualified by the court relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence." (Emphasis added).
3. Acute Stress Disorder (ASD)
   • DSM-IV diagnosis for symptoms that last a minimum of two days and a maximum of four weeks.
   • Diagnosis used in the immediate aftermath of a trauma.
   • ASD is used to describe the PTSD-like intrusive thoughts and avoidance symptoms during the first thirty days of symptoms.
   • If symptoms persist for more than thirty days, the PTSD diagnosis is used.

Levels of expert testimony ¹⁰

1. Level 1: Testimony about specific behaviors of sexual assault victims that are described as "unusual" by the defense
   • Expert testimony is used to respond to the defendant's claim that the victim?s behavior was not consistent with that of a sexual assault victim. The defendant may have raised the questions through cross-examination of the victim or in the defendant's case-in-chief.
   • The defense attorney has introduced testimony about the victim's "unusual" behavior, such as:
     • The victim's delay in reporting;
     • The victim's failure to recall details or omission of certain aspects of the sexual assault;
     • The victim's inability to immediately tell the police the assailant?s name;
     • The victim's apparent lack of emotion following the assault;
     • The victim's denial of the sexual assault; or,
     • The victim's memory loss about events preceding or during the assault.
   • The expert is used to explain that these behaviors are not unusual in a sexual assault victim.
   • The testimony only provides general information to jurors in an effort to combat the prevalent myths and stereotypes about sexual assault victims.
   • See, e.g., State v. DeSantis , 155 Wis. 2d 774, 456 N.W.2d 600 (Wis. 1990) (counselor from the local rape crisis shelter was permitted to testify, over the defendant?s objection, about the general behavior of sexual assault victims).
2. Level 2: Testimony about common reactions to sexual assault and the general diagnostic criteria of PTSD or Rape Trauma
   • This level of testimony involves a discussion of common post-assault behaviors and experiences, and includes a description of the criteria for PTSD or the effects of rape trauma.
   • The expert does not examine the victim and does not discuss the specific victim's behavior or symptoms.
   • The testimony is kept at a general level.
   • The expert should do more than just describe PTSD symptoms. The expert should also explain other empirically validated, common post-assault behaviors which are not included in the PTSD diagnosis (such as sexual dysfunction or depression).
   • The expert should not use RTS testimony.
   • See, e.g., State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject to motions for reargument and formal revision) (expert was allowed to testify about behaviors and symptoms experienced by trauma victims).
3. Level 3: Expert gives an opinion about the consistency of a victim's behavior or symptoms with PTSD or Rape Trauma
   • Here the expert is allowed to discuss whether the victim's symptoms are consistent with the symptom criteria for PTSD or other trauma-related diagnoses.
   • The expert does not examine or diagnose the victim or claim that the victim suffers from PTSD or any other diagnosis.
   • The expert does not imply that the victim is being truthful in describing her symptoms.
   • The expert can point out the consistencies between the victim's reported symptoms and common post-assault responses.
   • The expert should not use RTS testimony.
   • There are numerous examples of cases in which this type of evidence was held to be admissible. See, e.g.:
     • State v. Rogers, 992 P.2d 229 (Mont. 1999) (Emergency Department physician was allowed to testify that the victim's emotional state at the time of the examination was consistent with that of other rape victims he had examined).
     • State v. Doporto, 935 P.2d 484 (Utah 1997) (an expert may testify that a victim's behavior was consistent with symptoms that might be exhibited by one who has been sexually abused).
4. Level 4: The expert testifies that the victim suffers from PTSD
   • At this level, the expert describes the victim?s symptoms and states that the victim meets the criteria for a clinical diagnosis of PTSD.
   • The expert would probably need to examine the victim to make the diagnosis.
   • The expert does not testify that the victim was raped.
   • The expert acknowledges that other forms of trauma may cause PTSD.
   • You can anticipate a defense objection that this testimony improperly bolsters the victim's credibility.
   • The expert should not use RTS testimony.
   • See, e.g., State v. Allewalt, 517 A.2d 741 (Md. 1986) (the expert examined the victim and testified that he believed she suffered from PTSD).
5. Level 5: The expert opinion goes beyond a diagnosis (The Danger Zone!)
   • At this level, the expert testifies that the victim is telling the truth or that the victim was raped.
   • This almost guarantees a mistrial or the reversal of any conviction on appeal.
   • DO NOT allow your experts to cross this line.
   • It clearly invades the jury's province and bears directly on the victim's credibility.
   • There are numerous examples here as well:
     • See, e.g., Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654 (1986) (the defendant's conviction was reversed because the Emergency Department physician stated that, in his opinion, the victim was raped).
     • Smith v. State, 259 Ga. 135, 377 S.E.2d 158 (1989) (trial court erred in allowing the state's child abuse expert to testify that, in her opinion, the victim told the truth in her allegations against the defendant).

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:

• Have the expert who addresses victim impact during the training give examples of cases in which s/he has testified where s/he felt that her/his testimony was helpful and where it was not.
• Have the prosecutors who are members of the faculty and who are in the audience describe cases in which they felt they used an expert successfully and where they felt the testimony did not help their case.
• Discuss why the testimony helped in certain cases and why it did not in others.
• See if you can discern a pattern.

Other types of expert witnesses

• A witness does not necessarily have to be a clinical psychologist or psychiatrist in order to testify as an expert in a sexual assault trial.
• Courts have admitted testimony from other witnesses, such as:
  • The person in charge of a police department Victim Services Unit was allowed to testify as an expert on victimology in People v. Hampton, 746 P.2d 947 (Colo. 1987).
  • A counselor from a local rape crisis team was allowed to testify about the general behavior of sexual assault victims in State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (Wis. 1990).
  • A counselor from a rape crisis center was qualified as an expert and testified about her observations of the victim, about the victim?s fear of retaliation, and the victim?s flat affect in State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (Wis. 1988).
• Be sure to check the case law in your own jurisdiction to determine the boundaries of permissible testimony and who can be qualified as an expert.

Lay witnesses to establish trauma response

• Courts have even permitted lay witnesses to testify about a victim's post-assault behavior or symptoms. Examples include:
  • A counselor from a police Victim Services Unit was allowed to testify as a lay witness regarding the victim's demeanor the day she reported the assault, and to express an opinion that the victim's reactions were typical of victims of sexual assault, in Farley v. People, 746 P.2d 956 (Colo. 1987).
  • In Commonwealth v. Pickford, 370 Pa. Super. 444, 536 A.2d 1348 (1987), the court refused to allow expert testimony about rape trauma syndrome. It did, however, allow lay testimony regarding the victim's post-rape behavior.
  • In State v. Hickmott, Case No. 98 CA 01 (Ohio App. Feb. 5, 1999), the court allowed the victim to testify that she suffered from PTSD, finding that her testimony was highly relevant and probative to the issue of whether she consented.
• Once again, check your local law on this issue.

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
   • This issue is particularly relevant when the prosecutor decides to call the treating therapist as an expert witness.
   • Communication within the therapeutic relationship is privileged.
   • Some states have extended the privilege to rape crisis center counselors.
     • See, e.g., Colo. Rev. Stat. § 13-70-107(1)(k) (a victim's advocate shall not be examined as to any communication made to such victim's advocate...by a victim of sexual assault...in person or through the media of written records or reports without the consent of the victim).
     • See also, Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977 (1992) (the statutory privilege protects communication with a sexual assault counselor).
   • The privilege may be waived if you call the treating therapist as a witness.
   • Think carefully about the implications of calling a treating therapist as an expert witness.
   • It is often best to use an expert who has no connection with the victim to avoid conflicts of interest and protect the victim's therapeutic relationship.
   • Treating therapists are also more likely to cross the line and talk about the victim's truthfulness!
   • If you do need to call the treating therapist, file a motion asking the court to limit the questioning to the relevant time period or topic.
2. Confidentiality of records
   • Defense attorneys often seek the victim?s counseling records, even if the treating therapist is not testifying.
   • Confidentiality of rape crisis center records is protected by statute in some states and by case law in others.
     • See, e.g., Colo. Rev. Stat. § 13-70-107(1)(k) (a victim's advocate shall not be examined as to any communication made to such victim's advocate...by a victim of sexual assault...in person or through the media of written records or reports without the consent of the victim).
     • See also, Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977 (1992) (the statutory privilege must extend to the subpoena of records and other documents developed throughout the counseling relationship).
     • See, also, State v. J.G., 261 N.J. Super. 409, 619 A.2d 232 (1993) (The defendant sexually assaulted his children. He sought access to counseling records for his wife, who he had not sexually abused, as well as for his children, who were his victims. The court held that the victim-counselor privilege was broad enough to encompass both direct and indirect victims of crime, so the defendant?s request to discover counseling records for his wife and children was denied).
   • Courts have also denied defendants? requests for access to other counseling records.
     • See, e.g., State v. Maniero, 189 Wis. 2d 80, 525 N.W.2d 304 (Wis. App. 1994), review denied, 531 N.W.2d 326 (Wis. 1995) (the defendant was not entitled to review the victim's psychiatric records where the state did not introduce expert testimony about the victims' psychiatric condition, nor did it rely on any of her psychiatric records).
   • However, some courts have held that a sexual assault victim's rape crisis center or mental health records are discoverable.
     • See, e.g., Commonwealth v. Neumyer, 432 Mass. 23, 731 N.E.2d 1053 (2000) (the defendant's proffer was sufficient to establish the necessary relevancy and materiality of the victim's rape crisis center records to warrant an in camera review of the records, despite the statutory privilege).
     • See also, State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989) (the trial court committed reversible error in denying the defendant access to the victim?s treatment records).
   • These privileges may also be waived, so be careful!
     • See, e.g., Commonwealth v. Davis, 437 Pa. Super. 471, 650 A.2d 452 (1994), aff'd, 674 A.2d 214 (Pa. 1996) (the privilege was waived when the complainant and her family allowed the prosecutor to have access to the 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:

• Use your expert, your Victim-Witness staff, the local rape crisis center counselor or the victim's treating therapist to help support and prepare the victim for trial.
• Use the expert to help you "follow the trauma." ¹¹ PTSD and other trauma-related symptoms help demonstrate that the sexual activity was not consensual.
  • See, Rape Trauma Symptom Rating Scale in your Resources Book in Vol. I, Tab 3, "Victim Impact" .
• Use what you learned from the expert to help you prepare your voir dire questions, your direct examination of the victim and your cross-examination of the defendant.
• If the defendant is planning to call an expert, use your expert to help you prepare your cross-examination of the defense expert, by suggesting areas of inquiry or specific questions. Have your expert review the defense expert's curriculum vitae and published materials. Ask your expert to find out about the defense expert by contacting professional organizations or other sources to provide you with additional information.

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
   • Some appellate courts have held that expert testimony about the incidence of false reporting in sexual assault cases is impermissible.
     • State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject to motions for reargument and formal revision) (the expert's testimony about the rate of false reporting was improperly admitted, but did not constitute reversible error).
     • State v. Brodniak, 221 Mont. 212, 718 P.2d 322 (1986) (The expert's testimony about malingering and the statistical percentage of false accusations was improper comment on the complainant's credibility and should not have been admitted. In light of the overwhelming evidence of the defendant's guilt, however, the error was harmless).
   • Unless your courts specifically permit this testimony, it would be wise to avoid it.
   • If the defendant attempts to introduce this type of testimony, object strenuously.
2. Expert testimony that the defendant does not fit the "Profile" of a sex offender
   • Several appellate decisions address the issue of the admissibility of expert testimony proffered by the defendant in which the expert plans to testify that the defendant does not fit the "profile" of a sex offender.
   • There is no validity to the concept that there is a reliable "profile" of a sex offender.
   • Nevertheless, some courts have admitted this evidence or found that it was relevant:
     • State v. Miller, 709 P.2d 350 (Utah 1985) (The defendant proffered expert testimony to describe the typical psychological profile of individuals who sexually abuse children. The trial court refused to permit it. On appeal the court held that the testimony would have been relevant, but that the trial court did not err in excluding the evidence under the provisions of Utah R. Evid. 403.).
     • State v. Cavallo, 88 N.J. 508, 443 A.2d 1020 (1982) (One of the defendants sought to offer expert testimony that he did not have the psychological traits of a rapist. The appellate court held that the expert's testimony made it more likely than otherwise that the defendant did not rape the victim. Consequently, the proffered testimony was relevant.).
     • State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Wis. App. 1998) (The defendant proffered expert testimony that he did not show any evidence of a diagnosable sexual disorder and, absent a diagnosable disorder, it was unlikely that such a person would molest a child. The trial court refused to permit the testimony and the appellate court reversed, finding that the expert's testimony would have assisted the jury in determining the likelihood that the defendant committed the charged offense.).
   • You should strenuously object to the introduction of this type of evidence. Reputable researchers in this field do not accept the concept of a "profile."

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:

   • Whether the person has ever previously been qualified as an expert;
   • The expert's employment history;
   • The expert's experience in the field in which he or she is being offered as an expert;
   • The expert's education;
   • The expert's professional affiliations, and positions within professional organizations;
   • The expert's publications in the field and professional papers presented;
   • Any other specialized or professional training the expert has received; and
   • The expert's familiarity with current literature and research in the particular field.

   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

• Many medical schools and nursing schools do not teach students how to conduct clinical forensic examinations.
• This is changing with advent of the SAFE programs, but SAFE clinicians are not available in all jurisdictions.
• Physicians or nurses usually examine sexual assault victims many months, or even years, before the case comes to trial. As a result, the clinician's memory about important details, such as the patient's demeanor, may have faded.
• If a SAFE clinician is not available, the responsibility for sexual assault examinations rotates from clinician to clinician. Therefore, the clinicians may perform only a few of these examinations in any given year.
• Given that so few of these cases actually go to trial, it is important to understand that the clinician may have little experience testifying and may be very apprehensive about doing so. ¹⁵

Professional courtesy

• Clinicians do not want their first contact with a prosecutor to be in the form of a subpoena. This is a bad way to initiate contact because when clinicians receive unexpected subpoenas, their initial reaction is often fear that they are being sued for malpractice. ¹⁶
• It is also important to give the clinicians as much notice as possible when asking them to testify. Clinicians are frustrated when they are asked to testify with little advance notice. A last minute subpoena may diminish the spirit of cooperation and damage the working relationship between the prosecutor and the clinician.
• Many physicians and nurses have fixed schedules that are set months in advance. It is often difficult to get coverage and the clinician may be forced to work multiple shifts in a row if notice is given at the last minute.
• Giving last minute notice may also produce a hostile witness who has not had time to properly review the record or the relevant professional literature. ¹⁷
• Trials often have unpredictable schedules. Clinicians appreciate being scheduled to testify either first thing in the morning or right after the lunch break to minimize waiting time. Explain to the clinician that although you will do everything you can do to minimize delays, the judge controls the calendar and cases are often continued and schedules are often rearranged at the last minute.
• Ask the clinician to arrive an hour early to give the clinician time to ask any questions or review material with the prosecutor.
• During re-direct, give the clinician the opportunity to clarify misconceptions that may have arisen during cross-examination.
• As a courtesy, call or write to the clinician after the trial to let the clinician know the outcome and thank him or her for assisting with the trial. ¹⁸

Checklist for prosecutors using medical experts ¹⁹

1. Initial forensic clinician contact
   • Arrange your initial meeting as soon as possible after the case begins, well in advance of the trial date.
   • Avoid the use of subpoenas that are delivered without prior notice.
   • Telephone or visit the clinicians prior to the start of their shift.
   • Provide the clinician with a copy of the clinical record and the proposed trial dates.
   • Establish a preferred method for contact to arrange a formal case review.
2. Formal case review
   • Schedule the meeting at least two weeks prior to the trial.
   • Avoid scheduling the meeting during the clinician's shift or at the end of the shift.
   • Meet at the hospital.
   • Plan on spending an hour or two reviewing the specific details of the hospital evaluation.
   • Review direct quotes and statements made for the purpose of medical diagnosis or treatment.
   • Clarify the terminology used, e.g., 6 o?clock position, posterior fourchette, and fossa navicularis.
   • Review the particular hospital?s rape kit, the use of toluidine dye or colposcopy, the chain of evidence, and routine laboratory procedures.
   • Carefully review any complaints of pain by the patient.
   • Discuss the use of drawings or blow-up diagrams.
   • Avoid use of the phrase "Rape Trauma Syndrome."
3. Know your witness
   • Decide whether you want to qualify the clinician as an expert or a fact witness.
   • Discuss the clinician?s previous trial experience, professional training, certifications, and publications.
   • Understand the potential power of a SAFE evidentiary examination.
   • Discuss the limits of clinical expertise. Understand what the clinician cannot do, e.g. analyze DNA or determine the age of bruises.
   • Provide guidelines for Effective testimony, which address such issues as courtroom etiquette, direct and cross-examination procedures, and the legal implication of the use of certain terminology, e.g., probable vs. possible.
   • Provide relevant medical literature for the clinician to review.

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:

• The types of questions you will be asked to establish your credentials and expertise;
• The boundaries of your testimony;
• The types of questions you will be asked by the prosecutor on direct examination;
• Areas you will not be asked about;
• Areas that you should specifically avoid;
• How to prepare for cross-examination; and
• Questions to expect from opposing counsel.

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:

• Educational/Professional background:
  • Education: university, graduate school, particular classes in area of expertise;
  • Degrees held;
  • Additional class work or training in your field of expertise;
  • Articles written on topics within your 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;
  • Definition of 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 you as a witness; and
    • whether you were qualified as an expert in these other cases.
  • In any case where you have testified, the attorney may want to obtain a transcript of your testimony.
  • Whether any court ever refused to qualify you as an expert.

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:

• Testimony to provide background information

  Experts can testify about issues outside of the jury's general knowledge and understanding. The judge or jury is then left to apply the information 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, witnesses qualified as 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. To assist the prosecutor in establishing your reasonable certainty about your opinions, be prepared to address the following types of questions:

  • What facts did you consider in forming your opinion?
  • What are the relevant theories and principles that support your opinion?
  • Have these theories and principles been tested?
  • Have these theories or principles been published?
  • Have they been published in peer-review law journals?
  • Are these theories or principles generally accepted in your professional community?
  • What appropriate assessment of methods did you use?
  • How would you defend or explain your opinion, if challenged?

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

• Testimony based on hypothetical questions

  Some states require experts to express their opinions only in response to a hypothetical form of questioning. These types of questions are not used as often now 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?"

  If a hypothetical question is used during your cross-examination, listen very carefully to the question. Explain all distinctions you perceive between the hypothetical question and your set of facts before answering the question.

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.

Return to top of the page

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:

• "Rape shield" exercise directions and worksheet on page 87.
• "State-of-mind/experts" exercise directions and worksheet on page 88.

The Participant's Binder contains:

• "Rape shield" exercise directions and worksheet at Tab 8, page 8-80.
• "State-of-mind/experts" exercise directions and worksheet at Tab 8, page 8-81.

Special instructions for the faculty:

• Explain "Rape shield" exercise (30 minutes): Five hypothetical facts that the defense attorney may try to introduce at trial are presented. Plenary discussion to follow the exercise.
• Explain "State-of-mind/experts" exercise (30 minutes): Prosecutor presenter divides the room in half and assigns one half question 1 and one half question 2. This hypothetical assumes that Amanda Brown froze and did not struggle against Michael Cates. Using your state law, develop strategies for admitting this powerful state-of-mind evidence at trial. Plenary discussion follows the small group exercise.

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:

• Amanda Brown has dated many men since she began attending Marlow College.
• Amanda Brown is known to "hang out" in a bar just down the road from the college.
• She has been seen in this bar dancing suggestively with her dates.
• Amanda Brown was wearing an animal print thong on the night of the incident.
• Amanda Brown's sweater was tight, and her skirt was very short.

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?

Return to top of the page

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:

• a word-association game;
• a video;
• a lecture; and
• a "Family Feud" type game, using the survey distributed on Day I of the conference during registration.

This Faculty Manual contains:

• "Rules of the Game: Family Feud" on page 93.
• "Family Feud" Survey Handout on page 95.

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

Special instructions for the faculty:

• Explain exercise "Word association" game: Use the visual in Appendix 10 to determine whether the group has "been doing this job too long." The slide lists three sets of words: boy scouts, priests, and day care. Prosecutors who have been prosecuting sex crimes cases for a while have a different response to these words than the general public. Ask the group to call out the first word that comes to mind. Allow two minutes for the Word Association Game.
• Show video: "Celebrate living" is approximately four minutes long. This video encourages viewers to take time to feel joy and see the beauty that surrounds us.

  To order "Celebrate living," a 4-minute motivational video, contact:
  United Way of America
  701 N. Fairfax Street
  Alexandria, VA 22314-2045
  Phone: (703)836-7100
  Fax: (703) 683-7840
  http://www.unitedway.org
  Cost: $15.00

• Lecture outline: The difference between vicarious trauma and burn-out

  • Burn-out occurs when one is tired, overwhelmed, distant from the job: the hours, the tasks, the commute, the boss, the rules and the relationships.
  • Vicarious trauma occurs when the individual is overwhelmed by the experiences of the victims: their pain, loss and grief, witnessing family tragedy, sensory overload and repetitive crises.
  • Burn-out and Vicarious Trauma can occur simultaneously!!
  • The signs and symptoms of burn-out

    Burn-Out will normally occur slowly, over a long period of time. It may manifest itself physically or mentally. Symptoms of burn-out include:

    • Physical burn-out
      • Feelings of intense fatigue;
      • Vulnerability to viral infection; and/or
      • Immune system breakdown.
    • Psychological burn-out
      • Feeling of lack of control over commitments;
      • An incorrect belief that you are accomplishing less;
      • A growing tendency to think negatively;
      • Loss of a sense of purpose and energy; and/or
      • Increasing detachment from relationships that causes conflict and stress, adding to burn-out.
  • The signs and symptoms of vicarious trauma
    • Taking your complainants "home" with you;
    • Feeling very emotional during or after working with a survivor;
    • Sleeplessness;
    • Generalized anxiety;
    • Feelings of being overwhelmed;
    • Feelings of incompetence; and/or
    • Listlessness, low grade depression, the blahs.
    • Intrusive thoughts of clients, families and traumatic events: dreams, nightmares, daydreaming, recurring images or vivid mental replaying of clients' trauma;
    • Anger or pervasive cynicism about the complainants, their families, the system, yourself and/or the staff culture;
    • Hyper-aroused or over-reacting to insignificant events (especially at home);
    • Revenge fantasies;
    • Emotional detachment to significant others (numbing, flat affect, loss of humor/warmth);
    • Lack of interest in sex or romance;
    • Tendency to talk about sexual assault (or other client trauma) all the time;
    • See all complainants as potential victims or abusers;
    • Second guessing and gossiping if staff members have been victims themselves;
    • Fear of the possibility of personal tragedy; and/or
    • Haunting memories of one's own traumatic events.
  • 3 risk factors for vicarious trauma
    • Exposure to the stories (or images) of multiple victims;
    • Your empathetic sensitivity to their suffering; and
    • Any unresolved emotional issues that relate (affectively or symbolically) to the suffering seen.
  • Prevention strategies and solutions
    • Techniques for recognizing and dealing with your own issues which get stirred up;
    • Break from the psychological intensity of trauma work;
    • Social time with staff (off work topics);
    • "Mental health breaks;"
    • Reconnect with community, friends;
    • Sports, hobbies;
    • Vacation (at least two weeks long);
    • Experiences which instill comfort and hope;
    • Confine case conferences to legal and victim-focused issues;
    • Recognize when your personal issues interfere and bring them to an appropriate forum;
    • Set clear boundaries between home and work, e.g., work clothes and fun clothes;
    • Use rituals to separate work from rest of life, e.g., special music in the car on the way home, leaving your "things" in the car or a separate room;
    • Balance your work load as to types of client problems;
    • Self-care and self-nurturance (a necessity!!).
  • Explain exercise "Family Feud": This exercise utilizes the survey about stressors and coping methods distributed on Day I of the conference during registration. Directions are on the following page.
  • Refer Participants to the Resources Book: Other material relevant to this section is in Volume II, Tab 11, "Vicarious Trauma."

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:

• Answer board---Displays survey questions and top five answers. At the start of the game the answers are covered with a flap of paper over the answer indicating the point assignment.
• Timer---counts down 10 seconds to respond to each question. (The timer can be an individual with a stopwatch, or someone who just counts to him/herself.) Each round should take no longer than 3 minutes.
• Scoreboard---flip chart or china board to display players? scores.
• Referee(s)---in the event there is a conflict, it will be settled by the referee(s).

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.

Return to top of the page

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.

This document was not developed by Violence Against Women Online Resources. The document's author or sponsoring organization granted VAWOR permission for placement on this site. Points of view in this document are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice.

This web site is a cooperative project of Office on Violence Against Women and Minnesota Center Against Violence & Abuse at the University of Minnesota and is supported by grant number 2004-WT-AX-K075 awarded by the Office on Violence Against Women, Office of Justice Programs, U.S. Department of Justice.

Additional information about this site can be obtained by reading Email us for more information and assistance.

©Copyright 1998-2005 Minnesota Center Against Violence and Abuse (MINCAVA)

File Last Modified on: 48