The National Judicial Education Program
(NJEP)
NOW Legal Defense and Education Fund, in
cooperation with The American Prosecutors Research
Institute
Publication Date: 2001
Faculty needed: Offender Expert
Format for unit: Lecture
Time allotted: Day III: 8:30 to 9:30 a.m. (1 hour)
The sex offender expert will provide a comprehensive overview of sex offenders (e.g., characteristics, myths, planning, multiple offending patterns). The focus will be on nonstranger rapists who are difficult to prosecute because they do not meet society's expectations about who rapists are and what they look like. This unit uses a video reenactment of an interview with a pre-law student who casually discusses the planning process he and his fraternity brothers engage in to target their victims.
Visuals for unit:
The Participant's Binder contains:
Special instructions for the faculty:
9:30-9:35 Stretch Break
Re-enactment of an interview conducted by Dr. David Lisak, excerpted from the National Judicial Education Program's video curriculum, Understanding Sexual Violence: The Judge's Role in Stranger and Nonstranger Rape and Sexual Assault Cases.
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Number of Videos at $15.00 each: ___________
Running time: 6 minutes, 18 seconds.
Please remit your enclosed check in the amount of _________ to
NOW Legal Defense and Education Fund, earmarked for NJEP.
Mail your check to:
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Orders cannot be processed until a check in the appropriate amount is remitted for payment. Our federal tax ID number, which you may need for ordering, is 23-7085442. Please allow two to three weeks for delivery. These prices include regular postage within the United States. If you are outside the United States, postage will depend on your location and postal preference, i.e., surface or air.
For more information, contact the National Judicial Education Program at NOW Legal Defense and Education Fund at (212) 925-6635; Fax: (212) 226-1066, 395 Hudson Street, 5th Floor, New York, NY 10014-3684, njep@nowldef.org.
Faculty needed: Offender Expert, Prosecutor Presenter(s)
Format for unit: Lecture and video
Time allotted: Day III: 9:35 to 10:35 a.m. (1 hour)
The offender expert reviews the research about undetected nonstranger serial rapists. The offender expert and prosecutor presenter discuss the implications of this research for the trend toward admitting prior bad acts in sexual assault cases.
Visuals for unit:
The Participant's Binder contains:
Special instructions for the faculty:
10:35-10:45 Break
Faculty needed: Prosecutor Presenter(s)
Format for unit: Small group exercise
Time allotted: Day III: 10:45 to 11:15 (30 minutes)
Content overview - Prior bad acts:
To effectively prosecute rape and sexual assault cases, prosecutors must be able to apply their state's law regarding prior bad acts. This unit gives participants an opportunity to apply their law to the facts of State v. Michael Cates.
This Faculty Manual contains:
The Participant's Binder contains:
Special instructions for the faculty:
11:15-11:20 Stretch Break
Directions: Take five minutes to write down the answers to the questions below, and then ten 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 for an additional fifteen minutes. The reporter will be the participant whose last name is closest to the letter I, who was not a reporter for an earlier exercise. If under your state law you may be able to admit some or all of these prior bad acts, be prepared to explain which incident(s) you would seek to introduce at trial and why.
During trial preparation you discover several other women who claim to have been sexually assaulted by Michael Cates.
Faculty needed: Prosecutor Presenter(s), Offender Expert
Format for unit: Lecture and two small group exercises
Time allotted: Day III: 11:20 a.m. to 12:30 p.m. (1 hour, 10 minutes)
Content overview - Pleas and sentencing:
The sex offender expert discusses effective sentencing and the importance of a plea in which the defendant admits guilt. The prosecutor presenter explores the tension between this and the real world of sentences and plea offers.
This Faculty Manual contains:
Visuals for unit:
The Participant's Binder contains:
Special instructions for the faculty:
12:30-1:30 Lunch
Directions: Re-read "The Full Story" Handout. Then take five minutes to jot down your responses to the questions below. During the next 10 minutes, share your responses with the full group.
Directions: Read the "Defendant's Sentencing Proposal" on the following page (approximately two minutes). Be prepared to respond to the several aspects of the this proposal. Use this worksheet to jot down your responses. Allow ten minutes for this discussion.
How do you respond to the several aspects of the defendant's sentencing proposal?
At some point in your negotiations, or, at a sentencing hearing, Mr. Cates' attorney offers the following sentencing proposal. How do you respond?
My client is sorry that the situation got out of hand on their date, mostly because of the alcohol they both consumed. He understands that Ms. Brown is upset and he regrets the misunderstanding. He never intended to cause her any harm.
Consider the many factors in this case which show that incarceration is inappropriate. Why ruin a good kid's life? This is Mr. Cates' first offense. He has not been in trouble with the law before this incident. There were no weapons; he wasn't violent; he did not threaten Ms. Brown. She wasn't hurt. Ms. Brown wasn't beaten or even bruised.
Therefore, we think it appropriate that Mr. Cates be placed on probation, continue the treatment he has already begun on an outpatient basis, and in addition be required to complete community service.
We have met with the college officials who have agreed to his continued enrollment once he has been placed on probation. Thus he will have stability in his life.
Mr. Cates has begun treatment with Dr. Stewart Stuart. Dr. Stuart is well known and has worked with many criminal offenders over the past three years. He has effectively treated many of his patients. Mr. Cates has been attending individual therapy sessions with Dr. Stuart and is actively participating in those sessions. His parents are supportive and are paying for his therapy.
Dr. Stuart conducted a careful risk assessment and evaluation of Mr. Cates, using the MMPI to determine the type of treatment plan to employ in this case. Dr. Stuart also believes the defendant is a good candidate for treatment and is at low risk to repeat this offense because he does not fit the profile of a rapist and this was his first encounter with the law.
The other component of the doctor's treatment plan is to have the court direct the defendant to perform community service in either a rape crisis center or a domestic violence shelter, so that he can understand the harm suffered by women and develop empathy with them.
My client is ready to do the recommended community service.
Sample response to the defendant's sentencing proposal
Treatment plan:
Private one-on-one therapy is not appropriate for sex offenders. Sex offender treatment is specialized, comprehensive, multi-method, and extremely tough. Real sex offender treatment includes a comprehensive assessment and treatment plan, behavioral modification, empathy training, group therapy, recognizing offense precursors, plethysmograph/polygraph testing and relapse prevention. It is not weekly, individual therapy sessions. Further, administering the MMPI is only one small part of a complete risk assessment, which requires tests specifically focused on sex offending, which the MMPI is not.
Community service proposal:
Regarding community service, absolutely no assignment to a rape crisis center or domestic violence shelter is appropriate. This is the worst possible form of community service for a defendant who has demonstrated a problem with violence against women. This is so for two reasons: first, it puts these other women, who have already been victimized, at risk; second, rapists with cognitive distortions about women do not develop victim empathy just by being around other victims. If they develop it at all, it only comes from intensive specialized treatment.
Defense characterization of the case:
The defense characterization of this case is highly objectionable. This defendant was convicted by a jury of a violent crime. But he has not admitted his guilt or taken responsibility for the crime. Rather, he blames it on alcohol and characterizes the rape as a "misunderstanding." While we are here to talk about the sentence for the defendant, the victim in this case has already been sentenced, as you heard in her impact statement. This defendant will only serve a term of years; Ms. Brown will serve a life sentence. She has told the Court that she will never forget the rape and her life will never be the same.
The defense attorney has urged you to take into account the fact that the defendant is a young man with his life ahead of him. I implore you to consider that before this rape Ms. Brown was looking forward to the life ahead of her. The defense has asked for probation, treatment, and community service. Such a sentence is not commensurate with this crime, will not communicate the severity of his conduct, and will not deter the defendant from committing similar crimes in the future.1
Faculty needed: Prosecutor Presenter(s )
Format for unit: Large group exercise
Time allotted: Day III: 1:30 to 2:30 p.m. (1 hour)
Content overview - Cross-examination:
This exercise is designed to help participants incorporate the information presented during the Sex Offender section in structuring their cross-examination of the Defendant, Michael Cates. Participants will be asked to identify areas of cross-examination and design specific questions to elicit particular responses from him.
This Faculty Manual contains:
Visuals for unit: Slides are in Appendix 17, Cross-Examination.
The Participant's Binder contains:
Special instructions for the faculty:
2:30-2:35 Stretch Break
Directions: Take 10 minutes to jot down your answers to each of the following questions. Then take 10 minutes to discuss your responses with your tablemates. During the remaining 40 minutes the prosecutor presenter will ask all participants to discuss their responses.
If participants do not mention the topics listed below, the prosecutor presenter should raise them during the discussion.
Do:
Avoid:
Faculty needed: Prosecutor Presenter(s )
Expert
on juror attitudes in rape/sexual assault cases
Format for unit: Video, lecture and exercises
Time allotted: Day III: 2:35 to 3:35 p.m. (1 hour)
Content overview - Voir Dire:
Given society's adherence to rape myths, voir dire is often the crucial point of a rape/sexual assault trial. Building on the discussion of rape myths that begins in the program's opening exercise, this segment utilizes lecture, discussion and exercises to cover the purposes of rape case voir dire, the linkage between voir dire and summation, research on juror attitudes toward rape cases, and constructing/asking effective voir dire question in these types of cases. The pre-conference assignment asking participants about voir dire questions and strategies comes into play here.
This Faculty Manual contains:
Visuals for unit: Slides are in Appendix 18, Voir Dire.
The Participant's Binder contains:
Special instructions for the faculty:
3:35-3:45Break
Agreed upon facts:
Lisa:
Bob:
To order "Bob and Lisa" contact:
Stephen J. Paterson, President
Jury Sciences, LLC
609 Deep Valley Drive, Suite 200
Rolling Hills estates, CA 90274
Phone: (310) 544-8773
Fax: (310) 544-8794
Email: sjp@vindim.com
Cost: $50.00
The prosecutor presenter should begin by asking participants what they noticed regarding the jurors' deliberations.
By Lynn Hecht Schafran, Esq., Director
National Judicial Education Program
[If you show the Bob and Lisa Mock Jury Deliberation videotape, begin here. If not, modify this opening as needed.]
We have just heard a fascinating dialogue among a group of diverse citizens selected by a prominent jury consulting firm to participate in a mock jury deliberation. Among the questions their comments raise is: are these individuals sui generis? Or are they typical of sexual assault jurors everywhere?
Knowing whether the viewpoints expressed by these jurors are typical is important not only from the point of view of achieving more convictions, but also from the point of view of the integrity of the jury system. The theory of the system is that we select individuals who either do not have - or can put aside - their biases, listen open-mindedly to the evidence, and follow the law as the judge instructs. If we have an area of law where jurors cannot do that, where cases are being decided on extra-legal factors related to myths and psychological needs, then the system is not working and we need to figure out how to fix it. The apt metaphor here is not a level playing field. Criminal cases rightly place an extremely high burden of proof on the prosecution, i.e., beyond a reasonable doubt. Rather, the apt metaphor is: is everyone playing by the rules?
Juries are an endless source of fascination to judges, lawyers and social scientists. The first large-scale jury research was conducted by Harry Kalven and Hans Zeisel in the 1960s. They observed jury deliberations and surveyed judges in detail about individual cases and the judges' agreement or disagreement with jurors' decisions in these cases. From their sample of 3,576 criminal jury trials they focused particularly on the impact of extralegal information in the 25% of cases where there was judge/jury disagreement, and how this extralegal information accounts for the fact that in the vast majority of cases where there was disagreement, the jury was more lenient than the judge would have been.
Within the group of cases of particular interest to Kalven and Zeisel was one group where the judge/jury disagreement was sharpest. These were the 42 cases of what the researchers called "simple rape." That is, one perpetrator, the parties knew each other, no weapon was used, and there was no physical injury extrinsic to the rape. There were 42 of these cases, and only 3 convictions. The researchers found almost 100% disagreement between judge and jury in the half of these cases where there was a rape charge and a lesser included offense. The judge would have convicted of rape; the jury went for the lesser offense.
In cases where the juries had to choose between finding the defendant guilty of rape or acquitting him, juries acquitted where judges would have convicted. Kalven and Zeisel described the actions of all these juries as "the jury chooses to redefine the crime of rape in terms of its notions of assumptions of risk." In other words, if she went to a bar, went to the defendant's apartment, etc., she assumed the risk.
Now fast forward 20 years to the early 1980s. Has anything changed? In the early 1980s Gary LaFree led a team of social scientists in a major jury study of sexual assault cases in Indianapolis. The researchers conducted in-depth 90-minute interviews with 331 men and women who had sat on rape case juries.
They found that jurors made their decisions based on the victim's "character" and lifestyle even where there was proof of use of a weapon or victim injury. Jurors were less likely to believe in the defendant's guilt when the victim reportedly drank or used drugs, was acquainted with the defendant, or engaged in sex outside marriage. LaFree wrote that the jurors disregarded the evidence and decided cases on the basis of their personal values. And these values were so rigid with respect to appropriate behavior for women that they even disbelieved women who held non-traditional jobs, for example, a woman who drove a school bus.
Another factor that emerged starkly in the LaFree study is the issue of race.
When we think about rape and race, most of us think about the extreme animus toward black men charged with raping white women. This aspect of the rape and race issue did emerge in the Indiana study. "Taken together, the results indicate that processing decisions in these sexual assault cases were affected by the race composition of the victim-defendant dyad, and the cumulative effect of race composition was substantial." But what also emerged was a strong devaluation of African-American women as victims of sexual assault: "It is clear from the analysis that black offender-white victim rapes resulted in substantially more serious penalties than other rapes.... Moreover, black intraracial assaults consistently resulted in the least serious punishment for offenders." For example, in one of the cases a juror said of a 13-year-old black victim that she came from a bad neighborhood and probably wasn't a virgin anyway.
This devaluation of women of color in sexual assault cases is vividly demonstrated by a study of sentencing in Dallas, Texas. In Texas, juries impose sentences. When prosecutors make plea bargains, it is, in the words of the Dallas prosecutor at the time, the "juries [who] set the benchmark." A study of sentencing and pleas by a local newspaper in 1990 found that the median sentence for a black man who raped a white woman was 19 years and the median sentence for a white man who raped a black woman was 10 years. This is a very interesting differential, but even more revealing were the statistics on same-race rape (which, despite the stereotypes, is what the vast majority of rapes are). The median sentence for white on white rapes was 5 years, for Hispanic/Hispanic rape 2.5 years, and for black on black rape 1 year.
The origins of this devaluation of women of color who are victims of sexual assault go back to slavery. White men repeatedly raped black female slaves with total impunity. To avoid acknowledging, even to themselves, the truth of what they were doing, these men invented the victim-blaming myth of the promiscuous black woman who had seduced them.
Rape, Racism, and the Law in 6 Harvard Women's L. J. 103 (1983) is an article about this aspect of rape and race that I recommend to you because we are clearly living with this attitude still today. The comfort people feel with this attitude is such that some will even express it openly. A few years ago in Westchester County, N.Y., a black woman was raped on the examining table by a white doctor. At first he denied sexual contact. When the DNA came back he claimed that the sex was consensual and he denied it only so his wife would not know what he'd done. After he was acquitted, a white male juror wrote to the prosecutor, "We thought a black female like that would be flattered by the attention of a white doctor."
Other jury research has found jurors preoccupied with the victim's resistance. In the recent past, rape laws in every state called for utmost resistance, but that has been phased out of the law. Yet in the LaFree study of Indiana jurors, 32% believed that a woman's resistance to her attacker is a critical factor in determining the rapist's culpability and 59% believed a woman should do everything she can to repel her attacker.
Given that jurors are screened -- that is, they go through a voir dire process intended to eliminate those who cannot follow the law -- one might think that juror attitudes would look different than those of the general population, but they do not. For example, in 1991 Time/CNN commissioned a national opinion poll on these issues and found that 38% of men and 37% of women said that a raped woman is partly to blame if she dresses provocatively. A 1998 survey among a properly randomized sample of Georgia residents aged 18 to 49 revealed that sexual stereotypes and myths regarding sexual assault and rape persist. When asked how strongly they agree or disagree with the statement, "Many women cry rape--saying they have been raped when it really hasn't happened," 49% of men and 42% of women polled expressed some degree of agreement with the statement. We know that the vast majority of rapes involve no weapons. But 48% of men and 48% of women in the Georgia study believed that sexual assault necessarily includes the use of a gun or other weapon. We know the particularly devastating effects of marital rape. But in the Georgia study, 20% of men and 9% of women believed a woman has no right to say "no" to her husband. And if you think the next generation of jurors is going to think differently, in a 1988 survey of 1,700 6th to 9th grade students in Rhode Island, 65% of the boys and 57% of the girls said that in a dating relationship, it was acceptable for a man to force a woman to have sex if the couple had been dating more than six months. Half of the students said that a woman who walks alone is asking to be raped.
You may have been struck by the fact that the percentages of men and women, and boys and girls are so close on many of these questions. Another aspect of juror attitudes that has fascinated researchers and tripped up many a prosecutor is the apparent hostility of many women jurors toward the complaining witness. New prosecutors are frequently surprised by how censorious women jurors are of the complainant's behavior.
The assumption is made that because women are most at risk of rape, they will be most sympathetic to the alleged victim. But for many women, that is exactly why they are hostile. It is a matter of psychological self-protection. If I can distance myself from you; if I can say that I would never go to a bar or a man's apartment or accept a ride from someone I only knew slightly, then I don't have to acknowledge my own vulnerability. This is an enormously powerful motivator. As Aristotle put it -- "If people claiming pity are too close to oneself, then we feel about them as if we were in danger ourselves" and we do not extend our pity to them.
Now all of this, of course, is going on subconsciously. The question of how to surface it, and get women to set it aside and attend to the evidence and the law, or remove them from the jury if they cannot, is the challenge, as it is with all types of bias in these cases.
A particularly hard case is the male juror who has engaged in conduct that meets the legal definition of rape, but who never viewed his behavior as criminal. Such a juror may come to understand the true nature of his conduct during trial and realize, consciously or subconsciously, that if he votes to convict the defendant he is acknowledging his crime and convicting himself. Or he may identify with the behavior and not think the defendant did anything wrong. In either case, he will vote to acquit, no matter what the evidence.
What can be asked during voir dire to meet these challenges we now take up with you.
Faculty needed: Prosecutor Presenter(s )
Format for unit: Lecture and small group exercise
Time allotted: Day III: 3:45 to 4:45 p.m. (1 hour)
Content overview - Crafting your Voir Dire:
This unit is divided into two sections. During the first section, the prosecutor presenter will lecture on the critical link between what the jury hears during voir dire and again in the prosecutor's summation. Then participants will apply what they have learned in the prior units of the program to craft voir dire questions for State v. Michael Cates.
This Faculty Manual contains:
The Participant's Binder contains:
Special instructions for the faculty:
If the group did not develop questions to detect an undetected rapist, the presenter should probe the group about what type of questions might accomplish this objective.
Special instructions for faculty:
Day III ends here. Be sure that participants have completed and turned in their daily evaluations.
Conclusion Day III
Directions: Please take five minutes to craft questions for the State v. Michael Cates voir dire. Assume your voir dire will be curtailed, so rank your own questions in order of importance. List your priority questions on the Individual Participants' Worksheet. Then discuss your questions with your tablemates for ten minutes and agree on the group's top three to five questions, again in rank order. These should be listed on the reporter's Worksheet. The reporter will be the participant whose last name is closest to the letter A, who has not been a reporter for an earlier exercises. During the 30 minute report back each reporter will give the table's #1 question. After some discussion, the reporter will go on to question #2. If there is time after discussion, we will go on to #3 and so forth.
Directions: Please take five minutes to craft questions for the State v. Michael Cates voir dire. Discuss your questions with your tablemates. During the 30-minute report back, the reporter will give the table's # 1 question. If there is time after discussion, the presenter will go on to the next question, and so forth.
The three to five questions I would most want to ask are:
Directions: The reporter is the person at the table whose first name begins with the letter A or the letter closest to it. As the reporter, please use this sheet to record the group's top three to five questions in rank order. During the 10-minute table discussion the group should determine which voir dire question will be ordered as #1, 2, 3, and so forth. During the 30-minute report back the reporter will give the table's # 1 question. If time permits, we will go on to # 2, and so forth.
If group did not develop questions on this issue:
Ask group--How would you identify and eliminate an "undetected
rapist" on your jury?
Must underscore need for open-ended
question.
If group did develop questions on this issue
Highlight this for the group.
Must underscore need for open-ended question.
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