Understanding sexual violence:
Prosecuting adult rape and sexual assault cases
Tab 6: Interviews: Working with the Victim to Pull
the Case Together
Outline: Working with the victim to pull the case together
Interviewing the victim
Goals:
- Build rapport.
- Get the facts of the crime.
- Learn everything about what happened before, during and after the crime. (Develop texture and details).
- Avoid retraumatizing the victim.
Before the complainant arrives in your office:
- Read every report, statement, medical chart and other any document(s) related to the case.
- Listen to 911 tapes, if they exist.
- Review crime scene photos, diagrams and reports, if they exist.
- Read the law relevant to the facts presented.
- Speak with the police involved in the case.
- Start a list of possible witnesses and evidence they would provide if called to testify.
- Never make a charging decision before interviewing the victim.
The interview:
- Give the victim control over some aspects of the interview. Ask how she wishes to be addressed, whether she wants to sit or stand, and what time to conduct the interview. These seem like small and insignificant items, however, the person before you has experienced lack of control so profound that these small measures of control may be extremely important to her.
- At each meeting with the victim explain what will happen and why you are requesting the meeting.
- Explain what is happening with the case each time you meet with the victim.
- Explain what role she will play on that day.
- Always tell the truth and NEVER promise what you cannot deliver, e.g., a conviction at trial.
- Explain at the beginning that the trial process often is slow and there are frequent delays.
- Let the witness talk. Encourage her to use the narrative form to tell what happened.
- This form allows for a clearer sense of the facts, and will afford you an opportunity to appraise the witness in terms of intelligence, verbal ability, memory, emotion, personality, bias, and body language.
- The narrative form will help you get the overall picture of what occurred.
- After the complainant has described the incident, ask her to break it down in small bits. Small bits of information are easier for the witness to describe and for a jury to digest.
- Probe the details of each segment:
- pre-incident (what was the complainant doing before the rape);
- incident (the rape);
- post-incident (where did she go, who did she call, who did she see);
- reporting (when, to whom) if the incident was not reported immediately.
- LISTEN to what the victim is saying. Assume nothing.
- Remember that each time the victim retells the facts of the incident it is traumatic. Attempt to minimize that trauma.
- Tell the victim that if there is anything she does not understand you will explain it to her. Explain that there is no shame in not understanding a particular word or legal process. Be patient and caring.
- Remind the victim that you need to know every fact regardless of how insignificant it seems, or if she believes it will hurt the case. Remember there is no such thing as an unnecessary fact.
- Ask the complainant to close her eyes and visualize in her mind’s eye the scene, the objects there, the lighting, the distances, and just what happened.
- Recognize that this will cause trauma and be prepared to deal with it.
- Recognize that the victim is the expert on what happened to her. Learn from her.
- More likely than not the victim will be different from you– age, race, sex, sexual orientation or any of a number of other ways. Do not presume you know or understand her. Ask for her guidance and explain that you can learn from her. This will go a long way to establishing a rapport with the victim.
- Ask the victim how she knows the defendant. In a case when the parties have any acquaintance with each other, ask the victim "how" she knows the defendant. Simply asking "if" a victim knows a defendant often produces a where the acquaintance is recent or slight.
- Explain that the defendant is telling his attorney everything about the crime from his point of view. If they were drinking or using drugs, the defense attorney knows it. Ask her what he is telling his attorney.
- Remind her that the defense attorney will cross-examine her during the trial. If you are surprised by hidden facts it might be impossible to protect her.
- If you sense that the victim is being less than truthful, remind the victim about telling the truth, and about perjury.
- Let the victim know that you may require her to retell the facts of the incident many times so that you can clearly understand what happened.
- If a question/problem presents itself while the victim is retelling her account of the facts, ask her about it. If you have the question, so will the jury. You may want to address it on your direct examination rather than allow defense the opportunity to bring it out on cross-examination. Do not allow the jury to speculate about any issue.
- Ask the victim to tell you in great detail about what she was doing before the incident, e.g., who was she with, where they were, how did she get to the location where the rape took place.
- Ask the victim to tell you in as much detail as possible how the rape ended.
- What did the defendant say to the victim?
- Were they interrupted? If so by whom?
- What did she do afterward?
Worksheet: State V. Michael Cates
Tensions in the initial interview exercise
Hypotheticals
In each of the following hypotheticals assume that:
- you are meeting the complainant for the first time;
- the case file was given to you shortly before the meeting;
- the alleged perpetrator is in custody;
- you have only a short time before you must present the case to either the Grand Jury or at a preliminary hearing.
If you do not meet the statutory time requirement for your jurisdiction, the defendant will be released.
Take 10 minutes to discuss the following three hypotheticals with your tablemates. The faculty presenter will then conduct a plenary discussion for the remaining 20 minutes:
- Your complainant (Amanda Brown) comes to your office with her friend. As you know, the complainant is a 19 year-old college student. She claims to have been raped by a classmate. As she sits in your office, crying while rocking back and forth, all she can say is, "He raped me." She stares into space and is not responsive to any of your questions.
What do you do?
- We are changing the fact pattern. This time you learn that Amanda Brown had quite a bit to drink. She does not remember how much she drank. She is fuzzy about the details of the incident. She does know that she did not want to have sex with the defendant.
What, if any, new problems does this present for your case?
What interview techniques will you use, given these facts?
- Once again, we are changing the fact pattern. Complainant Amanda Brown readily states that she was raped by Michael Cates, but when asked to tell more about the sexual conduct, she refuses. She taps her fingers on your desk, swings her foot, looks out the window and will not look at you while she speaks. Every now and again she lets out a deep breath. She asks why you need to ask such questions.
The law in your state requires that the complaining witness testify with specificity regarding what is meant by rape. She must testify about the specific sexual conduct, i.e., what body parts touched which body parts.
What strategies would you use to get the information you need to proceed?
Participants’ worksheet: State V. Michael Cates
Getting the real deal exercise
Directions: At each table the prosecutor whose last name begins with the letter closest to the letter M plays the complaining witness, who is very reluctant to disclose anything beyond what you already know from the case file and initial interview.
The complaining witness leaves the table for 5 minutes while the other prosecutors caucus to discuss their interviewing strategies and develop a set of questions. Whoever is seated to the immediate left of the complaining witness uses these and other questions to conduct the interview for 10 minutes. After 15 minutes, the moderator asks the complaining witness at each table to tell whether the questioner was able to elicit the assigned fact and how he or she did it, and puts the fact on a flip chart. The complaining witness should also be asked how the questioner did and whether any of the questions felt unnecessarily insensitive or inappropriate. The faculty will then comment on effective interviewing techniques. Allow 15 minutes for this discussion.
Note your suggested questions below.
Resources for Interviews: Working with the victim to pull the case together
The Resource Book materials relevant to this section are listed below:
- Volume I, Tab 3, "Victim Impact."
- Volume II, Tab 9, "Witness Preparation."
Enhancing prosecutor/victim partnership: Bridging differences and building trust
Worksheet : State V. Michael Cates
Building Trust with Amanda Brownt
Directions: Below are some facts you have already learned about complaining witness Amanda Brown and some additional facts. Take five minutes to discuss the questions below with your tablemates and complete the worksheet. The reporter will be the individual whose last name is closest to the letter L, who was not a reporter from an earlier exercise.
Amanda Brown is a 19-year-old college sophomore. She is black, 5’1" and 105 pounds. She won an academic scholarship to the university she and the defendant attended. She maintained a 4.0 GPA. She and the defendant were both members of the drama club.
Ms. Brown is a first generation American. Both of her parents emigrated from Jamaica. The Browns do not believe in bringing their "troubles" to government agencies. They do not trust the police or the criminal justice system. They have seen how the police treat other members of their community. The Browns are strict Catholics and brought up Amanda and their other children in the Church. Amanda herself is a very devout Catholic.
How are you and Amanda Brown different from each other?
What challenges will you face in bridging these differences?
What strategies will you use to overcome them?
Worksheet : Enhancing the prosecutor/victim partnership: Building trust
Building trust with diverse clients
Directions: Take 15 minutes to discuss the three hypotheticals below with your tablemates and complete the worksheet. Develop strategies to establish a trusting partnership with the complainant. Use your prior experience and what you have learned thus far in the training to develop these strategies. The reporter will be the individual who acted as the reporter in the prior "Building Trust with Amanda Brown" exercise.
1a. The victim is a young deaf woman. How can you communicate with her?
1b. It has now come to your attention that she does not understand American-sign language. How would you proceed?
2. The victim is a lesbian. She does not believe the prosecutor has an interest in seeing justice done in her case. Her experiences with the criminal justice system, thus far, have not been good.
3. The victim is a 20-year old mother of three. Seh has not completed school and has trouble reading. The only contact she has had with the criminal justice system is through her brother who was arrested, but never charged.
Resources for Enhancing the prosecutor/victim partnership:
Bridging Differences and Building Trust
The Resource Book materials relevant to this section are listed below:
- Volume I, Tab 4, "Cultural Competence and Victim Sensitivity."
