Understanding sexual violence:
Prosecuting adult rape and sexual assault cases
Tab 7: Victim Advocate/Prosecutor Relationship
Victim advocate/prosecutor relationship outline
- District Attorney’s Office Sensitive Crimes Unit
- How does it operate? (role of advocates)
- Why was it established?
- Differences between in-house advocates and outside agency advocates
- Advantages of in-house advocates
- Close proximity
- Familiarity with criminal justice system
- Ability to work closely with prosecutors and establish team effort
- Credibility with outside agencies because of association with prosecutor’s office
- Disadvantages
- Victims may see advocate as part of the system
- Outside agencies may see advocates as part of the system
- Difficulty in defining advocate’s role
- Privilege/confidentiality issues
- History of sexual assault advocacy work
- Grass roots movement
- Challenge to beliefs and attitudes about women and the acceptance of sexual violence against them
- Need for survivor’s experiences to be at the forefront of all efforts in this area
- Need for survivors and advocates in policy-making processes
- Movement was in response to poor treatment of victims by
- Police
- Prosecutors
- Medical Professionals
- Judges
- Defense Attorneys
- Changes that occurred
- Revision of laws
- Rape crisis centers
- Legal advocates
- Medical protocols
- Law enforcement and prosecutor training
- Coordinated Community Response
- How the prosecution can best benefit from the work of Victim Advocates
- Define goals
- Healthy debates not power struggles
- Have advocates play a role in system advocacy, e.g., legislative changes
- Learn from each other, e.g., cultural competency
- Assistance with victim rights legislation implementation
- Training new prosecutors in victim issues
- Second opinions on difficult decisions
- Advocate as active member of prosecution team
Sample victim advocate disclosure form
Name of Victim:________________________________
D.O.B.:______________________
I acknowledge that_____________________________explained to me that information I
(Advocate’s Name)
discuss with__________________________District Attorney’s Victim Advocates may be
(Your Office)
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
Resources for Victim advocate/prosecutor relationship
The Resource Book materials relevant to this section are listed below:
- Volume I, Tab 5, "Working With Victim Advocates."
Trial preparation and practice
Outline: Trial preparation and practice
Part I: 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.
Part II: 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.
Direct examination of the complainant: Recreating the reality of the crime
Outline: How to recreate the crime and victim’s feelings for the jury
An effective direct examination should achieve the following:
- Humanize the victim for the jurors. Have them "get to know" her.
- Allow the jury to see, hear and feel what the victim felt during the crime.
- Prove every element of every offense charged against the defendant beyond a reasonable doubt.
- Explain the facts fully so that the jury cannot speculate about any issue.
- Make the witness invulnerable to cross-examination.
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.
- What was she thinking?
- How did she feel?
It is always a good idea to end on a strong point.
Direct examination slides
Direct examination slides can be seen in .html and Power Point.
Resources for Direct examination of the complainant:
Recreating the reality of the crime
The Resource Book material relevant to this section is listed below:
- Volume I, Tab 1, "Victim Impact" and
- Volume II, Tab 9, "Witness Interview."
