Basic Civil Engineering first year Notes- Chapter 4 Building.pptx
7Victims’ Rights and the CriminalJustice SystemCHAPTER.docx
1. 7
Victims’ Rights and the Criminal
Justice System
CHAPTER OUTLINE
The Adult Criminal Justice System Versus the
Juvenile Justice System
Toward Greater Formal Legal Rights Within the
Criminal Justice System
The Quest for a Constitutional Amendment
Guaranteeing Victims’ Rights
The Achievements of the Victims’ Rights Movement
Rights Gained at the Expense of Offenders
Rights Gained at the Expense of the System
Rights Gained at the Expense of Offenders, the System,
or Both
Victims and Prosecutors
Assisting Victims and Other Witnesses for the State
Protecting Victims Who Serve as Witnesses for the
Prosecution
Dismissing Charges and Rejecting Cases
Negotiating Pleas
Victims and Defense Attorneys
2. Postponing Hearings
Cross-Examining Witnesses During Trials
Victims and Judges
Granting Bail
Sentencing Offenders
Appealing to the Supreme Court
Victims and Juries
Victims and Corrections Officials
Keeping Track of Offenders and Receiving
Reimbursement from Them
Influencing Parole Board Decisions
And Justice for All?
Recognizing “Second-Class” Treatment
Summary
Key Terms Defined in the Glossary
Questions for Discussion and Debate
Critical Thinking Questions
Suggested Research Projects
LEARNING OBJECTIVES
To realize that some cases of interpersonal violence
4. THE ADULT CRIMINAL JUSTICE
SYSTEM VERSUS THE JUVENILE
JUSTICE SYSTEM
This chapter examines what might happen in cases
that the police have solved by arresting an adult. As
the fate of the accused person is determined by the
criminal justice system, victims will interact with
prosecutors, defense attorneys, judges, juries,
and—if the defendant is convicted—corrections
officials. Cooperation is the desired outcome, but
conflict might erupt over certain divisive issues
with these criminal justice professionals and the
agencies that employ them.
Note that this chapter focuses on how cases are
processed by the legal system when adults are
arrested by the police. Each state has the authority
under the constitution to determine at what age
adulthood begins and for which crimes this distinc-
tion applies. For example, in New York, state legis-
lators decided that persons as young as 16 might be
considered as adults, and their cases could be pro-
cessed in the adult system. When the police arrest a
suspect as young as 13 for murder, he could be con-
sidered as sufficiently mature to face adult penalties,
such as a life sentence, if the prosecutor chooses to
pursue this get-tough option. In nearly all the other
states, the age when individuals can be held fully
responsible for their criminal behavior is 18.
In each state, arrestees who are not old enough to
5. be considered adults are handled by its juvenile justice
system. The nation’s first juvenile court was set up in
Cook County Illinois (covering Chicago) in 1899.
Most states quickly followed suit. Consequently,
ever since the early 1900s, a “double standard of
justice” has prevailed. Almost everyone feels that a
double standard based on the defendant’s—or the
victim’s—race or social class is not fair, but most peo-
ple will agree that handling a case differently because
the suspect is young and immature is justifiable. For
example, if a youngster steals a car, drives off, and later
wrecks it and then abandons it, this vehicle theft ought
to handled differently than a case in which a grown-
up steals a car and drives it off to a chop shop where it is
dismantled so that its sheet metal parts can be sold on
the black market to repair crash damaged vehicles.
Yet, in both cases, a motorist has lost a car to a thief.
Similarly, if a 14-year-old breaks into a house to steal
things, the authorities will view the crime in a differ-
ent light than if an adult burglarized the dwelling,
even though the losses experienced by the home-
owner might be identical.
This separate system is supposed to operate
according to a different set of principles (which in
many states emphasize treatment over punishment,
and sometimes, “restorative justice,” which is
analyzed in Chapter 13). Consequently, not only
arrestees but also their victims are handled
LEARNING OBJECTIVES
continued
To recognize how the exercise of certain rights might
curtail the rights of criminals or criminal justice
professionals.
6. To become aware of the obstacles and shortcomings of
relying upon formal legal rights.
To identify the various ways that prosecutors can serve
victims who are their clients.
To realize how conflicts can arise between victims and
the lawyers assigned by the government to represent
them in court proceedings.
To better understand the complexities of the witness
intimidation problem.
To appreciate how victims and defense attorneys might
become embroiled in conflicts.
To discover how judges make crucial decisions affecting
victims.
To become familiar with the many Supreme Court
decisions that affect how victims are handled during
legal proceedings.
To explore how jurors might react to victims and their
plight.
To realize how corrections officials make decisions that
either help or hurt victims.
To become alert to the problem that all victims were not
treated equally in the criminal justice process in the
past, and the possibility that differential handling
probably still occurs.
206 CH APT ER 7
8. all the proceedings will be held behind closed
doors and victims will be barred from attending.
The names of the accused teenagers might not be
disclosed in news reports, even if the identities of
the persons they robbed, shot, or stabbed are
revealed. Young arrestees won’t be released on
bail but they are likely to be sent home to their
parents or legal guardians, and those who feel
directly threatened by their return to the commu-
nity (often, teenagers themselves) won’t have input
into this decision. Injured parties won’t testify in
front of jurors and television cameras because jury
trials aren’t held. Youthful offenders “adjudicated”
as delinquents probably will be placed on proba-
tion, but their victims won’t have much of a say
in that outcome either. However, more research
needs to be carried out to determine how these
procedural differences actually affect the persons
these juveniles harm (for example, see Carr, Lord,
and Maier, 2003).
What is known is that juveniles account for a
considerable proportion of all persons accused of
crimes involving interpersonal violence and theft.
In 11 percent of the violent crime cases that police
cleared, the arrestees were under the age of 18. In
16 percent of the solved property crimes, juveniles
were taken into custody, according to the FBI’s
Uniform Crime Report for 2013. Therefore, a consid-
erable number of victims will discover that their
solved cases will be diverted into the juvenile justice
system or family courts.
TOWARD GREATER FORMAL LEGAL
RIGHTS WITHIN THE CRIMINAL
JUSTICE SYSTEM
9. The struggle to gain guarantees and protections
from the government has motivated reformers and
dissidents throughout history. Legal rights serve as a
remedy for injustice and abuse as well as a basis for
independent and autonomous action. A number of
movements seeking liberation, empowerment,
equality, and social justice have sought greater
rights for their constituencies. The most well-
known and influential include the civil rights,
women’s rights, workers’ rights, consumers’ rights,
students’ rights, children’s rights, gay rights, mental
patients’ rights, and prisoners’ rights movements.
The victims’ rights movement that arose during
the 1960s falls within this reformist tradition.
The legal rights of journalists, political activists,
criminal defendants, and convicts have been derived
from the safeguards and guarantees specified in the
first 10 amendments to the Constitution, which
taken together are referred to as the Bill of Rights.
But the framers of the Constitution did not enumer-
ate any specific rights for crime victims. The pledges,
entitlements, privileges, benefits, options, practices,
and opportunities for redress commonly referred to
as victims’ rights spring from several different
sources. A few rights originated as idiosyncratic poli-
cies adopted by certain caring and innovative officials,
such as police chiefs, district attorneys, trial judges,
and probation officers. Other rights were derived
from case law based on court decisions. The remain-
der was established by laws passed by city and county
governments, statutes enacted by state legislatures,
acts approved by Congress, and referenda placed on
the ballot by advocacy groups and endorsed by voters.
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leading grassroots activists. Most are survivors in the
best sense of the word—they are individuals who
have endured terrible ordeals or are close family
members of people who perished; they have sum-
moned up the strength to demonstrate exemplary
resiliency to overcome adversity, and effectively
channeled their grief and anger into constructive
outlets. They have struggled for social change and
justice so that fewer people in the future will have
to suffer what they went through. Some examples
of people on the frontlines of reform who were
chosen by fate to become organizers and leaders
with a new sense of purpose appear in Box 7.1.
A self-reinforcing cycle is operating: As more
victims become aware of their rights and begin to
exercise them, these rights become accepted and
honored within the criminal justice system. These
victories encourage victims and their allies to raise
new demands for further rights (Stark and Goldstein,
1985; and Viano, 1987).
12. Recent improvements in cruise ship passenger
safety illustrate this self-reinforcing cycle in action.
After a rash of incidents in which passengers were
murdered, assaulted, raped, or mysteriously disap-
peared at sea, Congress responded to recommenda-
tions made by a group of victimized passengers and
passed the Cruise Vessel Security and Safety Act in
2010. The law required these huge floating five-star
hotels to better address the needs of their customers
who were harmed far from home. Ships must have
B O X 7.1 Inspiring Examples of Victim Activism
Mobilizing against drunk drivers
A mother whose teenage daughter was run over by an
intoxicated driver starts a group that successfully changes
public attitudes about mixing drinking with driving and
persuades criminal justice officials that people injured in
drunk driving collisions are victims of crimes—not
accidents.
Assisting law enforcement agencies to track down
fugitives
A father whose son is kidnapped and decapitated by a
killer who is never caught hosts a television program that
broadcasts cases from police departments’ “most wanted”
lists so viewers can phone in tips to capture these
suspects.
Covering trials of the rich and famous from a pro-victim
angle
A novelist and journalist whose actress daughter is murdered
13. by her ex-lover writes a book about attending her killer’s trial
and then hosts a television program that focuses on powerful
and privileged people who get in trouble with the law and the
people they harm.
Assisting the search for missing children
A father whose 12-year-old daughter was abducted and mur-
dered establishes a foundation that helps locate missing
children.
Setting up a foundation to protect children from
kidnappers
A young woman who was abducted by a husband and wife
team and repeatedly raped during her nine months of cap-
tivity finally is rescued, goes to college, gets married, writes
an autobiography, and establishes a nonprofit organization
that teaches children how to take defensive measures to
resist a stranger’s aggression.
Establishing one of the first victims’ rights organizations
A wealthy woman may have been poisoned by her husband
(his original conviction for attempted murder was overturned
and he was acquitted after a second trial; she remained in a
coma for 28 years before dying in 2008). Her son and
daughter, convinced that their mother’s coma resulted from a
crime, use a portion of her fortune to found one of the first
organizations that helps all kinds of victims.
Compelling college administrations to publicize
information about crimes on campus
The parents of a daughter whose murder in a dormitory was
initially downplayed by college authorities set up a watchdog
15. medical personnel on board to treat those who suf-
fer sexual assaults and to stockpile rape kits to col-
lect and preserve evidence. The industry had to
install stronger room locks and peepholes on cabin
doors, and surveillance cameras in corridors and
lounges, to reduce the risks of crew-on-passenger
and passenger-on-passenger interpersonal offenses,
and to help solve the crimes that did take place
during the journey. Cruise ships also must establish
and publicize crime reporting procedures to notify
the coast guard and the FBI about incidents at sea
when they return to American ports. After the law
was passed, the House of Representatives held
hearings on whether the act was being effectively
implemented, as well as about additional ways to
safeguard the millions of vacationers that the ships
carry from port to port each year (Anglen, 2014).
Apparently, the crime statistics released voluntarily
by the giant corporations operating various cruise
lines under differing names understate the true
scope of the problems at sea and in ports. Only
homicides, suspicious deaths, attacks resulting in
bodily injury, sexual assaults, and thefts in excess
of $10,000 have to be reported to the authorities,
and the coast guard only discloses information
about incidents that are no longer being investi-
gated by the FBI. Congress discovered in 2013
that only accounts of about 30 crimes were made
public out of 950 received, a highly unsatisfactory
situation according to the U.S. Government
figure along with his wife in legislative efforts to make it
16. more difficult for emotionally volatile and mentally disturbed
people to buy handguns.
A nurse whose husband is shot dead and whose son is
severely injured by a man who goes berserk on a commuter
train and shoots passengers at random testifies so dramati-
cally for stricter controls over handguns and assault weapons
before Congress that she is later elected to the House of
Representatives.
A college student who survived a campus massacre
produces a film about it and campaigns for an improved
National Instant Criminal Background Check System to
prevent guns on sale in stores from getting into the
wrong hands.
Working to help poverty-stricken teenagers
A social worker whose son was riddled with bullets in a
senseless street killing becomes an advocate for at-risk teens
from abusive and neglectful families similar to those of the
two men who murdered her child.
Mobilizing for community notification laws
The parents of a seven-year-old girl who was raped and
murdered by a recently released pedophile living across the
street help gather support for state and federal legislation
that authorizes criminal justice officials to alert the public
whenever a convicted sex offender moves into their
neighborhood.
Lobbying for additional DNA testing
A woman whose rapist was finally caught after six years
because of a DNA cold hit (match) sets up a group that
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Accountability Office as well as a victim’s group
(Hill, 2014). Over the years, the scope of this orga-
nization has broadened from seeking improvements
in the safety, security and protection of not only
passengers but also of members of the crew, and
not only from crime but also from medical emer-
gencies (Business Wire, 2014).
The victims’ rights movement has institutional-
ized this self-reinforcing cycle of calling attention to a
festering problem and then mobilizing a coalition to
19. bring about reforms by setting aside special days,
weeks, and even months each year to attract media
attention. Events are held to raise public awareness
about the plight of particular groups of victims and
the rights that have been recently granted to them to
ease their suffering and assist their recovery. Besides a
high-profile National Crime Victims Week each
April, the calendar is now filled with special events
that commemorate a wide variety of persons who
have been harmed by all sorts of criminals, from
drunk drivers and identity thieves to rapists and
murderers (see Box 7.2).
The Quest for a Constitutional Amendment
Guaranteeing Victims’ Rights
One goal for those seeking to empower victims that
has not yet been achieved is to insert pro-victim
language into the Bill of Rights. The Sixth Amend-
ment contains provisions that specify how defen-
dants are to be handled in court. Activists and
advocacy groups first raised the possibility of updat-
ing the Sixth Amendment after a presidential task
force recommended rewording it in 1982. But in
1986, reformers decided to postpone this plan to
inject additional phrases into the Sixth Amendment
in favor of concentrating on a “states first” strategy
of securing amendments to state constitutions. By
2011, this approach had succeeded in 33 states
(NVCAP, 2011). Also, since 1980, almost every
B O X 7.2 Events That Call Attention Not Only to the Plight but
also to the Rights
of Various Kinds of Victims
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state legislature has passed packages of statutes called
a “Victim’s Bill of Rights.” The common threads
running through these amendments and Bill of
Rights packages were these promises to victims:
to be handled with fairness, respect, and dignity;
to be notified in a timely manner about, to be pres-
ent and to be heard at important judicial proceed-
ings; to promptly get back stolen property that was
recovered and held as evidence; to be protected
from intimidation and harassment; and to receive
restitution or compensation (NCVC, 2011c).
A large but insufficient number of Republicans
and Democrats in both the House and the Senate
22. over the years have voiced support for adding to the
wording of the Sixth Amendment, as have Presi-
dents Bill Clinton and George Bush.
Proponents of this movement to update the Bill
of Rights argued that these federally backed promises
would rectify a constitutional imbalance—its enu-
meration of many rights for suspects, defendants,
convicts, and inmates versus its silence on victims’
issues. A reworded Sixth Amendment could serve
as an equalizer that could end institutionalized
second-class treatment. However, the degree of
opposition is substantial, even from pro-victim
quarters. Civil liberties groups voice a different set of
concerns. Adding pro-victim measures to the Sixth
Amendment could undermine the presumption of
innocence before the defendant’s guilt has been estab-
lished. Empowering victims actually strengthens the
coercive powers of the government (police, prosecu-
tion, corrections) to detain, punish, imprison, and
even execute its citizens. (Senate Committee, 2003).
In 2004, advocates in Congress of a constitu-
tional amendment adopted a compromise strategy
and passed the Crime Victim’s Rights Act (CVRA)
by a vote of 96 to 1. Also known as the Justice for
All Act, the CVRA was anticipated to be a formula
for success and a model for the states. It resembled
the proposed amendment but applied only to the
federal criminal code. The act stated that victims of
federal offenses have the right to be treated with
fairness and with respect for their dignity, privacy,
and safety. It pledged that victims would have the
right to confer with prosecutors, to be notified
about proceedings, and to be heard on issues
23. involving release, negotiated pleas, and sentences.
Victims also would have the right to full and timely
restitution. Employees of the Department of Justice
and other federal agencies as well as federal judges
must undertake their best efforts to ensure that
these enumerated rights are made known and
implemented. The CVRA has the potential to
bring about fundamental changes in the Federal
Rules of Criminal Procedure that would thor-
oughly integrate victims into all stages of the justice
system’s decision-making process, if it is vigorously
enforced. If the CVRA proves to be ineffective in
the years ahead, then the campaign to amend the
Sixth Amendment to the Constitution would
resume, its backers vowed (Senate Committee,
2003; Morgenstern and Fisher, 2005; Wood,
2008; and Cassell, 2010).
The Achievements of the Victims’
Rights Movement
The rights that crime victims have fought for and
secured are so numerous and varied that they must
be grouped for comparison and analysis. One way
to categorize these newly achieved rights is to note
which groups of victims directly need, want, and
benefit from a specific right. For example, in
1984, Wisconsin was the first state to adopt a
Child Victims’ Bill of Rights. Among other provi-
sions, it stipulated that all legal proceedings must be
carefully explained to the young complainant in
language he or she can understand.
Another way to keep track of rights is to note
at which stage of the criminal justice process these
options can be exercised. For example, the right to
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victims’ rights can be discerned: those gained at the
direct expense of criminals (more precisely: arrestees,
defendants, convicts, inmates, probationers, and par-
olees); those gained at the expense of the criminal
justice system (agency budgets and the privileges and
convenience of law enforcement, judicial, and cor-
rections officials); and those gained at the expense of
either offenders or officials, depending on how vic-
tims exercise their newly authorized influence.
Rights Gained at the Expense of Offenders
Some advocates argue that victims’ rights ought to
be gained at the expense of offenders’ rights. Too
much concern has been shown for the rights of
criminals, they say, and not enough for the plights
of the innocent people they harm. In the unend-
ing battle between lawbreakers and law-abiding
citizens, the “bad guys” have gained certain
advantages within the legal system over the “good
guys.” To restore some semblance of evenhanded-
ness to the scales of justice that have been tipped
or tilted in favor of the wrong side, victims need
rights that can match, counter, or even trump the
rights of offenders. In this context, reform means
reversing certain court decisions and legal trends
and shifting the balance of power away from
wrongdoers and toward the parties they injured
26. (see Hook, 1972; Carrington, 1975; and Presi-
dent’s Task Force, 1982).
Collisions between the rights of victims versus
those of suspects, defendants, convicts, probationers,
parolees, and prisoners can arise over many issues.
Those who emphasize punishing offenders on
behalf of the individuals they harmed assume that the
interests of victims and government officials largely
coincide: apprehension, prosecution, conviction, and
imprisonment. Victims’ rights gained at the expense of
offenders’ rights would include provisions that facilitate
conviction of the accused without unreasonable
delays, close legal loopholes that enable the defendants
to escape their just deserts, increase the likelihood
of incarceration, and eliminate unwarranted acts
of leniency toward these prisoners, such as early
release from confinement. The President’s Task
Force on Victims of Crime (1982) proposed many
recommendations of this nature, and some were
enacted in California in 1982. Other gains that victims
might secure at the expense of convicts would be the
right to preview and perhaps object to the terms of a
proposedpleaagreement,andtotherecommendations
in a presentence report (Cassell and Joffee, 2011).
Some provisions that have been characterized
as pro-victim reforms and fit within this punitive
and retribution framework are listed in Table 7.1.
Critics of this approach of enhancing victims’
rights at the expense of suspects, defendants, con-
victs, inmates, probationers, and parolees raise a
number of objections. First, making convicts suffer
27. more does not mean that the people they hurt suf-
fer less. Second, many of these measures do not
really empower victims but simply strengthen the
government’s ability to control its citizens. Civil
libertarians who fear the development of a repres-
sive police state warn that the implementation of
antidefendant, pro-police, and pro-prosecutor mea-
sures undermines cherished principles: the pre-
sumption of innocence and the state’s burden of
proof. These due process safeguards are subverted
when defendants are denied pretrial release, when
improperly obtained evidence is used against them,
and when the victims’ desires for revenge are
manipulated by the government to enhance its
punitive powers (see Henderson, 1985; Fattah,
1986; Hellerstein, 1989; Hall, 1991; Abramovsky,
1992; Simonson, 1994; and Dubber, 2002).
Rights Gained at the Expense of the System
Some rights that victims gain should come at the
expense of justice system officials and agencies that
have neglected the needs and wants of their ostensi-
ble clients for far too long, advocates say. Society, or
more precisely the social system, is partly at fault for
the crime problems that plague communities. The
state, therefore, is obligated to minimize suffering
and to help injured parties recover and become
whole again through government intervention,
even if offenders cannot be caught or convicted.
A preoccupation with punishing lawbreakers must
not overshadow the need to assist and support the
people they harmed. New laws must guarantee that
212 CH APT ER 7
29. neys, and probation officers) and the budgets of agen-
cies (such as court systems and parole boards).
Rights gained at the expense of officials and
agencies first were enacted in 1980, when
Wisconsin’s state legislature passed a comprehen-
sive Bill of Rights for victims and witnesses. The
President’s Task Force (1982) endorsed similar
proposals that were incorporated into federal
statutes when Congress approved the Victim/
Witness Protection Act. Many states have pro-
claimed similar assurances, either through specific
laws or via more comprehensive legislative
packages (see Table 7.2).
In addition to gaining rights at the expense of the
criminal justice system, victims have also achieved
some protection from the whims of employers in the
private as wellasthe public sectors.Since thestartof the
new century, a number of states have passed statutes
prohibiting employers from threatening, penalizing,
or firing victims of sexual assault, domestic violence,
and stalking who must take time off from their jobs
(work leave) to attend to legal or therapeutic matters
(Brown, 2003; and Bulletin Board, 2004).
Rights Gained at the Expense of Offenders,
the System, or Both
The boldest demands raised by advocacy groups
within the victims’ rights movement concern
power. Some victims want to influence the outcome
of the criminal justice process at key stages from bail
hearings to jury selection to sentencing. Instead of
being relegated to the role of passive observers,
30. T A B L E 7.1 Victims’ Rights Gained at the Expense of
Suspects, Defendants, and Convicts
Subject Right of Victims
Denial of bail To be protected from suspects whose pretrial
release on bail might endanger them
Protection from
further harm
To be reasonably protected during the pretrial release period
from the accused through orders of protection
and by increased penalties for acts of harassment and
intimidation
Defenses To be assured that defendants cannot avoid
imprisonment by pleading not guilty by reason of insanity,
through the substitution of guilty and mentally ill, which
requires treatment in a mental institution fol-
lowed by incarceration in prison
Privacy To be assured that medical records and statements
divulged to counselors remain confidential even if
requested by the defense during the discovery phase of court
proceedings
Evidence To be assured that defendants cannot benefit from the
exclusion of illegally gathered evidence by having
all evidence obtained by the police in good faith declared
admissible in trials
Offender’s age To be assured that juvenile offenders do not
escape full responsibility for serious crimes by having such
cases transferred from juvenile court to adult criminal court
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they want to be active participants in the events that
shape the outcomes of their cases. This point of view
leads to the provision that the injured parties should
be present and heard whenever suspects, defendants,
and convicts are present and heard.
Participatory rights that victims gain may come
at the expense of offenders, agency officials, or
both, depending on how this leverage actually is
applied. Victims can be seen as allies of the govern-
ment and as junior partners on the same side as the
police and the prosecution in the adversarial system.
Therefore, empowering them means strengthening
the coalition of forces seeking to arrest, detain, con-
vict, and punish persons accused of wrongdoing.
Enhancing the powers of a potentially repressive
state apparatus alarms civil libertarians concerned
about safeguarding constitutional rights and
maintaining checks and balances. But if victims
are visualized as independent actors, then they
may not agree with the courses of action taken by
33. their ostensible governmental allies. Calls to
empower them might provoke resistance from
T A B L E 7.2 Victims’ Rights Gained at the Expense of
Criminal Justice Agencies and Officials
Subject Rights of Victims
General rights To be read their rights as soon as a crime is
reported, or to be provided with written information about all
obligations, services, and opportunities for protection and
reimbursement
Case status To be kept posted on progress in their cases; to be
advised when arrest warrants are issued or suspects are
taken into custody
Court appearances To be notified in advance of all court
proceedings and of changes in required court appearances
Secure waiting
areas
To be provided with courthouse waiting rooms separate from
those used by defendants, defense witnesses,
and spectators
Employer
intercession
To have the prosecutor explain to the complaining witness’s
employer that the victim should not be
penalized for missing work because of court appearances
Creditor
intercession
34. To have the prosecutor explain to creditors such as banks and
landlords that crime-inflicted financial losses
require delays in paying bills
Suspect out on bail To be notified that a suspect arrested for the
crime has been released on bail
Negotiated plea To be notified that both sides have agreed to a
plea of guilty in return for some consideration
Sentence and final
disposition
To be notified of the verdict and sentence after a trial and of the
final disposition after appeals
Work release To be notified if the convict will be permitted to
leave the prison to perform a job during specified hours
Parole hearings To be notified when a prisoner will be
appearing before a parole board to seek early release
Pardon To be notified if the governor is considering pardoning
the convict
Release of a felon To be notified when a prisoner is to be
released on parole or because the sentence has expired
Prison escape To be notified if the convict has escaped from
confinement
Return of stolen
property
To have stolen property that has been recovered and held as
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criminal justice professionals who fear that their
agency’s mission will be compromised and its
budget strained, and that their personal privileges
and discretionary authority will be jeopardized
(see Karmen, 1992; and Marquis, 2005).
The critical junctures for victim input are
arraignments where bail is set, plea negotiations,
sentencing hearings, and parole board appearances.
It is often asserted or assumed that victims’ highest
priority is retribution and that they are likely to seize
every opportunity to press for harsher handling of
offenders. Vengeful victims might insist that defen-
dants not be offered low bail or generous concessions
in return for guilty pleas, that sentences imposed on
convicts be as severe as the law allows, and that parole
boards reject prisoners’ petitions for early release.
In contrast, victims might have different priori-
ties and find themselves at odds with the authorities
over how to handle particular cases. For instance, a
battered woman’s greatest concern might be securing
treatment for a violence-prone lover. If so, she might
favor diversion of the case from the criminal justice
system to allow the wrongdoer to enter a rehabilita-
tion program. Burglary victims focused on receiving
37. full and prompt reimbursement of their financial
losses might favor an alternative to incarceration,
such as restitution as a condition of probation.
Thus, involving the victim in the decision-
making process constrains the free exercise of dis-
cretion formerly enjoyed by prosecutors’ offices,
judges, probation departments, and parole boards.
What victims seek when they exercise participatory
rights–whether mild or severe punishment, treat-
ment for the offender, or restitution - their wishes
might not align with the inclinations of the prose-
cutor or the judge or members of the parole board.
Pledges about the chance to participate in cru-
cial decisions raise several contentious philosophical
and policy questions. Should such formal rights also
be extended to someone who does not fit the profile
of an innocent, law-abiding, mature victim of a seri-
ous crime? For example, should assault victims from
unsavory backgrounds—who have arrest records as
street gang members, drug dealers, mobsters, and
prostitutes, or are currently serving time behind
bars—be permitted a say in plea negotiations and
sentencing? If so, should their requests carry less
weight? Should victimized children have input?
Should people who represent the victim (in their
capacity as next of kin, executor of the estate of
the deceased, the legal guardian of a minor, lawyer
for the family, or volunteer advocate) be granted
participatory rights? Should participatory rights be
restricted to victims of serious crimes such as felonies
or, even more narrowly, only to persons physically
injured by violence? And what happens when these
participatory rights are violated? What remedies
38. should victims have when criminal justice agencies
fail to involve them in the decision-making process
or don’t live up to the standards for fair treatment?
The lack of enforcement mechanisms highlights
another related problem: the absence of clear lines of
responsibility for implementation. Which officials or
agencies can be held accountable for keeping victims
informed of their rights? For example, does the
duty of notifying the victim about the right to
allocution before sentencing fall to the police offi-
cer or civilian employee who records the initial
complaint; to the assistant district attorney who
prosecutes the case; to the probation officer who
prepares the presentence investigation report; or to
the clerk in the office of court administration who
schedules the postconviction hearing? And how
many times must the responsible official attempt
to contact a victim before giving up and declaring
that a good-faith effort was made?
Providing all complainants with advocates from
the outset would be one way to make sure that
injured parties find out about all their rights and
options and exercise them as best they can. But as
yet, no jurisdiction has institutionalized and univer-
salized the practice by assigning an advisor to every
complainant who wants one, in the same way that
lawyers are routinely provided to all suspects,
defendants, and convicts.
Furthermore, if victims were read their rights the
same way officers read suspects their Miranda warn-
ing prior to interrogation, complainants would learn
that they have a right to remain vocal about how
they are treated and about what they believe should
40. cates, that they have a right to consult with a lawyer
and to refuse to answer questions or disclose any per-
sonal information that was not directly relevant to the
investigation (and usually protected by privacy privi-
leges) about subjects such as sexual history, sexual
orientation, medical or mental health records; or dis-
close information in conversations with doctors,
therapists, spouses, attorneys, or religious counselors.
At the outset, victims would be warned that any dis-
closures about personal matters would come to the
attention of not only the prosecutor but also the
defense counsel, the defendant, expert witnesses,
and the judge, in addition to the media and the pub-
lic, during court proceedings (see Murphy, 1999;
Cassell, 2010; and Wood, 2008).
There is no shortage of new ideas about what ben-
efits, services, and rights ought to be developed to
address unmet needs. In city councils, state legislatures,
and the halls of Congress, new bills are constantly being
introduced. Most do not get much support the first or
second time around, but as time passes additional spon-
sors are found and constituencies are organized to
lobby for their approval. A listing of bills that were
introduced in Congress by Republicans and Demo-
crats who have formed a “victims’ rights caucus” dur-
ing sessions 2009 to 2014 appear in Box 7.3.
VICTIMS AND PROSECUTORS
Prosecutors are the chief law enforcement officials
within their jurisdictions. They represent the interests
of the county, state, or federal government. But their
agencies also supply the lawyers that deal directly with
victims. Therefore, prosecutors’ offices can be viewed
41. as public law firms offering free legal services to com-
plainants who are willing to cooperate and testify as
witnesses. County prosecutors, referred to as district
attorneys (or state attorneys), usually are elected
B O X 7.3 Legislation Introduced in Congress Sponsored by the
Crime Victims Caucus
Bills were introduced in the House and Senate from 2009
to 2014 to:
Set up a national database about missing persons and
unidentified human remains
Protect youngsters from people with criminal back-
grounds who seek to provide child care services
Authorize the use of tax records to help locate a missing
or abducted child
Assist child welfare agencies to train employees in
identifying and counseling children at risk of becoming
victims of human trafficking
Compel parents, legal guardians, or caregivers to quickly
notify authorities if a child dies or is considered missing and
in grave danger
Make affinity scams as well as fraudulent Internet,
television, mail, and telemarketing schemes aimed at senior
citizens a federal crime
Set up a national Silver Alert communication network to
help locate missing senior citizens
Set up a national Blue Alert system to quickly disseminate
42. information to the public that an on-duty law enforcement
officer has been murdered or seriously wounded or is missing
after responding to an emergency call, and to provide a
description of the suspect
Make the U.S. Department of Defense improve its
preventive measures and responses to sexual assault and
domestic violence, including the establishment of a sexual
assault victim advocate in military units who can receive
confidential information
Prevent backlogs of DNA evidence collected from sexual
assaults from accumulating at state and local law enforce-
ment agencies and to avoid charging victims for the expenses
arising from forensic examinations and rape kits
Expand provisions about family and medical leaves to
enable workers to address the plight of relatives who suffer con-
sequences from domestic violence, sexual assault, and stalking
Require institutions of higher learning to include in
their campus crime reports incidents involving dating
violence, stalking, and domestic violence
Make stalking (with intent to kill, injure, harass, or
intimidate) across state lines a federal crime
Be informed in a timely manner about any negotiated plea
Protect money earmarked for the federal Crime Victims
Fund derived entirely from fines, forfeitures, and other
penalties
from being used for other purposes or from being cut
SOURCE: Adapted from the Congressional Victims’ Rights
Caucus
44. trict attorneys (ADAs) but are also referred to as
assistant prosecutors or assistant state attorneys in
some jurisdictions. Around the nation, approximately
2,340 prosecutors’ offices pursue felony cases in state
courts of general jurisdiction. These government law-
yers representing victims can become injured parties
themselves. About 3 percent of the chief prosecutors
and 6 percent of their ADAs reported that they per-
sonally had been assaulted in 2005, according to a
nationwide survey (Perry, 2006).
To a great extent, victims are on the same side as
the government in the criminal justice process. Prose-
cutors and victims therefore are natural allies who
ought to cooperate with each other. Prosecutors
might want to do what is best for victims, but they
also are concerned about their careers and political
futures, the well-being of their agencies, and the gen-
eralgoodoftheentirecommunityandsociety.Attend-
ing to these concerns and juggling these competing
interests can cause conflicts to erupt between prosecu-
tors and the injured parties they purport to represent.
Prosecutors’ offices can and should serve vic-
tims in a number of different ways. First of all,
they can keep their clients informed of the status
of their cases, from the initial charges lodged against
defendants to the release of convicts on parole. Sec-
ond, ADAs can help the individuals they represent
achieve justice by conveying to the attention of
judges their clients’ views on questions of bail, con-
tinuances, dismissed cases and dropped charges,
negotiated pleas, sentences, and restitution arrange-
ments. Third, they can take steps to protect their
clients from harassment, threats, injuries, and other
forms of intimidation and reprisals. Fourth, ADAs
45. can try to resolve cases as quickly as possible with-
out unnecessary delays and help their clients mini-
mize losses of time and money by notifying them of
upcoming court appearances and scheduling
changes. Fifth, ADAs can assist victims in retrieving
stolen property recovered by police and seized as
evidence (President’s Task Force, 1982).
Sometimes prosecutors are able to balance the
interests of the government, their own bureaucracies,
and their clients without much conflict. But in certain
cases, prosecutors cannot do what is best for all of their
constituencies simultaneously. Conflicts can arise
between the aims of the government and the outcome
desired by those who were harmed. Conflicts also can
emerge between the bureaucracy that employs prose-
cutors and injured parties who are the clients, custo-
mers, or consumers of their services. Finally,
prosecutors advancing their careers may not follow
unpopular courses of action favored by their clients.
In all of these potential conflicts, if prosecutors
must sacrifice the interests of any party, it is most
likely to be those of the victim, and not of the gov-
ernment, their bureaucracy, or their own careers.
Victims can feel betrayed if their lawyers do not
look after their needs and wants. Or to put it another
way, a lawyer—assigned without choice by the gov-
ernment and charging no fee—might not do a satis-
factory job from a client’s standpoint.
Assisting Victims and Other Witnesses
for the State
The difficulties, inconveniences, and frustrations
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In the past, victims serving as prosecution wit-
nesses often were mistreated in a number of ways.
They would be subpoenaed to appear at a court-
room, grand jury room, or prosecutor’s office.
They would wait for hours in dingy corridors or in
other grim surroundings. Busy officials would ignore
them as they stood around bewildered and anxious.
Often, they wouldn’t be called to testify or make
statements because of last-minute adjournments.
Accomplishing nothing, they would miss work and
lose wages, be absent from classes at school, or fail to
meet their responsibilities at home. In most jurisdic-
tions, they would receive insultingly low witness fees
for their time and trouble. In certain metropolitan
areas, they would receive no compensation at all
because no official informed them of their eligibility
and of the proper application procedures. Their
48. experiences often could be characterized as dreary,
time-consuming, depressing, exhausting, confusing,
frustrating, and frightening (Ash, 1972).
In 1974, the National District Attorneys
Association (NDAA) commissioned a survey to
determine the extent to which victims and other
witnesses for the prosecution encountered these
types of problems. The survey documented that
about 10 percent never were notified that an arrest
had been made in their case. Nearly 30 percent
never got their stolen property back, even though
it had been used as evidence. About 60 percent of
injured persons were not informed of their right to
file a claim for financial reimbursement. Roughly 45
percent reported that no one had explained to them
what their court appearance would entail. About 25
percent of witnesses, including victims, summoned
to court ultimately were not asked to testify. Even
though nearly 80 percent lost pay to appear, about
95 percent received no witness fees. As a final insult,
around 40 percent were never notified of the out-
come of the case (Lynch, 1976).
To address these problems, the Law Enforcement
Assistance Administration funded the first Victim/
Witness Assistance Projects (VWAPs) through
the NDAA. Pilot programs were set up in prosecu-
tors’ offices in California, Illinois, Utah, Colorado,
Kentucky, Louisiana, Pennsylvania, and New York
during the mid-1970s (Schneider and Schneider,
1981; and Geis, 1983). Since then, most prosecutors’
offices have established VWAPS. A nationwide survey
determined that victim advocates made up 6 percent
of all the persons working for prosecutors’ offices.
49. Large offices in big cities employed 13 advocates on
average, although the median in all offices, large and
small, was just one person (Perry, 2006).
Several assumptions underlie the growth and
development of these programs. One is that providing
serviceswillelicitgreatercooperationfromvictimsand
witnesses. Presumably, well-briefed, self-confident
witnesses who have benefited from such programs
will be more willing to put up with the hardships of
testifying in court, leading to lower dismissal rates and
higher conviction rates, the standards by which prose-
cutors’ offices are judged. Also, offering services to a
groupperceivedtobehighlydeservingofgovernmen-
tal assistance will be good for community relations.
Public confidence and faith in the criminal justice sys-
tem will thus be restored, resulting in higher levels of
cooperation within jurisdictions that have these pro-
grams (Rootsaert, 1987).
Most VWAPs are charged with the laudable but
vaguely defined mission of helping victims, aiding wit-
nesses, and furthering the goals of law enforcement. In
the best programs, agency personnel intervene as soon
as possible after an offense is committed, providing
immediate relief to the injured parties through services
that include hotlines; crisis counseling; and emergency
shelter, food, transportation, and immediate lock
repairs. Some projects provide translators, guidance
about replacing lost documents, and assistance in get-
tingbackstolenpropertyrecoveredbythepolice.Most
make referrals to social service and mental health agen-
cies for those needing long-term care and counseling.
All programs furnish information about opportunities
for reimbursement of losses and eligibility for compen-
sation benefits (see Chapter 12). A few offer mediation
51. S
continuances, negotiated pleas, convictions, acquittals,
and other developments. Linked to the notification
system is a telephone alert or on-call system to prevent
unnecessary trips to court if dates are changed on short
notice, which also avoids wasting the time of police
officers who serve as witnesses.
Some programs also have set up reception centers
exclusively for prosecution witnesses in courthouses to
provide a secure waiting room so that offenders and
their families and friends won’t get any last-minute
opportunities for intimidation. Transportation to and
from court, escorts, and child care frequently are avail-
able. Help in obtaining witness fees also is provided.
The staff in some programs may go as far as to intercede
with employers and landlords and other creditors who
might not appreciate the stresses and financial difficul-
ties witnesses face (Schneider and Schneider, 1981;
Geis, 1983; Weigend, 1983; and Rootsaert, 1987).
Requirements about notification, protection
(such as separate waiting areas in courthouses), and
intercession (with employers and creditors) increase
the justice system’s workloads and costs. A nationwide
survey of prosecutors’ offices at the end of the century
discovered that most district attorneys reported that
new victims’ rights laws had imposed significant
unfunded burdens on their limited budgets in the
form of additional staff and more mailings and phone
contacts (Davis, Henderson, and Rabbitt, 2002).
Some signs that VWAPs are reducing the mis-
52. treatment of victims are evident. In 1974, only 35
percent of the offices of district attorneys routinely
notified victims of felonies of the outcomes in their
cases; 97 percent of these offices did so by 1992,
according to the National Prosecutor Survey Pro-
gram (Dawson, Smith, and DeFrances, 1993).
The establishment of VWAPs has raised some
constitutional and ethical concerns. To deny ser-
vices to a victim whose cooperation is not needed
(or who desires to pursue a case that the prosecu-
tor’s office wants to drop) would be unfair but not
illegal, since the aid is granted as a privilege rather
than as a right. To deny similar services (free park-
ing, child care, last-minute phone calls canceling a
scheduled appearance) to witnesses for the defense
would violate notions of fairness within the adver-
sary system. As long as the defendant is presumed
innocent unless proven guilty, evenhanded treat-
ment of all witnesses should prevail. Rapport
between victims and VWAP personnel that
becomes too close can cause another problem:
The testimony given in court can be considered
coached or rehearsed if it departs from the original
statements the complainants and witnesses made
and covers up contradictions in order to make the
most convincing case against the defendant.
Protecting Victims Who Serve as Witnesses
for the Prosecution
A 19-year-old alleges he was shot in the face in a
playground by a 21-year-old (a repeat offender who
has a history of intimidating witnesses). The accused is
jailed. A month before the trial, someone fires close to
54. authorization.
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when cross-examined. When intimidation suc-
ceeds, prosecutors are forced to drop charges,
judges dismiss cases, juries fail to convict, and guilty
parties go free (Gately, 2005).
Because complainants’ perceptions of the risks
of cooperation determine whether they will testify
in court, the primary responsibility for safeguarding
the well-being of witnesses for the state falls to the
lawyer handling the case for the government.
55. When prosecutors don’t react to acts of intimida-
tion by providing police protection, one of the vic-
tim’s worst fears is confirmed—namely, that the
criminal justice system can’t provide security from
further harm and that the only way to avoid repri-
sals is to stop cooperating. If left unaddressed, these
incidents convey the message that complainants are
on their own, and they signify to offenders that
witness tampering is worth a try. It may have the
desired effect, and usually it carries little risk of
additional penalties (see Docksai, 1979; President’s
Task Force, 1982; Davis, 1983; and Healy, 1995).
Just how serious is the problem of intimidation?
How many complainants suffer acts of intimidation
after seeking help from the authorities? How many
crimes go unreported because the victim fears retal-
iation? The annual rates of nonreporting due to fear
of reprisal are measured by the NCVS. Each year
only a small percentage of respondents admit to
interviewers that worries about retaliation stopped
them from informing the police about violent
crimes. Fear inhibits around 10 percent of all rape
victims each year from trying to get their attackers
in trouble with the law. Worries about what the
offender might do are less of a deterrent to report-
ing in cases of simple assaults, aggravated assaults
(like shootings and stabbings), and robberies (BJS,
2008c). (The percentages can fluctuate considerably
from year to year because the number of survey
respondents who were harmed in these specific
ways is extremely small, statistically speaking.) As
for changes over time, intimidation levels appar-
ently have not changed substantially over the past
few decades; if anything, the percentages might be
rising when it comes to robbery and minor assaults.
56. The situation certainly is not improving. However,
based on this evidence from NCVS findings from
the 1980s up to 2008, overall, it appears that this
problem actually is not of major importance.
But these statistics might yield false impressions.
Measuring intimidation is very difficult, in part
because would-be complainants (and witnesses)
who are successfully intimidated might be too afraid
to disclose their plight not only to detectives and
prosecutors but also to NCVS interviewers. Also,
intimidation can be based on “what if…” fears
even if offenders don’t actually threaten reprisals.
The actual number of nonreporting and noncoo-
perating individuals really cannot be accurately
determined. Various studies have yielded contradic-
tory findings about how often injured parties are
effectively intimidated by the persons that they
accuse of harming them (see Fried, 1982; and
Glaberson, 2003).When investigative journalists
contended that witness fear was a factor in virtually
every violent crime prosecution in Philadelphia, a
senator proposed to make witness intimidation into
a federal offense (Phillips and McCoy, 2010).
Several aspects of the intimidation problem still
need further study. Which groups are more vulner-
able to fears of reprisals than others (in terms of age,
sex, race/ethnicity, immigration status, and prior
involvement with the justice system either as a
complainant or as a defendant)? What behaviors
or consequences are considered to be most threat-
ening? What form of retribution do victims fear
more, acts directed against themselves or their
loved ones? Why do some persons brave the risks
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to come forward and tell police what happened. As
one journalist dramatically put it, in many urban
neighborhoods, “talking to the law has become a
mortal sin, a dishonorable act punishable by social
banishment—or worse” (Kahn, 2007). Subjected to
this “cultural intimidation” by their community to
not “snitch,” to the authorities, the casualties of
beatings, stabbings, and shootings may be forced
to either settle the score privately or to let the mat-
ter rest. But that only perpetuates a cycle of attacks
and retaliatory strikes as part of a neighborhood sub-
culture of violence that adds to the level of danger
and misery in high-crime areas, especially in
poverty-stricken inner-city areas. Government offi-
cials and community activists need to counteract this
drift toward “do-it-yourself” acts of revenge that are
deemed to be “street justice” (see Chapter 13) by
developing creative ways to protect those who are
urged by officials to cooperate with law enforcement
agencies and the prosecution (Kahn, 2007).
This often-cited example shows how a person
who did her civic duty by cooperating with the
authorities ended up murdered, along with her
59. family, sparking a public outcry for more effective
witness protection strategies:
A woman repeatedly files complaints with the police
against the dealers who sell drugs in front of her row
house in a tough urban area. One night, an angry 21-
year-old dealer kicks open her front door and throws a
firebomb inside. The woman, her husband, and her
five children are burned to death in the resulting
inferno. The dealer is sentenced to life behind bars
without parole, and local residents hold a vigil each
year to commemorate her courage and sacrifice. After
remaining boarded-up for years, the row house is
renovated and turned into a “safe haven community
center” named after her. It offers a computer lab, an
arts and crafts program, and other activities to children
who live nearby. A bright blue light flashes 24 hours a
day, reminding passers-by—as well as street-level
dealers—that a surveillance camera is trained on that
corner. (Simmons, 2007)
Much of the intimidation problem can be
traced to officials who have shirked their responsi-
bilities to victims. Police officers might con victims
into cooperating by making empty promises of
added protection, knowing full well that their
precincts don’t have the resources to provide such
special attention. Because attrition lightens their
workload, ADAs might allow cases to collapse
when key witnesses and complainants fail to appear
after being subpoenaed—perhaps due to intimida-
tion. Judges may not be vigilant for the same
reason: Intimidation leads to nonappearances and
ultimately dismissals, which reduces caseloads. To
reduce fears about reprisals, the American Bar Asso-
60. ciation’s Committee on Victims (1979) put forward
five recommendations decades ago, but these mea-
sures still have not been implemented in many jur-
isdictions. The ABA urged that legislatures should
make attempts at intimidation a misdemeanor.
Police forces ought to set up victim/witness protec-
tion squads. Judges should issue orders of protection
and consider violations as grounds for contempt-
of-court citations and revocations of bail. Also,
judges should grant continuances rather than drop
all charges against defendants if complaining wit-
nesses mysteriously fail to appear when subpoenaed.
Prosecutors must avoid carelessly revealing infor-
mation concerning the whereabouts of victims,
even after cases are resolved.
Prosecutors always have had to coax victims and
other witnesses to cooperate by offering them pro-
tective services until the trial is over, or even longer.
However, inadequate funding limits the ability of
prosecutors’ offices to offer these protective measures
to all who need them (New York State Law
Enforcement Council, 1994). Also, some victims
understandably are reluctant to accept offers of pro-
tection if it means uprooting their families and virtu-
ally starting their lives over, as this case illustrates.
A mother’s house is riddled with bullets because her
son is willing to testify against a young man who
allegedly shot him. The district attorney’s office
offers to move her and her family to another town
with the help of the state’s witness relocation pro-
gram. The program would pay for 120 days of
temporary housing, moving expenses, storage costs,
and two months’ rent. But the family would have to
agree never to return to the neighborhood where they
62. life. It’s hard for her to turn her back on it.” Noting
that she has nearly finished paying off the mortgage
after living in her home for 16 years and raising
seven children in it, she despairs, “It just doesn’t
work for us. We will do our best to hang in there, I
guess.” When she tells her son to keep away from
the neighborhood, he decides he won’t testify.
(Newall, 2011)
The establishment of witness-protection pro-
grams on the state and federal levels represents the
government’s greatest possible commitment to
address the threat of reprisals. These secretive pro-
grams provide tight security to victims, witnesses,
and their immediate families. Their services are
intended primarily to safeguard witnesses willing
to testify against criminal organizations like mob
families, street gangs, and drug trafficking networks.
Often the beneficiaries are not really victims but
lawbreakers like mob turncoats, former drug deal-
ers, and defectors from street gangs. The federal
Witness Security Program promises relocation,
new identities, new jobs, and payment of moving
expenses (U.S. Marshals Service, 2011). Successful
relocation, even if at a temporary shelter or safe
house and on an emergency basis, requires a multi-
agency response that usually involves police, prose-
cutors, public housing agencies, and social service
providers. Lesser measures require sturdier locks,
alarm systems, stepped-up police patrols, and
escorts; efforts to avoid publicly identifying coop-
erating witnesses so they won’t be labeled as “rats”
or “snitches”; measures to limit contacts with
potential intimidators (through unlisted numbers,
caller ID, and call blocking); and supportive services
through existing VWAPS. Also, the authorities
63. must admonish potential intimidators, assist victims
to obtain restraining orders and no-contact condi-
tions of bail, and enforce speedy trial provisions and
witness tampering statutes. Compelling victims to
testify by holding them as material witnesses or
threatening them with contempt of court usually
is ineffective (Dedel, 2006).
In sum, jurisdictions that fail to adequately
confront the problem of victim and witness intimi-
dation will suffer from high levels of retaliatory vio-
lence, low levels of public confidence in the ability
of the criminal justice system to protect them, low
reporting rates, subpar clearance rates, and reduced
conviction rates.
To be fair and balanced, one additional type of
intimidation must be addressed. One-sided formu-
lations of the intimidation problem imply that it is
improper for anyone other than law enforcement
agents to contact witnesses and victims. But an
important principle of the adversary system is that
a person accused of a crime has a constitutional
right to confront his accusers. Therefore, defense
attorneys must be allowed to interview witnesses
and compel them to testify truthfully. But reluctant
witnesses who have information that will help the
case of the accused also can be intimidated—not by
the threat of violence but by worries about unfa-
vorable media coverage and by fear of harassment
by the authorities, especially in highly publicized
“must-win” cases (see American Bar Association
Committee on Victims, 1979).
Dismissing Charges and Rejecting Cases
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forward, ADAs must take into account many other
considerations besides the victims’ wishes: How are
cases of this kind usually handled in this jurisdic-
tion? What are the odds of a conviction rather
than an acquittal? Are there serious doubts about
the guilt of the accused? How credible and how
cooperative are the victim and other witnesses?
Does the complainant have any improper motives
for pressing charges? Was the evidence obtained
according to constitutional guidelines, or will it be
tossed out of court under the exclusionary rule? Is
the whole undertaking worth the state’s limited
resources? How much will it cost in time and
money to resolve the matter? Would indictment,
prosecution, and conviction of the defendant
serve as a general deterrent to others who are con-
templating committing the same type of offense (an
application of the theory of general deterrence)?
Would punishment discourage the offender from
repeating this illegal act (an application of the the-
66. ory of specific deterrence)? Would pressing charges
and seeking conviction enhance the community’s
sense of security and boost confidence in the crimi-
nal justice system? Could the accused cooperate
with the authorities as a police informant or as a
key witness for the prosecution in other cases in
return for leniency? Would pressing or dropping
charges set off protests from powerful interest
groups in the community? If this office declines to
prosecute, would the case be pursued by another
branch of government or in a different jurisdiction?
Are appropriate pretrial diversion programs avail-
able that provide treatment to wrongdoers as an
alternative to adjudication? And last but certainly
not least, would a victory in this case substantially
advance the careers of the ADA handling the case
and of the prosecutor heading up the office? (see
the National Advisory Commission, 1973; Sheley,
1979; and Boland and Sones, 1986).
When all these factors are taken into account, it
is clear that the victim is only one of several key
players who influence the decisions of prosecutors.
Police officials, other colleagues in the prosecutor’s
office, defense attorneys, judges, community lea-
ders, journalists covering the story, and vocal inter-
est groups all affect prosecutorial decision making.
Cases that have been solved by arrests might
not be pursued for a number of reasons. Prosecutors
might screen them out because of perceived weak-
nesses that undercut the chances of conviction.
Judges might dismiss charges on their own initiative
if they feel that the evidence is weak. In general,
jurisdictions in which prosecutors weed out many
cases before going to court have low case-dismissal
67. rates at later stages of judicial proceedings. Where
prosecutors toss out few cases, judges throw out
many more. Periodic nationwide surveys of overall
felony case processing revealed that nearly half of all
cases that were solved by arrest were not carried
forward (either rejected at screening by prosecutors,
dismissed in court by judges, or diverted out of the
system) (Boland and Sones, 1986; and Boland,
Mahanna, and Sones, 1992). Clearly, the outcomes
of these decisions could cause a great many victims
to become dissatisfied with the adjudication process.
One measure that would substantially
empower injured parties would be to permit
private prosecution—allowing them to hire
their own lawyers to act as prosecutors—to initiate
charges, handle plea negotiations, and present cases
at trials. This option is allowed in other countries
and was a standard procedure in colonial America.
By the end of the 1990s, only a few jurisdictions
still authorized a victim’s attorney to directly ask a
judge or grand jury to initiate proceedings against
a defendant (see Beloof, 1999). However, if this
reform were implemented, only the prosperous
would be able to afford such personalized justice.
Negotiating Pleas
The vast majority of cases that are carried forward
(not diverted to treatment programs, screened out
by prosecutors, or dismissed by judges) are resolved
by out-of-court settlements known as negotiated
pleas. Plea negotiation is the process in which
the ADA and the defense counsel meet in private
to hammer out a compromise and thereby avoid
holding a public trial. The typical outcome of the
69. constitutional rights to a trial in front of a jury of his
or her peers and instead confesses in return for some
consideration from the government. Many types
of concessions from the prosecution are possible,
such as dropping certain charges (often the more
serious ones carrying the most severe penalties) or
the dismissal of particular counts (accusations of
harm against specific victims). Often, the consider-
ation is a promise or a recommendation for a lesser
punishment: a suspended sentence, probation, a
fine, or incarceration for an agreed-upon period
of time that is less than the maximum permitted
by the law.
Over 95 percent of all felony as well as just
about all misdemeanor convictions were secured
by the accused admitting guilt rather than by a
jury rendering a guilty verdict or by a judge’s deci-
sion (bench trial), according to a database of cases
adjudicated in the 75 busiest urban U.S. counties in
2009 (Reaves, 2013).
Plea negotiation, even though it has been
widely condemned for decades, appears to be the
only practical way of handling a huge volume of
cases. If all the defendants detained in a jail
demanded their constitutional right to be judged
by a jury of their peers after a trial, the local courts
would be paralyzed by gridlock.
Because doing away with deals and induce-
ments is unrealistic, some victims want to play
active roles in the plea negotiations that resolve
their cases. They justify their quest for empower-
ment by emphasizing that they were the ones
directly involved and personally harmed, and thus
70. it is their case. Unless they are allowed to play a role
in this process, they will be effectively shut out of
any meaningful participation in the resolution of
their cases.
But this demand and formulation of the issue
has evoked considerable resistance from prosecu-
tors. They feel threatened by the inclusion of vic-
tims (whom they supposedly represent, in addition
to the state) at such meetings. They object because
victims might try to use the administrative machin-
ery as an instrument of revenge and might put for-
ward unreasonable demands for the imposition of
maximum penalties. Deals would fall through, and
risky and costly trials would result (McDonald,
1976; and Rothfeld, 2008).
In general, victims still do not have a right to
participate in or even be consulted during the pro-
cess of plea negotiation. Few jurisdictions grant vic-
tims a clearly defined role, and most state laws still
do not provide them with any formal mechanisms
to challenge the decisions of the prosecuting attor-
neys who act in their names as well as on behalf of
the people. No state legislation empowers complai-
nants to dictate the terms or to nullify a proposed
deal. The terms to confer or to consult are interpreted
as merely to notify, inform, or advise. Victims have
a right only to make their opinions known and to
offer comments, and prosecutors merely have an
obligation to consider their views and bring them
to the attention of the judge. The terms of the
settlement and the sentencing recommendations
ultimately are still matters of prosecutorial profes-
sional discretion. Most state laws flatly declare that
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indictment for an offense that is more serious than
the available evidence might support (for example,
charging someone with attempted murder after a
fistfight). Some of these charges could not be
proven in court, but defendants and their lawyers
might be too cautious to gamble and call a prose-
cutor’s bluff. For these reasons and others, most
accused individuals who plead guilty in return for
concessions receive the penalties that they probably
would have received if convicted after a trial
(Rhodes, 1978; Beall, 1980; and Katz, 1980).
Resolving cases by negotiating pleas rather
73. than by holding full-scale trials certainly saves tax-
payers the expenses incurred from building more
courthouses, hiring more judges, bailiffs (court
officers), and defense attorneys (for indigents). But
out-of-court settlements attained through nego-
tiations might be in the best interests of certain
victims. Plea negotiation spares victims the ordeal
of testifying in court and undergoing hostile ques-
tioning during cross-examination by defense
attorneys. For some victims, testifying in painful
detail means reliving the horror of the crime, as in
this trial:
A tearful victim tells a jury how she had fallen asleep
cuddling her toddler while her husband was working
late. She awoke when she heard a prowler enter
through a kitchen window, but remained still.
Unfortunately he spotted her, pulled out a knife, and
put the blade to her daughter’s throat. Faced with a
nightmare choice, she quietly submitted and was
raped. “It was disgusting,” she testifies. On cross-
examination, she admits that she can’t identify the
accused because the intruder covered her head with a
sheet (but his DNA was lifted from the bedding).
(Ginsberg, 2005)
Concerns about emotional distress suffered by a
victim on the stand are voiced most often in cases of
forcible rape and child molestation. Other types of
complainants also may be particularly reluctant to
undergo cross-examination if the facts of the case
portray them in a negative light or reveal aspects of
their private lives that they do not want exposed to
the world via media coverage (especially in jurisdic-
tions where trials can be televised).
74. VICTIMS AND DEFENSE ATTORNEYS
Victims and defense attorneys are on opposite sides
and therefore are natural enemies within the adver-
sary system. Whether hired privately for a fee or
provided free to indigents, these lawyers have a
duty to advise suspects, defendants, and convicts
about legal proceedings and the options they can
exercise. Defense lawyers have an obligation to
zealously represent their clients’ best interests,
which usually translates to getting out of trouble
with the law entirely, or at least being sentenced
to less than the maximum punishment.
Conflicts often break out between victims and
defense lawyers over two matters: how long the
process takes and the number of court appearances
needed, as well as the line of questioning directed at
victims who testify in court when they appear as
prosecution witnesses. From a victim’s view,
defense attorneys might engage in two abusive
practices: asking judges for postponements of their
clients’ cases to wear victims down and using unfair
tactics to undermine the credibility of complainants
when they appear as prosecution witnesses.
Postponing Hearings
The Sixth Amendment to the Constitution guaran-
tees the accused the right to a speedy trial. Hence,
problems of congested court calendars and needless
delays usually have been approached from a defen-
dant’s standpoint. Many states and the federal courts
have set limits on the amount of time that can
elapse between arrest and trial (not counting con-
tinuances requested by defense attorneys). But
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may lose patience with the protracted deliberations
of the legal system. Their commitment to see the
case through to its conclusion may erode. Stalling
succeeds when a complainant or another key wit-
ness gives up in disgust and fails to appear in court as
required. For example, a victim who lost her hand-
bag to an unarmed bandit might miss so many days
from work that the lost wages far exceed what the
robber took, so she may eventually drop out. Stal-
ling for time might also pay off if victims or other
witnesses for the prosecution forget crucial details,
move away, become ill, or die in the interim. At
that point, the defense attorney can move for a
dismissal of charges (Reiff, 1979). Prosecutors can
also manipulate continuances for their own ends. If
defendants are in jail rather than out on bail, then
government attorneys may stretch out proceedings
to keep them behind bars longer and as a way to
pressure them to give in and accept unfavorable
plea offers. In the process, the defendant’s right to
a speedy trial could be violated.
Postponements can prolong and intensify the
suffering of complainants. In order to be available
if called to testify, they might have to arrange
repeatedly for child care, miss school or work,
cancel vacations, and break appointments, only
77. to discover (often at the last minute) that the hear-
ings have been rescheduled. To defeat this wear-
the-victim-down strategy, some defense motions
for postponements could be opposed more vigor-
ously by prosecutors. Similarly, requests for a post-
ponement should be rejected by judges if they
suspect the defense’s call for a continuance is a
stalling tactic (President’s Task Force, 1982). To
prevent complainants and police officers from
showing up in court on days when hearings have
been postponed, victim/witness assistance pro-
grams in prosecutors’ offices operate last-minute
notification systems.
As a general rule, the more serious the charges
against the defendant are, the longer it takes to
resolve the case. Cases resolved by negotiated
pleas don’t take as long as cases resolved by trials
(Boland et al., 1992). Researchers determined that
murder cases in state courts took an average of more
than one year to be resolved, rape cases required
about 245 days, and robbery cases went on for
more than 150 days from arrest to sentencing,
according to a study of nearly 50,000 felonies pro-
cessed in the nation’s 75 largest counties during
2009 (Reaves, 2013). However, in some high-
crime areas, huge backlogs cause even greater
delays, prolonging the anxiety of both complainants
and defendants waiting for the final outcome of
their conflicts.
Cross-Examining Witnesses During Trials
If they can’t wear down victims by stalling,
defense attorneys might try to discredit them,
78. along with other prosecution witnesses, before or
during a trial. Attorneys for the accused are duty-
bound to seek evidence that contradicts or under-
mines what the accusers contend. In addition to a
speedy trial, the Sixth Amendment to the Consti-
tution gives defendants the right to confront their
accusers. The burden of proof falls on the prose-
cution, and the defendant is considered innocent
unless proven guilty. The accuser must be pre-
sumed to be mistaken until his or her credibility
is established beyond a reasonable doubt. The
strategy of portraying the victim in a negative
light (as a person who makes charges that should
not be believed) is employed frequently in rape
and sexual assault cases where credibility is a cru-
cial issue, as this example shows.
A 20-year-old woman and a 61-year-old man briefly
chat as their flight takes off. Then she puts her feet up
on an empty seat between them and falls asleep.
When she awakens, she finds that her legs are on his
lap. Claiming that he had slipped his hand inside her
shorts and molested her, she pushes him away, calls
the flight attendant over, and has him arrested when
the airplane lands. Weeks later, his attorney informs
the prosecution that he has obtained a Facebook post
which shows that within a few hours after the alleged
sexual assault, the supposedly traumatized young
woman had contacted her brother about mundane
matters, like what she had eaten that day. The young
woman realizes that she mistakenly “friended”
someone who later turns out to be connected to the
defendant’s son, and reports that she feels
226 CH APT ER 7
80. mation or private matters. (McDonald, 2011)
Because defense attorneys are obliged to be vig-
orous advocates for their clients, they may advance
arguments at a trial or during plea negotiations that
the defendant is in fact innocent. In casting doubt on
the version of events cobbled together by police and
the prosecution, defense attorneys draw upon their
skills and training to undermine the accusatory testi-
mony of victims. Under the adversary system, each
side puts forward its best case and assails the version
of events presented by the opposition. Cross-
examination is the art of exposing the weaknesses
of witnesses. The intent is to impugn credibility
by revealing hidden motives, lapses of memory,
unsavory character traits, embarrassing indiscretions,
prejudices, or dishonest inclinations.
Cross-examinations can be ordeals for wit-
nesses. But if defense attorneys were not allowed
to sharply question prosecution witnesses, then the
right of defendants to try, through their lawyers, to
refute the charges against them would be under-
mined. The concerns of complainants and other
witnesses (including defense witnesses who are
cross-examined by prosecutors) of being embar-
rassed on the stand under oath must be balanced
against the public humiliation suffered by defen-
dants who are arrested and put on trial.
The defense attorney goes up against a formi-
dable professional foe when the witness for the
government is an expert in forensic science or
forensic psychology, or is a seasoned law enforce-
ment officer (although the credibility of police tes-
timony has become the subject of much debate).
