By Jaqlynn Bless & Autumn Cambra
Victim Assistance Coordinators in Henderson County
“Why do I have to testify? I already gave a written statement to the police—can’t you just use that?”
It probably wasn’t long into your career as a victim assistance coordinator (VAC) or prosecutor before you heard these words from a victim or witness, and you’ve probably heard them dozens of times since. It is understandable that laypeople don’t understand the Rules of Evidence or the Confrontation Clause, but lately, the VACs in our office have noticed that the average person’s understanding of the criminal justice system has decreased significantly. So much so that we have agreed that the best approach when dealing with victims and witnesses is to assume they know absolutely nothing about how the system works. To borrow verbiage from Joe Miller, as played by Denzel Washington in the legal drama Philadelphia, we have started to explain it to them like they are 5-year-olds.
That said, we still treat all our victims with respect and dignity. They’re crime victims, after all. They didn’t deserve what happened to them. We try not to insult their intelligence, but we also assume their knowledge of the criminal justice system is, at best, limited.
Maybe some of you have always taken this approach, but we always assumed (perhaps incorrectly) that the average adult had at least a rudimentary understanding of how all this works. But some interactions we’ve had recently have made us reevaluate our approach. For example, some victims don’t even know who we are. They don’t understand what a prosecutor’s office does. For one of our prosecutors, his epiphany came when he asked a victim if she knew what a plea bargain is, and she said no. That was an eye-opener.
When the possibility of probation comes up, a number of victims have been adamantly opposed to it. They see probation as a slap on the wrist. But when it’s explained to them what the defendant must do (and cannot do) while on probation—and that if the defendant violates the conditions of his probation during this time, he goes to prison—their attitude changes. Were we taking it for granted that the average citizen knows what probation is and what the consequences of violating probation are? Maybe so.
Jury unanimity is another one. People seem surprised when we explain that prosecutors have to convince all 12 (or six) jurors that the defendant is guilty to get a conviction. We thought jury unanimity was commonly understood by the public. We now go over that as a part of our introductory conversations with victims.
Felony versus misdemeanor is another topic we probably took for granted. Again, it’s unreasonable to expect regular people to know punishment ranges or the difference between a second-degree felony and a Class B misdemeanor, but we thought most people would at least know that a felony is a more serious crime than a misdemeanor. Taken for granted, no more. We, along with our prosecutors, tell them what the punishment ranges are for the crime or crimes they’re charged with, possible lesser-included offenses, and what possible outcomes we’re looking at for this crime (jail, probation, prison, etc.) This conversation also includes what is required on probation and the consequences of violating probation, as discussed above.
We are also seeing that some victims think we (meaning, our prosecutors) decide what the defendant’s sentence will be. They think we are their attorneys. There doesn’t seem to be an understanding that the defendant and judge must agree to a plea bargain, or that if there is a trial, the judge or jury assess punishment. It’s as if they think the prosecutor determines the punishment and sentences the defendant. We explain to them that we are their advocates, but at the end of the day, we represent the State, not them.
We’ve begun to explain how a plea bargain works. We make an offer that we feel is fair and just. We cannot force the defendant to accept a plea deal—he has to agree to it. He can either accept it, reject it, or make a counter offer, which we will consider. It takes two to tango (or, well, technically three, as the judge has to approve any plea deal). But we cannot just unilaterally impose a sentence on the defendant.
We mentioned the necessity of victims to testify earlier, and lately we’ve noticed that once we get them to understand that they have to testify and we can’t just use their written or recorded statements, they are shocked and appalled that the defense attorney gets to ask them questions. We don’t make the rules, we tell them.
We tell them that if they have any dirty laundry, we need to know about it, because the defendant is telling his lawyer about it too. And that dirty laundry will likely come out on cross examination. It is likely to be the most stressful and awful part of the entire experience, second to actually being victimized. Once this conversation takes place, that plea offer we just talked about—the one they didn’t approve of—suddenly becomes much more palatable.
Similar to the “you have to testify” conversation is this one: “What do you mean he’s going to be in there? I have to see him?!” A number of recent victims don’t realize that their abuser (the defendant) will indeed be in the courtroom. Again, perhaps we’ve taken for granted that the right to be present at your own criminal trial, along with the ability to cross-examine witnesses, are basic concepts in criminal law. We no longer assume that the victim or witness knows these things. Yes, he will be there. Yes, he will be able to see you. Yes, you will likely have to look at him.
A common theme we’ve noticed in family violence cases and adult sexual assault cases is that cell phones, text messages, and social media are fair game. It blows victims’ minds when it’s explained to them that the defense attorney can confront them with what they’ve posted on social media or texted to their abuser (we’re sure family law attorneys probably have this same problem in divorce cases).
If there was a “phone dump” on the defendant’s phone, we tell victims that we have an obligation and duty to turn that data over to the defense attorney—which means the defense attorney will have access to text messages, photos, and anything else the victim sent the defendant. It is imperative that victims know the defense attorney has their phone records and will use the contents of those records against them.
What changed?
What explains this (semi-)recent decline in the average person’s knowledge of how the justice system works? We have some theories that we’ve batted around in the office. A decline in civic education in public schools? Probably. Another reason might be a shift in entertainment options. We’ve been dealing with the consequences of popular TV shows and movies for a while now in this line of work—we call it the “‘CSI’ effect” when jurors expect a certain type or amount of scientific evidence in trial. But when was the last time there was a good legal thriller (like the aforementioned Philadelphia) in theaters? Or a movie adapted from any one of John Grisham’s novels? It seems every movie today is based on a Disney character or superhero, or it’s a biopic about a musician.
Same thing with TV. Reality shows seem to be the entertainment option du jour. The legal procedural has been replaced by crime-solving shows such as the aforementioned “CSI.” While “Matlock” and “Law and Order” had their accuracy issues, at least they gave the viewer a basic understanding of what a judge, prosecutor, and defense attorney do. Maybe some of you have seen that there has been a reboot of “Matlock” starring Kathy Bates—but the new “Matlock” is about civil practice!
Whatever the reason or reasons, the decline in knowledge and understanding of how our criminal justice system works is noticeable recently. We have taken to explaining everything as if victims and witnesses have zero understanding of the system.
Conclusion
When we took this job, we did it to help people through dark and painful periods, if not the most dark and painful periods of their lives. It’s rewarding and noble work. Helping with crime victims’ compensation, victim impact statements, and preparing for court is the most fulfilling. We knew that part of the job is explaining the process to victims—we just didn’t know how much explaining there would have to be. Maybe we should call ourselves victims assistants and civics teachers.
The Texas Department of Criminal Justice offers some brochures for victims, but those are mostly about crime victims’ compensation and the right to give a Victim Impact Statement. There doesn’t seem to be much out there to educate victims about the process they are about to embark on. In writing this article, we have decided that maybe coming up with something along those lines would be a good idea going forward. If we do create something, we’ll share it with TDCAA.