Cynthia A. Morales
Balancing crime victims’ rights with your ethical duties as a prosecutor can be challenging, but it’s the right thing to do for victims—and for your case.
A very wise, very experienced prosecutor once told me that the worst names he had ever been called—and he had been called many—had been by crime victims. As he expressed it: “They want me to fix something that no one can fix—the hole in their heart caused by the crime. And no matter what happens—indictment, conviction, sentence, even the death penalty—nothing can ever fix that hole. And I would tell them, believe it or not, I am on your side. It may not seem so, but I really am.”
This statement reflects a fundamental dilemma for most prosecutors. Our mandate to see that justice is done. But representing the State, not the victim, invariably leads to a delicate balancing act between crime victims’ wishes and prosecutorial duties and an occasionally uncomfortable alliance between prosecutors and crime victims. Keeping that balance, so that you can do the best job possible as a prosecutor, can be tremendously difficult.
Ask a hundred prosecutors how one should balance the relationship with a victim and the prosecution of a case, and you will get a hundred different answers. Yet there is one fundamental step that we prosecutors could, and should, take to help both crime victims and our own prosecutions: knowing and respecting crime victims’ rights, which are already set out in Texas laws and the Texas Constitution, and incorporating them into our prosecutions within the framework of our ethical duties. Most of us know that there is a crime victims’ bill of rights in Texas, but we are a bit fuzzy on the details. Because there are now designated victim assistance coordinators in every prosecutorial jurisdiction in Texas given the specific duty of ensuring that victims are afforded their rights,#1 it can be tempting to think, “The victim assistance coordinator has that covered; my job is to focus on winning this case.” Certainly, victim assistance coordinators do a fantastic job and inestimable work. But if we prosecutors don’t personally know what rights crime victims have and don’t personally make implementing those rights part of how we handle our cases, victims’ rights won’t be fully realized in Texas. Aside from helping prosecutors keep on the “white hat” of “doing right” that is part of our chosen profession, incorporating crime victims’ rights into the prosecution of cases helps make cases stronger and helps ensures that justice is done.
Under both Article I, §30 of the Texas Constitution and article 56.02 of the Code of Criminal Procedure, the two most significant pronouncements of crime victims’#2 rights in the state of Texas,#3 it is the “attorney for the state” who has the primary responsibility for ensuring and enforcing crime victims’ rights in Texas. The Texas Constitution gives the “state, through its prosecuting attorney” the “right to enforce the rights of crime victims,” and article 56.02 more pointedly says that the “office of the attorney representing the state [along with other law enforcement agencies] … shall ensure to the extent practicable that a victim … is accorded the rights granted”4 in the article.# Most of the notification provisions in chapter 56 specifically require that “the attorney representing the state,” “the attorney for the state,” or “the district attorney’s office” provide the required notice, information or explanation,5# and the victim has the specific right to have his or her victim impact statement considered “by the attorney representing the state in entering into the plea bargain agreement.”#6
Article 56.04, which establishes victim assistance coordinators, says that the duty of a victim assistance coordinator is to ensure that victims’ rights are afforded, but its language, especially in light of the language in other provisions in Chapter 56, can’t be read as creating an exclusive duty; indeed, the same statute requires the victim assistance coordinator to work closely with various entities, including prosecuting attorneys, to carry out that duty.#7 But even if the letter of the law for most victims’ rights could be carried out by a victim assistance coordinator sending out materials and notices and explaining matters to victims, the responsibility under the law is clearly a collective one of a prosecutor’s office.
The practical reality
Though a prosecutor’s office generally has to rely on the hard work of its victim assistance coordinators for initial and primary contact with victims, some victims’ rights are best, or even must be (such as in considering the victim impact statement in plea bargaining) carried out by prosecutors themselves.8# Some victims’ rights, which are incorporated in other sections of the Code of Criminal Procedure apart from article 56.02—such as the right of certain victims to use a pseudonym in court documents,9# the right for victims to be present in the courtroom during proceedings despite “the Rule” (absent certain findings from the judge),#10 the opportunity (at the prosecutor’s discretion) to provide victim character evidence and victim impact testimony at punishment,11# and the right to present a statement after sentencing12#—all directly affect the conduct and proceedings of a criminal case and would fall squarely in the province of the prosecuting attorney. A completed victim impact statement#13 could affect a trial judge’s decision on an open plea, the terms of a plea bargain agreement (e.g., regarding restitution), or the conditions of probation. Notifying a victim of his pertinent rights applicable after the trial, such as the right to be notified of community supervision modification, revocation, and termination hearings14# and the right to be notified, be present, and provide a written or live statement at parole release hearings#,15 could have a very real impact on the outcome of a community supervision case or release on parole. The exercise of a victim’s rights—before, during, and after the trial of a case—can have a direct and substantial effect on whether justice is achieved.
On a more fundamental level, it just makes sense for prosecutors to ensure that the victims in their cases are afforded their rights. If you have a victim who is informed and cooperative, your case can become better and stronger. Victims who feel included are generally more cooperative and helpful to your present case and in any cases they are involved with in the future.#16 For many victims, the trial prosecutor is the face of the criminal justice system; how victims are treated and the opportunities for them to participate will affect their attitude toward the justice system well into the future, as well as their healing from the crime.#17 Even something as simple as keeping in touch with a victim can make a tremendous difference. Making sure victims understand the system, their role, and your role, can smooth the relationship.
Even when a case is lost, if the victim receives an explanation of the process, is informed of settings and the progress, is given a chance to be present and involved to the extent consistent with the law and good prosecution, and is treated with understanding, respect, and courtesy, it is likely that these small steps will make the difference between a victim who comes out of the experience embittered and one who is pained but faces the result with calm resolution. Every step along the way, your treatment of the victim is going to affect your case.
For practical reasons then, as well as the responsibility placed collectively by the Texas Constitution and Chapter 56 on “the office of the attorney for the state,” being aware and respectful of crime victims’ rights is the correct thing to do.
The ethical issues
Still, carefully implement victims’ rights within the context of the law and the special role and responsibilities of a prosecutor.#18 A prosecutor represents the State, not the victim.#19 Victims do not become a party to a criminal proceeding,20# and prosecutors cannot claim to represent them at trial,21# nor advocate for the jury to assess the punishment that the victim would want imposed.#22
In fact, a prosecutor must deal fairly and justly with a person accused, “no matter how repulsive” the defendant.23# Prosecutors have specific constitutional duties to defendants, such as the duty to disclose material mitigating, exculpatory, and impeaching evidence; to preserve and make available any favorable material physical evidence not otherwise available to the defendant; not knowingly introduce false testimony; and to correct any false testimony of which the prosecutor becomes aware.#24
In this context, it is clear that victims’ rights were provided to allow victims “the means to have access to and provide input into the criminal justice process—not to control it.”25# Both the constitutional and statutory Texas crime victims’ bill of rights specifically say that the victim does not have standing to participate as a party in a criminal proceeding nor contest the disposition of a charge.26# A crime victim’s rights are to be effectuated “within the criminal justice system” rather than “superseding or overriding it.”#27
Nevertheless, prosecutors do have ethical responsibilities—aside from their statutory duties under chapter 56—to crime victims. Although prosecutors clearly do not owe victims the duties outlined for clients in the disciplinary rules,#28 victims would fall under the provisions of Rules of Disciplinary Conduct 4.01 (Truthfulness in Statements to Others) and 4.03 (Dealing With Unrepresented Persons).29# While most prosecutors would readily apply rule 4.01 (which would prohibit lying to the victim), rule 4.03 presents a duty most might not be aware of: to correct any misunderstanding an unrepresented person might have about your role in the case. In the context of a prosecution, this rule imposes an ethical responsibility to make sure the victim understands the prosecutor’s role, particularly the fact that the prosecutor is not representing the victim. To suggest or imply otherwise to the victim would be a violation of both rule 4.01 and 4.03. Similarly, to mislead a victim about a material fact or law would be a violation of rule 4.01, even if done in an effort to advance your case in the way you think best.
Other rules of disciplinary conduct could also affect a prosecutor’s relationship with a victim.30# Depending on the nature of your case, you may have to discuss some of the ethical constraints placed on you by these rules with your victim.
Ultimately, the key principle to ethically dealing with victims and ensuring the provision of a victim’s rights is making certain that victims understand the role, rights, and responsibilities of prosecutor and victim. With that understanding in place, you can move forward to assist victims in ensuring their rights, within the proper context, while still retaining your own necessary independence to handle the case as justice requires.
Incorporating crime victims’ rights into prosecution
The best means to incorporate crime victims’ rights into the prosecution of criminal cases will vary from jurisdiction to jurisdiction and prosecutor to prosecutor, but here are some suggestions on how prosecutors and prosecutors’ offices might be able to better ensure that crime victims’ rights are being recognized and applied.
Training. Specifically focused training in crime victims’ rights and prosecutors’ responsibilities for them, as well as how to do so effectively and ethically, is important for a new prosecutor’s education, but refresher courses are also needed for experienced prosecutors. Both the Crime Victims Services Division of the Office of the Attorney General (www.oag.state.tx .us/victims/victims .shtml) and the Victim Services Division of the Texas Department of Criminal Justice (www .tdcj.state.tx.us/victim/victim-home .htm), which houses the Texas Crime Victims Clearinghouse, can provide resources and even conduct training for prosecutors. The Texas District and County Attorneys Association has also included crime victims’ rights training for prosecutors in some seminars.
Office policies. An office policy outlining each position’s relative responsibility is extremely helpful in establishing the responsibilities of the victim assistance coordinator, trial prosecutor, and appellate prosecutor. Prosecutors often have more direct access and information about what is going on in a case than victim assistance coordinators. Sometimes in smaller offices where the victim assistance coordinator has other office duties, the prosecutor may actually have more direct contract with the victim. In larger jurisdictions, it may not generally be feasible for prosecutors to have much contact with most victims, but there may be a few simple actions (such as relaying information to VACs) that would result in better compliance with crime victims’ rights. Every jurisdiction’s needs and solutions will be different. What is expected in terms of interaction and coordination of the VAC and prosecutor in the shared responsibility to ensure victims’ rights in your jurisdiction? How can victims’ rights best be ensured by your office as a whole? Establishing specific policies and procedures regarding roles and interaction, and educating staff about how prosecutors and VACs can work as a team, can go a long way in helping an office smoothly and effectively protect victims’ rights.#31
Educate yourself. Whether or not your office offers specific training or you attend a training on crime victims’ rights, educate yourself. Read the law. Learn your office policy. Talk to your victim assistance coordinator.
Develop a personal plan. Many trial prosecutors have a trial checklist they use in every case to make sure that important matters are taken care of as the case is prepared for trial, a plea, or another resolution. The checklist would be a good place to incorporate victim’s rights to the extent possible given your jurisdiction, the operation of your victim assistance coordinator’s office, and your own caseload. Victims’ rights could be added to an existing sequential checklist (e.g., various rights listed under “pre-arraignment,” “trial preparation,” “trial,” “post trial,” as appropriate), in separate thematic section (“Victim’s notifications/issues”) or in another manner suitable to the checklist you already have. Some things that could be added to a checklist:
• Make sure the victim has been contacted. Or send a personal letter in every injury case (or even every case) to the victim inviting cooperation in the case and informing the victim that he has rights as a crime victim.
• Talk to the victim about his rights during the initial interview and make sure that he understood the information from the victim assistance coordinator. Some people are too shy to say that they just don’t understand the written materials or the role of a victim assistance coordinator, and they trust only information “directly from the attorney.”
• Consider whether certain specific victims’ rights or protections (e.g., bond conditions, AIDS testing, use of pseudonym, etc.) are applicable to a case and take necessary steps where appropriate to enforce them.
• Check to see that a victim impact statement has been filed, and if not, follow up directly with the victim and emphasize the importance of a VIS on your case and in the future. Because most victim notifications utilize the information provided in the VIS, a victim who wants notice but fails to fill out a VIS will risk not being notified. Ask the victim to complete one, and check again before the plea or trial to make sure one has been turned in.
• Make sure the victim understands—and has ongoing explanations as needed—the trial and plea bargain process, has provided contact information, and is getting notified (whether by you or the victim assistance coordinator) of important dates and court settings as well as important case decisions and their consequences.
• Explain to the victim how to exercise relevant and important rights during and after trial, and help the victim exercise those rights where you can (e.g., presence in court, post-sentence statement). Make sure actions which the law specifically requires of a prosecutor related to victims’ rights#32 are taken.
• Ensure that the victim understands his role in the criminal justice system as well as yours. This point is critical to fulfilling your responsibilities as a prosecutor and minimizes any misunderstandings or hurt feelings that arise from a victim thinking that you are “his attorney.”
• Work with your victim assistance coordinator. Working in tandem with your VAC and facilitating your victim’s cooperation with the VAC is probably the best thing that you can do to ensure that your victim’s rights are provided. Walk the victim over to the coordinator’s office if need be. Don’t assume your victim is being cooperative already, and don’t assume your coordinator can do it all alone (though yes, they can work miracles sometimes!). Helping your VAC help your victim can help you win your case.
As prosecutors, our commitment to crime victims’ rights should be an important part of our professional dedication to seeing that justice is done. Making the effort to educate ourselves about crime victims’ rights and our own ethical and legal responsibilities, and committing ourselves to incorporating crime victims’ rights into our prosecutions, will make us more ethical—and more effective—prosecutors.
1 Tex. Code Crim. Proc. art. 56.04(b).
2 “Victim,” for the purposes of crime victims’ rights under chapter 56 of the Code of Criminal Procedure and article I, §30 of the Texas Constitution, is defined as a victim of the offense of sexual assault, kidnapping, aggravated robbery, or injury to a child, elderly individual, or disabled individual or who has suffered bodily injury or death as a result of the criminal conduct of another. Tex. Code Crim. Proc. art. 56.01(3); Tex. Const. art. I, §30(c). Most victims’ rights are extended to a close relative of a deceased victim or the guardian of a victim. See Tex. Code Crim. Proc. art. 56.01(1), (2) and art. 56.02 as well as Tex. Code Crim. Proc. art. 36.03 and art. 42.03(1)(b).
3 The Texas Legislature passed the Crime Victims’ Bill of Rights in 1985, codified in chapter 56 of the Code of Criminal Procedure, with the primary listing of rights being in article 56.02 (“Crime Victims’ Rights”). This article generally provided the right to be protected, to be informed, to be notified, to be present, and to provide input. In 1989, crime victims’ rights became part of the state constitution with the adoption of article I, §30. Crime victims rights are also recognized in the Family Code for victims of juvenile offenders, see Tex. Fam. Code §§57.001-008, and in the probation and parole proceedings context. See Tex. Gov’t Code § 76.016 and §§508.117, 508.153, 508.190 and 508.191. Other sections of the Code of Criminal Procedure also help enforce and protect victims’ rights.
4 Art. I, §30; Tex. Code Crim. Proc. art. 56.02(c). When article 56.02 was originally adopted, the language of section (c) read, “the district attorney’s office shall ensure . . .”. Act of May 16, 1985, 69th Leg. R.S., ch. 588, §1, 1985 Tex. Gen. Laws 2217, 2218, and the bill analysis for the enacting legislation states that “The district attorney’s office would have to safeguard these rights.” House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 235, 69th Leg. R.S. (1985), located in State ex. rel. Hilbig v. McDonald, 839 S.W.2d 854, 861, appendix B (Tex. App.—San Antonio 1992, orig. proceeding). The current language, which expanded the responsibility of ensuring victims’ rights to include “the sheriff, the police, and other law enforcement agencies,” was added in 1989. Act of May 28, 1989, 71st R.S., ch. 966, §1, 1989 Tex. Gen. Law 4087, 4087.
5 See Tex. Code Crim. Proc. art. 56.02(a)(3)(A) (right to notice of court proceedings, including appellate proceedings, and including cancellations or rescheduling); (a)(4) (right to be informed concerning general procedures in the criminal justice system, including general procedures in guilty plea negotiations and arrangements, restitution, and the appeals and parole process); (a)(9) (right to the prompt return of property if held by the attorney for the state); (a)(10) (the right to have the attorney for the state notify the victim’s employer, upon request, of the victim’s cooperation and testimony if the victim has to be absent from work); (a)(13)(A)(right to have the victim impact statement considered “by the attorney representing the state . . . before sentencing or before a plea bargain agreement is accepted”); art. 56.08 (notification of rights by “the attorney representing the state”, including a statement that the victim impact statement “will be considered by the attorney representing the state in entering into the plea bargain agreement); and art. 56.11(g)(requiring the attorney for the state to provide notice to the victim [and certain witnesses] of the right to notice of release or escape of a defendant in certain cases “not later than immediately following the conviction”); Tex. Code Crim. Proc. art 56 .08(a), (b), (d), and (e) and Tex. Code Crim. Proc. Art. 56.11(g).
6 See Tex. Code Crim. Proc. art. 56.08(e)(1) and art. 56.02(a)(13)(A).
7 Tex. Code Crim. Proc. art. 56.04(b).
8 E.g., Tex. Code Crim. Proc. art. 56.08(e)(1) and art 56.02(a)(13)(A).
9 Tex. Code Crim. Proc. art. 57.02 and art. 57B.02.
10 Tex. Code Crim. Proc. art. 36.03.
11 Tex. Code Crim. Proc. arts. 37.07, §3(a)(1) and 37.071 §2(a)(1). See Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).
12 Tex. Code Crim. Proc. art. 42.03(b)(1).
13 Tex. Code Crim. Proc. art. 56.03.
14 Tex. Gov’t Code §76.016(a).
15 Tex. Gov’t Code §§ 508.117, 508.153.
16 This is well documented in various studies of crime victims and their participation in the criminal justice system. See Richard Barajas and Scott Alexander Nelson, The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance, 29 BAYLOR L. REV. 1, 19 (Winter 1997); Keith D. Nicholson, Would You Like More Salt with that Wound? Post-Sentence Victim Allocution in Texas, 26 ST. MARY’S L. J. 1103, 1117-19 (1995).
17 For example, the right to make a post-sentencing statement, far from being a “meaningless gesture,” often provides a needed sense of inclusion and closure for victims. See Nikki Morton, Cleaning Salt from the Victim’s Wound: Mandamus as a Remedy for the Denial of a Victim’s Right of Allocution, 7 TEX. WESLEYAN L. REV. 89, 98-100 (Fall 2000).
18 For an in-depth discussion of the ethical considerations of the relationship between victims and prosecutors, see Jeffrey J. Pokorak, Rape Victims and Prosecutors: The Inevitable Ethical Conflict of de facto Client/Attorney Relationships, 48 S. TEX. L. REV. 695 (Spring 2007).
19 Tex. Const. art. V, §21; Tex. Code Crim. Proc. arts. 2.01, 2.02; Draughton v. State, 831 S.W.2d 331, 336 (Tex. Crim. App. 1992). As noted in Davis v. State, a victim has “no control over what charges the State brings, and who the State charges, and when the State brings the charges . . . no authority over the disposition of the offense . . . The State may bring charges even though the [victim] declines to pursue the charges . . . refuses to testify . . . or testifies on behalf of the defendant . . . . [and a victim’s] desire that charges against a defendant be dropped has no legal effect on the State’s charges . It is axiomatic that a party has the authority to pursue or not pursue charges, and to resolve the charges with or without a trial. The party here [in a criminal case] is the State of Texas, not the [victim].” Davis v. State, 177 S.W.3d 355, 362 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
20 Davis, 177 S.W.3d at 362.
21 Rougeau v. State, 738 S.W.2d 651, 656-57 (Tex. Crim. App. 1987). The court noted that if it were to take the prosecutor’s statement to the jury of representing the victims as literally true, this would be a violation of possibly half of the code of professional responsibility. Rougeau, 738 S.W.2d at 657, fn.2.
22 Torres v. State, 92 S.W.3d 911, 921 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Boyington v. State, 738 S.W.2d 704, 708-09 (Tex. App.—Houston [1st Dist.] 1985, no pet.).
23 Rougeau, 738 S.W.2d at 657, citing Bullington v. State, 180 S.W. 679 (1915).
24 Edward L. Wilkinson, Legal Ethics & Texas Criminal Law: Prosecution and Defense, p. 262, (Texas District and County Attorneys Association, 2006), discussing Brady v. Maryland, 373 U.S. 83, 87 (1963), California v. Trombetta, 467 U.S. 479, 488-89 (1984), and Alcorta v. Texas, 355 U.S. 28, 31 (1957).
25 Peggy M. Tobolowsky, Victim Participation In The Criminal Justice Process: Fifteen Years After The President’s Task Force On Victims Of Crime, 25 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 21, 103 (Winter 1999); State ex rel. Hilbig, 839 S.W.2d at 859 (holding that the “Legislature intended to give victims access to the prosecutor—not the prosecutor’s file”).
26 Tex. Const. art. I, §30(e); Tex. Code Crim. Proc. art. 56.02(d); In re Sistrunk, 142 S.W.3d 497, 501-03 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding). The latter case provides a rather sober cautionary tale of what can go wrong.
27 Jimenez v. State, 787 S.W.2d 516, 523 (Tex. App.—El Paso 1990, no pet.) (quoting Tex. Code Crim. Proc. art. 56.02(a)).
28 Tex. Disciplinary R. Prof’l Conduct 1.01, 1.02, 1.03, and 1.09, reprinted in Tex. Gov’t Code tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, §9); Wilkerson, Legal Ethics & Texas Criminal Law, p. 313.
29 Tex. Disciplinary R. Prof’l Conduct 4.01, 4.03. If the victim did happen to have an attorney, then rule 4.02 (Communications with One Represented by Counsel), rather than 4.03, would apply.
30 Tex. Disciplinary R. Prof’l Conduct 3.01, 3,02, 3.03, 3.04, 3.07, and 3.09.
31 The Department of Justice, for example, has specific guidelines regarding the implementation of victims’ rights at each state of criminal proceedings. See the USDOJ’s “Attorney General Guidelines for Victim and Witness Assistance,” located at www.usdoj.gov/ olp/final.pdf . While the guidelines do not always state whether an action is to be handled by the actual prosecutor or by staff, some directives are clearly addressed to the actual prosecutor, such as advocating for the interests of victims at sentencing hearings and advocating for the victim’s right to make a statement and present information in relation to an offender’s sentence. Attorney General Guidelines for Victim and Witness Assistance, pp. 32-33.
32 See Tex. Code Crim. Proc. art. 56.08(d), which requires the attorney for the state to provide the CSCD with the victim’s current address and phone number if the defendant receives community supervision, and Tex. Gov’t Code §76.016(a), which specifically relies on the attorney for the state fulfilling this responsibility; see also Tex. Code Crim. Proc. art. 56.11(g), which requires “the attorney who represented the state in the prosecution of the case” to provide written notification of certain rights to victims in certain cases “no later than immediately following the conviction.”