http://www.denverda.org
http://www.ojp.usdoj.gov/ovc/
 

Mitchell R. Morrissey
Denver District Attorney
 
Unit 6:
 
 
Criminal Justice Process & Victim Rights
 

Rationale: To outline the organization and roles of the criminal justice system and how it relates to crime victims. Discuss the concept of and justification for legal rights for crime victims.

Format
:

Video:
Victim Care: Issues for Clergy and Faith-Based Counselors
The Face of Crime and JusticeLesson One
Victim RightsLesson Seven
Access via http://FCPEI.denverda.org/index.htm or
Contact Steve Siegel – 720/913-9022

Reading: God and the Victim: Lisa Barnes Lampman and Michelle Shattuck (Editors)
Chapter 1: “Finding God in the Wake of Crime:
Answers to Hard Questions”
Chapter 3: “The Mark of Evil”


Assignments
:
1) Call a county or a district trial court (State) and make arrangements to sit through a session of a “crime against persons” case.
Write a 3-4 page report on your observations of the proceedings.

2) Read Chapter One, “Finding God in the Wake of Crime: Answers to Hard Questions,” and Chapter Three, “The Mark of Evil,” in the text, God and the Victim. Write a 1-2 page personal reflection for each chapter, expressing how the chapter relates to a victimization experience in your own life or in the life of someone you know. If you do not have a personal experience with crime, relate the chapters to a movie or television show about criminal victimization.

Lecture:
A Snapshot of Crime in the United States

The face of crime is invasive and impacts the physical/emotional/ spiritual/financial well-being of every American.

Uniform Crime Report
Crime information is summarized annually by the Federal Bureau of Investigation (FBI) in its Summary of the Uniform Crime Reporting Program. This program is a nationwide statistical effort to gather and compile crime information from 17,000 city, county, and state law enforcement agencies.i

The Uniform Crime Report covers eight classifications of crime:

  • Murder and non-negligent manslaughter;
  • Forcible rape;
  • Robbery;
  • Aggravated assault;
  • Burglary;
  • Larceny-Theft;
  • Motor vehicle theft;
  • Arson.

Notice that the report does not include statistics on either drunk driving death and injury or negligent manslaughter. Likewise, it does not include crimes against children under the age of twelve.

Instructor Note: To introduce this class of crimes, go to the Internet and download current statistics that are of interest to the students. Insert the most recent year at the end of this website (for the year 2004): http://www.fbi.gov/ucr/cius_04/

Crime Changes Us
Crime has a tremendous societal impact as well as an individual impact. It has been stated: “Violent crime in America has become a national crisis and, as a result, America’s mental health, health care, and public safety systems are seriously challenged.”ii

As a result of these fears, Americans choose to limit where they go, where they live, where they work, and many have turned to the procurement of a personal weapon for security.

Discussion: Since September 11, 2001, how has your thinking and behavior changed in terms of safety and trust?

Crime Creates Victims
Webster’s New World Dictionary defines “victim” as “one who suffers some loss, especially by being swindled.”iii The statement seems woefully inadequate. This definition does not express the loss of dignity, emotional and mental well-being, everyday safety and security and more, experienced by the victim of rape or aggravated sexual assault.

Discussion: Discuss different definitions of “Crime Victim.”

Basic Criminal Justice
When traumatic events happen to people that involve the breaking of state or federal laws, the victims are thrust into the criminal justice system whether they want to be or not. Just as faith leaders sit with those in a hospital bed, they are called upon to support victims through the justice system. Therefore, it is appropriate to review the criminal justice system.

Most of the criminal justice system is devoid of glamour and is for, the most part, mundane. Many crimes are reported in which the offender is never apprehended. If an alleged offender is apprehended, investigators may be unable to collect enough admissible evidence for the case to go to court. If the case is presented to prosecutors, they may decide they do not want to try the case or to offer the alleged offender the opportunity to plead guilty to a lesser offense and avoid trial. Of the more than 24 million crimes reported each year in the United States, only about 47,000 criminal cases are heard in U.S. District Courts. These cases, however, involve tireless effort on the part of law enforcement officials seeking to protect and ensure the rights of U.S. citizens.

The Purpose of Law
Laws serve life’s basic purposes:

  • Regulate the flow of human interaction;
  • Make the behavior of others predictable;
  • Support social order;
  • Banish private retribution;
  • Reflect public opinion;
  • Deter criminal acts;
  • Punish offenders;
  • Provide socioeconomic control.iv
Law is intended to provide a behavioral standard for social interactions. We live with the expectation that if laws are broken, a standard sanction will be applied to the perpetrator. But law also is dynamic. Law can be rendered obsolete, no longer effective, or no longer reflecting the moral and metaphysical will of the people. The law is meant to serve the will of the people, and when it no longer does so, it can be changed, rendered void, or superseded with new or amended law that is more reflective of the will of the people.

The Application of Law
Breaches of the law are settled in federal, state, or local courts, in a civil or criminal hearing. Rights of appeal exist in lower courts all the way to the United States Supreme Court.

The United States has a dual system of federal and state courts, operating somewhat independently of one another, with occasions for concurrent jurisdiction over certain cases where both state law and federal law have been violated. On both the federal and state level there are courts that are specialized; for instance, on the federal level, a tax court, and on the state level, a divorce court.

The Federal Court System
Federal law has established federal District Courts, Circuit Courts of Appeals, and the United States Supreme Court. The District Courts handle the bulk of cases involving a violation of Federal statutes or involving some other Federal jurisdictional issue. The Circuit Courts of Appeals are placed in districts throughout the county, into 12 circuits, hearing appeals from federal District Courts and some limited issues emerging from State Court decisions.

The State Court System
State courts are established through a hierarchical design. Cases begin in trial courts. These can be either courts of limited jurisdiction, which are normally local courts hearing minor civil and criminal cases. The predominant courts in the state system are courts of general jurisdiction that hear major civil and criminal cases. There is no geographical limitation for courts of general jurisdiction, which allows a change of venue when the rights of the accused may be prejudiced by excessive publicity or any other reason that may prevent a fair trial.

Courts of general jurisdiction act according to the rule of law and equity. “Equity” means that judges can administer justice along lines of fairness as contrasted with strict rules of law. Thus, before someone is convicted of a crime, equity would still allow a judge to believe that there is reasonable cause for harm and issue a temporary restraining order against an arrested suspect.

The next step in the hierarchy of state courts is the appellate courts. Courts of Appeals hear cases within defined districts where an issue of law, evidence, or conviction from a trial court is being questioned. Courts of Appeals can reverse decisions of a lower court and send an issue back to that court to be retried with instructions that must be followed for retrial.

The State Supreme Court is the final Court of Appeal, known as a “Court of Last Resort.” Decisions made in a Supreme Court are binding upon all other courts within the state.

Divisions of the Criminal Justice System
The criminal justice system exists to see that justice is provided for those accused of a criminal act and to protect those who have been harmed by the actions of others. The National Victim Assistance Academy Manual states, “The effectiveness of this system relates directly to the appropriate balancing of rights, roles, and responsibilities of the various participants within the system.”v

  • Law Enforcement

The training and expertise required to be a modern day law enforcement officer are extensive and yet will never prepare an officer for every situation he or she may encounter. Law enforcement officers must pass strict scrutiny in police methodology as well as possess an extensive knowledge of the law. In addition to being public relations experts, their primary duties are to protect life and property, prevent crime, apprehend offenders, investigate crime scenes, procure the necessary evidence to solve crimes, and help victims understand and receive their statutorily designated rights.

Perhaps the ultimate and most serious responsibility of police officers is to detain and restrict the constitutional liberty for a period of time – with reasonable cause – of a citizen reasonably believed to have committed a crime. Law enforcement officers are sworn to use only the minimal amount of force necessary to apprehend or detain a suspect.

  • Prosecutor/District Attorney/State Attorney

Law enforcement presents evidence against a suspected offender to the prosecutor (District Attorney or State Attorney, depending on the state) who must then decide if there is sufficient evidence to charge a suspect with a crime. If a suspect is charged with a crime, he or she is arraigned and bound over for trial on the charges entered. The District Attorney/State Attorney is the representative of the people to seek to obtain justice in a particular case. The District Attorney/State Attorney handles all proceedings that lead up to and include the trial of a suspect. Thus, this individual handles preliminary hearings, bond hearings, construction of the case including all evidence and witnesses, selection of jury members (in conjunction with defense attorneys), prosecution of the case at trial, and making recommendations for sentencing. Criminals are not brought to justice or placed in the corrections system without extensive and intensive efforts by the District Attorney/State Attorney’s Office.

The District Attorney/State Attorney also has the sole authority to offer a plea agreement to a charged offender and the decision to accept or reject a plea agreement. is left solely to these criminal justice representatives Prosecutors representing the District Attorney can make decisions regarding first-time offenders or those charged in a non-violent crime, to offer diversion (such as community service or attendance at educational or treatment programs) in lieu of time in a corrections facility.

A progressive and encouraging trend among prosecutors is to engage in extensive crime prevention efforts. Educational and community representatives work within a judicial district to help citizens understand the dynamics of crime and offer preventative steps that can provide a measure of protection and awareness. Preventing crime is far less costly, and obviously more beneficial for the welfare of potential victims, than prosecuting criminals.

  • The Judiciary

Courts and judges oversee the progress of a criminal action from arraignment to a conviction and sentencing. They are charged with securing equality of rights, for both the accused and the victims, throughout the judicial process. This may involve ruling on motions, deciding what evidence may or may not be allowed, and controlling the demeanor of the courtroom. According to Anne Seymour with the National Victim Assistance Academy, “One common technique is for defense counsel to subpoena the victims’ family members as potential witnesses, request that the court order witnesses be excluded from the courtroom (sequester), and then never call the victim’s family to testify, thereby preventing their attendance in the courtroom. Meanwhile, the defendant’s family is allowed to sit in the courtroom, showing support for their family member who is on trial, while the victim’s family may appear to be uninterested in supporting the victim or the prosecution’s case because they are sequestered. Such motions, when made for such manipulative purposes, can and should be denied.”vi In many states, according to the statutory or constitutional victims rights laws, victims, including family members of those killed, have the right to be in the courtroom unless the court finds that their presence would interfere with the rights of the accused.

Judges are empowered to sentence convicted offenders to imprisonment in corrections facilities. A critical piece of sentencing is a Victim Impact Statement, written by the victim, which details the impact of the crime, physically, emotionally, spiritually, and financially, on their life. Judges read these impact statements prior to sentencing, along with a Pre-Sentencing Investigative Report prepared by the Probation Department, so they can accurately assess the harm and injury to victims and their circle of significant others. Thus, judges have a critical role in upholding the rights of victims and seeing that the judicial system is not overly biased toward the offender.

  • Probation

Probation may be offered as the condition of a plea bargain or as the actual sentencing decision of the judge. Probation is serving a sentence within the community, rather than in jail or prison, under supervisor of a probation officer and with strict conditions of probation. As long as offenders meet the requirements of their probation, such as meeting with probation officers, paying restitution, attending educational classes, etc., their sentences are considered fully completed at the end of the probationary period. If an offender, however, should commit another crime or violate the provisions of probation, their probation can be revoked and they can be sent to a corrections facility to complete their sentences.

  • Corrections

There are both state and federal correctional institutions. Offenders are placed in a correctional institution according the assessment of the details of the crime, the trial records, the Victim Impact Statement and Pre-Sentencing Report, and previous criminal record. Correctional institutions are weighed as minimum, medium, maximum, or super-maximum facilities, and an offender classification system, which varies state by state, determines the type of facility in which an offender is required to serve time. One of the most critical problems of the correctional system is the overcrowding which often results in the release of offenders earlier than their sentencing might have required.

  • Parole

When an offender is released from a corrections facility, he or she is moved into the parole system. Conditions are placed on a released prisoner, much like probation, and the offender must meet those requirements and undergo scrutiny from a parole officer to see that correct behavior is maintained upon release. Parole is the latter part of the sentence, and is served outside a correctional facility. The decision to grant parole is made by Parole Boards – citizens appointed to serve for a term (usually by the governor) – who review the cases of offenders and their behavior while in corrections. Parole Boards can grant parole, supervise parolees while on parole, declare that the time of parole is ended, and revoke parole.

  • Defense Attorneys

Defense attorneys represent the accused and work within the criminal justice system although they are not formally part of it as publicly paid servants.

  • Public Defenders

Lawyers regularly employed by the government to represent people accused of crimes who cannot afford to hire their own. The term may also be used to refer to a private firm receiving public money to defend indigent criminal defendants. To find out more go to:
www.utcourts.gov/resources/glossary.htm

  • Others

Expert witnesses such as mental health professionals, forensic experts, and medical doctors, are called to testify by both prosecutors and defense attorneys. When children are involved, Guardians Ad Litems or Court Appointed Special Advocates are publicly paid to represent the child in legal cases.

The Rights of the Accused
Throughout the history of our country, the rights of individuals who are accused of committing criminal acts have been clearly articulated and stringently protected. The rights of the accused are incorporated into the United States Constitution and are consistently applied throughout all fifty states. The American justice system is one of due process and where an individual is presumed innocent until proven guilty. Every charged individual is guaranteed his or her day in court and the opportunity to defend themselves against the charges leveled against them. These rights have been a part of our Constitution and/or Bill of Rights since the inception of our county. Basic rights of criminal defendants are the right of an individual to remain silent, the right to an attorney, and the right to obtain representation if an individual cannot afford to acquire independent counsel.

Rights for Crime Victims
In the United States victims of crime do not enjoy the same legal rights and protections as the accused. Although great strides have been made on behalf of crime victims, the rights afforded to victims of crime are, at best, inconsistent, often unenforceable, and generally inconspicuous to the American public. The rights of crime victims are not protected by the U.S. Constitution and vary considerably from state to state and the responsibility for providing and upholding rights for crime victims has been delegated to the individual states. Although each of the fifty states have included some protections for victims through state statutes, only thirty-two states have amended their state constitutions to include rights for victims.

Victims should be safe from further harm. To assist victims in restoring a sense of safety, constitutional provisions and statutes that require law enforcement and/or correctional agencies to notify victims of any arrest and subsequent release are essential. Once an offender is found guilty of a crime and sentenced to jail or prison, victims should be afforded an opportunity to request to be notified of any release of the offender. Additionally, should an offender escape from a secure facility, victims of crime should be notified immediately of the escape. Providing notice of an offenders release or escape from a secure facility may, in fact, “be a matter of life and death.”vii

Crime Victims should be notified of any “critical stage” of the criminal justice process. Some critical stages include:

  • Filing of charges against a person accused of a crime;
  • Preliminary hearing;
  • Bond reduction or modification hearing;
  • Arraignment of a person accused of a crime;
  • Hearing on motions concerning evidentiary matters;
  • Disposition of the charges, such as dismissal of the charges, a deferred judgment, diversion, acceptance of a plea, or a finding of guilt by a Judge or jury;
  • Trial;
  • Sentencing hearing;
  • Appellate review or appellate decision;
  • Probation revocation hearing;
  • Warrant filed by the probation department for failure to report or because the location of the offender is unknown;
  • Request for a change of venue or transfer of probation supervision from one jurisdiction to another;
  • Request for release from probation supervision prior to the expiration of the original sentence;
  • Attack on a judgment or conviction;
  • Parole application hearing;
  • Parole, release, or discharge from imprisonment;
  • Parole revocation hearing; and
  • Transfer to or placement of an offender in a non-secured facility.viii

As an issue of judicial balance and also in an effort to assist victims to “share their story,” crime victims should be afforded an opportunity to speak to the Court regarding their experience, the impact of the crime, their fears and concerns, and/or their opinion regarding the various sentencing options. Often, allowing victims to speak at sentencing is referred to as providing a “Victim Impact Statement” which may be presented orally or in writing, and which details the various financial, physical, psychological and spiritual impacts of the crime on the victim and the victim’s family.

Additionally, victims should be allowed to speak to the Court regarding any proposed modification to the originally imposed sentence such as an early release from confinement or a request to be placed in a community corrections facility or program, and to speak to the Parole Board regarding any request to be placed on parole after serving a portion of a prison sentence.

The Office for Victims of Crime indicates:

Although states have not established one standard set of rights for victims, most bills of rights contain basic provisions for victims to be treated with dignity and compassion, to be informed of the status of their case, to be notified of hearings and trial dates, to be heard at sentencing and parole through victim impact statements, and to receive restitution from convicted offenders.ix

The rights afforded to accused and convicted individuals exist almost exclusively through amendments to the U.S. Constitution. The uniformity of these rights and enforceability of these rights exist only because they are incorporated into the federal constitution. Rights for victims will only achieve the same level of consistency and enforceability though similar federal amendments. Additionally, the inclusion of rights for victims in the U.S. Constitution is the only measure capable of elevating victim rights from being viewed as a mere secondary consideration to a provision which will merit primary consideration and compliance in a manner no less vigorous than the protection of the rights afforded to the accused.
____________________
i Walker, Steven. National Victim Assistance Academy Manual: ”Scope of Crime”. Office for Victims of Crime, Washington D.C., 1999. Page 1-1
iiIbid., pg.1-5
iiiGuralnik, David. B., Editor in Chief, Webster’s New World Dictionary. Simon and Schuster; Cleveland, Ohio, 1980. page 504
ivWalker, Steven. National Victim Assistance Academy Manual: ”Scope of Crime”. Office for Victims of Crime, Washington D.C., 1999. Page 1-11
vSeymour, Anne. National Victim Assistance Academy Manual: “Dynamics of the Criminal Justice System.” Washington D.C., 1999. Page 2.2-1
viIbid. Page 2.2-12
viiOffice for Victims of Crime, OVC Bulletin: New Directions, Victims Rights, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, 2 of 19
viiiCO. REV. STAT. s24-4.1-302 (2005).
ixOffice for Victims of Crime, OVC Bulletin: New Directions, Victims Rights, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime