Who Represents the Crime Victim in Criminal Court?

Until recently we were on our own during criminal proceedings.  Homicide survivors, rape victims and others peered up a steep learning curve without instruction.  Most of us have never even been inside a criminal court proceeding, let alone participated in a criminal case.

We’re usually unfamiliar with the legal vocabulary.  (What does “nolo contendre” mean?  How about “Alford Plea”?)

We’re usually unfamiliar with the structure of the setting.  (What’s the significance of the dividing gate at the front?  Where will the defendant enter?  Where should we sit?)

We’re usually unfamiliar with decorum.  (What can happen if we accidentally get into an elevator with a jury member?  Are cell phones allowed in the courtroom?)

We’re unfamiliar with job titles and duties.  (What does a “court clerk” do?  How about a “case administrator” ?)

Five Common Misconceptions About Court

Few of us listened well enough to high school civic lessons to remember the basic procedures of local, state, and federal governments.  Netflix sure hasn’t helped.  Just Call Saul, The Good Wife, and Law and Order play fast and loose with accuracy. Much of what we see is just plain drama.

First and foremost, most public members (including crime victims) believe that once the defendant is caught, charged, and brought to court (which is only half the time) a trial will follow. But that’s unlikely. Why? The defendant opts for a plea bargain 97% of the time! This makes everyone happy but us.  The D.A. gets a conviction.  The defense attorney has one less case on their caseload.  The court docket moves.  And the defendant is given a lighter sentence.  We’re left with unanswered questions. Our loved one’s death seems to have no real value.

A second big misconception is that the prosecuting attorney (or “D.A.”) is looking out for us.  Not true.  They’re prosecuting a case on behalf of the government.  Their sole focus is to get a conviction.  Period. They do not represent us.

A third assumption is that the judge will make sure we’re safe.  This is true to a point.  If blatant harassment or vicious behavior erupts, he or she will intervene.  But glaring glances, a line of gang member-supporters sitting behind the defendant, or what happens outside the courtroom is out of their hands.

Fourth, the media will behave.  Don’t count on it.  Even in court, they will go to great lengths to get a sound bite.  They may appear to be an impartial citizen sitting near you while all the while they are taking notes on your behavior and words. It can be shocking to see them in print later that day or the next.

And the last myth is that the end product of a trial is to prove innocence or guilt.  Not so.  The burden of proof is on the prosecution, not the defendant.  And the end result will be “guilty,” “not guilty” or a hung jury. Not guilty isn’t the same as innocent. Not guilty means the prosecutor failed to win their case, not that the defendant didn’t do the crime.

This is when we understand this is the “criminal” justice system, not the “victim” justice system.

But it didn’t start that way.

In an earlier century, it was the victim of a crime that brought the court’s attention to the alleged wrongdoing. The victim functioned as their attorney. But as the legal system matured and attorneys filled in for us, the crime was viewed as against the laws of government, not an individual. For that reason, it’s the government (state or federal) that must bear the burden of proof. That stays to this day.

The oldest formal murder trial on record in the United States is People vs. Levi Weeks.  It took place in New York City in 1800.

Over time, crime victims and their families were no longer needed in the courtroom. It wasn’t long before we were unwanted in the courtroom. That also stays to this day. Court officials fear we’ll detract from, or bias, the defendant’s presumption of innocence and disrupt the criminal justice system.  In fact, the American Civil Liberties Union (ACLU) actively argues against Marsy’s Law, our right to give our victim-impact statement, and sometimes to have a victim advocate.  (And many parole boards do not want us to attend either.  It’s their position we have little to offer because we can’t speak to the inmates’ behavior behind bars and we are not impartial. They also question our mental health, given the stress we’ve been under.)

But fear not.  Three sources of assistance are here and gaining momentum.

Victim Advocates

First, victim advocates work as part of a trial team within the prosecuting attorney’s office (D.A.).  Their role is to provide free information, support, and referral of resources to crime victims.  They are there to explain criminal proceedings, provide emotional support, and keep tabs on proceedings.

But that’s when it works as it should.  Not everyone has equal access. According to a study by the Victims of Crime Act (VOCA) too often victims of crimes from underserved backgrounds are left out of victim advocacy services.  (See chart below.) Another crack develops when someone is murdered in a different state than their family, a victim advocate may be unavailable in their home state.

A second limitation of victim advocates is that they are not attorneys.  They may not file motions, be privy to “sidebar” discussions with the judge, or challenge attorneys for violating our rights as a crime victim.

Crime Victim Representation

A second source of help is growing within the field of law. It’s a specialty known as “crime victim representation.”  Crime victim attorneys ensure that our rights are being honored in legal proceedings.  They help crime victims present evidence to law enforcement or prosecutors to bring criminal charges. They also advocate for victims in legal proceedings and attend hearings on our behalf with or without us in attendance. In other words, we hire them to represent our interests.

One such attorney is Rachel Robinson of Colorado.  She is a former prosecutor who now has a solo practice representing crime victims.  “I have the honor and privilege of solely focusing on victims’ rights and ensuring that their voices are heard throughout the criminal justice process.”  You might think of her as a “third scale” with the Lady of Justice.   https://www.therayofjustice.com/about

Testimony Persuasion Strategists

A third source of help is needed when we are called to the witness stand. It can be a harrowing experience.  There’s much room for error.  If we are too emotional, we can be discredited as being dramatic and biased.  If we are too stoic, we can be misread as indifferent and cold.  How do we get it right?  What do we need to do to get our testimony heard accurately?  Is it possible to lower our tension? What do we need to know about strategy?

Juliet Huck is at the forefront of this effort.  She refers to herself as “the bridge that connects law and real life.”  She has helped hundreds of crime victims get through the ordeal of testifying in court.  https://www.juliethuck.com/

It’s ironic, isn’t it?  Without a crime victim, there wouldn’t be a criminal case, yet we’re often pushed to the margins and gagged. We are starting to push back.  We have something to say. I have a feeling the tide is turning.

You must never be fearful

about what you are doing

when it is right.

—Rosa Parks

For more detailed information and for other resources, please refer to my book What Now? Navigating the Aftermath of Homicide and Suicide, available now on Amazon.

Click this Amazon link:   https://www.amazon.com/What-Now-Navigating-Aftermath-Homicide-ebook/dp/B0BXND9DQR

I’m Jan Canty. Psychologist, author, podcast host, speaker…  and homicide survivor.

I am passionate about finding ways to support and help other so-called “homicide or suicide survivors.”

No one should have to go through this kind of loss… but if you do, I want you to know… YOU ARE NOT ALONE! 

You aren’t crazy. It’s not your imagination! Society does not know how to comfort us. Fortunately, we know how to comfort one another.

Check out my books and get tools and resources to help you or someone you love!