Defendants, Victims and Witnesses

Characteristics of Defendants

Those accused of violating criminal law are diverse

• economically poor, prominent citizens, government officials

One end of the spectrum involves people who are arrested once and never involved again

The other end are a small group of career offenders

Career Criminals - Those people who commit a sequence of delinquent and criminal acts across the lifespan from childhood through adolescence into adulthood

• Violent offenders are more likely to have experienced abuse, neglect or violence in their family

• A parent being convicted is correlated with the likelihood of a child offending and being convicted

Can we predict someone being a career offender?

Majority of offenders are younger, male, members of a racial minority, from broken homes, less educated, more likely to be unemployed, and not married

Overwhelmingly Male

Women account for only 17% of felony arrests in the US 75 largest counties and 26.9% of all arrests for crimes

• increase in the past decade

  • are women actually committing more crimes, or is the criminal justice system changing

The gap between male and female offenders in violent crimes is decreasing

Mostly Underclass

Typical defendants do not have the skills to successfully compete in a technological society

• Sociologists call this “urban underclass”

The more poverty in a community, the higher the amount of crime

• The overwhelming amount of crime is committing for economic motives

  • Most of the crime is not violent, but instead drug or property offenses

Violent crime has competing theories

• Street code leads to a subculture with norms that are “conspicuously opposed to those of the mainstream society”

Racial Minorities Overrepresented

Race is a diverse issue in crime

• African-Americans, Hispanics, and Native Americans are arrested, convicted and imprisoned at higher rates than Whites

  • Historically, white people were the majority of the prison population

Why?

• They are more likely to be poor and therefore more likely to commit crimes for economic advancement

• Minorities are more likely to be targeted by criminal justice officials

• More likely to receive a harsh sentence

One in three people in the US is a member of a racial or ethnic minority, (Hispanics being the largest one)

Defendants in Court

Defendant - The person or party against whom a lawsuit or prosecution is brought

• Typically powerless when controlling their fate

• They are acted upon

Because most defendants are poor and uneducated, they are unequipped to deal with technical abstracts of criminal court

• are unable to understand right to bail or presumption of innocence

• Can’t help their lawyer in their defense

• Can hold unfavorable attitudes towards law and CJ system

Mental competence of criminal defendants is a concern for the courts

• Must be mentally competent to stand trial

• In Ake v Oklahoma (1985), the supreme court held that an indigent criminal defendant had the right to have the state provide a psychiatric evaluation

The Nature of a criminal court is a depressing place to work

• Drug addiction, marital problems, lack of education, mental illness

Court Personnel have little empathy with or understanding the types of defendants whose fates they must decide

Pro Se Defendants

More and more defendants act as Pro Se

Pro Se - Acting as one’s own attorney in court, representing oneself

• Way more prevalent in civil cases (family law) because of how expensive representative is

The “right” to self-representation is not explicitly mention in the 6th amendment, in Faretta v California, the SCOTUS determined that the right to make one’s own defense is necessary implied

Standby/Shadow Council - The lawyer appointed by a court to shadow a pro se defendant. The defendant may consult the lawyer while representing themself. The lawyer may also take over the case if the court revokes the defendant’s right to self-representation either because of emerging questions of mental incompetence or if the defendant is abusive, threatening, obstructionist, or the cause of repeated, unnecessary delays

Can be expensive, time consuming, and frustrating to the courts

They fare well in state courts

• Acquittal rate is equal to those represented by counsel

The Pitfalls of Social Media for Defendants

Defense attorneys could win more cases if their clients did not text, e-mail, tweet, or post online

• Photo tags, GPS, time logs

Defendants have the privilege against self-incrimination

• does not apply to statements made by defendants

  • Material is publicly posted on Social Media

  • Law Enforcement can try to “friend” the defendant online to get past privacy settings

  • law Enforcement can also use subpoenas, search warrants, court orders to get info

Social media communication provides strong evidence for prosecutors

Courts through the Eyes of Victims and Witnesses

Traditionally, Victims and witnesses are forgotten participants in the CJ system

• More attention given to the criminal

More studies have been done which identified ways in which the counts and the CJ system have ignored the interests of victims and witnesses

Frustrations in Coping with the Process

Before the American Revolution, Victims were central figures in the criminal justice system

When the primary victim was seen as society, the human victims were as subordinate

Victims lost control over their case

• role reduced to initiating investigations by talking to the police, testifying for the prosecution

Hardships can be:

• Trial delays

• Long waits in uncomfortable surroundings

• Wage loss for going to court

• Fear of defendant retaliation

• Sense that the CJ personnel are indifferent to their plight

Travails of Testifying

Lawyers must coach the witnesses and victims ahead of them testifying

• only answer the question asked, to speak forcefully, not be rattled by cross-examination

Defense attorneys test their memory, challenges their veracity, and can sometimes suggest that they are responsible for their own victimization

• Victims can feel as if they are the real criminal

Studies of rape victims and victims of intimate partner violence has found:

• Victims feel like they are the ones on trial

• Provokes anxiety for several months

• Trauma is significant

• The type of criminal defense used by the defense attorney can have an impact

  • “the victim wanted it”

Most states have passed legislation limiting inquiry into a rape victim’s past sexual conduct

Surprising Support for the System

Victims and Witnesses still expresses support for the court process

• A Milwaukee study found that victims/witnesses were satisfied or very satisfied with the handling of their case by the police, district attorney, and judge

Favorable judgements were independent of weather a victim was satisfied of the outcome of the case

The court has grown responsive to the needs of victims and witnesses

Increased levels of victim input into handling of criminal cases increases victim satisfaction with the judicial system

Victims and Witnesses through the Eyes of the Court

Criminal court confronts a double bind with regard to victims

• Victims are valued for the cases they bring to the system

• Individual victims are a potential source of irrationality in the process

Members of the Courtroom Work Group can see a victims demands for public justice mask a desire for private vengeance

Lack of Cooperation

Victims and Witnesses can be reluctant to be involved in the CJ process

• More than half of major crimes are never reported to police

• Not all victims want to prosecute

• Particularly in low income and high crime neighborhoods

Legal Cynicism is a cultural orientation in which law or justice system actors are viewed as illegitimate, unresponsive, and ill equipped to ensure public safety

• Giving police wrong address, failing to show up in court, offering testimony that is confused, contradicting facts

When a victim cooperates with prosecution, a case is more likely to be prosecuted

Not all uncooperative behavior can be blamed on Victims and Witnesses

• Some are never told to contact prosecution,

• Never notified of court appearances

• never informed of their rights and duties

• The longer a case is delayed, the more likely it is that a witness will not appear

Witness Intimidation

A form of noncooperation

Victims or witnesses may be pressured not to testify

• Threat or actual violence

Can be made by the defendant, their associates, or gang members

Social Media and Victims

Victims social media can be used by the defense to “blame” them

Characteristics of Victims

Victims are diverse

• rich v poor, young v old, men v women

Crime victims are more likely to be young, non-white, male, divorced/never married, low income, and unemployed

Overlap of victims and defendants creates problems for the courtroom work group

• Current victims could be past defendants

Prosecutors give the most resources to the cases they believe constitute the most “trouble”

• more resources means higher conviction rate

Prior Relationships Between Defendants and Victims

The most important victim characteristic is the prior relationship between the defendant and the victim

• More common than you might think

Frequent in cases of homicide and assault (duh)

• also common in cases of robbery

One study showed that half of violent crimes are committed by relatives, friends, or acquaintances of the victim

Officers can regard cases involving people who know each other as not serious, (private disputes, not offenses against the whole community)

Intimate-Partner Violence

Relationship between defendant and victim is most apparent in crimes involves intimate partners

Measuring this violence is difficult because it happens in private, and victims are reluctant to talk about it

Intimate partner violence has been declining, but still remains an issue in society

Intimate-Partner Violence and the Police

Historically, police would only make an arrest as a “last resort”

• Suspect into custody to make sure no more violence happens that night

The Justice system saw that “protecting families from interference outweighed the importance of protecting women from abuse”

In the 1970-80s this attitude changed

• came to be seen as a social problem

Advocacy groups worked for a policy change to the CJ system

• Jeffrey Fagan’s book “The criminalization of domestic violence” was instrumental

Police have told to make mandatory arrests, prosecutors to file charges

• no matter what the victim wants

• Are they effective in reducing intimate-partner violence? We don’t really know

  • Decreases in some cities, increases in others

Intimate-Partner Violence in the Courts

Arrests do not always lead to prosecution

• Victims call police to stop the violence but do not want to sign a complaint

Criminalization of intimate-partner violence has increased the workload of the courts

• case of domestic relation cases grew by 178%

Many courts in the US has created domestic violence courts that emphasize a problem-solving approach

• they had significantly lower re-arrests among defendants

Some courts rely on batterer programs as the mandate of choice

• Studies show that they do not reduce recidivism

Civil Protection Order - Court order requiring a person to stay away from another person

• Now easier to obtain

• Can be issued in an emergency without the abuser present

Civil protection orders can provide a false sense of security

• are not self-enforcing

Changes in the court system include:

1. better enforcement of laws against assault and battery

2. Changes to SA laws to encompass marital rape

3. Recognition of legal defenses for victims who fight back (self-defense laws)

4. Increased police professionalism

5. Increased availability of civil orders

6. improvement of victim services

Aiding Victims and Witnesses

Reformers have been trying to get victims and witnesses better treatment:

• 1931 - National Commission on Law Observance and Enforcement found that effective administration of public justice required willing witnesses, but it imposed burdens on the citizens

• 1938 - ABA found that the witnesses fees were low, and court housing was uncomfortable

• 1967 - Presidents commission on Law Enforcement and Administration of Justice “growing concern that the average citizen identifies himself less and less with the criminal process and its officials”

• 1982 - President’s Task Force on Victims of Crime stressed the need for balance between needs/rights of the victim and the defendant

The Victim and Witness Protection Act in 1982 required greater protection of victims and witnesses and mandated the fair treatment of victims/witnesses in federal court

There are lots of different programs to improve the treatment of crime victims in the CJ system

Victim/Witness Assistance Programs

Encourage cooperation in the conviction of criminals by reducing the inconvenience citizens face when appearing in court

• providing comfortable and secure waiting areas

• assisting with the return of stolen property

• Providing crisis intervention

• Provide a clear understanding of court process

• Protect against victim intimidation

All jurisdictions of any size have established programs aimed to help victims

• based in criminal justice agencies

• Few victims use these programs

Evaluations of these programs have mixed results

• A victims willingness to cooperate in the future is associated with considerate treatment by CJ personnel

• Those helped by the program appear at the same rate as those who were not helped

One explanation for this that that expectations of significant improvement in case outcomes were based on faulty assumptions

• victims see the case as unique

• Courtroom work group see them as routine

Victim Compensation Programs

the CJ system is offender focused (apprehension, prosecution, punishment, rehabilitation)

• does little to help victims recover

Civil Lawsuits are of little relevance

• criminal defendants have no money to pay monetary damages

A more common technique is when the court orders the defendant to pay the victim for loses suffered

One major shortcoming is when the no offender is convicted

• If they are convicted, defendants have no ability to pay compensation

When restitution is inadequate, compensation by a third party (insurance) is the only alternative

1984 congress passed the Victims of Crime act which established a crime victims fund

• All states have some legislation providing $$ to certain classes of crime victims

  • fewer than 100,000 claims are filed per year

• Medical bills, lost income

Results require careful scrutiny

• Findings are disappointed for administrators

• Few victims apply for benefits, few actually receive any money

• States require the victim assist in the prosecution of the offender

  • Alienates domestic violence, child abuse, SA victims

• Some states have a “family exclusion” clause

  • Victims who live with an offender are ineligible

• Victims must be “innocent”

• in 8 states, victims cannot have a felony conviction

Victim’s Bill of Rights

1982, the presidents task force on the victims of crime submitted 68 different recommendations at achieving a balance between the rights of the victim and of the offender.

• California voters approved of Proposition 8 by 2 - 1 margin. It added 12 provisions to the state constitution and the criminal code.

2008, California voters approved of proposition 9, which granted addition rights at the expense of the defendant

Victim’s bill of rights reflects the law and order movement

• stress substantive changes

  • Abolishing the exclusionary rule

  • Limiting bail

  • Restricting plea bargaining

  • Imposing stiffer sentences

Other’s rights are less logical

• Fair treatment of victims and witnesses through better information about court practices

• Victim participation and input through all stages of judicial process

• better protection of victims and witnesses from harassment, threats, intimidation, and harm

Placing the laws in state constitution would give them greater force/impact

• 2/3 of states have victim rights amendments to their state constitution

One concern (that victims are excluded from the judicial process) is false

• every criminal proceeding (besides grand jury) is open to the public

Victim Impact Statements

Victim Impact Statements - Written or oral statements communicating information about how a crime impacted the victim and the victims’ family

Incredibly emotional

Given in an attempt to sway the sentencing court to impose a harsher sentence

• pleas for leniency happen, but very rarely

defendant or defense counsel do not interrupt or rebut the statement

Constitutionality of Victim Impact Evidence

In Booth v Maryland and Carolina v Gathers, SCOTUS felt that victim impact statements were unconstitutional because they can create an unacceptable risk that a jury may impose a death penalty in an arbitrary manner

In Payne v Tennessee, the defense attorney called witnesses that said that Payne was a caring person but mentally disabled. The prosecutor called the victim’s grandmother, who cried when telling the jury that her grandson kept asking why “mom wasn’t going to come home”

SCOTUS held that the 8th amendment was not a per se bar to victim impact evidence during sentencing, even in death penalty cases

Victim Impact Evidence and Restorative Justice

National Victim Center support giving victims a voice in the process

Proponents contend that, by allowing victims to vent their feelings they are better able to go on with their life

Do victim impact statements help victims, or does speaking publicly in court prolong the grieving process

Research supports the conclusion that victim impact statements are beneficial for those making them and with the outcome of the case and CJ system

Effects of Victim Impact Statements on Sentences

In states that allow the death penalty, victim impact statements are allowed (with a few restrictions)

During the penalty phase in capital cases , the statements can have an emotional impact on the jury

• potential jurors who were shown of videotape of the penalty phase of a capital trial in which the emotional victim impact was presented created unfavorable views of the offender

• Leads to increased willingness to impose the death penalty

In non capital cases, the victim impact evidence does not dramatically increase the defendants sentences

• little impact overall

Aiding or Manipulating Victims?

Aiding victims is good politics

The Victim’s Rights Movement

Organizing crime victims is hard

• victims as a group have little in common

The victim advocacy groups are very powerful in politics

Law and order rhetoric of the 1960s, spoke about the harm the criminals do to victims

Victims rights movement involves people striking back to turn tragedy into action and reform

• Mothers Against Drunk Driving (MADD). The largest victim advocacy group

Groups vary from national, state, local with a wide variety of interests

Differing Goals

Reflect the mutual interests of a strange set of political bedfellows

• Disagreements over goals and priorities

One group, black members were excluded

Becoming polarized

• Concerns over secondary victimization and punishment of offenders

Do Victims Benefit?

Everyone agrees that victims and witnesses should be treated better during the court process.

• political rhetoric should not be used to obscure important issues

  • Victim legislation is more well received by politicians than welfare

How much aid is given out is unclear.

Programs don’t always work as intended.

They are important first steps

Not all agree that the programs benefit the victim

• can be viewed as assisting the CJ system and extending government control over victims

At whose expense should victims be compensated?

• victims rights deny privileges to suspects, defendants, and prisoners

• Due process vs crime control

When victims interact meaningfully with the CJ system, their satisfaction is increased