After A Crime Occurs
Being a victim of a crime can be a very difficult experience. Each person deals with being a victim in his or her own way. He or she may feel anger, guilt, shame, insecurity, fear, powerlessness, and depression. Victims do not have to live with all of these emotions alone. Many people can help them understand this experience and support them as they work through it.
In the United States and Oregon, citizens consider a person who is accused of a crime to be innocent until proven guilty. The public demands a fair process for a person accused of a crime, to lessen the chance that an innocent person might be punished for something he or she did not do. Citizens want to be sure that the government does not misuse its immense power to decide guilt or punishment.
The police officer, prosecutor, defense attorney, judge, jury and probation/parole officer all play important roles in the case. The victim may choose to participate at some points, but can also be called to testify as a witness.
When a crime occurs, usually the first person to respond to the scene is a law enforcement officer. The officer investigates the crime by gathering physical evidence, questioning witnesses, photographing or videotaping the scene, and collecting other information. If the police find evidence to show that a certain person committed the offense, they may arrest that person, or they may refer the case to the state, county, or city prosecutor.
Once someone reports a crime to the police the case can go forward even if the victim does not want it to. Sometimes victims or parents of victims change their mind about wanting to prosecute the offender. However, the prosecutor can take the case to trial anyway.
If the police question a person, that person should be honest about what he or she knows. Holding back information can hurt the investigation. Persons being questioned by the police should tell about any evidence that may help the investigation. If people later remember more information, they can call the police and add the information to their statements.
Police officers must be fair in their investigation and they must look at all possibilities. Often the police cannot give a victim much information until after they question or arrest a suspect. The police may keep some information about the crime private, to help them question a suspect who knows things about the crime that only the person who committed it could know.
Victims may want to know more information than the police or the prosecutor can give. The investigation of a crime can be very hard on victims and survivors. Sometimes police identify one or more suspects but do not have enough evidence to charge anyone. In other cases the police do not identify a suspect right away. Police keep case files for serious crimes open for a long time. Crimes sometimes are solved long after they happen. The police cannot stay in constant contact with a victim or family, but the victim or family can contact them regularly.
The police or prosecutor may have to hold some of a victim’s personal things for a time as evidence. The police agency or prosecutor handling the case will decide what they can release to the victim and when it can be released.
Before a person who is accused of a crime goes to trial, the court may hold several hearings. The number of hearings often depends on how serious the offense was, among other factors. These hearings can include:
First Appearance. A case officially starts when the prosecutor files charges against a person suspected of a crime. Suspects often are arrested, either before or after they are charged. A suspect who has been charged with a crime is called the “defendant.” Usually, the first time a defendant goes to court is for “arraignment.” At this time the judge tells the defendant what crime he or she is charged with. The court appoints a defense attorney to represent the defendant, if the defendant wants one and is considered indigent. The court also sets the amount of security the defendant must post to be released.
Security. The defendant has a right to security being set when charged with a crime, with the exception of murder charges. The judge can set conditions to assure that the defendant will appear for trial and will not commit other crimes. The constitution gives a victim the right to protection from the defendant and the right to speak at a release hearing. At the hearing, the judge decides how much money, if any, the defendant should put up as security. The judge also sets conditions of release to protect the victim and the public.
If the defendant cannot meet the release conditions, the defendant stays in jail. However, defendants can ask the judge to reduce the amount of security at any time until the end of the case. The victim has the right to be present and comment at any release hearing.
If someone posts security and then the defendant does not show up for a hearing, the government may keep the money. The defendant also may be arrested, put back in jail and charged with the additional crime if he or she violates the conditions of release.
Guilty or No Contest Plea. After the pretrial hearings, the case can go to trial. Many times a defendant will choose to plead guilty or no contest to a charge. When this happens there is no trial and witnesses do not testify. Instead, the prosecutor provides a statement of facts to the judge, and tells the judge about any agreements the prosecutor and the defendant made about the plea. A guilty plea or a no contest plea means that the defendant is convicted and sentenced for the criminal charge.
Trial. If a defendant pleads not guilty a trial is held, at which the judge or a jury decides if the defendant is guilty. Defendants have the right to have a jury hear their case, but they may choose to have a judge hear it instead. At the trial, the prosecution presents testimony and evidence first. Then the defense may present testimony and evidence for the defendant. If the defense presents evidence, the prosecutor may present additional evidence. The defendant never has to testify, but may do so if he or she chooses. After hearing the evidence, the judge or jury must decide if the defendant is guilty. If the jury cannot agree, the judge may order a new trial to be held in front of a different jury. If the judge or jury finds the defendant not guilty, this is called an acquittal. If the judge or jury convicts the defendant (finds the defendant guilty), the judge will sentence the defendant. The sentencing may happen immediately, but can also be set over for another time.
Timing. Oregon has rules to make sure that courts hold trials on time. Even so, the pretrial process may take six to twelve months, or even longer to finish. The attorneys and the judge cannot control all of the delays in the process. Delays probably will happen, and this can be difficult for the victim. Court dates often change.
The prosecutor is the attorney who represents the government. That means the prosecutor is the lawyer for the people of a community against a person charged with a crime. Prosecutors who work for the state or county are called district attorneys. A few cities hire prosecutors to enforce city ordinances. One or more prosecutors handle the case through the pretrial hearings, the trial and any appeal. If the case goes to trial, the prosecutor must prove “beyond a reasonable doubt” that the defendant committed the crime. Prosecutors try to do this by having witnesses testify and by presenting physical evidence.
Most cases do not go to trial, because the defendant pleads guilty or no contest. The prosecutor may agree to dismiss or reduce some charges, or to make a favorable recommendation to the judge at sentencing. This arrangement is called a plea agreement or plea bargain. In deciding whether to offer a plea agreement, a prosecutor looks at how strong the evidence is and what the sentence is likely to be. Victims have the right to speak with the prosecutor, but only the prosecutor can decide whether to offer a plea agreement. The prosecutor must consider society’s best interests, along with the interests of the victim or the victim’s survivors.
The prosecutor also can decide to dismiss all the charges against the defendant or choose not to file charges at all. Although the judge also can dismiss charges, it is unusual. If the judge dismisses charges because of an error that can be corrected, the prosecutor may file the charges again. The prosecutor may have many reasons for dismissing the charges. If the charges are dismissed or a defendant is acquitted, the victim may still file a civil case, in most instances. To do this, the victim needs to ask for legal advice from a lawyer other than the prosecutor.
The prosecutor or a victim advocate can give victims information about their case. They can help prepare for trial and sentencing, and they can give information about how to apply for crime victim compensation. The district attorney’s office has booklets on sexual assault, domestic violence, stalking, victims’ rights, and safety planning.
The United States and Oregon constitutions say that a defendant has the right to have an attorney. A defendant cannot be convicted or sentenced unless the defendant has an attorney, or does not want an attorney. If a person accused of a crime cannot afford to pay for an attorney, the government will provide one, for the trial and one appeal. The defense attorney works for the best interests of the defendant, not the interests of the prosecutor, the judge, society or victims.
Courts must follow rules of evidence, rules of procedure, and principles of constitutional law. An important job of the defense attorney is to make sure that the prosecutor and the judge follow the rules. The defense attorney does not need to prove that the defendant is innocent. Instead, the defense attorney makes sure that the defendant’s legal rights are not violated.
People sometimes feel that the defendant has more rights than the victim or than society. However, it is important that a competent and thorough defense attorney represent the defendant. A good defense attorney lessens the chance that the prosecutor or the judge will make a mistake at the trial, and therefore lessens the chance that the courts will overturn the conviction on appeal.
A defense attorney or a defense investigator may want to speak with the victim or others before the trial. No one has to talk with the defense unless the court orders the person to do so. The defense cannot tape record any interview without the witness’s permission. The victim or family may wish to talk with the prosecutor before talking to a defense attorney or defense investigator.
Judges do many things in the criminal justice system. Most important, the judge must make fair decisions. A judge cannot take sides in a criminal case; he or she must treat everyone fairly. The judge cannot have any personal contact with the victim or members of the victim’s family while the case is going on. The judge cannot meet with an attorney, victim, witness, defendant, juror or any other person involved in the case, unless the attorneys for both sides are present.
The judge decides what evidence to admit in the case, using the law, rules of evidence and rules of procedure. The judge also controls the timing of the case by setting deadlines and making the prosecution and defense meet the deadlines. Victims and their families often want the case to finish as soon as possible so that they can go on with their lives. However, many things can happen along the course of a criminal case to cause it to move slowly.
A jury is a group of citizens that the court randomly chooses from the community using a variety of citizen lists. Before choosing jurors in a criminal case, the judge or the attorneys ask potential jurors some questions. They want to find fair and impartial people to be on the jury. For example, a jury member should not have personal knowledge about the crime or be related to any person involved in the case. The jury (or the judge if the defendant has chosen to have the judge try the case) decides if the prosecution has proven the defendant guilty, based on the evidence presented in court. Jurors usually do not hear evidence about the character of the defendant or the victim, to make sure that they decide the case based on the current offense and not on feelings about a person’s past behavior or character. If the defendant argues that he or she acted in self-defense, then the judge or jury may hear more about the victim’s character. The courts have special rules for child abuse and domestic violence cases that allow the jury to hear evidence about past acts of child abuse or domestic violence by the defendant. Sometimes victims and others may feel frustrated about what facts the judge will and will not allow as evidence, but the judge must follow the court rules.
Victims may watch the trial, but cannot try to influence it in any way. Some of the evidence and testimony may be very painful, but if victims react to it, they could cause the trial to be stopped. Jury members may feel sympathy for victims, and a victim’s emotional display could affect their ability to decide the case fairly. Victims should be careful about talking about the case in hallways, elevators, restrooms, or even restaurants near the courthouse. Jurors could be there and they might hear the comments.
The Victim's Role as a Witness
Victims can play an important role in the trial as witnesses. If they receive a subpoena (an order from the court requiring them to testify) they should go where it tells them to at the proper time. The prosecutor may want to talk with them before the trial to find out what they know. Victims have the right to watch the trial and sentencing whether they are testifying or not.
Even if they do not want to testify, the prosecutor may continue to prosecute the case. This is because crimes are offenses against society as well as offenses against a victim. The prosecutor may subpoena victims to testify even if the victim is related to the defendant, and even if the victim does not want to testify.
People who testify should try to remember these ideas:
- Always tell the truth. Do not guess at answers or give an opinion unless the judge asks for it. If you don’t know the answer to a question, say you do not know.
- Think before speaking. Make sure you understand the question. Answer the question and then stop. Don’t memorize answers.
- Speak loudly enough for everyone in the courtroom to hear. Answer questions out loud so that the recording device picks them up. Don’t just nod your head.
- Try to stay calm. Do not become angry or argue, even if an attorney suggests something that you think is wrong or seems angry with you.
- Stop talking if an attorney objects or if the judge interrupts. Begin again when the judge tells you to continue. If you have forgotten the question, ask to hear it again.
- If an attorney asks if you have discussed the case with anyone, answer truthfully. It is okay to have talked with the police, prosecutor, defense investigator or attorney, family and friends.