Chapter 10

10 Defendants and Victims: Their Roles and Rights FOCUSING QUESTIONS ■ What are the general characteristics of felony defendants in American criminal courts? ■ What are the rights of criminal defendants facing processing by the American justice system? From where do those rights emanate? ■ What role do victims play in the courtroom and in the justice process as a whole? What rights do crime victims have under current law? INTRODUCTION Judges, prosecutors, and defense attorneys together represent the core of the typical criminal court. They make up the now-familiar courtroom workgroup, a fairly tight-knit three-member club whose job is to dispense justice in a fair yet expeditious manner. Their visibility, influence, and control over the liberties of others have brought them considerable attention; they receive no shortage of coverage in news stories, academic studies, movies, and television. Amidst all this attention, two other important figures in the court process sometimes take something of a backseat: the victim and the offender. An official government-run criminal process reminds people that crimes are offenses committed against the state and is intended to discourage people from taking justice into their own hands. But it would be wrong to suggest that crimes are only offenses committed against the state—real victims are affected by every criminal act. Their plight has been largely ignored over the years. They have enjoyed (suffered?) a secondary role, being mostly relegated to the sidelines to watch the process unfold before their eyes. Fortunately, several advances have been made in recent years to ensure that victims are no longer ignored. Then there are the offenders. If it was not for the criminal act followed by an arrest, the whole justice process would never be set in motion. In the last chapter, we introduced the defense attorney, whose job it is to represent the accused throughout the court process. In this chapter and the book’s next section, we look at the protections afforded to defendants during the court process. Some people view the criminal defendant as being “along for the ride” once the trial commences. Their fate is most often put into the hands of a defense attorney who must convince a judge or jury that the accused did not commit the crime and who speaks for the defendant during the trial process. To say that defendants sit on the sidelines or take on an obscure role in the criminal process is not totally accurate. Some of them commit heinous crimes and thus receive no shortage of press coverage, and celebrities accused of crimes also garner plenty of publicity. But these are not typical offenders. Most criminal defendants are relatively unknown persons accused of committing garden-variety offenses, so their “dirty laundry” is not of interest to most people, and the crimes they commit rarely receive any press attention. The typical defendant is, in many respects, a “nobody.” DEFENDANTS AND THE COURTS Defendant Characteristics Who is the typical defendant? The Federal Bureau of Investigation (FBI) collects data on the characteristics of arrestees, but arrestees are not offenders per se, only suspects, and the Bureau of Justice Statistics (BJS) collects data on felony defendants, but only those tried in the largest U.S. counties. More data are available on sentenced offenders, but we will look at such information in Chapter 15 when we consider the subjects of discrimination and differential treatment. See Table 10–1 for more information on defendants’ characteristics. Lecture Note Review the statistics that this chapter presents on ethnicity and crime. Highlight the fact that blacks make up just over 12 percent of the U.S. population, yet they account for 43 percent of felony defendants in the nation’s most populated counties. Ask the class how they can account for this disparity. The overwhelming majority of crimes are committed by males. Males are arrested at rates much higher than females, and male defendants far outnumber female defendants. This is especially true of murder, rape, and weapons offenses, as can be seen in Table 10–1. There is much more equality across the sexes for the crimes of fraud and forgery. A problem with Table 10–1 is that it contains only index crimes and other traditional criminal offenses. We can learn much more by turning our attention to some other offenses not listed in the table. Two violent crimes committed more frequently by women than men (and not shown in Table 10–1) are child abuse and infanticide.1 Why? One answer is that women historically have had more child-care responsibilities than men. Discussion Question What are the characteristics of the typical criminal defendant? Do the data tell the truth about who criminals really are? Why or why not? TABLE 10–1 Characteristics of Felony Defendants in the 75 Largest U.S. Counties, 2004 Discussion Question Do criminal defendants enjoy sufficient rights? Why or why not? In terms of race, there are more black than white defendants for all offenses. Offenses involving more white than black defendants include motor vehicle theft, and driving-related offenses; on the other hand, there are more black defendants than white defendants for crimes of violence. The data in Table 10–1 tell only part of the story. It is also important to consider the percentage of each race in the general population. According to U.S. Census figures,2 blacks made up just over 12 percent of the population in 2006, yet they accounted for 43 percent of felony defendants in the most populous counties (as shown in Table 10–1). In contrast, whites made up 31 percent of the defendants but made up approximately 75 percent of the population. We look at racial discrepancies such as these more closely in Chapter 15. Table 10–1 also looks at the age distribution of felony defendants. We are often given the impression that crime is committed almost exclusively by young minority males. While it is true that crime is largely a young person’s game, whether one group is represented more than the next depends on the offense in question. Return again to Table 10–1. On the whole, most offenses are committed by people older than 40, yet specific crimes like robbery are committed mostly by young people. Library Extra 10–1 Felony Defendants in Large Urban Counties, 2004 DEFENDANTS DURING THE COURT PROCESS All throughout the court process, the accused enjoys a host of different protections from overreaching police, biased judges, and overzealous prosecutors. First, criminal defendants enjoy the right to counsel, whether they can afford it or not (see Chapter 9). Because our justice system is also concerned with giving those charged with a crime a fair shake and a reasonable opportunity to defend themselves against the allegations others make, there are two more rights defendants enjoy: confrontation and compulsory process. Media Investigate: Rights at Trial Right to Counsel Three constitutional provisions govern the defendant’s right to counsel. While the Sixth Amendment is the only part of the Constitution that explicitly references a right to counsel, the Supreme Court has over the years recognized that the right to counsel also extends beyond the Sixth Amendment to both the Fifth and Fourteenth Amendments. Library Extra 10–2 Criminal Justice Handbook for Defendants Sixth Amendment and the Right to Counsel The Sixth Amendment to the U.S. Constitution states, in part, that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” In the 1938 case of Johnson v. Zerbst,3 the Supreme Court first recognized the Sixth Amendment right to counsel in federal prosecutions. It said the Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself.”4 This decision applied only to federal courts, a restriction that was echoed in the 1942 case of Betts v. Brady, where the Court said, “The Due Process Clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment.”5 Recall from Chapter 1 that the Bill of Rights (the first ten amendments) applies only to the federal government. The Supreme Court has over the years used the Fourteenth Amendment’s due process clause to make some of the protections laid out in the Bill of Rights applicable to the states, but the Betts decision did not do this for the right to counsel. That all changed in a 1963 case: Gideon v. Wainwright.6 Lecture Note Discuss those U.S. Supreme Court cases that have established a criminal defendant’s right to be represented by legal counsel. Review the amendments in the U.S. Constitution from which those cases derive their authority. Gideon held that the Sixth Amendment right to counsel is so fundamental to a fair trial that due process requires that every state, as well as the federal government, honor this important part of the Sixth Amendment. The Court said that “lawyers in criminal courts are necessities, not luxuries.”7 Ironically, while the Court concluded that the Sixth Amendment right to counsel is critical, it limited its application to felony cases only. A few years later, in Argersinger v. Hamlin,8 the Court extended the right to counsel to misdemeanor cases: “The requirement of counsel may well be necessary for a fair trial even in petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.”9 The current Sixth Amendment interpretation is that whenever there is a risk of confinement, whether currently or at some point down the line, the right to counsel attaches.10 LASTING IMPACT Gideon v. Wainwright (1963) In 1961, Clarence Earl Gideon was accused of breaking into and entering the Bay Harbor Poolroom in Panama City, Florida. When brought to trial, Gideon, a penniless drifter too poor to hire a lawyer, asked that the state appoint counsel for him. His request was denied based on the precedent set by the 1942 U.S. Supreme Court ruling in the case of Betts v. Brady, which said that the right to a lawyer is not essential to a fair trial. Gideon was forced to defend himself. One example of damaging testimony came from the taxi driver who picked up Gideon at the pool hall. He quoted Gideon as saying, “Don’t tell anyone you picked me up.” Gideon, acting in his own defense, did not challenge this statement during the first trial. He was found guilty and sentenced to five years in prison. From prison, Gideon filed a handwritten petition, in forma pauperis, to the U.S. Supreme Court. His “Petition for a Writ of Certiorari to the Supreme Court State of Florida” asked the U.S. Supreme Court to hear his case and overrule his conviction on the basis that he was denied a fair trial because he did not have the assistance of counsel at his trial. In 1963, the Court agreed to hear Gideon’s case and ruled that a state must provide legal counsel to anyone charged with a felony who cannot afford a lawyer. The Court found that the Sixth Amendment’s guarantee of counsel is a fundamental right, essential to a fair trial. Gideon was retried and acquitted. His lawyer in the second trial asked the taxi driver—who had given damaging testimony during the first trial—if Gideon had ever asked him before to deny that the driver had picked him up. The taxi driver responded that Gideon said this every time the driver picked him up and suggested that it was because of a problem with his wife.1 The Court’s landmark ruling in Gideon v. Wainwright (1963) has been described as the cause of “the single biggest change in the history of the U.S. criminal justice system.”2 Indeed, former U.S. Attorney General Robert F. Kennedy once said of the case: “If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”3 The effect of Gideon has been profound. An eighth-grade dropout, Gideon crafted a plain and simple message that brought to the attention of the nation’s highest court an egregious shortcoming in the criminal justice system: Poor and indigent people were not being treated equally under the law because of their inability to obtain legal counsel. The resulting decision ensures that all criminal defendants now have access to counsel, a measure that has certainly prevented uncountable miscarriages of justice such as that which Gideon himself experienced. The remarkable story of Gideon’s successful challenge of the legal system was told in Anthony Lewis’s 1964 book Gideon’s Trumpet and made into a popular 1980 movie of the same title, directed by Robert E. Collins and starring Henry Fonda as Gideon. And what of Clarence Gideon? Following his release in 1963, he resumed his simple life as a laborer and sometime electrician in Florida. On January 18, 1972, at age 61, he died in Fort Lauderdale. His remains were returned to his native Hannibal, Missouri, and interred in an unmarked grave; later, a granite headstone was added to mark the site. Notes 1 National Association of Criminal Defense Lawyers, Lesson Plan, Gideon at 40: Understanding the Right to Counsel (National Association of Criminal Defense Lawyers: December 2002), pp. 1–2. Available at (accessed July 23, 2009). 2 Ibid., p. 1. 3 Clarence Earl Gideon, Wikipedia. Available at (accessed July 24, 2009). DISCUSSION QUESTIONS 1. This box says that “Gideon v. Wainwright (1963) has been described as the cause of ‘the single biggest change in the history of the U.S. criminal justice system.’” What change was that? 2. Which constitutional amendment provides the central focus in Gideon v. Wainwright? What does that amendment guarantee? Fifth Amendment and Self-Incrimination How does the Fifth Amendment’s provision that no person “shall be compelled in any criminal case to be a witness against himself” relate to the right to counsel? The Supreme Court held in the influential case of Miranda v. Arizona11 that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”12 Media Review: Interrogations and Confessions Miranda applies only during police–citizen encounters that amount to custodial interrogation. Usually this means a person is arrested and then questioned about his or her suspected involvement in a crime, but custody also occurs when a person is “deprived of liberty in any significant way.”13 Interrogation can include the usual questions an officer may ask a criminal suspect, but it can also include actions that amount to the “functional equivalent of a question,” including “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”14 If the police place a bundle of confiscated cash in front of a suspect in order to get a response, this could amount to the functional equivalent of a question. Miranda requires that police officers make an affirmative and active effort to inform someone of his or her Fifth Amendment rights; they cannot assume that the suspect is aware of his or her constitutional rights. The warnings contain four parts that are now familiar to most Americans: 1. You have the right to remain silent. 2. Anything you say can and will be used against you in court. 3. You have the right to talk with an attorney and to have an attorney present before and during any questioning. 4. If you cannot afford an attorney, one will be appointed free of charge to represent you before and during any questioning. One of three things can occur after the warning is read: 1. The suspect refuses to talk, in which case police questioning must stop. 2. The suspect agrees to talk without the assistance of counsel. 3. The suspect agrees to talk and expresses a desire to have counsel present. Fourteenth Amendment and Due Process In the 1932 case of Powell v. Alabama,15 the Supreme Court reversed the convictions of several poor defendants who were not represented by counsel at their trial. The Court argued, in part, that the defendants’ due process rights were violated, not the Sixth Amendment’s right to counsel provision. It said that the defendants were “denied due process of law and the equal protection of the laws in contravention of the Fourteenth Amendment.”16 While a critical milestone in itself, the Powell case only applied to “capital case[s], where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like.”17 Because of this limitation, the Supreme Court was forced to return to this issue in a series of cases that relied on the Sixth Amendment. Discussion Question What does “effective assistance” mean? What are some specific examples of ineffective assistance? Effective Assistance of Counsel Over the years, the Supreme Court has paid increasing attention to effective assistance of counsel. In general, defense representation must be effective for the Sixth Amendment to be satisfied. The Sixth Amendment does not explicitly state that effective assistance of counsel is required, but the Supreme Court has interpreted it this way. However, the right to effective assistance only applies where the right to counsel applies. For example, the Supreme Court has held that a defense attorney’s failure to file a timely discretionary appeal was not “ineffective” because the right to counsel does not extend to such appeals.18 Only where counsel is required can an ineffective assistance claim be made. Ineffective assistance claims can be filed against both retained and appointed counsel. For a time the Supreme Court held that nonindigent defendants who retained their own attorney were bound by that attorney’s representation (for better or worse) because there was no “state action” responsible for the ineffective representation. However, in Cuyler v. Sullivan,19 the Court held that privately retained counsel can be ineffective in the same way a public defender can.20 When Is Counsel Effective? What is effective assistance of counsel? The Supreme Court first tried to answer this question in the 1970 case of McMann v. Richardson.21 There, it held that counsel is effective when the legal advice is “within the range of competence demanded of attorneys in criminal cases.”22 This standard was somewhat vague, so the Court offered clarification in Strickland v. Washington.23 In that case, the Court created a two-pronged test for determining effective assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.24 These two prongs have come to be known as the “performance prong” and the “prejudice prong.” Concerning performance, “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”25 What are these “norms”? We discuss them further in the “Effective Assistance of Counsel” section that appears in this chapter, but some of the key elements of effective performance include: ■ Avoiding conflicts of interest ■ Advocating for the defendant ■ Bringing to bear “such skill and knowledge as will render the trial a reliable adversarial testing process”26 ■ “[Making] reasonable investigations or … [making] a reasonable decision that makes particular investigations unnecessary”27 As for the prejudice prong of Strickland, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”28 In other words, it is not enough for counsel to be ineffective; if the defendant is to succeed in an argument that his or her Sixth Amendment right to counsel was violated, the defendant must prove that the attorney’s ineffectiveness prejudiced the case. This means that little mistakes probably won’t matter, but gross incompetence probably does. Library Extra 10–3 Defendants in Cases Concluded in U.S. District Court Library Extra 10–4 Felony Defendants in Large Urban Counties, 1992: National Pretrial When Is Counsel Ineffective? The Strickland performance and prejudice prongs explain somewhat abstractly what could lead counsel to be ineffective. A look at some specific situations will make them clearer. In Bell v. Cone,29 the Supreme Court held that a defense attorney’s failure to present any mitigating evidence (factors that may be considered as being extenuating or reducing the defendant’s moral culpability) or to make a closing statement at the defendant’s capital sentencing hearing did not amount to ineffective assistance. Among the reasons for the Court’s decision was that the mitigating evidence that was not presented during the sentencing hearing was presented at trial, so the jury did have at least one occasion to review it. In Rompilla v. Beard,30 the Court declared that defense counsel is required to make reasonable efforts to obtain and review material that it knows the prosecution will probably rely on as part of its case, something the defense attorney did not do. Contrast Beard with the Court’s decision in Florida v. Nixon.31 There, the defense attorney acknowledged—in open court—his client’s guilt and instead focused his defense on reasons why the defendant’s life should be spared; however, the evidence was so clearly indicative of the defendant’s guilt that the Supreme Court did not feel the defense attorney’s strategy was ineffective. There are countless other means by which counsel can be considered ineffective; attorney errors can come in several varieties. Generally, though, the defendant must point to a specific error or set of errors, not the overall performance of his or her counsel. If defense counsel makes a specific error and can offer no explanation for the error, then the defendant will have a good chance in succeeding with a claim of ineffective assistance of counsel, a chance that hinges on the second prong announced in Strickland. Pro Se Defense Though the Sixth Amendment provides for the right to counsel, accused individuals sometimes prefer to represent themselves. Indeed, according to the Supreme Court, criminal defendants have a constitutional right to represent themselves at trial32; this is known as a pro se defense. pro se defense The act of representing one’s self at trial. Not every defendant who wishes to proceed without counsel is allowed to do so, however. In Johnson v. Zerbst,33 the Supreme Court stated that a defendant may only waive counsel if the waiver is “competent and intelligent.” The Court went on to say that “the record must show, or there must be an allegation and evidence must show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.”34 What constitutes “intelligently and understandingly” waiving the right to counsel is not always clear. In Massey v. Moore,35 the Court offered clarification by stating, “One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.”36 But in Godinez v. Moran,37 a case decided some years later, the Court held that a person who is competent to stand trial is also competent to waive counsel both at trial and for pleading purposes.38 Class Activity Have students take on the role of a defendant in a famous criminal case (e.g., O. J. Simpson, the Craigslist Killer), and have them prepare a pro se defense. Have the class decide on their guilt or innocence. In certain circumstances permitting waiver of counsel, the court can require that standby counsel be available to the defendant. Standby counsel is simply an attorney who is “standing by” in order to assist the accused when necessary. This was the decision reached in McKaskle v. Wiggins,39 where the Court held that judges can appoint standby counsel “to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals.”40 standby counsel An attorney who is “standing by” to assist an accused individual when necessary when the accused has elected to waive his or her right to counsel. Counsel of the Defendant’s Choice? Clearly, defendants who are not indigent can hire counsel of their choosing; unfortunately, indigent defendants do not have such a choice. The Sixth Amendment right to counsel does not guarantee the indigent defendant permission to choose counsel—counsel will be provided. Usually counsel will be a public defender, but if an indigent can show good cause that the attorney appointed to represent him is not doing so adequately, another attorney can be appointed. What constitutes inadequate representation was discussed above. Surprisingly, there are situations where defendants, if they can afford representation, cannot hire counsel of their choice. If, for example, the defendant’s choice of an attorney poses serious conflict-of-interest problems, the defendant may be forced to hire another attorney.41 If the defendant’s attorney is not qualified to practice law, then another attorney may also be required.42 Somewhat controversially, if a defendant’s assets are frozen pursuant to a civil forfeiture statute and he or she cannot afford counsel of his or her choosing, then a less expensive attorney may be required or a public defender appointed.43 An issue related to counsel of one’s choice is whether indigent defendants can retain expert witnesses of their own choosing. In Ake v. Oklahoma,44 the Supreme Court held that an indigent defendant enjoys a constitutional right to an expert witness when the defendant’s sanity is at issue; however, the Court limited its holding to provide for one and only one expert, one who is state-employed. Experts in other fields besides psychiatry are generally not provided to indigent defendants. At some point it becomes necessary to assume that the state’s experts (e.g., ballistics experts) present objective and accurate testimony that is not prejudicial to the accused. Right to Confrontation The Sixth Amendment’s provision that accused persons enjoy the right to be “confronted with the witnesses against him” is manifested in three ways. The first method is by allowing the defendant to appear at his or her own trial. In Illinois v. Allen, the Supreme Court stated, “One of the most basic of rights guaranteed by the confrontation clause is the accused’s right to be present in the courtroom at every stage of his trial.”45 The other two means by which confrontation is manifested include requiring live testimony of witnesses before the defendant and permitting the accused to challenge any witness’s statements in open court. Each of these methods of confrontation are considered below. Discussion Question What are the elements of confrontation? Why is confrontation important? Can there be a downside to confrontation? Defendant’s Right to Be Present The defendant would be seriously hampered in his or her ability to confront adverse witnesses if he or she was not allowed to attend the trial. But allowing the defendant to be physically present in the courtroom may not be enough to satisfy the Sixth Amendment’s confrontation clause. In particular, if the accused is not competent and is unable to understand what is taking place so as to challenge the opposition, the Sixth Amendment may be violated. This means, then, that the defendant has two rights—to be physically present and to be mentally competent: 1. Physical presence. Even though the Illinois v. Allen case suggests that the accused enjoys an unqualified right to be present, nothing could be further from the truth. In cases decided after Allen, the Court has placed significant restrictions on when the defendant is permitted to be physically present. The Court’s decisions indicate that (1) the accused can only be present during “critical” proceedings46 and that (2) the defendant’s physical presence can be voluntarily waived or forfeited (i.e., given up) by failing to appear or by acting improperly.47 2. Mental competence. The Supreme Court has held not only that defendants enjoy the right to be present at their own trials (assuming the right is not waived or forfeited, as discussed above) but also that they must be mentally competent. In other words, the conviction of an incompetent person is unconstitutional.48 Due process (and by implication, the right to confrontation) is violated when a defendant cannot understand what is happening to him or her in a criminal trial. The question of whether a defendant is mentally competent to stand trial is answered by a test announced by the Supreme Court in Dusky v. United States.49 The test is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”50 The burden of proving incompetence falls on the defendant.51 It is important to understand that this test for competency is different from the insanity defense often discussed in criminal law texts. Competency to stand trial—the type of competency considered here—deals with the defendant’s ability to understand what is happening at trial (as well as at pretrial hearings, etc.). The insanity defense deals with the defendant’s competence at the time of the crime. The competency to stand trial issue is narrowly concerned with the defendant’s ability both to understand what is happening and to communicate with counsel. The defendant’s competency is usually considered in a separate pretrial hearing. This was the rule announced in Pate v. Robinson,52 a case dealing with an Illinois trial judge’s decision not to hold a hearing on the question of Robinson’s mental condition even though he had a long history of mental problems. Defendant’s Right to Hear Live Testimony The Sixth Amendment’s mention of confrontation includes, according to the Supreme Court, the defendant’s right to live testimony. This means the defendant enjoys the right to have witnesses physically appear in the courtroom to give their testimony. Yet this right is also qualified. Over 100 years ago, the Supreme Court stated, in Mattox v. United States,53 that the defendant’s right to live testimony is “subject to exceptions, recognized long before the adoption of the Constitution.”54 Consider this example: If a witness is unavailable because he or she is dead, then an exception to the defendant’s right to live testimony will be made; similar exceptions are made where witnesses are unavailable for other reasons, such as being in the hospital. live testimony A defendant’s constitutional entitlement to have witnesses physically appear in the courtroom to give their testimony. Death and unavailability are considered exceptions to the defendant’s right to live testimony. In either situation, the witness’s statements are introduced by a third party, which is known as hearsay. Hearsay is testimony about what a declarant who is not in court has said and is often introduced by someone who hears and then says (hence the term hearsay) what the declarant said. hearsay Anything that is not based on the personal knowledge of a witness. declarant One who makes a statement or declaration. Hearsay is generally not admissible in criminal trials. It is regarded skeptically because if the declarant is not available to be confronted by the defense, then there is no opportunity to question the truthfulness of the declarant’s statements. The possibility also exists that the person communicating the declarant’s statements may have misunderstood the declarant’s intentions or forgot all of what was said out of court. Even so, there are several exceptions to the so-called hearsay rule (the rule that all hearsay is inadmissible), which permit out-of-court statements made by declarants to be admitted at trial. On the surface, these exceptions seem to violate the defendant’s right to live testimony, but the Supreme Court nevertheless permits hearsay in limited circumstances. The reader is encouraged to consult an evidence textbook for a full review of specific exceptions to the hearsay rule. The following cases consider only two such exceptions. hearsay rule The long-standing rule that hearsay is inadmissible as testimonial evidence in a court of law. One pertinent case is White v. Illinois,55 which dealt with the admissibility at the defendant’s trial of out-of-court statements made by a four-year-old girl. The prosecution argued that the statements should be admissible because of the “making a spontaneous declaration” and “seeking medical treatment” exceptions to the hearsay rule (the former admits statements that someone makes in the “heat of the moment,” and the latter admits statements that are made while an individual is seeking medical treatment from a doctor). The Court held that the confrontation clause was not violated in this instance.56 In the second case, the Court decided on the admissibility of out-of-court statements from a co-conspirator.57 The Court admitted the statements, claiming that they “derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence.”58 The Court thought that the out-of-court statements of one co-conspirator to another during a conspiracy should be admitted at trial because it would be difficult to replicate the conversation in a courtroom. Numerous other hearsay exceptions exist (see Box 10–1). Even if a relevant exception does not exist, a court may still admit the hearsay. Generally, if other “indicia of reliability” exist such that the accuracy and truthfulness of a hearsay statement can be judged, then it may be admissible.59 These indicia must, according to the Court, be “particularized guarantees of trustworthiness.”60 Lecture Note Explain what a defendant’s right to live testimony means. Explain also how the right to live testimony is qualified and subject to exceptions. Defendant’s Right to Challenge Witness Testimony Part of the defendant’s right to confrontation is the ability to challenge witnesses in the courtroom. The defendant’s ability to challenge witnesses is manifested when the witness physically appears in court before the defendant. This type of confrontation permits questioning by the defense and is intended to ensure that the defendant receives a fair shake. BOX 10–1 Common Hearsay Exceptions ● Present sense impression. A statement describing or explaining an event or condition made while the declarant [person making the statement] was perceiving the event or condition, or immediately thereafter. ● Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. ● Existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. ● Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. ● Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. ● Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Source: Federal Rules of Evidence. Available at Also, the Court has held that the defendant can be limited in terms of the confrontation— usually accomplished through questioning, specifically cross-examination—that he or she can engage in; this cross-examination is conducted by a party other than the party who called the witness. As an example of cross-examination, the state may call a witness in a criminal trial, and once direct examination concludes, the defense has an opportunity to cross-examine the state’s witness (see Chapter 13 for more information). cross-examination The questioning of a witness at trial by the opposing counsel. Whereas the scope of questioning in a direct examination is broad, the scope of questioning on cross-examination is restricted (that is, it is limited to matters covered on direct examination), and inquiries into the credibility of the witness are also permissible; together, these two restrictions constitute the scope of direct rule. This rule helps ensure that the opposing party (the party conducting the cross-examination, or the defense in our example) cannot use cross-examination of the witness to direct the jury’s attention to other issues not raised by the party calling the witness. direct examination The questioning of a witness by the attorney for the side (prosecution or defense) that originally scheduled that witness to testify. As a general rule, the questions on direct examination must be specific but not leading. scope of direct rule A rule that restricts the questions that may be asked on cross-examination to only those matters addressed on direct examination or to inquiries into the credibility of the witness. The Supreme Court has had considerably more to say with respect to the defendant’s right to challenge witness testimony. It has also addressed cases involving the two issues of whether witnesses must appear in person and whether court-imposed restrictions on the defendant’s ability to challenge witness testimony can be sanctioned: 1. Must witnesses appear in person? The Supreme Court has identified at least one situation where the defendant’s right to challenge witness testimony is not compromised by the absence of a witness. In Coy v. Iowa,61 the Supreme Court considered the constitutionality of a state law that permitted the placement of a large opaque screen between the defendant and two young girls who testified that he sexually assaulted them. It declared that the statute was unconstitutional because “the confrontation clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.”62 In another case, Maryland v. Craig,63 the Court considered whether a statute permitting a witness’s testimony via closed-circuit television was constitutional. The statute provided for such a procedure when the judge determines that face-to-face testimony “will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” The Court upheld the procedure, claiming that it did not violate the confrontation clause. It stated that a “central concern” of the confrontation clause “is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”64 Further, it held that the statute in question did “not impinge upon the truth-seeking or symbolic purposes of the confrontation clause.”65 2. Are court-imposed restrictions on cross-examination acceptable? The Supreme Court has more than once considered the constitutionality of state- or court-imposed restrictions on the defendant’s right to cross-examine. In Smith v. Illinois,66 the Court considered whether the prosecution can conceal the identity of a witness who is a police informant. The Court held that the witness’s identity must be revealed because such information “opens countless avenues of incourt examination and out-of-court investigation.”67 In another case, Davis v. Alaska,68 the Court considered whether the identity of juveniles who testify at criminal trials can be disguised. There, the state’s lead witness in the defendant’s burglary trial was a juvenile witness. The Court held that the juvenile’s identity should have been revealed because “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.”69 In summary, the defense is given wide latitude in terms of its authority to cross-examine. Courts and states cannot conceal the identity of witnesses testifying against the defense, nor can they bar cross-examination simply because the defense is calling the witness it wishes to cross-examine. Finally, the defendant’s right to cross-examine rarely is violated if the prosecution fails to produce documentation of a witness’s out-of-court statements where they are not at all exculpatory. “Dark Side” of Confrontation Guaranteeing defendants the right to be present at trial could be prejudicial or harmful. First, if the defendant is present but refuses to take the stand and testify, as is guaranteed by the Fifth Amendment, the jury may conclude that the defendant has something to hide. The Supreme Court has been so concerned with this possibility that it has prohibited the prosecution from calling attention to the defendant’s refusal to testify70; it even required judges to advise jury members that no adverse inferences can be drawn from the defendant’s refusal to testify.71 The defendant’s presence may also be prejudicial because by virtue of being in the courtroom, the defendant may remind jurors about the crime. It is often thought, in fact, that a defendant who is dressed in prison attire is not viewed the same, in the eyes of a jury, as someone who is dressed in street clothes. An illustrative case concerning this matter is Estelle v. Williams.72 In that case, the Supreme Court held that a state may not compel the defendant to wear jail attire in the courtroom and concluded that a “constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.”73 COURTS IN THE NEWS Mental Incompetency Rulings: A Growing Problem for U.S. Courts Andrea Yates (center) leaves the Harris County (Texas) Criminal Justice Center. Yates admitted drowning her five children in a bathtub in 2001, and was initially convicted of the killings. She was found not guilty by reason of insanity at a second trial, however, and is now in a mental facility. David J. Phillip/AP Wide World Photos A pressing issue facing America’s courts today is that a growing number of defendants are being declared mentally incompetent to stand trial. The U.S. Supreme Court defined competency to stand trial as “a sufficient present ability to consult with one’s attorney with a reasonable degree of rational understanding, and … a rational as well as factual understanding of the legal proceedings against him.”1 Data from 10 of the 12 largest U.S. states show significant increases in incompetency declarations, with some states reporting as much as a 100 percent rise in the past five years.2 The economic impact of these increases is enormous. In Florida alone, for example, the current annual bill for treatment aimed at restoring defendants’ mental fitness is about $250 million, and state officials expect that cost to double in the next seven years.3 These massive costs are just one problem related to this issue, however. The sheer numbers of claimants place a tremendous burden on already limited public mental health resources. California’s Department of Mental Health, for example, reports that occupancy of its 5,000 mental hospital beds has increased from 500 more than a decade ago to 4,500 now. Officials attribute the 900 percent increase to demands placed on the system by the requirement to provide beds for accused and convicted offenders.4 It is also becoming increasingly difficult to plan for the provision of mental health services to defendants. Fluctuations in the inclination of judges to invoke the services, coupled with changes in the laws relating to legal mental competency, create an environment of uncertainty. In a recent 7–2 decision, for example, the U.S. Supreme Court decision ruled that “a defendant can be held to be competent to stand trial but held incompetent to represent himself.”5 George Washington University Law School Professor Jonathan Turley calls the decision “an invitation for judges to make their lives easier by preventing self-representation.”6 There is an air of certainty, however, about future funding of the increased mental health needs associated with findings of mental incompetency among criminal defendants. In an era of austere (even shrinking) public budgets, officials will be forced to scramble for every economic advantage to meet these growing demands. Courts and criminal justice officials, meanwhile, face the difficult problem of resolving what to do with defendants found to be mentally incompetent to stand trial. In most jurisdictions, such a finding mandates that the defendants be held in an appropriate mental health facility and provided treatment in an attempt to restore their competency. But they cannot simply be held indefinitely. Thus, if a defendant is unresponsive to treatment, he or she will ultimately be released from the treatment facility without ever having to stand before the bar to answer for the crime(s) that led to his or her placement in the treatment facility to begin with. Restoration to competency is normally accomplished through the use of psychoactive medications. Interestingly, however, researchers found that in cases where defendants received treatment involving videos and instructions on courtroom procedures in addition to medication, 43 percent were found more likely to be competent upon reevaluation, compared to just 15 percent of those receiving medication alone.7 Mental incompetence represents a special challenge for all aspects of the justice system. Courts, in particular, are charged with assessing claims of mental incompetence in order to determine whether a particular defendant can understand the nature of the charges against him or her and whether he or she should be tried on those charges—or perhaps sent to a mental health facility for treatment. Significantly, claims of incompetence may be tied to wrongful convictions, and mental incompetence can increase the likelihood of wrongful convictions if not properly recognized because it increases the chances that a defendant will plead guilty or will be unable to assist in mounting an effective defense. These considerations give rise to a number of questions that are asked below: 1. Why is the number of cases involving mental incompetence reported to be increasing? What’s behind the rise? 2. Competency claims are gaining acceptance among judges, prosecutors, and defense lawyers in part because of growing efforts to identify the wrongfully convicted. What might mental incompetence have to do with wrongful convictions? Notes 1 Dusky v. United States, 362 U.S. 402 (1960). Available at 2 Kevin Johnson and Andrew Seaman, “Mentally Incompetent Defendants on Rise,” USA Today, May 28, 2008. Available at 3 Ibid. 4 Ibid. 5 Oyez Project, Indiana v. Edwards, No. 07–208 (2008). Available at 6 Jonathan Turley, “Court Rules That Mentally Disturbed Defendants Can Be Competent to Stand Trial But Incompetent to Represent Themselves.” Available at /20/court-rules-that-mentally-disturbed-defendants-can-be-competent-to-stand-trial-but-incompetent-to-represent-themselves (accessed July 24, 2009). 7 A. M. Siegel and A. Elwork, “Treating Incompetence to Stand Trial,” Human Behavior, Vol. 14, No. 1 (1990):57–65. Right to Compulsory Process The compulsory process clause of the Sixth Amendment mandates the compulsory process by providing that the defendant can use subpoenas to obtain witnesses, documents, and other objects that are helpful to his or her defense. This right was made binding on the states in Washington v. Texas,74 a case in which the Supreme Court stated that compulsory process protects the “right to offer the testimony of witnesses, and to compel their attendance.”75 compulsory process A defendant’s constitutional entitlement to use subpoenas to obtain witnesses, documents, and other objects that are helpful to his or her defense. Several state and federal statutes govern compulsory process, as do the Federal Rules of Criminal Procedure. Figure 10–1 contains an example of a subpoena typically used in a criminal case. The Supreme Court has also been vocal on the subject. For example, in Roviaro v. United States, the prosecution refused to provide the defense with the identity of a police informant.76 The Court recognized that the government had a significant interest in concealing the identity of the informant—mainly to further its efforts in combating illicit drugs—but it also found that the defendant’s right to confrontation was denied by the prosecution’s refusal to release the witness’s identity. The informant was the only witness to the drug transaction for which Roviaro was charged, so it is clear that the defense would have a difficult time mounting an effective case without this witness. In another case, Chambers v. Mississippi, the Supreme Court overturned the conviction of a defendant who was not allowed to put three witnesses on the stand.77 The defendant had attempted to prove that another person, MacDonald, committed the murder for which he was charged, and the three people he wanted to put on the stand were those to whom MacDonald had allegedly confessed. The Court felt the witnesses’ testimony should have been admissible, even though it would have been considered hearsay, because MacDonald “spontaneously” confessed to each person, making it likely that their testimony would be truthful and accurate. The Court felt that “the exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine MacDonald, denied him a trial in accord with traditional and fundamental standards of due process.”78 Defendant’s Marginal Role Discussion Question Why does the defendant take on a marginal role in the criminal process? While the defendant is at the center of the drama that makes up a criminal case and has the rights to counsel, to confrontation, and to a compulsory process, he or she generally sits idly by while the process plays out. Except in rare cases where defendants represent themselves, they are mostly at the mercy of their retained or appointed attorneys. Additionally, since most defendants are undereducated, they often have considerable difficulty even understanding the events occurring before them. As we saw in Chapter 9, many defendants are distrustful of authority figures, even their own attorneys. One classic study put it this way: FIGURE 10–1 Sample Subpoena Source: [Most defendants] submit to the painful consequences of conviction but do not know for certain whether they committed any of the crimes of which they are accused. Such defendants are so unschooled in law that they form no firm opinion about their technical innocence or guilt.79 Class Activity Have the class discuss the ethics of a victim statement at sentencing. Is it fair to punish a criminal more harshly because there are sympathetic victims who can influence the judge and/or jury? Is this a violation of the Fifth and Fourteenth Amendments? What can be done to verify the validity of victim statements? Lecture Note Remind the class that victims have a number of important rights and privileges throughout the criminal justice process and that a number of those rights have been enacted into law (and enshrined in some state constitutions). Ask the class what the rights of victims should be, and have them consider why the U.S. Constitution does not yet contain a victims’ rights amendment. VICTIMS AND THE COURTS Some people feel that defendants enjoy too many protections and claim that the Constitution is stacked in favor of the accused. These are common misconceptions. The various rights and privileges spelled out in our Constitution benefit everyone, not just the criminal element. Yet this reality can be of little comfort to crime victims. Since their liberty is not at stake, they do not stand to benefit from such sweeping protections as the right to counsel or freedom from unreasonable searches, and since there are no constitutional amendments concerned with victims per se, their role in the court process tends, like that of defendants, to be quite marginal. Victimization The National Crime Victimization Survey tells us a great deal about the characteristics of crime victims. Men are the most frequent victims of violent crime, as shown in Figure 10–2. Taken together with the discussion of defendant characteristics at the outset of this chapter, it is even more apparent by now that crime is largely a male phenomenon. The typical victim of violent crime is also black or multiracial. Figure 10–2 shows that these groups report the greatest rate of violent victimizations. Finally, most victimizations are concentrated in a person’s earlier years; the peak periods are the teen years, followed by a leveling-off thereafter. The most victimization-prone group ranges from 16 to 19 years of age. Web Extra 10–1 National Crime Victim Law Institute Web Extra 10–2 National Organization for Victim Assistance Victim–Offender Relationships The media gives the unfortunate impression that most crimes are random acts of violence, but reality is much more complex. First, violent crimes are the exception; property crime is far more common. Second, most crimes are not random. Whether a crime is truly random depends on the offense in question, as revealed in Figure 10–3. Reported in it are percentages of violent victimizations based on victim–offender relationships (spouses, acquaintances, etc.). FIGURE 10–2 Victim Characteristics (Gender, Race, Age) Source: LASTING IMPACT People v. Goetz (73 N.Y. 2d 751) (1988) Dubbed the “Subway Vigilante” by the media, Bernhard Goetz gained national notoriety on the afternoon of December 22, 1984, when he shot and wounded four black youths on a subway car in New York. The youths had approached Goetz, a white man, and told him to give them five dollars. In the ensuing months, the incident polarized the city. Some saw Goetz as a heroic figure rightfully defending himself by facing down his attackers. Others called him an overreactive racist whose actions were disproportionate and went far beyond the realm of self-defense. Goetz was cleared of all shooting charges by a grand jury shortly after the incident. They did, however, indict him on gun possession charges. But continuing high-profile media coverage and seething public conflict surrounding the case led to a second grand jury a few months later, by which Goetz was indicted for numerous assault and attempted murder charges. These indictments were later dismissed when two of Goetz’s victims were arrested on separate rape and robbery charges, and a third admitted in a newspaper interview that the youths had indeed decided to rob Goetz because he looked like “easy bait.” Ultimately, Goetz was brought to trial when the New York Court of Appeals reversed dismissal of the attempted murder, assault, and criminal possession of a weapon charges. That trial resulted in his conviction only on the criminal possession charge. Goetz’s successful appeal of his sentence of six months in jail, one year of psychiatric treatment, five years of probation, 200 hours of community service, and a fine of $5,000 resulted in the appellate court ordering resentencing to a period of one year in jail without probation. One of Goetz’s victims, Darrell Cabey, was left paralyzed by the wound Goetz inflicted on him. Cabey filed a civil action against Goetz in 1985. After finding that Goetz had acted recklessly and had deliberately inflicted emotional distress on Cabey, a jury awarded Cabey $43 million in 1996. Goetz has admitted that his cause may have been significantly damaged by his tendency to make provocative and controversial statements to the media, such as this statement quoted in a Toronto Star article on December 27, 1994: “If you’re injured, paralyzed or whatever while committing a violent crime against me, that’s not my fault.”1 Events like this rarely evoke a consensus opinion in American society. As happened here, they typically cause wide social division, often along racial or ethnic lines or based on differences in the social (i.e., economic) status of those involved. Frequently, the opposing views both hold merit. At what point is a potential crime victim entitled to assess a threat as having risen to a level that permits assertion of his or her right of self-defense? How does one determine when a self-defense response is disproportionate to the perceived threat? (For example, is a single victim facing four attackers justified in resorting to the use of a firearm?) If a victim defends himself or herself against an attacker of another race, does that necessarily support a charge that the victim is a racist? Are the almost automatic claims of racism in such instances valid, or are they simply the opportunistic rantings of racial agitators? Obviously, no standard template can be applied to any given criminal event. Each is as uniquely different as the characteristics of those involved. One cannot determine the propriety of any given course of action unless and until all relevant facts are considered. The very purpose of the police investigation, the district attorney’s evaluation of the investigator’s findings, and the grand jury process is to make that determination. But our criminal justice system sometimes falls victim to political pressures and slick defense maneuvering that pervert the pursuit of justice. Attorneys have learned the expediency of hollering “racism” or “police brutality” or “entrapment” or any other emotion-evoking claim in an effort to divert scrutiny from their client’s conduct and causing examination of the victim or official actors in the event. Why? Because it works! Was Bernhard Goetz, already a two-time mugging victim, justified in his response to the threat he perceived from four young men on a subway car that day in 1984? One grand jury and a trial jury thought so; another jury obviously thought otherwise. Today, more than 20 years after the incident that brought him into the public eye, Goetz still faces a $43 million judgment and lives under the cloud of bankruptcy. He periodically appears on various academic or civic criminal justice panels or is interviewed for a newspaper or magazine story related to his case. Note 1 “Goetz Stills Fires Up Controversy,” Toronto Star, December 27, 1994. Available at dids=497223421:497223421&FMT =ABS&FMTS =ABS:FT&date = Dec+ 27%2C + 1994&author=& pub The + Record&edition = &startpage = D.8&desc = Goetz + still + fires + up + controversy (accessed July 24, 2009). DISCUSSION QUESTIONS 1. This Lasting Impact box says, “Some saw Goetz as a heroic figure rightfully defending himself by facing down his attackers. Others called him an overreactive racist whose actions were disproportionate and went far beyond the realm of self-defense.” Which was he? 2. What’s the difference between a criminal trial and a civil trial? Which one was more damaging to Goetz? 3. How does criminal liability differ from civil liability? What important standards are involved? 4. Read about Florida’s gun laws in an article from the Harvard Journal on legislation at Might Goetz have fared differently if a law like Florida’s had been in effect in his jurisdiction? Figure 10–3 shows that rape and sexual assault victimizations usually involve acquaintances and that nearly half of these crimes are committed by a relative or someone who is well-known to the victim. In contrast, the majority of robberies occur between parties who do not know each other, as we might expect. For a number of other crimes reported in the figure, almost as many violent offenses involve strangers as they do a combination of relatives and well-known individuals. Web Extra 10–3 What You Can Do If You Are a Victim of Crime Web Extra 10–4 Office on Violence against Women Victim Attitudes and Images FIGURE 10–3 Victim–Offender Relationships in Violent Offenses Source: Victims once played a prominent role in the court process, that is, until the prosecutor came along. In this day and age, if defendants are said to have a marginal role in the court process, the victims’ role lies somewhere off the page altogether. While certain advances have been made to get victims more involved (we look at them toward the end of this chapter), victims still have little direct involvement in the court process—and certainly very little effect on actual case outcomes (other than through giving testimony). Discussion Question What do victims think about America’s courts? Are their opinions justified? Victim Attitudes toward the Courts Crime victims have repeatedly complained about the difficulties they face while participating in the court process.80 The problems they face run the gamut from having difficulty finding the courthouse to dealing with long delays and problems securing services, if they are even available. Researchers have also known for years that criminal victimization leads to psychological problems in victims.81 For example, victims of physical assaults often display signs of post-traumatic stress.82 Similar findings have been reported for rape victims who testify.83 Victims are not always interested in attending the trial of those who victimized them—partly out of fear that the trial will open old wounds.84 Some researchers have found, in fact, that the trial brings back symptoms of post-traumatic stress.85 Web Extra 10–5 National Center for Victims of Crime Most victims just want to be involved in some capacity. According to a U.S. Justice Department study, “The right to participate in the process of justice, including the right to attend criminal proceedings and to be heard at various points in the criminal justice process, is important to crime victims.”86 Victims’ main concerns are with factors such as the following:87 ■ Being informed about whether anyone was arrested ■ Being involved in the decision to drop the case ■ Being informed about the defendant’s release on bond ■ Being informed about the date of the defendant’s earliest possible release from incarceration ■ Being heard in decisions about the defendant’s release on bond ■ Discussing the case with the prosecutor’s office ■ Discussing whether the defendant’s plea to a lesser charge should be accepted ■ Making a victim impact statement during the defendant’s parole hearing ■ Being present during the grand jury hearing ■ Being present during release hearings ■ Being informed about postponement of grand jury hearings ■ Making a victim impact statement before sentencing ■ Being involved in the decision about what sentence should be given Court Impressions of Victims Recall from Figure 10–3 that less than half of violent crimes occur between strangers. This means that once a person is arrested, charged, and put on trial, the prosecution often must rely on witnesses who are known or related to the defendant to build its case. Victims do not always want to cooperate. This has been especially apparent in the domestic-violence context, where prosecutors have frequently been faced with the problem of a victim who refuses to testify against the abuser.88 In light of such difficulties, some prosecutors have resorted to evidence-based prosecutions or no-drop prosecution policies (see Chapter 8), where they proceed with or without victim cooperation.89 Web Extra 10–6 Office for Victims of Crime Online Directory of Crime Victim Services Victim Involvement Discussion Question Are victims sufficiently involved in the criminal process? Why or why not? In light of the mind-set that the American system of criminal justice caters too much to criminals, some people have argued that victims need more involvement in the criminal process. There has been a significant push toward more victim involvement in recent years. LASTING IMPACT Payne v. Tennessee (1991) In Payne v. Tennessee (1991), the U.S. Supreme Court took the unusual step of overturning two earlier decisions relating to the same question before the Court. In Booth v. Maryland (1987) and South Carolina v. Gathers (1989), the Court had declared the per se inadmissibility of evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family at a capital sentencing hearing. Payne reversed those rulings, declaring that the “Eighth Amendment erects no per se bar prohibiting a capital sentencing jury from considering ‘victim impact’ evidence relating to the victim’s personal characteristics and the emotional impact of the murder on the victim’s family, or precluding a prosecutor from arguing such evidence at a capital sentencing hearing.”1 The facts of the case are clear—and horrifying. On June 27, 1987, following a morning and early afternoon spent injecting cocaine, drinking beer, and reading pornographic magazines, Pervis Tyrone Payne visited the apartment of his girlfriend, Bobbie Thomas. Finding that Thomas was not at home, Payne entered the occupied apartment of 28-year-old Charisse Christopher, whose apartment was located across the hall from Thomas’s. Christopher, her two-year-old daughter, Lacie, and her three-year-old son, Nicholas, were in the apartment when Payne entered. When he began making sexual advances toward Christopher, she resisted and Payne became violent. A neighbor reported hearing Christopher screaming to the children to “get out, get out.” Then, after a brief period of silence, the neighbor stated that he heard a “blood-curdling scream.” Called to the scene, police found blood-covered walls and floors throughout the unit, and Charisse and her children lying on the kitchen floor. Charisse and Lacie were dead. Despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, Nicholas was still breathing. After undergoing seven hours of surgery and a transfusion of 1,700 cc’s of blood—400 to 500 cc’s more than his estimated normal blood volume—Nicholas miraculously survived. Later that evening, Payne was found hiding in the attic of a former girlfriend’s home. Blood on his body and clothes matched the blood of the victims, and he had several scratches across his chest. Upon arrest, he stated to the arresting officers, “Man, I ain’t killed no woman.” The overwhelming evidence against him led the jury to quickly and unanimously convict him. During the sentencing phase, the defense presented testimonial evidence from Payne’s mother and father and his girlfriend, Bobbie Thomas, regarding Payne’s sterling character. Also offered was the testimony of Dr. John T. Hutson, a privately hired clinical psychologist specializing in criminal court evaluation work. Hutson classified Payne as “mentally handicapped,” as evidenced by the low score Payne achieved on an IQ test. He also stated that Payne was neither psychotic nor schizophrenic and that he was the most polite prisoner Hutson had ever met. The state countered these character-bolstering witnesses with testimony from Christopher’s mother, Mary Zvolanek. The prosecutor elicited an emotion-evoking description from Zvolanek of the effects the crime had on her grandson, Nicholas. Then, during his closing argument for the death penalty, the prosecutor repeatedly hammered home the continuing effects of the crime on Nicholas. Payne was sentenced to death on each of the murder counts. On appeal to the Supreme Court of Tennessee, the defense contended that the grandmother’s testimony and the prosecutor’s closing argument “constituted prejudicial violations of his rights under the Eighth Amendment as applied in Booth v. Maryland … and South Carolina v. Gathers.”2 The Tennessee Supreme Court rejected those contentions, and Payne sought relief from the U.S. Supreme Court. In its finding, the Court stated that, contrary to its rulings in Booth and Gathers, “We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.” Further, the Court explained its turn away from its own rulings in Booth and Gathers thusly: “By turning the victim into a ‘faceless stranger at the penalty phase of a capital trial,’… Gathers … Booth deprives (sic) the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.”3 In concluding her compelling study of victims’ rights reform, Jennifer K. Wood expressed the following concerns about the Court’s ruling in Payne: “If the degree of the defendant’s guilt is determined in part by a contest with the victim’s innocence, those who harm ‘guilty’ victims have very little to fear. When the legal system relies upon testimony about the victim’s characteristics as a basis for determining whether an offender lives or dies, it further entrenches relations of power between races, sexes, ages, sexualities, and economic classes. The discourse of ‘innocent victims’ the Court uses in Payne v. Tennessee may benefit some victims like Nicholas Christopher and his family. Unfortunately, it ignores most victims of violent crime by requiring them to establish their innocence—and their worth as human beings—on the basis of their characteristics.”4 Death penalty proponents hail Payne as a balancing of the scales, arguing that if the defense is allowed to present character testimonials for the defendant as mitigating factors at sentencing, the prosecution should be allowed to present extenuating factors such as the effects of the defendant’s crimes on the victims as a counterbalance. Not surprisingly, opponents of capital punishment see such descriptions merely as efforts to inflame the passions of the jury against the defendant. It is unlikely that a middle ground will ever be reached. In the meantime, as with all controversial holdings from the U.S. Supreme Court, the finding in Payne holds sway—for the moment. Notes 1 Payne v. Tennessee, 501 U.S. 808 (1991). Available at (accessed July 24, 2009). 2 Ibid. 3 Ibid. 4 Jennifer K. Wood, “Refined Raw: The Symbolic Violence of Victims’ Rights Reforms,” College Literature, Winter 1999, p. 14. Available at;col1 (accessed July 24, 2009). DISCUSSION QUESTIONS 1. What was the central issue before the Court in Payne v. Tennessee? How did the Court rule? 2. What is meant by “innocent victims”? What other kinds of victims are there? What difference might a victim’s innocence make in a criminal trial? 3. Do you believe that the standards established in Payne v. Tennessee should be retained? Why or why not? Victims have called for everything from more involvement in the criminal process to financial assistance to help them recoup their losses. Legislation has even been passed to provide victims with certain rights, and there has also been a movement to alter the Constitution with an amendment concerning victims’ rights. Movement to Get Victims Involved Before the nineteenth century, victims did play an important role in the criminal process: Before prosecutors tried criminal cases, victims would represent themselves before judges. But as prosecutors came to try criminal cases and as concerns for the rights of individuals accused of crimes became more pronounced, victims slipped into relative obscurity. Web Extra 10–7 California Department of Justice Office of Victims’ Services During the 1970s especially, calls were heard for a return to past practices, and a desire was expressed to get victims more involved in the criminal process. Victims groups started to organize themselves and to argue that their lack of involvement in the criminal process was unfair and that the justice system was stacked in favor of criminals. No single event ushered in the victims’ rights movement. Traditionally, police and prosecutors rarely (if ever) informed victims of the status of criminal cases. Victims were left wondering whether criminals were tried, and if they were, whether they were sentenced to prison and when they were released (if they were). Victims also had no say in plea agreements or in the sentences handed down by judges. Web Extra 10–8 U.S. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART). Interest groups also gave the victims’ rights movement a voice. For example, Mothers against Drunk Driving (MADD) led a national movement against drunk drivers to protect victims of drunk driving. Certain laws, such as three-strikes laws, have been passed in the wake of outcries over crime victims, and even some groups that have historically opposed victims’ rights are now part of the movement.90 Class Activity Invite a victims’ rights advocate to speak with the class, either in person or through virtual conferencing. Ask him or her to describe the important issues represented by the victims’ rights movement and to discuss how the structure of criminal trials currently overlooks the interests of victims. The victims’ rights movement has been responsible for at least two major changes. One is the provision of assistance to victims; this assistance comes in several forms, such as shelters for domestic-violence victims and financial assistance. The other major change is the emergence of victims’ rights. Victims’ rights also come in several forms: Victims are sometimes given a voice in the sentencing phase of trials, and they are also being granted the right to be notified of the progress of criminal cases. More broadly, though, the victims’ rights movement has been concerned largely with introducing equity into the criminal process and promoting fairness for all the parties involved. The movement is about balancing victim and offender interests to the fullest extent possible. Victims’ Assistance Victims’ assistance was spearheaded by the Victims of Crime Act of 1984, which provided about $50 million each year for victim assistance programs. By 1997, about one-third of all police departments and sheriff’s offices had a unit for providing victim assistance;91 prosecutor’s offices also provided extensive services to victims.92 Prosecutor’s offices have taken steps to reach out to victims, allowing them to receive updates on the status of criminal cases. For example, the Hennepin County Attorney’s office, which serves the city of Minneapolis, provides a community prosecution link on its website that allows victims and other concerned persons to track the progress of criminal cases throughout the county.93 Victims of Crime Act (1984) The federal legislation that spearheaded the establishment of victims’ assistance programs nationally. Victims’ services are also provided without criminal justice system involvement. For example, shelters for victims of domestic violence are often maintained in communities and do not necessarily rely on government funding or involvement by police and/or prosecutors. According to one study, there are some 1,300 domestic-violence shelters in the United States.94 Victim compensation programs are also popping up around the country. For example, in 1965 California voters passed the first crime victims’ compensation law. In the 1980s, some 44 states had similar laws, and the 1984 Victims of Crime Act provided financial support for state and local governments to develop victim compensation programs. Don’t confuse victim compensation programs with restitution. Sometimes judges order restitution, in which case offenders are required to compensate their victims. Victim compensation programs, in contrast, usually are something of a government-sponsored insurance program that provides funds (usually limited to a certain amount) to help people recover their losses experienced as a result of a crime; such losses could include medical bills, wages, and related expenses. Unfortunately, the research on victim compensation programs has not been particularly encouraging. One study revealed that victim attitudes toward the criminal justice process did not improve in the wake of such programs.95 Victims’ Rights Victims’ rights tend to come in two forms. One is giving victims a voice, and the other is granting them the right to notification and participation in the criminal process. See Box 10–2 and Box 10–3 for a listing of victims’ rights in two states, Texas and California. Victims have been granted at least two types of rights by various laws and statutes: 1. Victims’ voice laws. It has become commonplace to give victims the right to make a statement at an offender’s sentencing or parole hearing. These statements, known as victim impact statements, either are made orally before the trial judge or parole board or are provided in writing. Written statements are sometimes preferred because an actual appearance may be traumatic for the victim. Researchers have been interested in whether victims’ voice laws change the outcome of criminal trials. One study has shown that victims do not participate to the degree the law allows.96 It revealed, for instance, that only 6 percent of crime victims exercised their right to speak; moreover, the researchers found that case outcomes were most likely to be influenced by the offender’s prior record and the seriousness of the offense.97 But a later study found that some 60 percent of crime victims exercised their right to make statements at sentencing,98 and a study of victim participation in parole hearings revealed that parole was much less likely to be granted when victims argued against it.99 2. Victims’ notification and participation. Laws also provide victims the right to be notified of the status of criminal cases and to participate in the criminal process. One example is California’s Proposition 8 that was passed by the state’s voters in 1982. It provided that “the victim of any crime, or the next of kin of the victim … has the right to attend all sentencing proceedings … [and] to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution.”100 Other states maintain similar laws that grant victims important rights as well as the ability to be involved to varying degrees in the adjudication of criminal cases. Web Extra 10–9 National Victims’ Constitutional Amendment Passage. Should There Be a Victims’ Rights Amendment? In 1979, Wisconsin enacted the nation’s first Victim Bill of Rights.101 Within the following ten years, nearly every other state passed similar bills. More recently still, the state of Rhode Island became the first to amend its constitution to provide for victims’ rights, and that led other states to amend their constitutions, as well. For example, South Carolina has an amendment to its constitution stating that victims should have rights protected by “[l]aw enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants.”102 Not long after states amended their constitutions to provide victims rights, calls were heard to amend the federal Constitution in a similar fashion. Such an amendment does not exist yet, but there has been a fervent debate concerning the need for one. BOX 10–2 Selected Victims’ Rights in Texas A victim, guardian of a victim, or close relative of a deceased victim is entitled to the following rights within the criminal justice system: ● The right to receive from law enforcement agencies adequate protection from harm and threats of harm arising from cooperation with prosecution efforts ● The right to have the magistrate take the safety of the victim or his family into consideration as an element in fixing the amount of bail for the accused ● The right to be informed, when requested, by a peace officer concerning the defendant’s right to bail and the procedures in criminal investigations and by the district attorney’s office concerning the general procedures in the criminal justice system, including general procedures in guilty plea negotiations and arrangements, restitution, and the appeals and parole process ● The right to provide pertinent information to a probation department conducting a presentencing investigation concerning the impact of the offense on the victim and his family by testimony, written statement, or any other manner prior to any sentencing of the offender ● The right to receive information regarding compensation to victims of crime as provided by Subchapter B including information related to the costs that may be compensated under that subchapter and the amount of compensation, eligibility for compensation and procedures for application for compensation under that subchapter, the payment for a medical examination under Article 56.06 for a victim of a sexual assault, and when requested, to referral to available social service agencies that may offer additional assistance ● The right to be informed, upon request, of parole procedures, to participate in the parole process, to be notified, if requested, of parole proceedings concerning a defendant in the victim’s case, to provide to the Board of Pardons and Paroles for inclusion in the defendant’s file information to be considered by the board prior to the parole of any defendant convicted of any crime subject to this subchapter, and to be notified, if requested, of the defendant’s release ● The right to be provided with a waiting area, separate or secure from other witnesses, including the offender and relatives of the offender, before testifying in any proceeding concerning the offender; if a separate waiting area is not available, other safeguards should be taken to minimize the victim’s contact with the offender and the offender’s relatives and witnesses, before and during court proceedings ● The right to prompt return of any property of the victim that is held by a law enforcement agency or the attorney for the state as evidence when the property is no longer required for that purpose ● The right to have the attorney for the state notify the employer of the victim, if requested, of the necessity of the victim’s cooperation and testimony in a proceeding that may necessitate the absence of the victim from work for good cause Source: Portions of Texas Code of Criminal Procedure, Article 56.02, Crime Victims’ Rights. Available at (accessed July 24, 2009). Ronald Reagan was the first president to propose support for victims’ rights at the federal level. In 1982, he impaneled the Task Force on Victims’ Rights, which ultimately recommended an attachment to the Sixth Amendment as follows: “The victim has the right to be present and to be heard at all critical stages of judicial proceedings.”103 No action was taken, but the task force’s recommendation was significant. Thereafter, another organization known as the National Organization for Victim Assistance recommended adoption of a stand-alone amendment providing for various victim protections: BOX 10–3 Victims’ Bill of Rights “Marsy’s Rights” California Constitution, Article I, Section 28(b) In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights: 1. To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process. 2. To be reasonably protected from the defendant and persons acting on behalf of the defendant. 3. To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant. 4. To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law. 5. To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents. 6. To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case. 7. To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings. 8. To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. 9. To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings. 10. To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant. 11. To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law. 12. To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody. 13. To restitution. a. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. b. Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. c. All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim. 14. To the prompt return of property when no longer needed as evidence. 15. To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender. 16. To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made. 17. To be informed of the rights enumerated in paragraphs (1) through (16). A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the above rights in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request. Source: Cal. Const., Art. I, § 28(c)(1). Victims of crime are entitled to certain basic rights, including, but not limited to, the right to be informed, to be present, and to be heard at all critical stages of the federal and state criminal process to the extent that these rights do not interfere with existing Constitutional rights.104 Yet another proposed amendment was offered up by the Victims’ Constitutional Network: Victims of crime are entitled to certain basic rights including the right to be informed of, to be present at and to be heard at all critical stages of the criminal justice process, to the extent that these rights do not interfere with the constitutional rights of the accused. The legislature is authorized to enforce the amendment by appropriate enabling legislation.105 Of course neither of these proposals resulted in a new constitutional amendment, but they made clear the level to which victims’ rights advocates were prepared to go to ensure proper protection. The upside of an amendment would be stability because victims would enjoy protections regardless of who is in the White House or which party is dominating Congress. The prospect of a victims’ rights amendment raises several critical questions: Who would be responsible for infringements? Would criminal charges result, or would lawsuits be filed? Also, who could be considered a victim? Immediate family members? Friends? Other relatives? Coworkers? There are no answers because crime can affect a number of people, even in ways that can’t be quantified. Other Victim Remedies Even in the absence of victims’ voice laws and other forms of victim involvement, crime victims can still seek other remedies for their suffering. For example, they can sue for monetary damages, or in the case of domestic violence and other violent crimes, they can seek restraining orders. There are other avenues of redress besides just those that are a product of the victims’ rights movement. Censorship Has the victims’ rights movement run its course? Some courts have taken steps to put certain “hot button” words on ice by prohibiting witnesses and victims from uttering them in court. An increasing number of courts across the country are prohibiting words such as “rape,” “victim,” “homicide,” “drunk,” “murderer,” and “crime scene.”106 Why would a court do this? The intent is to afford the defendant the right to a fair trial— presumably words like “rape” and “victim” can bias a jury in favor of the prosecution. A criminal defense lawyer who has succeeded in having judges bar certain words from court cases said this: It only makes sense. You don’t want the witnesses and officers of law enforcement talking as if it was a foregone conclusion, almost drumming it into the jurors’ minds that a crime was committed by virtue of the fact that there is a victim.… I think the courts are more and more open to restricting terminology like this because of the number of wrongful convictions that have been demonstrated to have occurred in the U.S.107 But isn’t censorship of this sort a slap in the face to crime victims everywhere? It can certainly make the prosecution’s case a little more difficult. As one prosecutor said, “It’s pretty hard to prosecute a murder case without being able to say the word murder.”108 Another district attorney said this about prosecuting a rape case: “You have a woman who’s been attacked and she has to say that she had sexual intercourse with the man, rather than calling him her attacker? … I think this is going 50 years back in our legal evolution.”109 Some sort of balance will have to be struck. CHAPTER 10 SUMMARY DEFENDANTS AND THE COURTS ■ Most defendants are male, black, and young. ■ Child abuse and infanticide are two crimes committed more often by women than men. DEFENDANTS DURING THE COURT PROCESS ■ Three constitutional provisions relate to the right to counsel. While the Sixth Amendment is the only part of the Constitution that explicitly references a right to counsel, the Fifth and Fourteenth Amendments have also been invoked to provide a right to counsel. ■ While the Fourteenth Amendment (due process) approach to counsel has been effectively replaced by the Sixth Amendment right to counsel, a Fifth Amendment–based right to counsel still applies. The Supreme Court decided in Miranda v. Arizona that criminal suspects enjoy the right to counsel during custodial interrogations. ■ Defense attorneys must provide effective assistance. Ineffective assistance occurs when the attorney performs poorly to the extent that his or her poor performance is prejudicial to the defendant’s case. ■ The right to counsel can be waived. If it is and the defendant represents himself or herself, this is known as a pro se defense. ■ Defendants also enjoy the rights to confrontation and compulsory process. ■ Confrontation is concerned with the defendant’s right to challenge witness testimony. Confrontation is manifested in three key ways: (1) The defendant’s right to be present; (2) the defendant’s right to hear live testimony; and (3) the defendant’s right to challenge witness testimony. ■ There can be a downside to confrontation—the defendant’s presence in the courtroom may remind jurors of the crime. ■ Compulsory process means that the defendant has the right to use subpoenas to obtain witnesses, documents, and other objects that are helpful to his or her defense. ■ Despite the many protections afforded to criminal defendants, they occupy a fairly marginal role in the criminal process. VICTIMS AND THE COURTS ■ Victims of crime tend to be male, minority, and young. ■ Most victims and offenders know one another. ■ Victim involvement in the court process has been minimal until recently. ■ Victims report difficulties and trauma associated with participation in the court process. ■ Many victims, especially those in domestic-violence cases, are uncooperative, making the prosecutor’s job difficult. ■ In recent years, a victims’ rights movement has been started. Victims have gained additional involvement through assistance programs and various rights (some from state constitutions) that provide for their involvement in the process. As yet, there is no crime victims’ amendment to the U.S. Constitution. ■ Despite the many advances crime victims may have made of late, some courts have begun to censor certain communications in court, even the use of the word “victim,” so the defendant can be afforded a fair trial. KEY TERMS compulsory process, 272 cross-examination, 269 declarant, 268 direct examination, 269 hearsay, 268 hearsay rule, 268 live testimony, 268 pro se defense, 266 scope of direct rule, 269 standby counsel, 266 Victims of Crime Act, 280 REVIEW QUESTIONS 1. What social characteristics do many criminal defendants who come before American courts share? Is there a typical defendant? 2. What rights do criminal defendants have in American courts? 3. What role do victims play in the courtroom and in the justice process as a whole? WHAT WILL YOU DO? You are a victims’ advocate and work out of the District Attorney’s Office. At the moment, you are working on a case in which a woman was stalked by a man for five months before he was finally arrested for violating a restraining order that she was successful in having issued against him. Both you and the victim believe that the man is potentially very dangerous and that she is quite fortunate in having escaped physical harm. Moreover, you have reason to think that the man is a repeat offender and that he has stalked a number of other women in the past. Unfortunately, however, none of this can be taken into consideration by the judge before whom the stalker is about to appear for sentencing. That’s because the offender has chosen to plead guilty in the current case, and other allegations against him remain unproven. You’re afraid that the man will receive a mere slap on the wrist and be given only a short probationary sentence. You realize, however, that an opportunity exists to increase the likelihood of prison time for the offender—but it involves convincing the victim with whom you are working to provide an in-court statement prior to sentencing, telling of the highly negative effects that the stalking experience has had on her. Your state allows each victim a chance to be heard in open court prior to a sentence being imposed on the victimizer. You have come to believe that your job in this case is to convince the victim to make just such a statement in the hope that it will lead the judge to impose an active prison sentence on the offender. When you suggest this to the victim, however, she is immediately reluctant to cooperate. For one thing, she says, she’s shy and doesn’t speak well in public; for another, she’s afraid that the perpetrator might receive probation no matter what she says and that he might come after her seeking revenge. When you question her about how the stalking experience has impacted her life, she quickly admits that it has shaken her to the core and that she no longer feels safe in any environment. Knowing that the man is probably a serial stalker, she agrees with you that he should be locked up in order to prevent him from harassing and harming other women. She tells you that she will make an in-court statement if you can guarantee her safety after the sentencing hearing concludes. What will you do? Go to to explore the following study tools and resources specific to this chapter: • Practice Quiz: Practice with multiple-choice, true/false, and short-answer questions. • Scenario Essay: Write about the roles and rights of defendants and victims. • Flashcards: Use 11 flashcards to test your knowledge of the chapter’s key terms. • Suggested Reading: Choose resources for research papers and projects about victims’ rights, victim advocates, and victim–offender comparisons. NOTES End of Chapter Image Credits © Bill Fritsch/Brand X/Jupiterimages; © Bill Fritsch/Brand X/Jupiterimages; © Bill Fritsch/Brand X/Jupiterimages 1. R. L. McNeely and G. Robinson-Simpson, “The Truth about Domestic Violence: A Falsely Framed Issue,” Social Work 32(1987):485–490. 2. Available at (accessed July 24, 2009). 3. Johnson v. Zerbst, 304 U.S. 458 (1938). 4. Ibid., pp. 462–463. 5. Betts v. Brady, 316 U.S. 455 (1942), pp. 461–462. 6. Gideon v. Wainwright, 372 U.S. 335 (1963). 7. Ibid., p. 344. 8. Argersinger v. Hamlin, 407 U.S. 25 (1972). 9. Ibid., p. 332. 10. See Scott v. Illinois, 440 U.S. 367 (1979) and Alabama v. Shelton, 535 U.S. 654 (2002). 11. Miranda v. Arizona, 384 U.S. 436 (1966). 12. Ibid., p. 444. 13. Ibid., p. 477. 14. Ibid., p. 302, n. 8. 15. Powell v. Alabama, 287 U.S. 45 (1932). 16. Ibid., p. 50. 17. Ibid., p. 71. 18. Wainwright v. Torna, 455 U.S. 586 (1982). 19. Cuyler v. Sullivan, 446 U.S. 335 (1980). 20. Ibid., p. 344. 21. McMann v. Richardson, 397 U.S. 759 (1970). 22. Ibid., p. 771. 23. Strickland v. Washington, 466 U.S. 668 (1984). 24. Ibid., p. 687. 25. Ibid., p. 688. 26. Ibid. 27. Ibid. 28. Ibid., p. 694. 29. Bell v. Cone, 535 U.S. 685 (2002). 30. Rompilla v. Beard, 545 U.S. 374 (2005). 31. Florida v. Nixon, 543 U.S. 175 (2004). 32. Faretta v. California, 422 U.S. 806 (1975). 33. Johnson v. Zerbst, 304 U.S. 458 (1938). 34. Carnley v. Cochran, 369 U.S. 506 (1962), p. 516. 35. Massey v. Moore, 348 U.S. 105 (1954). 36. Ibid., p. 108. 37. Godinez v. Moran, 509 U.S. 389 (1993). 38. This decision all but reversed an earlier decision where the Court held that competence to stand trial could be interpreted as competence to waive counsel; see Westbrook v. Arizona, 384 U.S. 150 (1966). 39. McKaskle v. Wiggins, 465 U.S. 168 (1984). 40. Ibid., p. 184. 41. See, e.g., Wheat v. United States, 486 U.S. 153 (1988). 42. Cf. Leis v. Flynt, 439 U.S. 438 (1979). 43. Caplin and Drysdale v. United States, 491 U.S. 617 (1989). 44. Ake v. Oklahoma, 470 U.S. 68 (1985). 45. Illinois v. Allen, 397 U.S. 337 (1970), p. 338. 46. United States v. Gagnon, 470 U.S. 522 (1985); Kentucky v. Stincer, 479 U.S. 1028 (1987). 47. Taylor v. Illinois, 484 U.S. 400 (1988); Diaz v. United States, 223 U.S. 442 (1912); Taylor v. United States, 414 U.S. 17 (1973). 48. Pate v. Robinson, 383 U.S. 375 (1966). 49. Dusky v. United States, 362 U.S. 402 (1960). 50. Ibid., p. 402. 51. Medina v. California, 505 U.S. 437 (1992). 52. Pate v. Robinson, 383 U.S. 375 (1966). 53. Mattox v. United States, 156 U.S. 237 (1895). 54. Ibid., p. 243. 55. White v. Illinois, 502 U.S. 346 (1992). 56. Ibid., p. 356. 57. United States v. Inadi, 475 U.S. 387 (1986). 58. Ibid., p. 406. 59. Idaho v. Wright, 497 U.S. 805 (1990). 60. Ibid., p. 816. 61. Coy v. Iowa, 487 U.S. 1012 (1988). 62. Ibid., p. 1016. 63. Maryland v. Craig, 497 U.S. 836 (1990). 64. Ibid., p. 845. 65. Ibid., p. 852. 66. Smith v. Illinois, 390 U.S. 129 (1968). 67. Ibid., p. 131. 68. Davis v. Alaska, 415 U.S. 308 (1974). 69. Ibid., p. 319. 70. Griffin v. California, 380 U.S. 609 (1965). 71. Carter v. Kentucky, 450 U.S. 288 (1981). 72. Estelle v. Williams, 425 U.S. 501 (1976). 73. Ibid., p. 504; also see Portuondo v. Agard, 529 U.S. 61 (2000). 74. Washington v. Texas, 388 U.S. 14 (1967). 75. Ibid., p. 19. 76. Roviaro v. United States, 353 U.S. 53 (1957). 77. Chambers v. Mississippi, 410 U.S. 284 (1973). 78. Ibid., p. 302. 79. A. Rosett and D. Cressey, Justice by Consent: Plea Bargaining in the American Courthouse (Philadelphia, PA: J. B. Lippincott, 1976), p. 146. 80. W. McDonald, Criminal Justice and the Victim (Newbury Park, CA: Sage, 1976); F. Cannavale and W. Falcon, Witness Cooperation (Lexington, MA: D.C. Heath, 1976). 81. See, e.g., R. C. Davis, B. Taylor, and A. J. Lurigio, “Adjusting to Criminal Victimization: The Correlates of Postcrime Distress,”Violence and Victims 11(1996):21–38. 82. See, e.g., R. C. Kessler, A. Sonnega, E. Bromet, M. Hughes, and C. B. Nelson, “Posttraumatic Stress Disorder in the National Comorbidity Survey,” Archives of General Psychiatry 52(1995):1048–1060. 83. P. Resick, “The Trauma of Rape and the Criminal Justice System,”Justice System Journal 9(1984):52–61; G. Steketee and A. Austin, “Rape Victims and the Justice System: Utilization and Impact,” Social Service Review 63(1989): 285–303. 84. See, e.g., T. G. Gutheil, H. Bursztajn, A. Brodsky, and L. H. Strasburger, “Preventing ‘Critogenic’ Harms: Minimizing Emotional Injury from Civil Litigation,” Journal of Psychiatry and Law 28(2000):5–18. 85. See, e.g., J. N. Epstein, B. E. Saunders, and D. G. Kirkpatrick, “Predicting PTSD in Women with a History of Childhood Rape,”Journal of Traumatic Stress 10(1997):573–588. 86. D. G. Kilpatrick, The Rights of Crime Victims—Does Legal Protection Make a Difference? (Washington, DC: National Institute of Justice, 1998), p. 3. 87. Ibid. 88. M. Dawson and R. Dinovitzer, “Victim Cooperation and the Prosecution of Domestic Violence in a Specialized Court,” Justice Quarterly 18(2001):593–622. 89. E. L. Claypoole, “Evidence-Based Prosecution: Prosecuting Domestic Violence Cases without a Victim,” The Prosecutor 39(2005):18, 20–21, 26, 48. 90. J. H. Stark and H. Goldstein, The Rights of Crime Victims(New York: Bantam, 1985), p. 19. 91. Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics, 1997 (Washington, DC: U.S. Government Printing Office, 1999), p. xix. 92. Bureau of Justice Statistics, Prosecutors in State Courts, 1994(Washington, DC: Department of Justice, 1996), p. 9. 93. See (accessed July 24, 2009). 94. A. J. Saathoff and E. A. Stoffel, “Community-Based Domestic Violence Services,” The Future of Children: Domestic Violence and Children 9(1999):97–110. 95. W. Doerner, “The Impact of Crime Compensation on Victim Attitudes toward the Criminal Justice System,” Victimology 5(1980):61–77. 96. E. Erez and P. Tontodonato, “The Effect of Victim Participation in Sentencing and Sentence Outcome,” Criminology 28(1990):451–474. 97. Ibid. 98. A. Walsh, “Placebo Justice: Victim Recommendations and Offenders’ Sentences in Sexual Assault Cases,” Journal of Criminal Law and Criminology 77(Winter 1986):1126–1141. 99. W. H. Parsonage, F. Bernat, and J. Helfgott, “Victim Impact Testimony and Pennsylvania’s Parole Decision Making Process: A Pilot Study,” Criminal Justice Policy Review 6(1994):187–206. 100. See, e.g., Candace McCoy, Politics and Plea Bargaining: Victims’ Rights in California (Philadelphia: University of Pennsylvania Press, 1993). 101. F. Carrington and G. Nicholson, “Victims Rights: An Idea Whose Time Has Come—Five Years Later: The Maturing of an Idea,” Pepperdine Law Review 17(1989):1–19. 102. D. J. Hall, “Victims’ Voices in Criminal Court: The Need for Restraint,”American Criminal Law Review 28(1991): 233–256. 103. D. L. Roland, “Progress in the Victim Reform Movement: No Longer Forgotten Victim,” Pepperdine Law Review 17(1989): 35–59. 104. L. L. Lambon, “Victim Participation in the Criminal Justice Process,”Wayne Law Review 34(1987):125–220. 105. Ibid., p. 132. 106. T. Baldas, “Courts Putting Hot-Button Words on Ice,” National Law Journal, June 16, 2008. Available at (accessed July 24, 2009). 107. Ibid. 108. Ibid. 109. Ibid.

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