Victims' Perception of Criminal Justice System.
Victims’ Perception of Criminal Justice System.
1.In the video, Voices of Victims: Criminal Justice Professionals, there are several recurrent themes presented. Identify the three themes that you think are the most
critical for effective criminal justice functioning. Discuss the actions/strategies that might be introduced to address perceived system deficits. With conclusions, 3
references and citations.
Victims’ Perception of Criminal Justice System.
1.In the video, Voices of Victims: Criminal Justice Professionals, there are several recurrent themes presented. Identify the three themes that you think are the most
critical for effective criminal justice functioning. Discuss the actions/strategies that might be introduced to address perceived system deficits. With conclusions, 3
references and citations.
Chapters 2 (pp. 22-36), 15 and 16 see below
View Video: Voices of Victims: Criminal Justice Professionals (14:47)
Voices of Victims: Criminal Justice Professionals plain text paper
Podcast: Victim Impact Statements (2:42)
Please include citations and references to support your post.
Chapters 2 (pp. 22-36) below:
THE COURT SYSTEM
Understanding the role and functions of the various court systems in the United States provides professionals with a solid foundation for understanding the dynamics of
the law. It is a complex aspect of our legal system that can be confusing and frustrating to victims when they are first exposed to it. Understanding the rationale
behind its present-day structure may help victims understand more clearly the manner in which laws operate and interact.
To comprehend the role of federal and state law, it is essential to have a firm grasp of the principles of how the American justice system functions. For a victim of
crime, it is the most confusing, frustrating, and complex environment to navigate. This section will provide a brief overview of the court systems in the United
States. The court systems in the United States are based on the principle of federalism. The first Congress established a federal court system, and the individual
states were permitted to continue their own judicial structure. There was general agreement among our nation’s founders that individual states needed to retain
significant autonomy from federal control. Under this concept of federalism, the United States developed as a loose confederation of semi-independent states having
their own courts, with the federal court system acting in a very limited manner. In the early history of our nation, most cases were tried in state courts. It was only
later that the federal government and the federal judiciary began to exercise jurisdiction over crimes and civil matters. Jurisdiction in this context simply means the
ability of the court to enforce laws and punish individuals who violate those laws.
As a result of this historical evolution, a dual system of state and federal courts exists today. Therefore, federal and state courts may have concurrent jurisdiction
over specific crimes. For example, a person who robs a bank may be tried and convicted in state court for robbery, then tried and convicted in federal court for the
federal offense of robbery of a federally chartered savings institution. Another characteristic of the American court system is that it performs its duties with little
or no supervision. A Supreme Court justice does not exercise supervision over lower court judges in the same way that a government supervisor or manager exercises
control over employees. The U.S. Supreme Court and the various state supreme courts exercise supervision only in the sense that they hear appellate cases from lower
courts and establish certain procedures for these courts.
A third feature of the U.S. court systems is one of specialization and occurs primarily at the state and local level. In many states, courts of limited jurisdiction
hear misdemeanor cases. Other state courts of general jurisdiction try felonies. Still other courts may be designated as juvenile courts and hear only matters
involving juveniles. This process also occurs in certain civil courts that hear only family law matters, probate matters, or civil cases involving damages. At the
federal level, there are courts such as bankruptcy that hear only cases dealing with specific matters.
The fourth characteristic of the American court systems is its geographic organization. State and federal courts are organized into geographic areas. In many
jurisdictions, these are called judicial districts and contain various levels of courts. For example, on the federal level, the U.S. Court of Appeals for the Ninth
Circuit has district (trial) courts that hear matters within certain specific boundaries and an appellate court that hears all appeals from cases within that area.
Several studies have been conducted regarding the differences in sentences for the same type of crime in geographically distinct courts. For example, in Iowa the
average sentence for motor vehicle theft is forty-seven months, whereas the average sentence for the same offense in New York is fourteen months.1 This and similar
discrepancies may reflect different social values and attitudes within specific geographic areas.
STATE COURT SYSTEM
Historically, each of the thirteen original states had its own unique court structure. This independence continued after the American Revolution and resulted in
widespread differences among the various states, some of which still exist today. Because each state adopted its own system of courts, the consequence was a poorly
planned and confusing judicial structure. Several reform movements have attempted to streamline and modernize this system. These reforms have resulted in many of the
state court systems adopting a three-tier judicial system. Most state courts are now divided into three levels:
• Trial courts
• Appellate courts
• State supreme courts
trial court are courts where civil and criminal cases start and finish. The trial court conducts an entire series of acts that culminate in either the defendant’s
release or sentencing. State trial courts can be further divided into courts of limited or special jurisdiction and courts of general jurisdiction. The nature and type
of case determines which court will have jurisdiction. Courts that only hear and decide certain limited legal issues are courts of limited Jurisdiction. These courts
hear and decide issues such as traffic tickets or set bail for criminal defendants. Typically, these courts hear certain types of minor civil or criminal cases. There
are approximately 13,000 local courts in the United States. They are called county, magistrate, justice, or municipal courts. Judges in these courts may be either
appointed or elected. In many jurisdictions, these are part-time positions, and the incumbent may have another job or position in addition to serving as a judge.
However, simply because they handle minor civil and criminal matters does not negate the fact that these courts perform important duties. Often, the only contact the
average citizen will have with the judicial system occurs at this level. In addition, courts of limited jurisdiction may hear certain types of specialized matters,
such as probate of wills and estates, divorces, child custody matters, and juvenile hearings. These types of courts may be local courts or, depending on the state,
courts of general jurisdiction that are designated by statute to hear and decide specific types of cases. For example, in California a superior court is considered a
court of general jurisdiction; however, certain superior courts are designated to hear only juvenile matters, thereby becoming a court of limited jurisdiction when
sitting as a juvenile court.
Courts of General Jurisdiction are granted authority to hear and decide all issues that are brought before them. These courts normally hear all major civil or criminal
cases. They are also known by a variety of names, such as superior courts, circuit courts, district courts, or courts of common pleas. Because they are courts of
general jurisdiction, they have authority to decide issues that occur anywhere within the state. Some larger jurisdictions such as Los Angeles or New York may have
numerous courts of general jurisdiction within the city limits. These courts also hear the most serious forms of criminal matters, including death penalty cases.
Courts of general jurisdiction traditionally have the power to order individuals to do, or refrain from doing, certain acts. These courts may issue injunctions that
prohibit persons from performing certain acts, or they may require individuals to do certain functions or duties. This authority is derived from the equity power that
resides in courts of general jurisdiction. In some states, like California, there is a unification movement which merges the inferior courts and the courts of general
jurisdiction into one court that handles matters that were in the past handled by either the inferior courts or courts of general jurisdiction. The unification
movement is an attempt by states to reduce the costs of their justice systems.
EQUITY is the concept that justice is administered according to fairness, as contrasted with the strict rules of law. In early English common law, such separate courts
of equity were known as courts of Chancery. These early courts were not concerned with technical legal issues; rather they focused on rendering decisions or orders
that were fair or equitable. In modern times, the power of these courts has been merged with courts of general jurisdiction, allowing them to rule on matters that
require fairness as well as the strict application of the law. The power to issue temporary restraining orders (TROs) in intimate partner abuse cases comes from the
equitable powers of the court. Appellate jurisdiction is reserved for courts that hear appeals from both limited and general jurisdiction courts. These courts do not
hold trials or hear evidence. They decide matters of law and issue formal written decisions or “opinions.” There are two classes of appellate courts: intermediate, or
courts of appeals and final, or supreme courts.
COURT OF APPEALS: The intermediate appellate courts are known as courts of appeals. Approximately half the states have designated intermediate appellate courts. These
courts may be divided into judicial districts and will hear all appeals within their jurisdiction. They will hear and decide all issues of law that are raised on
appeal in both civil and criminal cases. Because these courts deal strictly with legal or equitable issues, there is no jury to decide factual disputes. These courts
accept the facts as determined by the trial courts. Intermediate appellate courts have the authority to reverse the decision of the lower courts and to send the matter
back with instructions to retry the case in accordance with their opinion. They may also uphold the decision of the lower court. In either situation, the party that
loses the appeal at this level may file an appeal with the next higher appellate court.
Final appellate courts are the highest state appellate courts. They may be known as supreme courts or courts of last resort. There may be five, seven, or nine justices
sitting on this court depending on the state. Final appellate courts have jurisdiction to hear and decide issues dealing with all matters decided by lower courts,
including ruling on state constitutional or statutory issues. Their decision is binding on all other courts within the state. Once this court has decided an issue, the
only appeal left is to file in the federal court system. There are two state court systems in which the state supreme courts do not hear criminal cases. In Oklahoma
and in Texas there is a separate state criminal court of appeals that decides appeals only in criminal cases.
JUVENILE COURT SYSTEM
Because of the significant increase in the importance of juvenile crime in our society, a brief overview of juvenile courts is warranted. Although there are some
differences, both federal and state systems were initially founded on the concept of rehabilitating young offenders. In addition, both systems wanted to shield
juveniles from public scrutiny; therefore, each contained provisions for keeping matters confidential. The present-day American state court system of dealing with
children involved in crimes began in 1899 when the state of Illinois passed the Illinois Juvenile Court Act. It was at that time that the juvenile court system as we
know it today came into existence.2 This statute separated the juvenile court system from the adult criminal system. It labeled minors who violated the law as
“delinquents” rather than criminals, and required that juvenile court judges determine what “is in the best interests of the minor” in rendering their decision. The
juvenile court system is guided by five basic principles:
1. The state is the ultimate parent of all children within its jurisdiction, the doctrine of parens patrea.
2. Children are worth saving, and the state should utilize nonpunitive measures to do so.
3. Children should be nurtured and not stigmatized by the court process.
4. Each child is different, and justice should be tailored to meet individual needs and
5. The use of noncriminal sanctions is necessary to give primary consideration to the needs of
It is important to note that each state determines its own jurisdictional age of minors who are
handled by its juvenile system. Most involve children who are under eighteen years of age. A few states use higher ages, up to twenty-one. Three states cover children
up to fifteen years of age and adjudicate sixteen-year-olds in adult criminal courts.
Although these principles were originally adopted for delinquents or minors who com-
mitted criminal acts, they have been broadly applied to proceedings involving children who are
victims of abuse. Understanding the criminal court system is only the beginning of appreciating the complexity of the American criminal justice system. Professionals
working in this area must also understand the parties involved in the criminal justice system. The different parties that comprise our system are reviewed in the
FEDERAL COURT SYSTEM
Whereas state courts have their origin in historical accident and custom, federal courts were
created by the U.S. Constitution. Section 1 of Article 3 established the federal court system with
the words providing for “one Supreme Court, and . . . such inferior Courts as the Congress may
from time to time ordain and establish.” From this beginning, Congress has engaged in a series of acts that has resulted in today’s federal court system. The
Judiciary Act of 1789 created the U.S. Supreme Court and established district courts and circuit courts of appeals (later known as the U.S. Courts of Appeal). There
are some federal courts, like the U.S. Court of Military Appeals, that were enacted by legislation and are considered as legislative courts and not “Article III”
FEDERAL DISTRICT COURT
Federal district courts are the lowest level of the federal court system. These courts have original jurisdiction over all cases involving a violation of federal
statutes. District courts handle thousands of criminal cases per year. The U.S. District Courts are the primary trial courts in the federal system. There is at least
one district court in each state. These courts are defined by the geographical label of the state they are located in, for example, U.S. District Court for the
Southern District of New York.
US COURT OF APPEALS
The U.S. Courts of Appeals are the intermediate appellate-level courts
within the federal system. These courts are also referred to as circuit courts because the federal
system is divided into eleven circuits. A Twelfth U.S. Court of Appeals serves the Washington,
D.C., area. These courts hear appeals from the district courts and habeas corpus appeals from
state court convictions. These appeals are usually heard by panels of three appellate court judges
rather than by all the judges of each circuit.
US SUPREME COURT
The U.S. Supreme Court is the highest court in the land. It has the capacity for judicial review of all lower court decisions, as well as state and federal statutes.
By exercising this power, the Supreme Court determines what laws and lower court decisions conform to the mandates set forth in the U.S. Constitution. The concept of
judicial review was first referred to by Alexander Hamilton in the Federalist Papers, in which he described the Supreme Court as ensuring that the will of the people
will be supreme over the will of the legislature.4 This concept was firmly and finally established in our system when the Supreme Court asserted its power of judicial
review in the 1803 case of Marbury v. Madison. The U.S. Supreme Court and the lower federal courts have jurisdiction only in federal issues. There must be a federal
issue before a federal court has jurisdiction in criminal matters.
For example, if an accused is convicted in a state court for robbery, before the U.S. Supreme Court can consider his or her case, there must be a federal issue, for
example, the search of his or her home violated the Fourth Amendment of the U.S. Constitution.
Although it is primarily an appellate court, the Supreme Court has original jurisdiction
in the following cases: cases between the United States and a state; cases between states; cases
involving foreign ambassadors, ministers, and consuls; and cases between a state and a citizen of
another state or country.
The Court hears appeals from lower courts and the various state courts of last resort
( generally the state supreme courts). If four justices of the U.S. Supreme Court vote to hear a
case, the court will issue a Writ of certiorari an order sent to a lower court requiring the
records of the case to be sent to the Supreme Court for review. The Court meets on the first
Monday of October and usually remains in session until June. The Court may review any case it
deems worthy but in actuality hears very few of the cases filed. Of approximately 8,000 appeals
each year, the Court agrees to review fewer than 150; however, it may not issue an opinion on
The federal Court Juvenile System:
When Congress addressed the issue of juvenile
offenders, it established two alternatives for their prosecution:
• The juvenile can waive personal rights to be treated as a juvenile, or
• The juvenile can have the matter treated as a civil proceeding called juvenile adjudication.
If the court finds that the juvenile committed the offense, that individual faces a series of federal
sanctions, including incarceration. There is a federal preference for state prosecution of juveniles,
because there is no separate federal juvenile court judge or juvenile detention system. If adjudicated to be a delinquent, the juvenile is placed in a state juvenile
facility. The federal government contracts with states for this service.
Until the passage of the Crime Control Act of 1990, the federal government prosecuted only
juveniles who committed crimes on federal reservations, where the states had no jurisdiction.
The Crime Control Act added two other categories of juveniles who fall under federal juvenile
court jurisdiction: Juveniles who commit felony crimes of violence and juveniles involved in
certain drug felonies. Similar to most state court systems, federal law allows for the transfer or
certification of a juvenile to “adult status.” This procedure allows juveniles to be tried as adults in either the state or the federal court system.
Under federal law, juveniles are those persons under twenty-one who commit a federal
offense before their eighteenth birthday. A federal judge acts as the federal equivalent of the state
juvenile court judge. The proceedings are confidential with no member of the public or press in
attendance. Federal jurisdiction in juvenile matters is established when:
the state does not have jurisdiction;
• the state does not have programs or services available for juveniles; or
• the offense charged is a violent felony or drug offense, and there is a substantial federal
interest in the case.
A juvenile proceeding is initiated by the filing of an “information.” In most cases, the U.S. attorney must file a certification stating there are grounds for federal
jurisdiction. The hearing in federal court is very similar to a court trial.
Seven parties are involved in the criminal justice process: the victim, the perpetrator, the law
enforcement, the prosecutor, the defense attorney, the courts, and the correctional system. Each
of these parties or organizations has different goals and needs. Not all emotions or objectives are
the same for all the parties. It is obvious, for example, that the prosecutor and defense attorney
will have different perspectives on the outcome of the trial. Those who work in this area must
be familiar with the various responsibilities of each of these parties and be able to explain their
functions to those who are involved in the criminal justice system.
The victim of any crime is often the forgotten party in the criminal justice system. For many
years, victims were perceived as simply another witness to the crime. The prevailing attitude was
that the real victim was the “People of the State” in which the crime was committed. Families of
murder victims could not obtain information regarding the case and were often ignored by over-
worked and understaffed criminal justice personnel. Within the last thirty years, this attitude has
begun to change as we become more aware of the needs and desires of crime victims.
Professionals dealing with crime victims should understand that they may be suffering
emotional and/or physical trauma as a result of the offense.6 Care must be taken to ensure that
victims understand how the process works and what their rights are. It is also important to realize
that individuals other than the original victim may have an interest in the process. These parties
include the victim’s family and friends, and in some situations the victim’s employer. All appropriate parties should be notified of every significant event within the
criminal justice process. Victim services providers must also respect and protect the victim’s right to privacy if that is the victim’s desire.
Victims of crime will normally have a number of questions and concerns regarding the
court system and their involvement in it. One frustrating aspect of this process is that victims
often perceive that the defendant has more rights and faster access to the courts than they do.
Other chapters of this textbook examine in detail the rights of victims of crime during the criminal justice process.
The perpetrator of a crime is guaranteed certain rights within our form of government. Many
aspects of the criminal procedure process are controlled by the U.S. Constitution, specifically the
Bill of Rights (the original ten amendments to the Constitution). These federal constitutional
protections concerning individual rights are, for the most part, binding on state courts.7
These rights attach to the perpetrator early in the criminal procedure process, and violation
of these rights may result in the case being dismissed. For example, if the perpetrator confesses
to the crime of murder, and that confession is obtained in violation of the person’s constitutional
rights, it may be suppressed.8 If the confession is the only link connecting the defendant to the
crime, the case may have to be dismissed. When these types of incidents occur, it is difficult
for the victim to understand why the defendant goes free when there has been a confession.
If this happens, professionals working with victims must attempt to offer other alternatives such
as availability of filing civil lawsuits against the perpetrator.
One law enforcement role in the criminal process is to apprehend the perpetrator.9 Although this
may seem to be a simple concept, understanding the organization and function of law enforce-
ment agencies in the United States can be an exercise in frustration. American law enforcement
activities take place on three independent levels: federal, state, and local. There is little unifor-
mity among these entities. In addition, each of these agencies may enforce different criminal laws
based on different jurisdictional authority. For example, the U.S. Customs Service may arrest
individuals who violate federal laws regarding the importation of goods into the United States,
the state highway patrol may be tasked with enforcing traffic laws on highways and streets, and
the local police department may be engaged in tracking down a serial rapist.
To confuse the issue further, there is another emerging form of law enforcement activity in the United States whose activities are expanding. Private protective
services have been
defined as “those self-employed individuals and privately funded business entities and organizations providing security-related services to specific clientele for a
fee . . . in order to protect their persons, private property, or interests from various hazards.”10 Normally these firms are employed by corporate clients to protect
private interests. They act as private citizens and may make arrests for violations of crimes committed in their presence.
The prosecuting attorney is a familiar individual in the criminal justice process. The office of the
prosecuting attorney is known by a variety of names, including district attorney, county attorney,
commonwealth attorney, and, at the federal level, the U.S. attorney. The prosecutor plays a critical role in the criminal process for a variety of reasons. That person
is the go-between for law enforcement and the courts and decides what type of charges to file, whether to plea bargain a particular case, and how to present the case
to the court or jury. The primary duty of the prosecutor is to promote justice, not just to prosecute.
One hotly debated issue surrounding the prosecutor’s function concerns plea bargaining.11
From a criminal justice perspective, a plea bargain serves several purposes: A defendant may
receive the opportunity to plead guilty to a lesser charge that will reduce the time spent in jail or
prison, or the prosecutor may have a weak case and a plea bargain may ensure that the defendant
is convicted of something rather than walking free after an acquittal. Also, from the judge’s perspective, a plea bargain eliminates one more case. A plea bargain may
also benefit a victim in several ways: A plea to a lesser offense eliminates the requirement that the victim relive the crime by testifying in court and, similar to
the prosecutor’s position, a plea bargain guarantees that the defendant is convicted of some crime. Conversely, many victims resent plea bargains because they believe
that a jury should decide the case, and that if the perpetrator is guilty, he or she should be punished to the maximum extent allowed by the law.
Another controversial aspect of plea bargaining is that some prosecutors fail to notify the
victim of their intent to reduce or dismiss some of the charges in exchange for a plea of guilty.
There are victims who have found out about the plea bargain at the time the prosecutor called
to inquire about the status of the case. If plea bargaining is to occur, the preferred method is to
fully involve the victim in the decision-making process. If the victim is adamantly opposed to the
reduction or dismissal of charges, the prosecutor should seriously consider not going forward
with the plea bargain.
The prosecuting attorney is the representative of the people of the state or of the United
States. This person is not the crime victim’s personal attorney. This aspect of our criminal justice
system is very troubling to many victims. However, a prosecutor who is sensitive to the needs and concerns of victims of crime can help reduce these concerns and many
of the other traumas suffered by these individuals.
The defense counsel represents the rights and interests of the perpetrator. Unlike the prosecutor
who is concerned with justice and fairness, the defense attorney’s obligation as established by the American Bar Association’s General Standards of Conduct is to use
all available courage, devotion, and skills to protect the rights of the accused. Many defense attorneys interpret this obligation as requiring that they do everything
possible to obtain an acquittal even if they know that the defendant in fact committed the offense. Unlike the prosecutor, the defense counsel, even though an officer
of the court, has no duty to promote justice. The defense counsel has the primary duty to advocate for the best interests of the accused.
The Sixth Amendment to the U.S. Constitution requires that those who are accused of
crimes have a right to be represented by an attorney. The Supreme Court in the landmark case
of Gideon v. Wainwright established the principle that all defendants have a right to counsel in
all felony cases even if they could not afford to hire their own attorney.13 The court extended
this concept to misdemeanor cases in Argersinger v. Hamilin holding that absent a waiver no
person may be imprisoned for any offense, either misdemeanor or felony, unless represented by
There are basically four types of defense counsel: public defenders, contract defense
services, assigned defense counsel, and private defense counsel. Public defenders are hired and
paid for by the government and are appointed to represent those persons charged with crimes
who cannot afford to hire an attorney for representation. Many counties have public defender’s
offices that are staffed by very able, aggressive attorneys. However, there are instances when, for
a variety of reasons, the public defender’s office has a conflict of interest in a case. For example,
this may occur if there were two defendants in one case. In this situation, the court may appoint
an attorney from the contract defense services to represent one of the two defendants. Contract
defense services are normally composed of a group of attorneys who have entered into an agreement with the county to represent indigent defendants for a specified
amount of money.
Assigned defense counsel exists in the majority of the counties in the United States.15 Many
of these counties are small and cannot afford the cost of maintaining a public defender’s office.
Under the assigned defense counsel format, the court maintains a list of attorneys who are willing to be appointed to represent indigent criminal defendants. When a
defendant appears in court, the judge appoints the next attorney on the list to represent the perpetrator.
Another category of defense attorney is the private defense counsel. These attorneys usually
represent those defendants who are capable of paying for their services. Not only do perpetrators
have a right to an attorney, the courts have held that the attorney must be competent.16 Although
the Constitution requires competent counsel who will vigorously defend the perpetrator, there is
no requirement or right to have an attorney who will knowingly present perjured testimony. In
Nix v. Whiteside, the defense attorney, upon learning that his client was going to take the stand
and commit perjury, informed the client that he could not permit such testimony and if the client
insisted on going forward and giving this testimony, the attorney would disclose the perjury and
withdraw from the case. The perpetrator testified and did not commit perjury; however, he did
file an appeal claiming ineffective counsel. The court disagreed, holding that attorneys who fol-
low their state’s rules of professional (ethical) conduct do not violate the Sixth Amendment right
Both the structure and organization of the court system were explained earlier in this chapter.
Here it is only necessary to explain that the courts play a critical role in the criminal justice
process. They bring an impartiality and formality to the system that provides it with balance, and
One of the least discussed entities in the criminal justice process is the correctional system.
Victims’ involvement with perpetrators does not end at the conviction and sentencing phase.
Many victims must appear each year and offer evidence as to why a certain perpetrator should
not be released from custody. Therefore, it is necessary for any professional involved with victims to understand the role and responsibilities of the various
There are two basic types of penal facilities: jails and prisons. Jails are operated by local
agencies such as cities or counties. Jails are used for pretrial detention, holding after sentencing, and for incarceration of those persons who are not being
sentenced to prison. Normally these are individuals who have been convicted of misdemeanors and will serve up to one year of imprisonment. Some jurisdictions use jail
“boot camps” where the inmates undergo rigorous mental and physical training during their incarceration.
Prisons are administrated by states or by the federal government and are reserved for the more serious offenders. There are various types of prisons that range from
minimum-security institutions to those that house the most violent predators in society.
There are three types of persons involved in the corrections field: probation officers, parole
officers, and correctional officers. Probation is a distinctly American institution. It began with
John Augustus, who in 1841 asked a Boston judge to permit him to sponsor an offender. The
court agreed to his request, and the perpetrator was sentenced to Augustus’s custody instead of
jail. (Augustus is considered the father of probation.)
Probation is a conditional release of the offender after he or she has been found guilty. It is traditionally used on misdemeanor or other low-level crimes. It allows
the perpetrator to remain free so long as that person meets certain conditions. Probation officers are those persons employed by the local jurisdictions to supervise
these offenders. Many different forms of probation services are offered in the United States, and there is a continuing debate on which one is the most effective.
Parole is the conditional release of an inmate back into the community from a prison or other form of correctional institution. Many jurisdictions allow for the parole
of offenders, which
normally occurs after a board or commission has made a determination that the prisoner would
benefit from early release. Victims may appear at these hearings and oppose the release of those
predators. The victims are especially those who have been sexually assaulted themselves or those
whose loved ones had been killed. These hearings are held every year in many jurisdictions with
the result that the victim must relive the crime annually in an attempt to keep the perpetrator
Correctional officers : are those persons who are hired to maintain security in jails or
prisons. Many of these positions require only a high school education and a clean criminal background. Some states are beginning to impose more educational
requirements on applicants, and several states have upgraded their training for correctional officers.
The court system and the parties involved are only a small part of the entire criminal justice system. Victim advocates must also be familiar with the criminal justice
process. The next section examines the various steps in this system.
Criminal Justice Procedure
outline of trial procedures
In order that the reader may better understand the trial procedures, an outline of the general
procedure in a criminal trial is included here. Depending upon the jurisdiction, there may be
some slight deviation from the procedures set forth.
• Presentation of indictment or information
• Selection of jury
• Swearing in of jury (trial technically begins at this time)
• Reading of charge and plea
Opening statement by prosecuting attorney
• Opening statement by defense (this may be waived entirely or until prosecution rests)
• Calling of first prosecution witness and administration of the oath
• Direct examination
• Cross-examination (may be waived)
• Redirect examination (may be waived)
• Recross-examination (may be waived)
• Calling of additional prosecution witnesses, administration of oath, direct examination,
and other procedure as in case of first witness
• Prosecution rests
• Motion for judgment of acquittal by defense (if denied, then the following procedure)
• Opening statement by defense (if not previously given)
• Calling of first defense witness and procedure followed as in case of first prosecution
• Defense rests
• Rebuttal presentation by prosecution
• Closing arguments by prosecution and then by defense
• Rebuttal closing argument by prosecution
• Instructing the jury
Return of the verdict (if guilty verdict returned, then the following procedure)
• Request for new trial by defense (if denied, then the following procedure)
• Sentencing hearing
• Sentencing the defendant
A criminal proceeding involves many steps.
includes all the formal and informal decisions and steps within the criminal proceeding process. It is important to remember that in criminal cases, the government has
the burden of proof. At each stage in the proceedings, the accused is afforded certain rights that are guaranteed by both federal and state constitutions.
These constitutional protections have shaped the way in which our criminal process functions.
From the first encounter to the execution of an inmate, certain constitutional protections man-
date that law enforcement officers and those representing the government carry out their duties
in certain ways. These constitutional mandates have resulted in a complex series of hearings and/
or actions that must occur during any criminal proceeding. The examination of this process
starts with the first formal court activity; that is, those pretrial activities associated with bringing
an accused into the system.
Pretrial activities include a variety of acts, including the arrest, the booking, and the filing of a
complaint. An arrest is taking a suspect into custody in a manner prescribed by law. An arrest
usually occurs in one of two ways: When a warrant of arrest has been issued by a magistrate or
when an officer has probable cause to believe that the suspect has committed a crime. Arrest
usually involves transporting the suspect to jail so that charges regarding the offense can be filed.
In misdemeanor or infraction cases, instead of taking the suspect to jail, the officer may simply
issue a citation to the suspect. A citation is an order to appear before a judge at a later time. An
example of a citation is a traffic ticket issued by an officer to a person who violates the vehicle
When the officer transports the offender to the local police station, the booking process
begins. Bookings involves entering the suspect’s name, offense, and other information into the
police records. The suspect is also fingerprinted and photographed at this time. The suspect is
usually allowed to make a phone call during this process. For certain types of offenses, a bail
schedule is established and made available at the police department. If the suspect can pay the amount listed on the bail schedule, he or she is freed and ordered to
report to a judge at a
predetermined time. In more serious cases, the suspect is taken before a judge for a bail hearing.
This type of hearing is discussed in more detail later in this chapter.
In many jurisdictions, pretrial activities include filing a complaint by the local prosecutor’s
office. However, prior to filing the complaint, the prosecutor reviews the facts of the case and
decides what charge to file. This process takes place with both felonies and misdemeanors.
Once the suspect is in custody, the suspect (who is now called the defendant) must be brought
before a judge without unnecessary delay. In County of Riverside v. McLaughlin, the Supreme
Court held that defendants must be brought before a judge within forty-eight hours.18 The court
further held that weekends and holidays could not be excluded from the forty-eight-hour rule,
and in some cases delays of less than two days may still be considered unreasonable.
At this first hearing, the defendant is informed of the charges and of his or her right to
counsel. If the defendant is indigent, the judge begins the process of appointing an attorney for
him or her. It is during this first appearance that bail is set.
Historically, the right to bail was considered so important that the drafters of the U.S.
Constitution included it in the Bill of Rights. The Eighth Amendment states that excessive bail
shall not be required; however, this does not mean that all defendants have a right to bail for all
crimes. The right to bail requires that the judge consider the defendant’s individualized circum-
stances in setting bail.19 These factors include the nature and circumstances of the offense, the
weight of evidence against the defendant, the financial ability of the defendant to pay the bail, and the character of the defendant.
In recent years, the defendant’s dangerousness has also come under scrutiny in establishing
bail. Preventive detention allows the court to deny bail based on a finding that the defendant may
commit further crimes if released. The most elaborate preventive detention scheme in existence
is found in the Federal Bail Reform Act of 1984, which makes the safety of any other person, or
the community, a relevant consideration in setting bail. This aspect of bail is especially important in family violence situations, and every effort must be made by
professionals who work in
this field to gather all pertinent information and forward it to the prosecutor in a timely manner
so that it can be presented to the judge during the bail hearing.
Preliminary hearing or grand jury hearing
In felony cases, the next step is the preliminary hearing or grand jury hearing. The preliminary
hearing is similar to the first appearance in that it occurs before a judge of a lower or municipal
court. The purpose of the preliminary hearing is for the judge to make an impartial determination of whether there is probable cause to believe that a crime has been
committed and that
the defendant committed it. The defendant is present during this hearing and is represented by
counsel who has the right to cross-examine any witnesses who are called to testify by the prosecutor. At the end of the presentation of evidence, the judge must
determine if there is sufficient evidence to “bind over” or forward the case to the superior court for further proceedings and/or trial.
The grand jury hearing is conducted in secret. The grand jurors are citizens selected to
serve for one year. They decide by majority vote whether to issue an indictment. The prosecuting
attorney presents the evidence, and neither the defendant nor the defendant’s attorney is present.
If the grand jury finds there is sufficient evidence, it files a “true bill” with the superior or district
court. A true bill is an indictment charging the defendant with the crime or crimes.
The Constitution does not require that states use a grand jury.21 In about one-half of the
states, a grand jury indictment is used for at least some of the felony cases. Grand juries are used
in federal courts and in those states that mandate the use of grand juries. In many states, if the
prosecutor has a sensitive case such as one dealing with a young child who has been molested, that prosecutor may decide to use a grand jury even if not mandated to do
so by state statute. If a
grand jury indictment is not used, the preliminary hearing is held, and any information is filed by
the prosecutor with the trial court. Similar to an indictment, the information sets forth all charges
against the defendant.
Once the indictment or information is filed, the defendant is brought before the court and
arraigned. In this hearing, the charges are formally read and the defendant is asked to enter a
plea. This is not a trial, and other than reading the charges, the court does not examine any of the
evidence against the defendant at this time.
It is during this hearing that the defendant may enter one of three basic pleas: guilty, not
guilty, or nolo contendere. In a guilty plea, the defendant admits to committing the offenses
charged. If the defendant is entering a guilty plea, the court will normally inquire if he or she
understands the nature and consequences of the plea and if the plea is being entered voluntarily.
Many courts will read all the consequences of a plea into the record to prevent appeals by the
defendant at a later time.
A not-guilty plea requires that the matter be set for trial and mandates that the prosecutor
prove every element of the crimes charged and prove that the defendant committed the crime.
Once the defendant enters a not-guilty plea, the judge will then inform him of his right to a court
or jury trial and set the case for further proceedings. Another form of not-guilty plea that may be
entered at the arraignment is not guilty by reason of insanity. This type of plea is used when the
defense attorney has reason to believe that her client may not be responsible for his actions as a
result of a mental disorder or disease.
Nolo contendere: pleas literally mean “no contest.” The defendant is not contesting the
charges. In essence, it is a guilty plea and carries the same criminal sanctions as a guilty plea,
but significantly for victims, it cannot be used in any subsequent civil action to establish liability
against the defendant.
The right to a jury trial is one of our most fundamental constitutional guarantees. The use of
twelve jurors in criminal cases is common, but not constitutionally mandated. It is more an
historical tradition than a legal requirement. In Williams v. Florida, the U.S. Supreme Court held
that the individual states may decide how many jurors should hear a noncapital criminal case,
and as long as the number is large enough to ensure a cross-section of the community, it will be
considered constitutionally sound.
Prospective jurors are selected based on the various states’ legislative schemes. Many
states use a combination of property tax roles, Department of Motor Vehicles listings, and voter
registration records. When these jurors report for duty, a panel is sent to the courtroom for
further selection. Twelve jurors are initially called to take their seats in the jury box, and the
voir dire examination of prospective jurors begins. Voir dire means to “seek the truth.” While
this process may vary by jurisdiction, it normally involves the judge questioning jurors about
details in their past or about present beliefs that might uncover possible bias or prejudice. Once
the judge has finished with the questioning, the defense attorney and the prosecutor each have
an opportunity to question jurors. Either side may challenge a juror for cause, meaning that the
juror has disclosed something that will not allow him or her to be fair during the trial. Once all
the challenges for cause are finished, each side may use what is called peremptory challenges to
remove other prospective jurors from the panel. A peremptory challenge does not require an
explanation and is used by either side to excuse a prospective juror without stating the reason for
the dismissal. There are a limited number of peremptory challenges available, and once they are
exhausted, or the prosecutor or defense attorney is satisfied with the panel, the remaining jurors
will sit as the jury.
The opening statement is the first opportunity for the attorneys to tell the jury about the detailed
facts in the case. Many trial lawyers believe that the opening statement is like the table of contents of a book. It points out the important facts and acts as a guide
for the jury. Opening statements may be brief summaries or detailed accounts of the crime. The nature and scope of the opening statement depend on the preferences of
the attorney who is presenting. Opening statements are not evidence; rather they are the attorney’s beliefs of what evidence will be introduced during the trial. The
prosecutor is allowed to make the first opening statement. The defense may make a statement at that time or wait until the prosecution has rested and make the opening
statement prior to putting on any defense evidence.
Case in chief
Once the opening statements have been made, the prosecution presents its evidence dealing with
the guilt of the defendant. It is during this phase that the victim of the crime will be called to
testify. The prosecution must prove each element of every crime and that the defendant commit-
ted those crimes.
After a witness has testified, the defense has the right to cross-examine. After the defense
has finished with its cross-examination, the prosecution has a right to question the witness again
on matters raised on cross-examination. This is called redirect examination. After the prosecution
finishes with redirect, the defense may engage in recross-examination. As anyone who watched
the O. J. Simpson trial observed, this process can take hours or even days. Once all witnesses for
the prosecution have testified and all physical evidence has been admitted by the judge, the prosecution rests its case.
It is at this time that the defense must decide what, if any, evidence it will present. The defense does not have to call any witnesses. It can rely on the presumption
of innocence and argue to the jury that the prosecution has failed to meet its burden. There have been a number of cases in which the defense has elected not to call
any witnesses, and the trial then moves to the next step. In the event the defense elects to put on any evidence, it will follow the same process previously described.
Once the defense has finished presenting its evidence, the prosecution has the opportunity
to present rebuttal evidence. The defense is then entitled to surrebuttal, and it alternates back and
forth until both sides are finished. When both sides have finished presenting their evidence, the
trial moves on to what many attorneys consider to be the most dramatic stage.
Closing argument is the final opportunity for the attorneys to address the jury. The prosecution
presents its closing argument followed by the defense argument. The prosecution has the right to a final summation after the defense argument because it bears the
burden of proof in criminal cases. Closing arguments are not evidence; rather they are the attorney’s attempt to persuade the
jury to accept the position regarding the guilt or innocence of the defendant. Many attorneys believe that oral argument is more an art than a science. Clarence Darrow
was the defense attorney in the famous case dealing with Darwin’s theory of evolution, the Scopes Trial. Darrow is considered by many legal scholars and practitioners
to be one of the most outstanding trial attorneys in the history of the United States, and his final summations are required readings for many young trial attorneys.
Deliberation and verdicts
Once both sides have rested, the judge reads the instructions to the jury. These instructions are the law that the jury must follow in its deliberations. The jury then
retires to a jury room and selects one member to be the foreperson. The jury will then review all the evidence and reach a verdict regarding whether the defendant is
guilty of the crimes charged. In the event the jury cannot reach a verdict, it informs the judge. This is called a “hung jury,” and the judge may declare a mistrial.
If the jury reaches a verdict, it notifies the judge and all parties to reassemble in the courtroom.
The judge’s clerk reads the verdict. If found not guilty, the defendant is free to go. In the event the defendant is found guilty of all or some of the charges, the
next step in the criminal process begins.
A review of our history demonstrates that various views and beliefs regarding punishment have
evolved over time.23 At one point in ancient Rome, punishment was viewed as a right of the
victim’s family. Eventually, we began to accept the concept of the sovereign as the dispenser of
justice and punishment.
The four basic purposes for sentencing are deterrence, rehabilitation, retribution, and
Deterrance involves the concept that criminal sanctions, such as imprisonment,
deter the public and convince them that they should not commit crimes. Rehabilitation focuses
on reducing the offender’s criminal propensities by counseling, therapy, and vocational training
while incarcerated. Retribution is based on the biblical theme of “an eye for an eye, a tooth for a
tooth.” K. G. Armstrong has argued that retribution is not based on vengeance but rather is the
lawful act of the state to protect its members from further injury.24 Another theory regarding
retribution involves the concept of “just desserts.” This rationale for punishment is based on Von
Hirsh’s classic work, Doing Justice, in which he argues that those who commit crimes deserve to
be punished. Incapacitation: removes offenders from society by keeping them incarcerated.
The “Three Strikes and You’re Out” law is an example of incapacitation of offenders.
Before imposing a sentence, the court usually receives a presentence report. This report
is generally prepared by the probation department and normally begins with a recitation of the
crime. It then presents the prosecution’s version of the case followed by the defendant’s version.
It may present information about the background of the offender, including the parents and
siblings, marital history, education, health, financial condition, and previous employment.
The report also includes the nature and extent of previous criminal activities and discusses the
victim’s desires and needs. It makes a recommendation regarding what the probation department
considers to be the most appropriate sentence for this particular defendant.
Once the presentencing report is complete, the defendant is returned to court for
sentencing. At this time, the prosecution has an opportunity to argue for whatever sentence it
feels is appropriate. The defense can also present any evidence it chooses to convince the judge
to sentence the offender according to its desires. In many jurisdictions, victims have a right to
appear and tell the judge of their own wishes and how the crime has impacted on their lives. This
victim impact statement is addressed in more detail later in this textbook.
Civil court proceding and victim
The preceding sections discussed various aspects of the criminal justice system and its effect on
victims. This section briefly explores the second aspect of the legal system to impact victims: the
civil law system. A criminal action punishes a person for committing a public wrong, whereas a
civil action punishes a person for committing a private wrong or injury. Civil law includes all
actions that are not deemed criminal in nature. Understanding the civil law system is important
to those studying Victimology, because many victims of crime turn to civil law in an effort to
obtain redress for injuries not compensated by the criminal law system.
Victims file civil actions against their perpetrators for various reasons. One reason may
be that they do not believe they received appropriate satisfaction as a result of any criminal
proceedings. The defendant may have been acquitted or convicted of a lesser charge than the
victim believes is proper. Victims may also feel mistreated by the criminal justice system and have a desire to be in control of the proceedings instead of being
treated as merely a witness in a case.
The begininng of the movement
During the late 1960s, victims of crime began volunteering to serve within various victim
Assistance programs. As these crime victims continue to speak out, states and federal government reacts by establishing commissions to study crime and its
There were two federal responses to crime victimization during this period. One was the
establishment of the NATIONAL CRIME SURVEY. The second major action on the part of the federal government was the establishment of the Law
Enforcement Assistance administration (LEAA). This agency provide funds to law enforcement agencies for variety of purposes including the establishment of victim
In 1974, the LEAA called a meeting in Florida of various victim advocate to discuss methods of increasing victims right .One consequence of this meeting was the
formation of the National Organization for victim Assistance (NOVA) in 1976. NOVA is considered one the leading victims right organization in the world.
Gains and Losses
During the late 1970 and early 1980s, The movement foundered. Lack of founding by the federal government caused many community based victims’ organization and service
providers to cease operations. In addition, within the movement, issues such as professionalism and training caused increasing divisiveness. . The movement began to
separate into specialized group that focused on specific issues. Several Sexual Assaults, and domestic violence organization, such as the National Coalition Against
Sexual Assault were established to address the specific needs of the victims.
Although there was tension among various service providers because of diminishing
funding and disagreement regarding specific goals, there was also progress in other areas of the
victims’ movement during this time period. Parents of Murdered Children (POMC) was founded
by Robert and Charlotte Hullinger in 1978, and Mothers Against Drunk Driving (MADD) was
founded by Candy Lightner in 1980. Both of these organizations continue to have an impact on
the victims’ rights and victims’ movement. In addition, Congress passed a federal Victims’ Bill
of Rights. By 1990, two-thirds of the state’s had enacted similar types of laws for protecting victims.
In what may become one of the most critical dates in the history of victims’ rights, on
June 25, 1996, President Clinton proposed a Victims’ Rights Constitutional Amendment to
the U.S. Constitution. In a speech made in the Rose Garden announcing the Victims’ Rights
Constitutional Amendment, President Clinton stated:
Having carefully studied all of the alternatives, I am now convinced that the only way to
fully safeguard the rights of victims in America is to amend our Constitution and guarantee
these basic rights—to be told about public court proceedings and to attend them; to make a statement to the court about bail, about sentencing, about the accepting a
plea if the victim is present, to be told about parole hearing to attend and to speak: notice when the defendant or convict escapes or released, restitution from the
defendant, reasonable protection from the defendant and notice of the right.
The Victims; Right Constitutional Amendment faces a long and complex process before it becomes law. It must be accepted by three-quarters of the states to become part
of the constitution. It is not something that will happen in a few weeks or months, and there are those who already claim that the proposed amendment is too detail
and should be made broader. No matter what the out outcome, the simple fact that such an amendment has actually been proposed is a significant acknowledge of the
plight of crime.
Increased Public Awareness
During 1982 through 1986, victim organization began to use the media to increase public awareness of crime victim issue. President Ronald Reagan, and congress,
responded to this heightened awareness with action that would eventually have long term consequence for the victims’ movement. In 1982, President Reagan appointed a
Task Force on victim for Crimes. This Task force published a report that has since becomes foundation platform for victims’ right.
The Office for victims of Crime(OVC) was created in the Department of Justice of Crime Act(VOCA). This act established the OVC in the office of Justice Programs,
Department of Justice.
The OVC provides grants to states for programs with direct service for victim of all crimes. VOCA also established the crime Victims fund to provide money to local
assistance programs and states victim compensation. The fund receives money from, federal criminal fines, penalties, and forfeiture. VOCA’s operation is further in
examined. Chapter 15
From 1984 to the present, the victims’ movement has been characterized by an increase in the
professionalism of the victims’ service advocate and providers. In previous times, the victims’
movement was heightened by strong dynamic leaders with vision and determination. At present,
the movement has expended beyond the ability of any one person being able to influence its direction.
It is now a national movement with a tremendous influence on local, states, and national politics.
Universities are expanding their victim-related courses. Various victims’ organizations are
offering increased training opportunities, and in 1995, the U.S. Department of Justice sponsored the first National Victim Assistance Academy in Washington DC. This
academy was repeated in 1996 and 1997 using distance learning technology to link other universities in a joint academic effort.
The public awareness of victim issues continue to grow, and victim advocates have become as acknowledged force in modern politics. Victim service providers are
realizing that their profession are requires training that is multiple disciplinary in nature. There is a growing awareness that to be accepted by other professional
requires continuing education, certifications, or other acknowledge credentials. This increased professionalism should translate into more sophisticated
intervention and a faster rate of progress within the victims’ movement.
Increased professionalism also means increased knowledge and insight into the problems of victims. In 1994, congress enacted the Violence Against Woman Act ( VAWA).
Congress mandated that various professions form partnership and work together to respond to all forms of violence against women. The VAWA was reenacted and expanded in
The attorney general is required to make a report to congress annually on the grants that are awarded under the act and ensure that research examining violence against
women is encouraged. The report must include the number of grants, funds distributed, and other statistical information. In addition, the report must assess the
effectiveness of any programs that are funded under VAWA.
The act provided funding a variety of research based studies. I t also requires that federal agencies engage in research regarding violence against women. For
example, the National Institute of Justice is mandated to conduct four important projects: (1) the development of research agenda that will address violence with
particular emphasis on underserved population. (2) the assessment of establishing the state database to record the under of sexual and domestic violence incidents.
(3) a study to determine how abusive partner obtain address of their victims, and (4) the examination with other agencies of the battered women syndrome.
Harvey Wallace & Cliff Roberson
Victimology: Legal, psychological , and Social Perspective (4th edition)
Upper Saddle River, NJ
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