Balancing crime victims’ rights with your ethical duties as a prosecutor can be challenging, but it’s the right thing to do for victims—and for your case.

By Cynthia A. Morales
Assistant District Attorney in Nueces County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

A very wise, very experienced prosecutor once told me that the worst names he had ever been called—and he had been called many—had been by crime victims. As he expressed it: “They want me to fix something that no one can fix—the hole in their heart caused by the crime. And no matter what happens, indictment, conviction, sentence, even the death penalty, nothing can ever fix that hole. And I would tell them, believe it or not, I am on your side. It may not seem so, but I really am.”

This statement reflects a fundamental dilemma for most prosecutors. Anyone who has been prosecuting for a number of years knows our mandate to see that justice is done. But representing the State, not the victim, invariably leads to a delicate balancing act between crime victims’ wishes and prosecutorial duties and an occasionally uncomfortable alliance between prosecutors and crime victims. Keeping that balance, so that you can do the best job possible as a prosecutor, can be tremendously difficult.

Ask a hundred prosecutors how one should balance the relationship with a victim and the prosecution of a case, and you will get a hundred different answers.

Yet there is one fundamental step that we prosecutors could, and should, take to help both crime victims and our own prosecutions: knowing and respecting crime victims’ rights, which are already set out in Texas laws and the Texas Constitution and incorporating them into our prosecutions within the framework of our ethical duties. Most of us know that there is a crime victims’ bill of rights in Texas, but we are a bit fuzzy on the details. Because there are now designated victim assistance coordinators in every prosecutorial jurisdiction in Texas and the Code of Criminal Procedure gives them the specific duty of ensuring that victims are afforded their rights, it can be tempting to think, “The victim assistance coordinator has that covered; my job is to focus on winning this case.” Certainly, victim assistance coordinators do a fantastic job and inestimable work. But if we prosecutors don’t personally know what rights crime victims have and don’t personally make implementing those rights part of how we handle our cases, victims’ rights won’t be fully realized in Texas. Because aside from helping prosecutors keep on the “white hat” of “doing right” that is part of our chosen profession, incorporating crime victims’ rights into the prosecution of cases helps make cases stronger and helps ensures that justice is done.

The law
Under both Article I, §30 of the Texas Constitution and article 56.02 of the Code of Criminal Procedure, the two most significant pronouncements of crime victims’ rights in the state of Texas, it is the “attorney for the state” who has the primary responsibility for ensuring and enforcing crime victims’ rights in Texas. The Texas Constitution gives the “state, through its prosecuting attorney” the “right to enforce the rights of crime victims,” and article 56.02 more pointedly says that the “office of the attorney representing the state (along with other law enforcement agencies) … shall ensure to the extent practicable that a victim … is accorded the rights granted” in the article. Most of the notification provisions in chapter 56 specifically require that “the attorney representing the state,” “the attorney for the state,” or “the district attorney’s office” provide the required notice, information or explanation, and the victim has the specific right to have his or her victim impact statement considered “by the attorney representing the state in entering into the plea bargain agreement.”

Article 56.04, which establishes victim assistance coordinators, says that the duty of a victim assistance coordinator is to ensure that victims’ rights are afforded, but its language, especially in light of the language in other provisions in Chapter 56, can’t be read as creating an exclusive duty; indeed, the same statute requires the victim assistance coordinator to work closely with various entities, including prosecuting attorneys, to carry out that duty. But even if the letter of the law for most victims’ rights could be carried out by a victim assistance coordinator sending out materials and notices and explaining matters to victims, the responsibility under the law is clearly a collective one of a prosecutor’s office.

The practical reality
Though a prosecutor’s office generally has to rely on the hard work of its victim assistance coordinators for initial and primary contact with victims, some victims’ rights are best, or even must be (such as in considering the victim impact statement in plea bargaining) carried out by prosecutors themselves. Some victims’ rights, which are incorporated in other sections of the Code of Criminal Procedure apart from article 56.02—such as the right of certain victims to use a pseudonym in court documents, the right for victims to be present in the courtroom during proceedings despite “the Rule” (absent certain findings from the judge), the opportunity (at the prosecutor’s discretion) to provide victim character evidence and victim impact testimony at punishment, and the right to present a statement after sentencing —all directly affect the conduct and proceedings of a criminal case and would fall squarely in the province of the prosecuting attorney. A completed victim impact statement could affect a trial judge’s decision on an open plea, the terms of a plea bargain agreement (e.g., regarding restitution), and the conditions of probation. Notifying a victim of his pertinent rights applicable after the trial, such as the right to be notified of community supervision modification, revocation, and termination hearings and the right to be notified, be present, and provide a written or live statement at parole release hearings , could have a very real impact on the outcome of a community supervision case or release on parole. The exercise of a victim’s rights—before, during, and after the trial of a case—can have a direct and substantial effect on whether justice is achieved.

On a more fundamental level, it just makes sense for prosecutors to ensure that the victims in their cases are afforded their rights. If you have a victim who is informed and cooperative, your case can become better and stronger. Victims who feel included are generally more cooperative and helpful to your present case and in any cases they are involved with in the future. For many victims, the trial prosecutor is the face of the criminal justice system; how victims are treated and the opportunities for them to participate will affect their attitude toward the justice system well into the future, as well as their healing from the crime. Even something as simple as keeping in touch with a victim can make a tremendous difference. Making sure victims understand the system, their role, and your role, can smooth the relationship.

Even when a case is lost, if the victim receives an explanation of the process, is informed of settings and the progress, is given a chance to be present and involved to the extent consistent with the law and good prosecution, and is treated with understanding, respect, and courtesy, it is likely that these small steps will make the difference between a victim who comes out of the experience embittered and one who is pained but faces the result with calm resolution. Every step along the way, your treatment of the victim is going to affect your case.

For practical reasons then, as well as the responsibility placed collectively by the Texas Constitution and Chapter 56 on “the office of the attorney for the state,” being aware and respectful of crime victims’ rights is the right thing to do.

The ethical issues
Still, carefully implement victims’ rights within the context of the law and the special role and responsibilities of a prosecutor. A prosecutor represents the State, not the victim. Victims do not become a party to a criminal proceeding, and prosecutors cannot claim to represent them at trial, nor advocate for the jury to assess the punishment that the victim would want imposed.

In fact, a prosecutor must deal fairly and justly with a person accused, “no matter how repulsive” the defendant. Prosecutors have specific constitutional duties to defendants, such as the duty to disclose material mitigating, exculpatory, and impeaching evidence; to preserve and make available any favorable material physical evidence not otherwise available to the defendant; not knowingly introduce false testimony; and to correct any false testimony of which the prosecutor becomes aware.

In this context, it is clear that victims’ rights were provided to allow victims “the means to have access to and provide input into the criminal justice process—not to control it.” Both the constitutional and statutory Texas crime victims’ bill of rights specifically say that the victim does not have standing to participate as a party in a criminal proceeding nor contest the disposition of a charge. A crime victim’s rights are to be effectuated “within the criminal justice system” rather than “superseding or overriding it.”

Nevertheless, prosecutors do have ethical responsibilities—aside from their statutory duties under chapter 56—to crime victims. Although prosecutors clearly do not owe victims the duties outlined for clients in the disciplinary rules, victims would fall under the provisions of Rules of Disciplinary Conduct 4.01 (Truthfulness in Statements to Others) and 4.03 (Dealing With Unrepresented Persons). While most prosecutors would readily apply rule 4.01 (which would prohibit lying to the victim), rule 4.03 presents a duty most might not be aware of: to correct any misunderstanding an unrepresented person might have about your role in the case. In the context of a prosecution, this rule imposes an ethical responsibility to make sure the victim understands the prosecutor’s role, particularly the fact that the prosecutor is not representing the victim. To suggest or imply otherwise to the victim would be a violation of both rule 4.01 and 4.03. Similarly, to mislead a victim about a material fact or law would be a violation of rule 4.01, even if done in an effort to advance your case in the way you think best.

Other rules of disciplinary conduct could also affect a prosecutor’s relationship with a victim, namely, rules 3.01, 3.02, 3.03 (particularly (a)(5)), 3.04 (particularly (a), (b), and (e)), 3.07, and 3.09. Depending on the nature of your case, you may have to discuss some of the ethical constraints placed on you by these rules with your victim.

Ultimately, the key principle to ethically dealing with victims and ensuring the provision of a victim’s rights, is making certain that victims understand the role, rights, and responsibilities of prosecutor and victim. With that understanding in place, you can move forward to assist victims in ensuring their rights, within the proper context, while still retaining your own necessary independence to handle the case as justice requires.

Incorporating crime victims’ rights into prosecution
The best means to incorporate crime victims’ rights into the prosecution of criminal cases will vary from jurisdiction to jurisdiction and prosecutor to prosecutor, but here are some suggestions on how prosecutors and prosecutor’s offices might be able to better ensure that crime victims’ rights are being recognized and applied.

Prosecutors’ offices.

Training. Specifically focused training in crime victims’ rights and prosecutors’ responsibilities for them, as well as how to do so effectively and ethically, is important for a new prosecutor’s education, but refresher courses are also needed for experienced prosecutors. Both the Crime Victims Services Division of the Office of the Attorney General (www.oag.state.tx.us/victims/victims.shtml) and the Victim Services Division of the Texas Department of Criminal Justice (www.tdcj.state.tx.us/victim/victim-home.htm), which houses the Texas Crime Victims Clearinghouse, can provide resources and even conduct training for prosecutors. The Texas District and County Attorneys Association has also included crime victims’ rights training for prosecutors in some seminars.

Office policies. An office policy outlining each position’s relative responsibility is extremely helpful in establishing the responsibilities of the victim assistance coordinator, trial prosecutor, and appellate prosecutor. Prosecutors often have more direct access and information about what is going on in a case than victim assistance coordinators. Sometimes in smaller offices where the victim assistance coordinator has other office duties, the prosecutor may actually have more direct contract with the victim. In larger jurisdictions, it may not generally be feasible for prosecutors to have much contact with most victims, but there may be a few simple actions (such as relaying information to VACs) that would result in better compliance with crime victims’ rights. Every jurisdiction’s needs and solutions will be different. What is expected in terms of interaction and coordination of the VAC and prosecutor in the shared responsibility to ensure victims’ rights in your jurisdiction? How can victims’ rights best be ensured by your office as a whole? Establishing specific policies and procedures regarding roles and interaction, and educating staff about how prosecutors and VACs can work as a team, can go a long way in helping an office smoothly and effectively protect victims’ rights.

Individuals.
Educate yourself. Whether or not your office offers specific training or you attend a training on crime victims’ rights, educate yourself. Read the law. Learn your office policy. Talk to your victim assistance coordinator.

Develop a personal plan. Many trial prosecutors have a trial checklist they use in every case to make sure that important matters are taken care of as the case is prepared for trial, a plea, or another resolution. The checklist would be a good place to incorporate victim’s rights to the extent possible and practicable given your jurisdiction, the operation of your victim assistance coordinator’s office, and your own caseload. Victims’ rights could be added to an existing sequential checklist (e.g., various rights listed under “pre-arraignment,” “trial preparation,” “trial,” “post trial,” as appropriate), in separate thematic section (“Victim’s notifications/issues”) or in another manner suitable to the checklist you already have. Some things that could be added to a checklist:

• Make sure the victim has been contacted. Or send a personal letter in every injury case (or even every case) to the victim inviting cooperation in the case and informing the victim that he has rights as a crime victim.

• Talk to the victim about his rights during the initial interview and make sure that he understood the information from the victim assistance coordinator. Some people are too shy to say that they just don’t understand the written materials or the role of a victim assistance coordinator, and they trust only information “directly from the attorney.”

• Consider whether certain specific victims’ rights or protections (e.g., bond conditions, AIDS testing, use of pseudonym, etc.) are applicable to a case and take necessary steps where appropriate to enforce them.

• Check to see that a victim impact statement has been filed, and if not, follow up directly with the victim and emphasize the importance of a VIS on your case and in the future. Because most victim notifications utilize the information provided in the VIS, a victim who wants notice but fails to fill out a VIS will risk not being notified. Ask the victim to complete one, and check again before the plea or trial to make sure one has been turned in.

• Make sure the victim understands—and has ongoing explanations as needed—the trial and plea bargain process, has provided contact information, and is getting notified (whether by you or the victim assistance coordinator) of important dates and court settings as well as important case decisions and their consequences.

• Explain to the victim how to exercise relevant and important rights during and after trial, and help the victim exercise those rights where you can (e.g., presence in court, post-sentence statement). Make sure actions which the law specifically requires of a prosecutor related to victim’s rights are taken.

• Ensure that the victim understands his role in the criminal justice system as well as yours. This point is critical to fulfilling your responsibilities as a prosecutor and minimizes any misunderstandings or hurt feelings that arise from a victim thinking that you are “his attorney.”

Work with your victim assistance coordinator. Working in tandem with your VAC and facilitating your victim’s cooperation with the VAC is probably the best thing that you can do to ensure that your victim’s rights are provided. Walk the victim over to the coordinator’s office if need be. Don’t assume your victim is being cooperative already, and don’t assume your coordinator can do it all alone (though yes, they can work miracles sometimes!). Helping your VAC help your victim can help you win your case.

Conclusion
As prosecutors, our commitment to crime victims’ rights should be an important part of our professional dedication to seeing that justice is done. Making the effort to educate ourselves about crime victims’ rights and our own ethical and legal responsibilities, and committing ourselves to incorporating crime victims’ rights into our prosecutions, will make us more ethical—and more effective—prosecutors.

Endnotes

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