Victimsofcrime.org
Module 5: Navigating the Criminal Justice System
Lesson Plan 3 hours 55 min
|Description |
| |
|Module 5 examines the justice system, focusing on how the advocate assists the victim to understand the system and assert their rights. Participants |
|practice translating justice system processes into terms understandable to a layperson. They also demonstrate how to assist victims with writing victim|
|impact statements. |
|Objectives |
| |
|Participants will be able to — |
| |
|Describe the key steps of the criminal justice system and the victim rights corresponding to each step |
|Explain the implications of AB 109 for how and where offenders serve their sentence |
|Explain at least two distinguishing characteristics of each justice system: adult, juvenile, military, federal, and tribal |
|Distinguish between civil and criminal forums |
|Assist a victim with crafting their victim impact statement. |
|Participant Preparation |
|-There is no participant preparation for this module. |
|Media and Materials |Facilitator Notes |
| |
|Trainer Preparation and Set-up |
| | |
| |Research the current status of the death penalty in CA so you can refer to it during the presentation accompanying |
| |the slide “Appellate Courts.” |
| | |
| |Gather information about legislative updates and adjust content. |
| | |
| |Prepare Anchor Case Study updates for distribution to each table for the Impact Statement activity at the end of the|
| |module. |
|What it’s like to Navigate the Criminal Justice System [pic] 15 minutes |
|Slide: Title Slide |Note: As an introduction to this module, participants will create a metaphor or simile to represent their experience|
|[pic] |of navigating the justice system. |
|Slide: Navigating the Justice System |? Helping victims navigate the justice system is such an important aspect of an advocate’s job that your clients |
|is like… |might even refer you as their “navigator.” Doing this job well requires a working understanding of all the players |
| |and processes that make up the system. |
|[pic] |To begin building this understanding, we’re going to develop a metaphor or simile. A metaphor or simile is a |
| |comparison that captures the “gist” of an experience in just a few words. Some of you might remember the well-known |
| |simile from the movie Forrest Gump where Tom Hanks says: “Life is like a box of chocolates, you never know what |
| |you’ll get.” |
| |This afternoon, we’d like you to write your own metaphor or simile that captures the experience of navigating the |
| |justice system. For example, it might be —“Navigating the justice system is like being in a maze. Sometimes you |
| |wonder if you’re heading in the right direction or if you will ever get to the end.” |
| |Take a couple of minutes to create your own metaphor/simile and write it in your Participant Manual next to the |
| |slide image. |
| |Note: After a couple of minutes, ask for volunteers to read their metaphors. Make a summary statement that captures|
| |the themes of their experience. For example, “Navigating the CJ system is complex, confusing, frustrating and |
| |uncertain.” |
|Slide: Questions we will answer |?In this session, we’ll answer some key questions: |
|[pic] |What are the steps of the criminal justice system process and how do victim rights align with each step? |
| |What distinguishes the adult, juvenile, military, federal and tribal justice systems in relationship to our role and|
| |victims? |
| |How do we help victims understand the differences between the civil and criminal justice systems? |
| |How can we best help victims express the impact of the crime in their victim impact statement? |
|Steps in the Criminal Justice System [pic] 60 minutes |
|Slide: How the Criminal Justice |Note: Throughout the following presentation, add examples from your own experience of how each step has impacted a |
|System works |victim. Also invite participants to contribute their own examples. |
|[pic] |?To begin, let’s get an overview of how the criminal justice system works. There are four major steps. |
| |• We’ll start with how the alleged offender enters the system. |
| |• Then we’ll move to the prosecution and what happens before the trial. |
| |• After that we’ll talk about the trial itself, and finally… |
| |• What happens after the trial.[i] |
| |This presentation will give you a basic outline of the sequence of events. But keep in mind that the process may |
| |vary according to the jurisdiction, the seriousness of the crime (felony or misdemeanor),3 whether the accused is a |
| |juvenile or an adult, and other factors. Not every case will include all these steps, and not all cases directly |
| |follow this sequence. |
| |We want you to be familiar with the steps in the criminal justice process and, in particular, how victims might be |
| |impacted at each step. However, you’ll need to work closely with your prosecutor to make certain that the |
| |information you give to victims is accurate for your jurisdiction and for each victim’s case. When you explain |
| |charges and sentencing to victims, we recommend that you involve your prosecutor, particularly when the charge or |
| |sentence is complex or might be subject to change. |
| |σ By a show of hands, how many of you have experience with the criminal justice system? |
| |Note: If a number of people raise their hand, invite them to share their experiences during the presentation — |
| |especially to point out how their local system handles particular steps in the process. |
| |?For some of you this will be a refresher and an opportunity to ask questions about how different counties operate. |
| |For others it may be relatively new information. Don’t hesitate to ask questions if you would like more detail about|
| |any particular step in the process. |
|Slide: Entry into the System |Note: If you’ve chosen to use “props” to add some visual interest to your presentation of the CJS, this is the time |
| |to don your police hat and/or badge. |
|[pic] | |
| |?The criminal justice process begins when an alleged offender enters the system. There are three steps in entering |
| |the system — the report, the investigation, and the arrest or citation. |
| | |
| |Report: Law enforcement officers take a crime report from victims, witnesses, or other parties (or the officers |
| |witness the crime themselves and make a report). |
| | |
| |But, as you know, many crimes are never reported — for a variety of reasons. Victims mistrust the police or feel |
| |that police won’t understand them; they fear retaliation by people in the community who would see them as |
| |“snitches”; or they’ve concluded from past attempts to report that it takes too long for police to respond.[ii] |
| | |
| |Investigation: Law enforcement investigates the crime. Officers try to identify a suspect and find enough evidence |
| |to arrest the suspect they think may be responsible. |
| | |
| |Note: At this point, give an example of your own experience during investigation. Perhaps a victim has been |
| |frustrated because law enforcement can’t find the perpetrator. |
| | |
| |?Arrest or Citation: If law enforcement officers find a suspect and enough evidence, they may arrest the suspect or |
| |issue a citation for the suspect to appear in court at a specific time. This decision depends on the nature of the |
| |crime and other factors. If officers do not find a suspect and enough evidence, the case remains open. |
| | |
|Slide: Prosecution and Pre-Trial |Note: Exchange your law enforcement props for a suit jacket and briefcase. |
|[pic] | |
| |?Prosecution and Pretrial. Once the alleged offender has entered the system, the case moves to the prosecution. |
| | |
| |Charges: The prosecutor considers the evidence assembled by the police and decides whether to file written charges |
| |(or a complaint) or to release the accused without prosecution. |
| | |
| |Many crimes are never prosecuted because no suspects can be identified or because the available evidence is not |
| |adequate for the prosecutor to build a case. |
| | |
| |Note: Give an example from your own experience of how a victim was impacted when the prosecutor chose not to bring |
| |charges. |
| | |
| |?Occasionally, a local district attorney will have a conflict of interest that prevents them from prosecuting a |
| |case. For example, staff in the DA ‘s office might be related to the person who is being prosecuted. In situations |
| |like these, the California Attorney General’s office will step in to prosecute. At that point, your role as a |
| |county-based advocate will need to be determined by the prosecutor and Attorney General’s office. |
| | |
| |You should also be aware that, during this pre-trial period, there’s a potential area of conflict between the |
| |victim’s needs and the DA’s interests. It’s called the “Brady rule.” |
| | |
| |σDoes anyone know what the “Brady rule” is? |
| | |
| |Note: Acknowledge responses and build on them with the following explanation. Also correct any misunderstandings. |
| | |
| |?When you’re talking with a victim, the victim might reveal information that would help the defendant’s case. |
| | |
| |Note: Offer a brief example from your own experience of a time when a victim disclosed information that was |
| |favorable to the defendant. |
| | |
| |?This kind information is referred to as “exculpatory evidence.” Exculpatory evidence has to be passed on to the |
| |defense team. The Brady rule specifies the kinds of information that are “exculpatory.” For you as the advocate, |
| |this may present a conflict between the interests of a victim who wants to keep the information private, and the |
| |interests of the prosecutor who, by law, must disclose it. |
| | |
| |We’ll talk about the Brady rule in more depth later in the week when we deal with “Ethics” in Module 10. |
| | |
| |First Court Appearance: If the prosecutor decides to file formal charges, the accused will appear in court to be |
| |informed of the charges and of his or her rights. The judge then decides whether there is enough evidence to hold |
| |the accused or release him or her. If the defendant does not have an attorney, the court may appoint one or begin |
| |the process of assigning a public defender to represent the defendant. |
| | |
| |Bail or Bond: At the first court appearance (or at any other point in the process-depending on the jurisdiction) the|
| |judge may decide to hold the accused in jail or release him or her on bail, bond, or on his or her "Own |
| |Recognizance" (OR). (OR means the defendant promises to return to court for any required proceedings, and the judge |
| |does not impose bail because the defendant appears not to be a flight risk). |
| | |
| |To be released on bail, defendants have to hand over cash or other valuables (such as property deeds) to the court |
| |as security to guarantee that the defendant will appear at the trial. Defendants may pay bail with cash or bond (an |
| |amount put up by a bail bondsman who collects a non-refundable fee from the defendant to pay the bail). In deciding |
| |whether to hold or release the defendant, the judge will also consider such factors as drug use, residence, |
| |employment, and family ties. |
| | |
| |Preliminary Hearing: The accused may have to appear at a preliminary hearing in court, where the judge may hear |
| |evidence and the defendant is formally indicted or released. |
| | |
| |The preliminary hearing may raise a range of issues for victims. |
| | |
| |• Because this is often the first time the victim has seen the defendant since the incident, the victim may be |
| |fearful and anxious. |
| | |
| |• Victims are questioned by defense attorney. Many times the defense attorney will question a victim’s character, |
| |actions or lack of — for example, their drug use, mental health, late reporting, etc. This may result in a victim |
| |feeling re-victimized by the process. |
| |• If the burden of proof isn’t met, some charges (or all) may be dropped and the defendant is not ‘held to answer.’ |
| |Charges can also be added if new details are reported that were not in the original report. |
| |Arraignment: The defendant is brought before the judge to be informed of the charges and his or her rights. The |
| |defendant pleads guilty, not guilty, or no contest (accepts the penalty without admitting guilt). If the defendant |
| |pleads guilty or no contest, no trial is held, and the offender is sentenced then or later. |
| |If the defendant pleads not guilty, a date is set for the trial. If a plea agreement is negotiated, no trial is |
| |held. |
|Slide: VINE |?Before we move on to the trial, let’s digress for a moment to talk about an important victim service called VINE |
|[pic] |(which stands for “Victim Information and Notification Everyday”). This is an automated system that lets victims, |
| |family members of victims, or a witness who has testified against the offender track the custody status of an adult |
| |offender who is in state prison and county jails. |
| |Currently there are a wide range of agreements, systems and processes being used throughout the state to promote |
| |notification of victims when an offender is placed on community supervision from jail. This is made more complicated|
| |by several factors: certain forms of community supervision such as electronic monitoring may be technically defined |
| |by VINE as ‘in custody’ and some county jail management systems don’t have compatible reporting systems with the |
| |statewide VINE program. |
| |We recommend that advocates learn about their own county systems. Then they can assist victims with registering on |
| |their county VINE or notification system when the offender is in county jail. Several counties have their own |
| |‘inmate locator’ websites that are not part of the VINE system. The county registration process is generally simple |
| |and the victim can sign up via the internet or call a toll free number noted on the website. In fact, the victim |
| |only has to provide their email address and/or a phone number. They do not need to state who they are or give any |
| |other detailed information. |
| | |
| |In addition, you should help the victim register on the statewide system. VINE will notify the victim if the |
| |offender is eventually transferred to CDCR after sentencing. The VINE system interfaces with many county jail |
| |management systems to provide notification of an offender’s release from jail, however, this is on a county by |
| |county basis, as the county has to sign a contract with VINE to utilize the service. We are still using CDCR 1707 to|
| |register victims for notifications of offenders that are in prison. |
| | |
| |In local jails, there may be an issue with VINE notification of release. Because jails may use alternative custody |
| |(e.g. work furlough), they would not necessarily update the VINE record of release of an offender, since the |
| |offender is still officially “in custody.” We recommend that you and your office clarify this with your local |
| |sheriff. |
|Slide: Adjudication (The Trial |Note: Before starting this section, hand out index cards. Ask participants to write their questions about plea |
|Process) |agreements and trials on the cards and hand them in to the presenter. During your presentation, build in answers to |
|[pic] |the questions. |
| | |
| |If you’re using props, it’s time to change to the gavel and judge’s robe. |
| | |
| |? The next phase is Adjudication, which is a formal term for the trial process. |
| | |
| |Plea Agreements: The majority of cases are resolved by plea agreements rather than trials. A plea agreement means |
| |that the defendant has agreed to plead guilty to one or more of the charges in exchange for one of the following: |
| |dismissal of one or more changes, a lesser degree of the charged offense, a recommendation for a lenient sentence, |
| |not recommending the maximum sentence, or making no recommendation. Marsy’s Law requires prosecutors to inform |
| |victims before a plea agreement is offered – IF the victim has requested notification. The victim has the |
| |opportunity to voice their opinion. The prosecutor is not required get ‘approval’ from the victim for the offer they|
| |will make to the defense attorney and their client. |
| |A plea agreement could impact the charge. For example, the charge might change from a felony to a misdemeanor. In |
| |some cases, this might change where the sentence is served. |
| | |
| |Trials are held either before a judge (a “bench” trial) or before a judge and jury (a jury trial). It depends on the|
| |seriousness of the crime and other factors. |
| | |
| |In both types of trials, the prosecutor and defense attorney present evidence and question witnesses. The judge or |
| |jury finds the defendant guilty or not guilty on the original charges or lesser charges. Defendants found not guilty|
| |are usually released. If the verdict is guilty, the judge will set a date for sentencing. |
| | |
| |Sentencing: After adjudication, the next step is sentencing. Victims are allowed to prepare for the judge (and |
| |perhaps to read at the sentencing hearing) a victim impact statement that explains how the crime affected them. |
| |Advocates often assist victims in creating these statements. |
| | |
| |In deciding on a sentence, the judge has a range of choices, depending on the crime. These choices include |
| |probation, jail or prison, or the death penalty. The judge might also order fines to be paid to the court, or |
| |restitution (payments to the victim for costs related to the crime). We’ll talk about restitution in detail later in|
| |the week when we discuss “Victim Services” in Module 12. |
| | |
| |There are two important California laws that affect sentencing: AB 109, and Prop 47. We’re going to take some time |
| |now to discuss them. |
| | |
|Slide: Important Facts about |?As you are probably aware, in 2011 the Governor signed “Assembly Bill 109,” also referred to as “realignment.” This|
|Realignment |bill has had a major impact on how and where sentences are served. The impact of AB 109 continues to evolve, so it’s|
| |important to keep abreast of new developments. |
|[pic] | |
| |Let’s review the basic provisions of this bill and discuss how they impact the victims you serve and your role as |
| |advocate. |
|Slide: Legislative Intent |?AB 109 was designed to both reduce current prison populations and reduce recidivism. The idea is that keeping a |
| |prisoner in custody in a prison is costly and not effective when it comes to actually reducing recidivism. |
|[pic] |Supportive programs — drug and alcohol treatment, mental health services, comprehensive case management, etc. — are |
| |less costly, have the best chance of making a meaningful difference in an offender’s life and, as a result, are most|
| |likely to reduce recidivism. Sentencing reform ensures that future offenders are funneled first into treatment and |
| |supportive services rather than into prison. |
|Slide: New Types of Offenders |? Under AB 109, offenders sentenced to probation are still supervised by the probation department. But three new |
| |types of offenders are also housed or supervised locally: 1170(h) Defendants, offenders under Post Release Community|
|[pic] |Supervision, and Parolees. |
| | |
| |1170(h) Defendants are people charged with felony crimes that, before AB 109, would have been served in state prison|
| |but are now served locally. This type of sentence can be very confusing to victims because it is a prison sentence |
| |that is served locally, and can even be served out of custody. |
| | |
| |In a few minutes, we’ll explain “split sentences” and “mandatory supervision.” |
| | |
| |? Post Release Community Supervision (PRCS) means that an offender released from state prison is now supervised by |
| |county probation. If probation is revoked, the offender goes to county jail (not back to prison). |
| | |
| |If the offender was in prison when the law changed, and if their offense was 1170(h) eligible, they are released on |
| |PRCS. |
| | |
| |Parolees whose parole is revoked now go county jail. If you are a non-1170(h) offender, such as a striker or 290 |
| |registrant, you are released on Parole, not under PRCS |
| | |
|Slide: Other Alternatives |? With more offenders serving time in counties, jails may reach capacity more quickly. As a result, other |
|[pic] |alternatives are used more frequently. |
| | |
| |Note: Briefly explain the other alternatives — Sheriff’s Parole (PC 3076), Work Furlough, Work Release, Residential|
| |Treatment, and Public Service Work. |
| | |
| |? Early Kicks, the last alternative on the list, refers to early release for certain low-level crimes. |
| | |
| |All of these alternatives can be upsetting for victims because their offenders are “free” in the community. |
|Slide: PC 1170 (h) |? Section 1170 (h) of the California Penal Code (referred to as “PC 1170(h)” specifies more than 500 felonies that, |
|[pic] |in the past, sent an offender to prison, but now send them instead to county jail. |
| | |
| |Because these are all non-violent, non-sex, non-serious crimes, we refer to them informally as the “Non/Non/Nons.” |
| |You’ll find a list of these crimes at the internet address given in the slide. |
| | |
| |The length of imprisonment for these crimes is unlimited. If the entire term is completed in custody, then no |
| |supervision is required after release. |
| | |
|Slide: Exceptions to 1170 (h) |? The law specifies some exceptions to the provisions of PC1170(h). |
|[pic] | |
| |Note: Review the exceptions noted on the slide. |
|Slide: Split Sentence Options of 1170|? A split sentence means that the judge, instead of ordering that the entire sentence be served in confinement, |
|(h) |specifies a period of jail time followed by a period of “Mandatory Supervision.” The total amount of time cannot |
|[pic] |exceed the maximum possible sentence for the crime. |
| | |
| |Mandatory Supervision (MS) is an intense form of probation. Generally, each probation officer has just 30 clients, |
| |and it may require daily check-ins, classes, treatment, and other requirements. Let’s look at the list of |
| |requirements. |
| | |
|Slide: Conditions for Mandatory |Note: Review the list of requirements on the slide. |
|Supervision | |
|[pic] |? These services are typically available at a “Community Re-entry Services Center.” We recommend that you ask your |
| |supervisor or colleagues if you have this service in your County. |
|Slide: PRCS |? The CA penal code specifies how long an offender will remain under Post Release Community Supervision. After 6 |
|[pic] |months, if the offender has no violations, they may be discharged from supervision. After 12 months with no |
| |violations, the offender has to be discharged. And, three years is the maximum that supervision can continue. |
| | |
|Slide: Restitution shall be ordered |? Before AB 109, when most felony offenders served their time in state prison, the CDCR was authorized by law to |
|[pic] |deduct restitution from prison wages and trust accounts. When the offender was paroled, restitution became a |
| |condition of parole. |
| | |
| |Since the passage of AB 109, however, many felony offenders are no longer under the jurisdiction of the CDRC, and |
| |their parole is no longer supervised by the state. This has made the collection of restitution more complicated. |
| | |
| |In an attempt to correct this situation, the legislature has passed additional bills to align the existing laws |
| |regarding restitution with AB 109’s new provisions for sentencing and supervision. |
| | |
| |For example, a bill passed in effect 2014 authorizes a county agency (designated by the Board of Supervisors), to |
| |collect restitution from offenders under Post-Release Community Supervision or Mandatory Supervision. |
| | |
| |We recommend that you consult with your prosecutor about how your county has addressed AB 109. |
|Slide: Check for understanding |Note: To conclude the presentation on AB 109, pose the following questions as a “check for understanding.” |
|[pic] | |
| |σ In what ways does AB 109 change the length of a sentence? |
| | |
| |Note: AB 109 does not change the length of a sentence. It changes only where and how the sentence is served. Make |
| |certain that participants are clear about this. |
| | |
| |σ Under what circumstance would it be possible for a victim to run into the perpetrator without expecting to see |
| |them out of custody? |
| | |
| |Note: This might happen if an offender sentenced to jail has been moved into some form of alternative supervision |
| |but, because they are still considered to be “in custody,” a VINE notification has not been issued. |
| | |
|Slide: Prop 47 |?Another piece of legislation that impacts sentencing is Prop 47. Passed by the voters in 2014, Prop 47 reduces the |
|[pic] |classification of most "non-serious and non-violent property and drug crimes" from a felony to a misdemeanor.[1][2] |
| |This reclassification does not apply, however, if the defendant has prior convictions for murder, rape, certain sex |
| |offenses or certain gun crimes. |
| |Beyond that, Prop 47 permits a re-sentencing for anyone currently serving a prison sentence for any of the offenses |
| |that the initiative reduces to a misdemeanor. Before re-sentencing, there must be a “thorough review” of the |
| |offender’s criminal history, as well as a risk assessment, to ensure that they do not pose a risk to the public. |
| |The counties have three years to review the cases of all offenders who might be eligible for re-sentencing. Some |
| |have completed this task, but others, including very large counties, are still in the midst of their review. |
| |Legal cases that challenge or clarify aspects of Prop 47 are now making their way through the courts. As decisions |
| |are passed down, the number of sentences under review could sharply increase or decrease.[iii] |
| |There are two aspects of Prop 47 that especially impact victims. |
| |First, the collection of restitution might be interrupted. This is because defendants sentenced under misdemeanor |
| |crimes are not supervised after the completion of sentences, so no one is tracking their payments for restitution. |
| |Second, if the victim is registered with the CDC through the 1707 form, they will be notified of release/transfer, |
| |but they may not be notified of a new judgment. This may be in issue in cases involving alternative sentences. |
|Slide: Plain Talk |Note: The purpose of the following pairs activity is to reinforce participants’ understanding of the terminology |
|[pic] |related to AB 109 and Prop 47. It will also help prepare them for the later activity, “Explaining the Justice System|
| |to a Victim.” |
| | |
| |?I’d like you to pair up with someone at your table. Then open your participant manual to the page titled “Plain |
| |Talk about AB 109 and Prop 47.” |
| | |
| |In the left column, you’ll see list of 6 terms. The right-hand column is headed “plain talk.” For each term, I’d |
| |like you to work with your partner to come up with a short explanation of the term that would make sense to a |
| |victim. You’ll have five minutes. |
| | |
| |Note: After five minutes, quickly go down the list of terms, asking for volunteers to read their plain talk version |
| |to the group. Clarify any misunderstandings. The following terms are on the worksheet: Realignment; |
| |1170 (h); Non, non, nons; Post-Release Community Supervision; Alternative sentencing; and Prop 47 re-sentencing. |
|Slide: After the trial — Probation |? Let’s continue now with the post-trial phase of the justice system to consider what happens after sentencing. |
|[pic] | |
| |As we’ve seen, during sentencing, a judge may suspend a jail or prison sentence and instead place the offender on |
| |probation, usually under supervision in the community. |
|Slide: After the trial—Corrections |? Or, the judge might decide to send the offender to prison or jail. |
|[pic] | |
| |Note: Before going on, exchange the judge props for the large set of keys (to represent prison and jail). |
| | |
| |Four primary agencies are responsible for incarcerating offenders who have been convicted of a felony crime: The |
| |California Department of Corrections and Rehabilitation; the Federal Bureau of Prisons; and the Department of |
| |Defense (for military prisoners). In addition, as we’ve discussed, under Ab 109, local county jails are also |
| |responsible for incarcerating offenders convicted of many felonies. |
| |Some inmates will choose to serve their entire sentence behind bars. When their sentence is over, they will not be |
| |subject to any supervision in the community. |
| |Some inmates will be eligible for parole prior to the expiration of their sentence. |
| |If the offender is sentenced to prison, make sure the victim is given the CDCR form 1707 and the number for VINE. |
|Slide: After the Trial — Parole |? Parole is the supervised release of prisoners to the community, with conditions attached to the release that are |
|[pic] |designed to protect the safety of the public as well as the victim(s). When an inmate is released on parole, he or |
| |she is supervised and monitored by a parole officer/agent. |
| |Offenders who have served part of their sentences in jail or prison may — under certain conditions — be released on |
| |parole, under the supervision of the corrections system or the court. |
| |Parole is considered part of the prison sentence that is served in the community. |
| |The paroling authority in California is the Board of Parole Hearings, a panel of 12 Commissioners appointed by the |
| |Governor and confirmed by the Senate. This Board makes decisions about whether to grant parole to inmates; monitors |
| |the control of parolees who are released to community supervision; discharges offenders from parole when they have |
| |completed the terms and conditions of parole supervision; makes parole revocation decisions if a parolee has |
| |violated the terms and conditions of parole; and may make clemency decisions. |
| |Victims have the right to be notified of parole hearings, although they need to request this notification. They also|
| |have the right to be present at the hearing, and to make a statement (or to send an audio or video statement). |
| |If victims choose to participate in a parole hearing, it’s important for them to understand that these hearings are |
| |not a new trial; the parole board cannot reconsider the original conviction or sentence. |
|Slide: After the Trial —Violations |?Offenders who violate the conditions of their probation or parole can be sent to jail or, in some cases, back to |
|and Revocation |prison. |
|[pic] |Under AB 109, offenders who violate parole are sent to county jail rather than state prison. The only exception is |
| |offenders previously sentenced to a term of life; they can be revoked back to prison. |
| | |
| |Offenders whose parole has been revoked can be kept in jail for up to 180 days. |
| | |
| |Since July 1, 2013, the decision to revoke an offender’s parole has been made by local courts rather than by the |
| |State Board of Parole. Again, the exception is offenders serving life sentences; in those cases, the State Board |
| |continues to make revocation decisions, and can order the offender back to prison. |
| |AB 109 also authorizes “Flash incarceration” in the county jail for up to ten days. |
|Slide: Appellate Courts |?Upon conviction in criminal cases, the convicted offender has constitutional and other legal rights to appeal. An |
|[pic] |appeal is a request by the losing party to have the Court of Appeals or the Supreme Court review the decisions made |
| |in the trial court. |
| |Many of the issues raised on appeal concern how the judge managed the trial. The issues are technical and usually do|
| |not question the defendant’s guilt but rather the procedures used in the court process. For instance, there may be |
| |questions about whether the judge should have allowed certain evidence to be presented, or whether the judge gave |
| |improper instructions to the jury. |
| |An appellate brief is sent to the state Attorney General by the defendant. |
| |The AG’s office provides Appeal Notification to victims. Currently, the AG’s Victim Services Unit (referred to as |
| |the “VSU”) monitors the 470 appeal cases currently active. The AG receives about 500 requests for non-capital appeal|
| |status each month. |
| | |
| |To be eligible for services through the VSU, victims need to complete a “Request for Victim Services” (form 1707 |
| |from the California Department of Corrections and Rehabilitation). Victims who want to be notified of a criminal |
| |appeal and the defendant’s custody status should also complete a “Request for Criminal Appeal Status” (CA JUS 8838),|
| |often referred to as “the green form.” |
| | |
| |The AG’s office is also a resource for information about Marsy’s Law, human trafficking, and Native American issues.|
| |They have Marsy’s Cards available in more than 20 languages such as: Farsi, Romanian, Vietnamese and Braille. |
| | |
| |Note: On the chart, write the web address for the AG’s victim services page: |
| | |
| | |
| | |
| |? In reviewing a case, the appellate court considers only the written record of what occurred at the trial. No new |
| |evidence or testimony is given. Only in a small number of cases are oral arguments scheduled. An oral argument is a |
| |brief opportunity for each party’s attorney to persuade the court and answer any questions. Victims do not have to |
| |testify during the appellate process. |
| |Ultimately, the appellate court’s decision will: |
| |Agree with the lower court and uphold the previous decision. |
| |Disagree with the lower court and overrule the previous decision. |
| |Agree in part, disagree in part, and send the case back for the lower court to resolve certain questions. |
| |The Attorney General’s Office handles appeals in non-death and death- penalty cases. Here are some important things |
| |to know about appeals in death-penalty cases: |
| |In every death-penalty case there is an automatic appeal. |
| |Continuances are always granted in these cases. |
| |The average appeal time is 20 years. |
| |The Attorney General provides annual notification in a death case. |
| |If the jurisdiction contacts the Attorney General when it first determines there is a death case, it makes it easier|
| |for Attorney General to monitor. |
| |The appeal unit has some ability to meet with families. |
| |The appeal unit will attend executions on behalf of families or with families. |
| | |
| |?The death penalty is an evolving area of law in California. In 2014, a US District Court judge overturned the |
| |death sentence for a man who had been on death row for nearly two decades. Then, in November 2015, this decision was|
| |reversed by a Federal Appeals Court. Further legal action is likely. |
| | |
| |There have also been changes to the death penalty for juveniles. In 2005, the US Supreme Court ruled that the death |
| |penalty was unconstitutional if the crime was committed while the offender was a juvenile. |
| | |
| |In 2012, the court also ruled that a sentence of life without parole is unconstitutional for a juvenile. In 2016, |
| |the decision was made retroactive to those sentenced prior to 2102. |
| | |
| |Note: Update this death penalty information based on your own research. |
|Activity: Explaining the Justice System to Victim [pic] 45 minutes |
|Slide: Activity - Explaining the |? Now that you’re well versed in the steps of the criminal justice system, it’s time to think about how you’re going|
|Justice System to Victims |to explain all this to victims in a way that will make it comprehensible. The challenge is to be accurate in your |
| |explanation, without overwhelming and intimidating them. |
|[pic] | |
| |Note: In this activity, participants will build on what they learned about basic victims’ rights in Module 2. Here, |
| |they will apply their knowledge of victims’ rights to the various steps in the justice system. At the same time, |
|[pic] |they will clarify their role in victims’ rights enforcement during each step. |
| |? In this activity I want you to use the crime type in your anchor case study BUT do not use the specific |
| |circumstances. Using the crime type and CJ process step I will assign to your table, imagine you have a case with |
| |that crime type and you are faced with explaining the specific process you have been assigned to a victim. On the |
| |worksheet in your Participant Manual write your explanation. The group with: |
| |Elder Abuse – describe (ongoing) Investigation, Prosecution/Charging; |
| |Stalking – describe First Court Appearance, Bail, Preliminary Hearing and Arraignment |
| |Child Molestation – describe Plea agreements and Trial |
| |Homicide – describe Sentencing, Appeal and Parole. |
| |In your explanation, inform the victim about their rights and your role in helping them secure those rights. Also |
| |identify the aids you might use for your explanation if you were back at your office — for example tip sheets, |
| |brochures, cards, videos, websites, tours, etc. |
| |There are several resources for you to draw on: |
| |the materials we reviewed yesterday during the session on “The Victim’s Rights and VWA Role” |
| |the reading materials in the back of the Mod 5 section of the Participant Manual |
| |the chart titled “Advocacy Tasks and the Justice System,” in your Participant Manual after the worksheet. |
| |Take 15 minutes to write your description. Pick a recorder, and also a reporter who will make a report to the large |
| |group lasting no more than 5 minutes. |
| |Note: After each table makes its presentation, ask for other tables to offer ideas, ask questions, or suggest what |
| |might strengthen the explanation. |
| |If not raised in the reports, probe to have a general discussion of some key issues that arise when victims and |
| |advocates deal with the steps in the CJ system, such as: |
| |Victims’ reluctance about meeting and talking with LE and the DA — and the feelings behind their reluctance |
| |Victims’ feelings and decisions about not pressing charges |
| |The line between orienting a victim to the system and giving legal advice. |
| |?As you orient the victim to the different steps in the justice system, you may need to explain the request for |
| |restraining orders. We’ll talk about those after the break. |
|Break [pic] 10 minutes |
|Restraining Orders [pic] 25 minutes |
|Slide: Restraining orders |?One important role of the victim witness advocate is helping victims request restraining orders as part of their |
|[pic] |safety plan. |
| |A restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain |
| |from doing, certain acts. A person who refuses to comply with an order faces criminal or civil penalties, and may |
| |have to pay damages or accept sanctions. Breaches of restraining orders can be considered serious criminal offenses |
| |that merit arrest and possible jail sentences. |
| |The restraining order a victim requests depends on the crime type and on the step the case has reached in the |
| |criminal justice process. |
| |The two primary types of restraining orders are Civil Restraining Orders and Criminal Protective Orders ("CPO"). |
| | The CPOs are requested by a DDA during a pending criminal case. Some advocates prepare requests for the DDA. In |
| |many of the VW Centers advocates only deal with CPOs; preparation of civil restraining order requests is done by |
| |women's shelters and other community groups. |
| |It’s important to understand that a restraining order does not guarantee the safety of the victim. Even so, a |
| |restraining order has many benefits. It lets the perpetrator know the exact boundaries for contact with the victim; |
| |it communicates that the victim has asserted their rights; and, if the offender violates the order and the victim |
| |calls the police, the restraining order gives the victim added leverage and credibility. |
| |σBy a show of hands: |
| |How many of you help victims prepare requests for restraining orders? |
| |How many do just CPOs? |
| |How many do both CPOs and Civil Restraining Orders? |
| |σWhat challenges are you facing with helping victims request restraining orders? |
| |Note: The full team of trainers can be called upon to provide ideas and responses; also use the input /ideas from |
| |experienced participants. |
| |? You’ll find a general description of the various types of restraining orders and a sampling of request forms on |
| |the resource webpage.” |
|Different Systems of Justice [pic] 20 minutes |
|Slide: Federal – Juvenile – Military |?So far, we’ve talked about just the criminal justice system. However, not all offender cases are dealt with in the |
|– Tribal |adult Criminal Court System. There are other systems of justice that you may encounter in your work. |
|[pic] |σWhat other justice systems have you or other advocates you know encountered? |
| |Note: Responses should include the list below. (If any are not mentioned, ask if anyone has worked with a case that |
| |involved that system.) |
| |Juvenile Justice |
| |Military |
| |Tribal |
| |Federal |
| |Civil |
| |? We’re going to briefly review these other systems of justice. |
|Slide: Juvenile Justice System |?When a perpetrator is under the age of 18, they are brought before the juvenile justice system. There are a few |
| |exceptions for specific violent crimes such as murder and rape; in these cases juveniles between the ages of 14-17 |
|[pic] |are transferred to the adult criminal justice system. |
| |There are clear distinctions between the criminal and juvenile justice system. The primary goal of the JJ system is |
| |rehabilitation. In this system, juveniles have confidentiality rights and their hearings are not open to the public.|
| |But victims and up to two support persons can be present at any hearing. If the victim, support persons or advocate |
| |are provided confidential information they are bound to keep that information confidential. |
| |Let’s looks at other distinctions. |
| |Note: Refer participants to the Juvenile Justice Flowchart in their Participant Manual. |
| |As shown on the chart, the terminology used in the juvenile system — for players, processes, and decisions — differs|
| |from the terminology of the adult court. For example, a young person in the Juvenile Justice System is not |
| |“convicted”; rather, they are “adjudicated.” |
| |σWhat stands out for you as you look at the different terms? |
| |Note: Responses might include: the terms in the juvenile justice flowchart are more oriented to interventions and |
| |the system has many avenues for diversion. |
| |σIn your experience, how do victims respond to the difference in the age of the perpetrator and the juvenile justice|
| |system? |
| |Note: Responses might include: Some victims see their perpetrator as a troubled young person and view this as more |
| |humane approach. Other victims think that the system is too soft. To them it feels like they’re not getting justice.|
| |Or, they think that the youth is being “excused” for their wrongdoing. |
|Slide: Military Justice System |?Members of the military are subject to the “Uniform Code of Military Justice” which lays out the laws governing the|
|[pic] |military justice system. Although this Code was enacted by Congress, ultimately it is the President, as Commander in|
| |Chief, who prescribes the procedures and punishments for violations of crimes — usually through “executive orders.” |
| |The power to make case decisions about charges and punishments rests with military commanders, who can take actions |
| |ranging from administrative sanctions to courts-martial. |
| |The Department of Defense has defined victim rights for all sectors of the military. These are the right to: |
| |• Fairness and respect |
| |• Reasonable protection |
|[pic] |• Notice of court-martial proceedings |
| |• Be present at courts-martial |
| |• Confer with attorney |
| |• Available restitution |
| |• Notice of outcome of trial, and release from confinement |
| | |
| |The DoD has also established victim services, which include: |
| | |
| |• A “Family Advocacy Program” (FAP) for all branches |
| |• A hotline offering counseling for victims of sexual harassment (Army, Navy, Marine Corps, Air Force) |
| |• Sexual-Assault Victim Intervention Program (Navy) |
| |• Financial Assistance |
| |Sometimes members of the military who have been victimized are reluctant to report a crime to military police |
| |because they fear that it will negatively affect their position, or that word of the report will spread throughout |
| |the base. In these situations, the military offers the option of “restricted reporting” in which a victim can |
| |receive medical treatment and counseling without triggering an official investigation. However, the issue of |
| |“restricted” versus “unrestricted” reporting has generated considerable controversy. |
|Slide: Tribal Justice System |?Some advocates work in jurisdictions with reservations and other tribal lands. |
| |σLet’s have a show of hands: How many of you come from counties where there are tribal groups? |
|[pic] |?Justice on tribal lands is complex because it’s governed by a mix of federal, state, and tribal jurisdictions. The |
| |determination of which system will handle a case depends on the type of crime, and whether or not the people |
| |involved as victim or offender are tribal members. |
| |Under the “Major Crimes Act,” the Federal government is responsible for sixteen types of offenses, although the |
| |tribal courts may have concurrent jurisdiction. |
|[pic] |As part of their struggle to maintain sovereign powers, tribal nations have developed their own courts that are |
| |hybrids of various justice approaches: |
| |- Family and community forums |
| |- Traditional courts |
| |- Courts of Indian offenses |
| |- Tribal courts |
| |- Indigenous peacekeeping systems |
| |- Spiritual, holistic, and restorative practices |
| |If you come from a jurisdiction that includes tribal lands, try to arrange a visit to learn about these communities,|
| |their systems of policing and justice, and how they coordinate with your county’s law enforcement and criminal |
| |justice system. |
|Slide: Federal Justice System |?The US Department of Justice operates ninety-four offices nationwide staffed with US Attorneys who prosecute |
|[pic] |particular violations of criminal law, often depending on where the offense was committed. The US Attorney General |
| |issues guidelines for victim and witness assistance. They are on your the CCVAA website on the page “Entry-Level VWA|
| |Training.” |
|Slide: Civil vs. Criminal | ?Because District Attorneys are part of the criminal justice system, and most California advocates are based in the|
|[pic] |office of a DA, you’ll most often be assisting victims in criminal cases. However, you’ll occasionally deal with |
| |victims involved in civil actions. So it’s essential to understand the differences between these two systems. |
| | |
| |There are three primary differences:[iv] |
| | |
| |1 In the criminal court, the government brings suit against (prosecutes) a person who they believe has broken the |
| |law (the defendant). |
| | |
| |Whereas… |
| | |
| |In the civil court, one or more people who feel they have been harmed (referred to as the “plaintiffs”) bring a |
| |complaint against another person or people (the defendants). Sometimes the government is the plaintiff or the |
| |defendant. |
| | |
| |2 In the criminal court, the guilt of the defendant must be proved “beyond a reasonable doubt.” |
| | |
| |Whereas… |
|[pic] | |
| |In the civil court, reasonable doubt is not required. Instead, a "preponderance of evidence" is enough in most |
| |cases. |
| | |
| |3 In the criminal court, if the defendant is convicted, they may have to serve time in jail or pay a fine. |
| | |
| |Whereas… |
| | |
| |In the civil court, the plaintiff can ask the court to order the defendant to pay money to remedy the situation |
| |(“monetary relief”). Or, plaintiff can ask the court to order the defendant to do or not do something (“equitable |
| |relief”). |
| | |
| |As an advocate, you’re most likely to encounter the civil court system in cases of child abuse or neglect because |
| |these are most often handled by a civil court called the “Dependency Court” or the “Family Court.” In most |
| |jurisdictions, a social service agency, often called “Child Protective Services” (CPS) works on behalf of the |
| |Dependency Court to investigate reports of child abuse and neglect. |
| | |
| |The role of a CPS social worker is very different from the role of a VW advocate. The CPS worker is primarily an |
| |investigator, while the advocate offers information and support. |
| | |
| |Because Child Protective Services is part of a civil process, it can remove a child from a home based on just a |
| |“preponderance of evidence.” But if the case is taken up as well by the criminal justice system, arresting the |
| |abuser requires a higher standard evidence referred to as “probable cause.” Convicting the abuser would require the |
| |even higher standard of “beyond a reasonable doubt.” |
| |σ What tips might you offer other advocates for working with these justice systems? |
| |Note: Write tips on the chart pad. Add some of your own. |
|Break [pic] 10 minutes |
|Helping Victims Express The Impact in a Statement [pic] 15 minutes |
|Slide: Victim Impact Statement |? Once an offender has been convicted or pleads guilty; the victim has the right to state their feelings about the |
| |crime and its impact on their lives. This right is covered in penal code section PC 679.01(a)(3) and (4), and in PC |
|[pic] |1191.1 Marsy’s Law also discusses the right to be heard. |
| | |
| |The Victim Impact Statement can take many forms. Some victims develop a written statement and read it to the court |
| |at the time of sentencing. Others prefer to make a verbal statement to the Probation Officer who completes the |
| |Presentencing Report for the Court. Some victims have chosen to create a DVD which is shown to the court at the time|
| |of sentencing. |
| | |
| |Although there is no standard form used statewide for victim impact statements, many non-governmental agencies, |
| |including Mothers Against Drunk Driving, will provide crime-specific templates that can be helpful. We’ve also |
| |included a couple of examples in your Participant Manual. |
| | |
| |The advocate’s role with victim impact statements varies from county to county. Some advocates devote a lot of |
| |their time to assisting victims with the VIS, including assisting with creating the DVD and then arranging the |
| |correct equipment and viewing capacity in court on the day of sentencing. |
| | |
| |Oftentimes, the process of writing a VIS can bring up very complicated emotions for victims. During this time, |
| |advocates can assist victims and families with figuring out what they want to say and how to express it in |
| |writing. If a victim or family member becomes too upset to read the statement to the court, the advocate may step in|
| |to read it for them. |
| | |
| |σ How do you deal with Victim Impact Statements when the victims speak a first-language other than English? |
| | |
| |Note: Responses will vary based on the resources available to the advocate or victim. |
| | |
| |? At the outset, the advocate needs to brief the victim or family about the purpose of the statement, the various |
| |forms it could take, and how and when it will be used. The following points are part of the briefing: |
| | |
| |be clear that the statement should be about them—the victim or family |
| |the statement doesn’t guarantee an outcome |
| |it can read by the victim, a family member, or the advocate |
| |it can be something other than a statement — for example a collection of photos. |
| |it can be pre-recorded/video |
|Slide: Victim Impact Statement – |? Each victim may take a different approach. We talked with several advocates to find out how they work with |
|Advocate Approaches |victims. Several advocates have worked with victims to express their impact in ways that are most comfortable for |
|[pic] |them. |
| | |
| |Note: Ask a participant to read the slide for everyone. |
| | |
| |“I have worked with many victims who have been more creative, including creating an art piece to display to the |
| |Judge or, as is typical in murder cases, many families opt to make a DVD using photos of the deceased victim as both|
| |a tribute and a representation of the life that was lost.” |
| | |
| |Kasey Halcon |
| |Santa Clara County District Attorney’s Office |
| |Santa Clara County |
| | |
| |In Kasey’s experience she has found there are very few barriers to creating a victim impact statement other than |
| |translation issues. |
|Slide: Victim Impact Statement – |? Erin Osanna from Alameda County often helps victims write their statements. She sets up meetings at their |
|Advocate Approaches |request, and “brainstorms” with them. She asks their feelings about what happened to them and tries to get them to |
|[pic] |open up about how the crime has affected their life. |
| |Note: Ask a participant to read the slide. |
| |Depending on the need/desire of the victim, I will sometimes type it up for their review. Other times victims will |
| |email me their rough draft and ask me to edit it. Once the final draft is complete, I will submit it to the |
| |Probation Department to include in their pre-sentencing report and to the sentencing/trial D.A. I will make copies |
| |for the defense attorney, the Judge and the court reporter. If requested, I will stand for support with the |
| |victim/family member as they read his/her statement aloud in court. |
| |Sometimes victims will want to write a letter or an impact statement to the Judge as soon as the case is charged. |
| |We do not recommend this. It’s best to wait until the case resolves and the victim has had time to really think |
| |about all that has happened. |
| |However, if it’s a misdemeanor case, there is no official sentencing date. So it’s best to get the impact statement|
| |into the D.A. file as soon as possible, just in case the defendant resolves his/her case and is sentenced right |
| |away. |
| |As Erin further explained, the only real barrier is getting victims to understand that the impact statement is a |
| |choice and for their benefit. Sometimes victims feel that it doesn’t matter what they say because 1) the defendant |
| |isn’t sorry and won’t be listening and 2) there is a set disposition and the punishment will not change. |
| |In your Participant Manual, we have included a few examples of outlines or suggestions for a statement format from |
| |offices in the state, along with a couple of examples of impact statements written by victims. Take a few minutes to|
| |read them. |
|Anchor Case Activity: Creating the Impact Statement [pic] 30 minutes |
|Slide: Planning to help your client |Note: Handout new anchor case information for this activity. |
|create a victim impact statement |? Once again we come back to your case. Because you are still at an early stage of the process, it is too soon to |
|[pic] |work with your client to create an impact statement. But it is not too early for you to be observing and noting all |
| |the impacts along the way. And it’s not too early to be thinking about what options to explore later for creating |
|[pic] |that impact statement – as well as the resources your victim might call upon to help them, for example, a friend or |
| |family member to read the statement. |
| | |
| |Let’s return to the anchor case studies. Based on all the information you have received about your client write a |
| |list of impacts you have observed and the victim has identified that you would discuss with your victim at the time |
| |a VIS might be needed. |
| |Identify the options you might suggest for presenting the VIS and supports the victim might call upon - given the |
| |characteristics of your client. Following the sample Victim Impact Statements in your Participant Manual is a |
| |worksheet for this activity, “Planning to help your client create a victim impact statement.” Take 15 minutes to |
| |complete the assignment. |
| | |
| |Note: Have each group report out their list. If time permits ask others to add any tips they think might be |
| |important to add. Add any you think are missing. |
| | |
| |The following is a brief summary of the updates: |
| | |
| |Carolina: After almost two years the trial is set. Carolina is petrified to see the defendant again and having to |
| |talk about what happened to her. She is afraid that she will be questioned about her in-patient hospitalization and |
| |her drug use while on the stand. Carolina’s depression is coming back and her parents are worried she will go back |
| |to using unhealthy coping strategies again. |
| |Betty: The police arrest her grandson. Several charges have been filed against him for elder abuse, being under the|
| |influence, drug possession, possessing drug paraphernalia, vandalism and stolen property. Betty distrusts the |
| |criminal justice system. She keeps referring to how the “jury will never take his side.” Her grandson calls from |
| |jail to come and bail him out. |
| |Sean: A suspect is identified and arrested. The Detectives notify Sean’s mother and let her know the court date. The|
| |DDA decides more investigation is needed and no charges are filed. The suspect is released from custody, outraging |
| |Sean’s family and friends. As everyone is leaving court you hear Sean’s friends talk about taking care of things |
| |themselves. Sean’s mother and boyfriend want to talk with the District Attorney directly. |
| |Diane: Diane had grown fearful for her safety but after the threat, she called law enforcement and got them |
| |involved. Law enforcement opened an investigation and arrested him for felony stalking. Her husband was found to be |
| |carrying a knife and duct tape on his person. Diane fears seeing him at the first court date. Diane pled with her |
| |Advocate to not make her testify. |
| |? Before we leave this topic, if you want to read more about the navigating the criminal justice system, there is |
| |document titled: An Overview for Advocates of the California Justice System on the resource webpage. This document |
| |provides more detailed information about each step and type of justice system. |
[pic][pic]
-----------------------
[i] Adapted from the National Center for Victims of Crime website at:
.
[ii] Heather Warnken, Untold Stories of California Crime Victims: Research and Recommendations on Repeat Victimization and Rebuilding Lives. The Chief Warren Institute on Law and Social Policy. April, 2014. Pages 13-14.
[iii] From a personal communication with Helen Herbert, December 8, 2015.
[iv] Adapted from “The Difference between Civil Courts and Criminal Courts.” The Leadership Conference on Civil and Human Rights. . Retrieved September 26, 2012.
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