40- Hour Adult/Adolescent SANE- SART Course. Role of the Prosecutor in Sex Crimes Prosecutions. Role of Prosecutor 4/21/15

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1 40- Hour Adult/Adolescent SANE- SART Course This grant project is funded by the State General Fund as administered by the Kansas Governor s Grants Program. The opinions, findings, and conclusions, or recommenda@ons expressed in this training are those of the author(s) and do not necessarily reflect the views of the Office of the Kansas Governor. Role of the Prosecutor in Sex Crimes Prosecutions Christine M. T. Ladner Assistant Attorney General Role of Prosecutor The obligation of a Prosecutor in a criminal prosecution is not that it shall win a case but that justice shall be done. Berger v. United States, 295 U.S. 78, 88 (1935) 1

2 Role of the Prosecutor Comments at Model Rule 3.8, Special Responsibilities of a Prosecutor, state: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Role of the Prosecutor in a SART Help explain why a case was or was not prosecuted. Help implement and develop strategies to enhance the criminal justice response. Educate the SART about prosecutorial policies, practices, and legal definitions. Provide community trainings on sexual assault. Serve as a liaison. Role of Prosecutor Issues: 1. Whether and what to charge? 2. Plea negotiations 3. Trial 2

3 The Offense Report Investigation = Law Enforcement Interviews The SANE Exam Presentation for Charges What have you got? Role of Prosecutor When to charge the case? Model Rules of Professional Conduct Rule 3.8(a) states: A prosecutor in a criminal case shall (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. Mandatory Reporting children , dependent adults Human trafficking victims. PRC 800 number. Don t make promises. The victim WILL testify if case is charged Legislation - Penn State - HB 2533 Broadens who should report. Died in Senate. 3

4 Role of Prosecutor We ask a LOT of victims. Are we relying SOLELY on the victim for proof? What else do we need? 1. Objective facts 2. Quality investigation 3. Theme to closing What to charge? Elements Age of victim Under 14 = Jessica s Law Penetration vs. Lewd fondling or touching Over 16: w/o consent, force or fear, unconscious, incapable of consent, mentally incapable. Indications of human trafficking. Charging Decision Objective Facts Interview of V close in time to offense. 911 tape, witnesses of initial disclosure (friend, teacher, parent, Crawford issues, process crime scene, the house) SANE and DNA: if not, why not? (nonaccute) Def s statements: even if denial, valuable for CODIS hits. Recorded interviews. 4

5 Objective Facts Relationship of the parties: motive, bias? Who put V up to this? Is caregiver appropriate? Record any later statements of V for consistency, corroboration Diaries, blogs, notes, facebook, twitter, instagram captures Physical Evidence: sex toys, landmarks Porn: For us or for the defense Is there a strategy? Guilt in Fact Legal Sufficiency Charging is NOT a leverage tool Follow through National Prosecution Standards Objective consistency Charging Why are objective facts so important? 3 Explanations: 1. It happened 2. It did not happen at all a. Lied all by herself b. Someone told her to lie c. She just misunderstood/confused 3. SODDI 5

6 Theme Defense will have one - Scorned lover. Hell hath no fury... - Problem teenager or crazy girl. - I was drunk. - Her mother put her up to this. - She did not want her boyfriend to find out, so she cried rape. State needs theme to give the jury a thread to follow. Theme Child - How does she know what she knows? - Who put her up to this? - Why would she say this? Teens and Adults: need corroborative evidence. Physical evidence is injury + DNA. Consistency. What else What else is he going to say? What will he know about you? Ouija board case Non-stranger cases. 6

7 Complaint/Indictment Suspect identified, case investigated. Evidence linking the suspect to the crime is presented to prosecutor (CA or DA). Prosecutor may request further investigative work. Prosecutor will file charges when she or he believes the case has a reasonable probability of success at trial. Charging is done in the form of a written criminal complaint. Judge issues arrest warrant or summons. Preliminary Hearing (felonies only) After defendant is arrested, a hearing is scheduled to determine whether or not there is sufficient evidence (probable cause) to warrant a trial. Victim may be subpoenaed to testify Inconsistent statements Insufficient evidence = Dismissal of charges Probable cause = Case moves forward What is probable cause? Arraignment on felony charges Arraignment Witnesses do not need to appear Serves several purposes Exact nature of charges explained to defendant Right to an attorney Plea entered Trial date set if not guilty plea Trial usually set between days Sentencing date set if guilty plea Sentencing usually set between days 7

8 Legal Issues Prior Crimes Rape Shield Psychological Evaluations on victim Requires compelling evidence on why a victim should be subjected to this further invasion on her privacy. Preparing the Victim Preparation is key. The prosecutor should never be alone with the victim. Tour of the courtroom. Review, but don t rehearse or coach. Victim advocates for court support. WASAC, MOCSA, etc. Order of Trial Jury Selection voir dire Opening statements Burden of Proof: State 1 st, Defense, Rebuttal Testimony: direct and cross examination Jury Instructions Closing arguments Deliberations Verdict and sentencing 8

9 Trial - Expectations Witnesses Who to call? What is cumulative evidence vs. unanswered questions. Presentation: When to call V? Nap time? Missed breakfast? Start with child early(stronger witness) or bury weak adult in the middle. Exhibits: Photos, maps, interview of the victim, body diagrams, DNA presentation. Plea Agreement Pre-Trial Conferences Routine for prosecutor to discuss plea with defense. Constitutional & statutory obligation to advise victim & inform them about plea & sentencing. If an agreement is reached, the attorneys and the defendant appear before judge. Defendant enters plea of guilty. What are consequences of plea for the victim? What does a prosecutor want to discuss with the victim-survivor at this stage? PLEA NEGOTIATIONS 9

10 The Role of the Prosecutor Plea Negotiations Areas to negotiate in Sex cases: 1. Felony or Misdemeanor? 2. Registration as Sex offender? 3. Prison time or Probation? KSGA Severity Level 1 10 Criminal Hx: A I Departures Dispositional/Durational Hard Time Sex Offenders Lifetime Registration, post release, CODIS, EMD J- Law Hard 25, 1 st offense, Hard 40 2 nd offense, LIFE for 3 rd or more offense 10

11 Appeal Every felony jury trial is appealed Trial counsel. Appellate counsel, ADO Average of 1.5 years Court of Appeals Supreme Court Victim notification throughout Role of Prosecutor It s your case, but she lived it How invested are cops, investigators, others, medical professionals (Valadez) Owe them your best, yes, but that includes your objective, realistic assessment. Tell them the truth. Compare sodomy of 4 year old to human trafficking of 17 year old in Oakley. Plea Negotiations Three Areas 1. Felony or misdemeanor? 2. Sexually motivated? See KORA registration requirements 3. Prison or probation? But Limitations on Departure

12 Plea Negotiations Consider the strengths of the case; including the intangibles How will the victim be received? Legal issues. His statements. Are they admissible? How will the defense be received? Bottom line: What are you going to prove? Objective facts or emotional appeal. Who may speak? Constitutional and statutory considerations of victim s rights Kansas Constitution, Article 15, Sec 15(a) Victims of crime shall be entitled to certain basic rights... To be heard at sentencing K.S.A Bill of Rights (5) The views and consequences of victims should be ascertained... THE PROFESSIONAL WITNESS 12

13 Keep track Your CV Education Training Teaching Publications Organizations, professional associations Experience # times testified and where Anatomy The definition of sexual intercourse: Penetration of the female sex organ.. You teach the female sex organ... Labia Majora Labia Minora VAGINAL OPENING Urethra Clitoral Hood Hymen Fossa Navicularis Perineum Posterior Fourchette EXHIBIT #53 INTROITUS Anus 13

14 Teaching Mode Anatomy Order of Exam Importance of Hx taking. quotes Findings Documentation Are your findings consistent with the Hx she gave? Other Concerns Commenting on credibility is improper. Use of recorded statements: State v. Elnicki We must redact any statements on credibility. The findings were consistent with the history given by the patient. OK. Good Testimony Preparation and working with proseuctor: Read and review your notes. Slide review. Peer review. Physical Evidence? Review your prior testimony. Know the literature and be current. Know your CV. Have you reviewed their expert? 14

15 Trial Prep Meet with the prosecutor. What is your role? Determine your focus. What questions will be asked? What is NOT permissible? Anticipate defenses to prepare for cross Go into teaching mode. Be eager to share your information. Style Professional appearance. Be natural, personalize your testimony. Listen carefully. Objectivity is critical. Respect the court and the defense. Matter of fact confident in what you know. Use narrative answers. Do not guess or hedge. In the courtroom Permission to answer I don t know to yes or no question. Ask for clarification. Plain english: like a scrunchy Vary the format, tempo of an answer. Vary the loudness of your voice and direct eye contact to all. 15

16 In the courtroom Don t argue. Avoid nervous habits. Don t be defensive. OBJECTION....(wait) for the ruling, then you may answer. Show your experience in court. Enter well - Leave well - Sequestered Professionalism Testimony Pitfalls Beware of questions asking if you are willing to swear to your version of the events. You were "sworn" to tell the truth when you took the stand, do not be afraid of saying so. Beware of questions asking if you have spoken to the Prosecutor, the witnesses, or other officers. If you have, admit it freely. This preparation before trial is expected in each case. If you are asked if you talked with the Prosecutor about your testimony, admit that you met with him, talked about the case and he instructed you to tell the truth. Beware of questions asking you if another witness was telling the truth or lying. You can only tell the truth based upon your observations. Beware of the simple question, "Why are you here today?" You are not here to volunteer information in order to convict. You are not an advocate. You are an unbiased witness. You appeared at trial in response to being served with a subpoena issued by the Court Clerk. Your goal Master what you know and how you know it. You are the only one who has this knowledge in the case. The role of the prosecutor is different from yours. You are the health care provider. Assist the jury so that justice can be done. 16

17 Kansas Supreme Court What if your patient becomes unavailable before trial? St. v. Bennington A stmt given to a SANE is testimonial when: 1. the stmt is made in answer to questions asked by the SANE 2. while completing a questionnaire provided by the KDHE as part of a sexual assault evidence collection kit approved by the KBI 3. where there is not an ongoing emergency or other circumstances to suggest the statement is nontestimonial. Patient Care #1 concern is patient care Care and treatment are #1. You are a health care provider, not an arm of law enforcement. Don t worry about the prosecution of the case. Your role is special to the patient. 17

18 The Advent of SANE SANE s have dramatically changed the ability of prosecutors to effectively pursue cases of sexual abuse and sexual assault. The goal is justice.... Many, many thanks for your profession. Quiz Instruc,ons Kansas Coali,on Against Sexual and Domes,c Violence coali,on@kcsdv.org Click here to access the quiz 18