Prior to the 1980s, victims were not typically included in the prosecution of crimes. Once the Victims of Crime Act was passed in 1984, with the Crime Victim Bill of Rights passed in 2004, many new privileges were awarded to victims of crime. However, some of those ‘rights’ outlined have loopholes that allow judges and attorneys to bypass them - not always because they want to, but they run the risk of ethical violations or bar complaints from the opposing side. Each state determines the verbiage for their Crime Victim Bill of Rights. In Virginia, a large majority of each right outlined in the CVRA has verbiage at the end explaining that not all jurisdictions allow that right to be exercised. There are certain parts of the Crime Victim Bill of Rights that attorneys - and, especially, judges - should stop overlooking and start embracing in the courtroom.
Bond Hearing Participation & Input
Circuit Court judges understand that victims have the right to victim input at sentencing of defendants after trial, but not many General District judges include the victim’s input in bond hearings. In circumstances such as murder, sexual assault and IPV, some judges do ask whether the survivor has had contact with the prosecutor’s office to discuss how they feel about bond. In cases deemed ‘less aggravating’ though, many judges conduct a standard bail hearing. For survivors of property crimes, the lack of consideration of their opinion on bond can prevent them from wanting to participate in any other part of the process. While attorneys can generally argue that individuals who break into people’s homes, destroy property or hit others can present danger to the community, the survivor’s right includes notification and involvement in all steps of the process - including bond.
On top of that, many victims don’t receive notification until after the bond hearing. In jurisdictions where advocates don’t get involved until after the arrest is made, there is a timelapse for initial contact. When law enforcement officers don’t provide accurate contact information to advocates or put the survivor in contact with an advocate as soon as possible, the advocate can’t properly inform the survivor of the court process. This continues to leave the survivor in a cesspool of doubt, uncertainty and mistrust. How can we expect victims to cooperate if we don’t involve them or provide them resources from the very beginning? Yes, all victims/witnesses do have a responsibility to cooperate - but trauma can impact how they cooperate. Putting the burden on survivors to do all the contacting disregards their trauma.
Virtual Testimony & Victim Protection
Technology in the courtroom has not caught on quickly. In a world where victims and witnesses could benefit from the ability to not be physically in the courtroom to protect their mental well-being, judges don’t seem to allow victims the same privilege as defendants when it comes to video conferencing. Many judges conduct arraignments and continuances over video calls - but, for some reason, they claim that victims and witnesses not appearing in-person infringes on a defendants’ right to fair trial. Victims and witnesses - who potentially faced violent, life-altering trauma at the hands of the defendant - shouldn’t be forced to stand in the same physical space as the defendant.
If the concern is authentication of the individual testifying, then why allow a defendant to testify his financial form as true and accurate on a video call during an appointment of counsel? Besides, judges and attorneys don’t require individuals testifying to present an ID at the beginning of questioning - they ask them identifying questions. Nothing about that process has to change - just the medium in which it’s done.
Victim protection doesn’t mean a detail sitting outside in the lawn to prevent the offender from coming to the survivor’s home. It means that measures are taken to promote resiliency in the survivor and prevent additional trauma from occurring. In some cases, this might look like allowing the victim to provide testimony through closed circuit TV from another room that streams the whole courtroom or closing the courtroom to the media. Victim protection can come in a variety of ways, and it’s up to the judges, attorneys and legal services staff to find ways to provide those protections.
Remaining in the Courtroom
One of the biggest things victims have the right to in the CVBoR is the right to remain in the courtroom during trial, much like the defendant has. However, many defense attorneys claim that victims - especially if subpoenaed as witnesses to testify - shouldn’t remain in the courtroom because it isn't fair to the defense. If a victim is recalled by the defense to testify, then their presence in the courtroom during all the other witnesses' testimony could lead them to change their responses if asked to testify later.
That’s a fair concern - if a witness alters their testimony based on what they hear from others, then their testimony is no longer worthy of consideration. This could also jeopardize the prosecution’s case.
Interestingly enough, the victim’s right to remain in the courtroom varies by state. These states are broken up into ‘unqualified’ and ‘qualified’ categories, where victims can remain in the courtroom either without qualification or with qualification - either there’s no reason a victim can’t remain in the courtroom, or there’s no reason unless the presence would lead to a specific set of circumstances. Virginia falls into the qualified category - a victim can remain in the courtroom during trial unless it would impair a fair trial. The court has to determine this, though - not the attorneys. And, in the states where this clause exists, practically no courts have found that victim presence has impaired a fair trial - plus, the defense has to provide an overwhelming amount of evidence to show that victim presence seriously affects the defendant.
The fact of the matter is: a victim is not a witness. Sure, they can testify to what happened much like witnesses, but they are the individual who experienced the crime. The survivor is not the person who saw what happened, they are the person who it happened to. This means that the victim - who can most likely testify to more than the witnesses can (or maybe less depending on how the trauma has impacted them) - shouldn’t be treated the same way that witnesses are. Family members are included in this, too - especially in homicide cases, where the victim cannot even testify because they were murdered.
Some attorneys claim that victims remaining outside the courtroom during testimony can strengthen the prosecution’s argument. If a person can describe what happened to them and be backed up by other individuals without having any contact during the trial, then that indicates credibility to the prosecution’s claim. Bonus points if the defendant testifies a completely different version of events - many of us have heard judges disparage the testimony of a defendant because of how different it is from everyone else’s.
The point is not that all judges should require victims to sit in the courtroom (or outside) during testimony. The point is that it should be offered. What are some ways that judges can ensure a fair trial for the defendant while still ensuring the victim can exercise their right to stay in the courtroom?
Make it known early on that’s your policy. Put it on the record for each case you preside over. That way, if the defendant appeals the decision, the record exists to explain the procedure and why you as judge chose to have the victim remain present. Have your office put out a memo/release to all attorneys in your region that you come into consistent contact with.
Take advantage of pre-trial motions. Have the attorneys file motions for/against victim inclusion during trial. Have the attorneys argue it on a pre-trial motions date. Make your decisions based off their motions, like you would in any other circumstance.
Allow pre-trial identifications. Some states even allow victims to identify the defendant during pre-trial motions to alleviate any concerns of the victim using their time sitting through testimony to influence in-court identification. This will prevent the victim from using any other testimony from influencing the identification of the defendant during the trial.
Have the victim testify first. Many states already do this, especially ones who require victim sequestration. However, judges who allow victims to remain should also allow them to testify first, so that there’s no influence of anyone else’s testimony. If a defense attorney is going to recall the victim, then the defense can still use the testimony from before. In cases where there are multiple victims, then it’s understandable to consider sequestering the victims.
Working Together for the Future
Shifting an entire judicial procedure takes time. It also takes a staff willing to make the adjustment, and it takes the foresight of a staff who is thinking about the future rather than the past. If we want to see real change in the courtroom, then it starts with evaluating what rights crime victims are allowed and how the court can provide better accessibility to those rights.