Victim-Witness Handbook
{Links to Victim-Witness Resources}
If you are a victim of, or a witness to, a crime, the Victim-Witness Assistance Program is designed to provide you with services while you are involved in the criminal justice system.
As a victim of, or a witness to, a crime, you may be experiencing feelings of confusion, frustration, fear, and anger. Our staff can help you deal with these feelings. We also will explain your rights as a victim or witness, and help you better understand how the criminal justice system works.
One of the responsibilities of citizenship for those who have knowledge about the commission of a crime is to serve as witnesses at the criminal trial or one of the other hearings held in connection with the criminal prosecution. The federal criminal justice system cannot function without the participation of all witnesses. The complete cooperation and truthful testimony of all witnesses are essential to the proper determination of guilt or innocence in a criminal case.
Our office is concerned that victims and witnesses of crime are treated fairly throughout their contact with the criminal justice system.
The United States Department of Justice and the United States Attorney's Office in this district have taken several steps to make the participation by victims of crime and witnesses more effective and meaningful. One of these steps is the preparation of this Handbook. We hope that it will provide the answers to many of your questions and will give you sufficient general information to understand your rights and responsibilities as well as the federal criminal justice system.
Thank you for your cooperation with our Office and for your service as a witness. We appreciate the sacrifice of time that being a witness requires.
PART I: General Information For Victims and Witnesses
WHAT IF YOUR PROPERTY IS BEING HELD AS EVIDENCE?
10.
RECOVERING FINANCIAL LOSSES
a. Compensation b. Restitution c. Civil Damages
PART II: What Happens In A Felony Case?
PART III: What Happens In A Misdemeanor Case?
CRIMINAL INFORMATIONS OR COMPLAINTS
2.
ARRAIGNMENT
3.
PETTY OFFENSES
4.
TRIAL
5.
SENTENCING
PART IV: Testifying In Federal Court
PART V: Conclusion
PART I: General Information For Victims and Witnesses
The United States Attorney is the chief prosecutor of crimes against the laws of the United States. There is a United States Attorney's Office for each federal judicial district. You are either a victim of a crime or are being asked to serve as a witness for the United States in a particular case.
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A crime victim has the following rights:
(1) The right to be treated with fairness and with respect for the victim's dignity and privacy.
(2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial.
(5) The right to confer with the attorney for the Government in the case.
(6) The right to restitution.
(7) The right to information about the conviction, sentencing, imprisonment, and release of the offender.
2. YOU ARE ENTITLED TO UNDERSTAND WHAT IS HAPPENING IN THE CASE IN WHICH YOU ARE INVOLVED
If you have questions about the case in which you are involved, feel free to call our Victim-Witness Coordinators. They will be contacting you throughout the case with updates regarding the various stages of the proceeding.
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3. YOU ARE ENTITLED TO A WITNESS FEE FOR EVERY DAY THAT
YOU APPEAR IN COURT IN CONNECTION WITH THE CASE
If you are not a federal government employee, you will receive a witness fee for each day that you are required to attend court in connection with the case, including time spent waiting to testify. In addition to receiving a witness fee for each day spent attending court, out-of-town witnesses also receive a witness fee for each day of travel, as well as reimbursement for certain travel expenses.
At the conclusion of your testimony, you will be assisted in completing a witness voucher to make a claim for your fees and expenses. A check for the total amount claimed will be mailed to you, which you should receive about two to three weeks after your appearance.
If you are a federal government employee, the United States Attorney's Office will submit a "Certificate of Attendance" that will enable you to receive your regular salary, notwithstanding your absence from your job. You will not collect a witness fee in addition to that salary.
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4. YOU HAVE THE RIGHT TO BE FREE FROM ANY THREATS
If anyone threatens you, or you feel that you are being harassed because of your contribution to the case being tried, you should immediately notify the United States Attorney's Office, the Federal Bureau of Investigation (FBI), or the federal agency conducting the investigation. All of these telephone numbers are listed in your telephone directory under United States Government. It is a federal offense to threaten, intimidate, harass, or mislead a witness in a criminal proceeding. Victims or witnesses have the right to be free of harassment or intimidation by the defendant or others.
The court may release the defendant while he/she is awaiting trial under conditions that satisfy the court that the defendant will appear in court for all hearings and for trial. The court may require the defendant to post a money or property bond, or it may simply require the defendant to promise to appear. Since most federal criminal defendants are released on a bond pending trial, you should not be surprised if you happen to see the defendant on release prior to trial. Nevertheless, if you have any concerns about the conditions of the defendant's release, please discuss them with the Assistant United States Attorney handling the case.
Of course, if you are threatened or harassed while you are attending the court proceedings, you should report that fact immediately to the Assistant United States Attorney.
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5. DISCUSSING THE CASE WITH OTHERS
United States Attorneys' Offices often receive calls from witnesses asking about their rights if a defense attorney or a defense investigator contacts them. Witnesses do not belong to either side of a criminal case. Thus, even though you may first be subpoenaed by the prosecution or by the defense, it is proper for the other side to try to talk to you. While it is the prosecution that is asking for your cooperation in this case, you may be contacted by the defense lawyer or an investigator for the defendant for an interview. While you may discuss the case with them if you wish to do so, you also have the right not to talk to them. The choice is entirely yours. If you do agree to an interview with a representative of the government or defense, here are some suggestions on how to deal with it:
- First and foremost, you should always tell "the truth, the whole truth, and nothing but the truth."
- If you give a statement to a lawyer or an investigator for the government or the defense, you do not have to sign the statement. However, any statement that you make during an interview, even if not signed, may be used to try to challenge or discredit your testimony in court if your testimony differs from that statement. This applies even to oral statements that are not reduced to writing at all.
- If you decide to sign a statement, make sure you read it over very carefully beforehand and correct any mistakes.
- Ask to have a copy of any statement that you make. Whether you sign the statement or not, you may tell the lawyer or investigator that you will refuse to give a statement unless you receive a copy of it.
- When you have an interview with the defendant's lawyer or investigator, please let the United States Attorney's Office know about the interview. If you elect to have an interview with the defendant's lawyer or investigator, you may want to have present an additional person chosen by you to witness the interview.
- You may discuss the case with anyone you wish. The choice is yours. Be sure you know to whom you are talking when you discuss the case. We encourage you not to discuss the case with members of the press, since you are a potential witness in a criminal case and the rights of the government and the defendant to a fair trial could be jeopardized by pre-trial publicity.
- After a witness has testified in court, he/she may not tell other witnesses what was said during the testimony until after the case is over. Thus, do not ask other witnesses about their testimony and do not volunteer information about your own.
- The Assistant United States Attorney may discuss various aspects of the case with you to inform you and to prepare you for testimony if that is necessary. However, the Federal Rules of Criminal Procedure prevent an Assistant United States Attorney from disclosing to anyone, with limited exceptions, what has occurred in the grand jury. The purpose of this secrecy rule is to protect grand jurors and persons involved in the investigation and to make sure that no one tampers with the investigation or flees from the jurisdiction. For those reasons, an Assistant United States Attorney may be prevented from fully answering some of your questions about the results of the investigation or the decision of whether to file criminal charges.
6. SCHEDULING YOUR APPEARANCE IN COURT
There are several kinds of court hearings in a case in which you might be asked to testify. These include a preliminary hearing, a grand jury appearance, a motion hearing, and an appearance in court for trial or sentencing. It is difficult to schedule court hearings at a time convenient for everyone involved. Any court hearing requires the presence of witnesses, law enforcement officers, the defendant's lawyer, an Assistant United States Attorney, and the Judge, as well as the defendant. Therefore, WHEN THE COURT SETS A TIME AND PLACE FOR A HEARING IN THE CASE YOU ARE INVOLVED IN, YOU MUST BE THERE PROMPTLY, unless an emergency prevents it. And, if you have been sent a subpoena (a formal order to appear), you should know that there are serious penalties for those who do not obey that order.
If you know in advance anything that might keep you from making a court appearance, let the United States Attorney's Office know immediately so that an attempt may be made to adjust the schedule. However, keep in mind that scheduling changes are made at the discretion of the court.
Despite the best efforts of everyone concerned, court hearings do not always take place on schedule--the hearing or trial is sometimes postponed or continued to a new date. The Victim Witness Specialist will notify you with any proposed scheduling change, in advance of your appearance in court.
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7. PLANNING YOUR TRIP TO COURT
As a victim or witness, you may have questions about transportation, the location of the courthouse, food service, or where to go and what time to appear. The United States Attorney's Office has assembled information on these subjects. You should feel free to ask either the case agent, the Assistant United States Attorney, or the Victim-Witness Specialist about them.
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Many criminal cases are concluded without a trial being held. The ways a case can end without a trial are discussed below:
a. Guilty Plea: The defendant may choose to plead guilty. By pleading guilty, the defendant waives his/her right to a trial. Generally, the guilty plea constitutes a conviction. <Top of Page>
b. Plea Agreement: The Assistant United States Attorney may enter into a plea agreement with the defendant whereby if the defendant pleads guilty to certain charges, the government will ask the court to dismiss other charges, or will take another position with respect to the sentence imposed or some other action. Sometimes, the defendant will agree to plead guilty to one or more of the charges or to a less serious or related offense. This process of obtaining a defendant's agreement to plead is recognized by the courts as a proper way of disposing of criminal cases. In fact, the United States Supreme Court held that agreed-upon pleas are to be encouraged.
The government usually benefits in several ways by entering into a plea agreement rather than going to trial against a defendant on all charges. One benefit is the guarantee of a conviction. Criminal cases always involve risks and uncertainties. Even a case that appears to be very strong may not result in a conviction if there is a trial. In many cases, there is a possibility that certain evidence may not be admitted. The Assistant United States Attorney will consider this in deciding on a plea agreement. Another benefit of plea agreements is the prompt and certain imposition of a sentence, which is a major goal of the criminal justice system. A third benefit is that they help to obtain pleas and convictions of other defendants. Often, the Assistant United States Attorney will require, as a condition of a plea, cooperation of the defendant in further investigation or prosecutions of others. Also, since there is no trial and no witnesses are called to testify, the identity of informants and witnesses can remain undisclosed. This preserves an informant's usefulness in other investigations, and witnesses are spared the inconvenience and emotional stress of testifying.
In deciding to accept certain pleas, the Assistant United States Attorney considers the effect of the criminal offense on the victims, the criminal history of the defendant, the seriousness of the offense, and the interest of society in seeing all crimes punished with certainty. The Assistant United States Attorney will also consider whether the proposed plea will expose the defendant to a maximum punishment that is appropriate even though the defendant may not plead guilty to all charges.
<Top of Page>c. Declination and Dismissal: A case referred to the United States Attorney may not be acted upon or declined, which is called a "declination", or may be dismissed after it has been filed with the court. There are several reasons why cases may be declined or dismissed.
An Assistant United States Attorney has discretion to decline to prosecute a case based on several considerations. The Assistant United States Attorney must decline if the evidence is too weak. The Assistant United States Attorney is ethically bound not to bring criminal charges unless the admissible evidence will probably be sufficient to obtain a conviction. However, even when the evidence is sufficient, the Assistant United States Attorney may consider that there is not a sufficient federal interest served by prosecution, but that the defendant is subject to prosecution in another state or local court (including a state court for the prosecution of juvenile delinquents).
A dismissal may occur when the Assistant United States Attorney asks the court to do so. The Assistant United States Attorney may do so because the court has excluded critical evidence or witnesses have become unavailable. In other situations, evidence which weakens the case may come to light after the case has started. The court may dismiss a case over the objection of the Assistant United States Attorney when it determines that the evidence is insufficient to find the defendant guilty. <Top of Page>
d. Pre-Trial Diversion: In selected cases, an Assistant United States Attorney may decide not to try a defendant right away or to bring charges immediately. Instead, the defendant is placed in a Pre-Trial Diversion Program. Under this Program, the United States and the defendant enter into a contract in which the defendant agrees to comply with certain conditions and to be supervised by the United States Probation Office for a period of time, usually one year. One of the conditions may be to make restitution to the victims of a crime. If the defendant successfully complies with all of the conditions, no charges will be brought. If, however, the defendant fails to meet a condition, charges may be filed.
The Pre-Trial Diversion Program is designed for those defendants who do not appear likely to engage in further criminal conduct and who appear to be susceptible to rehabilitation. Overall, the objectives of the Program are to prevent future criminal activity by certain defendants who would benefit by diversion from traditional punishment into community supervision and services. The Program also helps to make criminal sanctions more appropriate to the individual offenders, and it saves judicial and prosecutive resources for concentration on major crimes.
Several factors may be considered in deciding upon a diversion, including the criminal record of the defendant, the willingness of the defendant to make restitution, and the likelihood that the defendant may engage in further criminal conduct. Additionally, before a defendant may enter into a diversion program, the United States Probation Office must agree to supervise the defendant, and the defendant usually must admit that he/she committed the wrongdoing.
9. WHAT IF YOUR PROPERTY IS BEING HELD AS EVIDENCE?
Sometimes law enforcement officers take and store property belonging to witnesses as evidence in a trial. This might be property that was taken by law enforcement officers at the crime scene or that was stolen. If your property is being held as evidence by law enforcement officers and you would like to regain your property before the case is over, you should notify the law enforcement officer or Assistant United States Attorney who is handling the case in which you are involved. Many times arrangements can be made for early release of property. That is a determination to be made considering the value of the property as evidence at trial. In any event, at the conclusion of the case, you should be able to have your property returned to you promptly. The prompt return of your property will always be sought. In those instances where this cannot be achieved, the Assistant United States Attorney will explain the reasons for retaining the property.
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10. RECOVERING FINANCIAL LOSSES
Often, crime means a real financial loss for the victim. Perhaps you have had cash or valuable property stolen (and not recovered), have experienced damaged property, medical expenses, or a loss of income because you could not work, or the nature of the crime may be that you have been defrauded of money belonging to you. If any of these things have happened to you, please check to see if you have insurance which will cover the loss.
If you have no insurance or only partial coverage, there are three possible ways of trying to recover your losses. Unfortunately, these three ways, discussed below, are not always effective in many cases.
a. Compensation: Crime victims' compensation programs, administered by the states, provide financial assistance to victims and survivors of victims of criminal violence. Payments are made for medical expenses, including expenses for mental health counseling and care; loss of wages attributable to a physical injury; and funeral expenses attributable to a death resulting from a compensable crime. Other compensable expenses include eyeglasses or other corrective lenses, dental services and devices, and prosthetic devices. Each state establishes its own instructions for applying for crime victims' compensation, procedures to be used in processing applications, approval authority, and dollar limits for awards to victims. <Top of Page>
b. Restitution: When an offender gives back the things he/she stole from a victim, or otherwise makes good the losses he/she has caused, he/she has given restitution to the victim.
From the point of view of effective law enforcement, the time to seek restitution is when the defendant is found guilty or pleads guilty. If that is the final result of the case--which is never a sure thing--the trial Judge must consider, by law, restitution as part of the offender's sentence. The decision, however, is the Judge's. The Judge might determine that the defendant does not have enough money to repay the debt to the victim, or the Judge may decide to sentence the offender to jail or prison, in which case the defendant may not be able to earn money to pay back the victim.
You should discuss restitution with the Assistant United States Attorney. You should cooperate fully with the United States Attorney's Office and the United States Probation Office by giving them information regarding the impact that the crime had on you, as the victim. Without this information, the Judge cannot make an informed decision on your need for restitution.
<Top of Page>c. Civil Damages: A victim may try to recover his or her losses by a civil lawsuit against the defendant. Such a private lawsuit is completely separate from the criminal case. In fact, the jury in a civil case may find that the defendant owes the victim money, even though a different jury in the criminal case may find the defendant not guilty because the burden of proof is higher in a criminal case.
The difficulty in trying to obtain civil damages from the defendant is the same as in trying to get restitution; whatever money the defendant once had may now be gone. You may need a lawyer to bring such a suit. If you qualify, you may be able to get help free of charge from Legal Aid Services. On the other hand, if your total losses are small, then you may not need a lawyer at all. You may be able to bring your own lawsuit without the assistance of a lawyer. <Top of Page>
PART II: What Happens In A Felony Case?Any offense punishable by death or imprisonment exceeding one year is called a felony. Felonies are the most serious crimes. The prosecutors and the courts handle felony cases differently from misdemeanor cases (cases that have shorter possible sentences).
This part of the Handbook is intended to explain the way a felony case moves through the court system. Each step is explained in the sections below. WITNESSES ARE NOT NEEDED AT EVERY STEP IN THE PROCESS. Most witnesses are asked to come to court only for a preliminary hearing, a grand jury hearing, a witness conference, or a trial.
Not every step is taken in every case. In fact, many cases end before they reach trial. Even so, you may wish to know all the steps that the case in which you are involved might go through.
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1. INITIATING CHARGES BY COMPLAINTS
Some felony cases begin when the United States Attorney (or usually an Assistant United States Attorney) working with a law enforcement officer, files a criminal complaint before a United States Magistrate. This complaint is a statement, under oath, of facts sufficient to support probable cause to believe that an offense against the laws of the United States has been committed by a defendant. If the Magistrate accepts the complaint, a summons or arrest warrant will be issued for the defendant. In some cases, the defendant may have been arrested without a warrant, in which case the defendant is presented to the Magistrate at the time the complaint is filed.
Victims and witnesses of federal offenses may be interviewed by a law enforcement officer prior to the filing of a complaint. In those situations, the law enforcement officer will report the statements of the victim or witness to the Assistant United States Attorney assigned to the case. Sometimes the Assistant United States Attorney may wish to interview the witness in person.
<Top of Page>This is the defendant's first hearing after arrest. It takes place before a United States Magistrate, usually the same day the defendant is arrested. Witnesses are not needed for testimony at this hearing. The hearing has three purposes. First, the defendant is told his or her rights and the charges are explained. Second, the defendant is assisted in making arrangements for legal representation, by appointment of an attorney by the court, if necessary. Third, the court determines if the defendant can be safely released on bail.
Many defendants charged with a felony are released at the end of this hearing--either they have posted money to guarantee their return for trial and other hearings, or they have been released on conditions which include their promise to return for future hearings or the trial. Those conditions may include the requirement that they not personally contact witnesses in the case. In some cases, the defendant will be detained without bail.
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The purpose of this hearing is to determine whether there is evidence to find probable cause to believe that the defendant has committed the offense charged. The burden is on the United States Attorney to produce sufficient evidence to support this finding. The United States Attorney does not have to prove at this hearing that the defendant is guilty, but must present evidence to show that there is good reason to proceed with the charges against the defendant. The date for this hearing will be set at the initial appearance.
Usually, the law enforcement officer alone can give sufficient evidence that there is probable cause that the defendant has committed the offense. Occasionally, witnesses may be subpoenaed to testify; if you receive such a subpoena, you should get in touch with the Assistant United States Attorney who is handling the case as soon as possible.
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A grand jury is a group of twenty-three (23) citizens from the same judicial district who meet to examine the evidence against people who may be charged with a crime. The work is done in complete secrecy. Only an Assistant United States Attorney and a stenographer meet with them--plus those witnesses that are subpoenaed to give evidence before a grand jury.
Although a grand jury is not a trial, it is a serious matter. Witnesses are put under oath. Their testimony is recorded and may later be used during the trial. It is important to review carefully what you remember about the crime before you testify before the grand jury. You must tell the truth. Before testifying before the grand jury, you will probably meet with the case agent or the Assistant United States Attorney. This will help you get ready for your grand jury appearance.
After hearing the evidence presented by the Assistant United States Attorney, the grand jury will decide whether the case should be prosecuted. Grand jury charges against a defendant are called "indictments." If the grand jury finds that the case should not be prosecuted, they will return a "no true bill."Not every witness in a serious crime is called to testify by the grand jury. Sometimes the grand jury will issue indictments on the basis of an officer's testimony alone. If you are called to testify, the Assistant United States Attorney should be able to give you an approximate time when your testimony will be heard.
Unfortunately, it is not always possible to schedule testimony to the minute. Your appearance may involve some waiting to be called before the grand jury itself, so we recommend that you bring some reading material along with you.
All witnesses who testify before the grand jury, except federal employees, are entitled to the same witness fee and expenses which are available for testifying in court at trial.
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5. ARRAIGNMENT ON THE INDICTMENT
The defendant in this hearing is read the charges which are contained in an indictment, and his or her bail conditions are reviewed. Witnesses are usually not needed at this hearing. Usually at this hearing, the date is set for the case to be heard at trial.
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Before the trial, the court may hear "motions" made by the defendant or the United States. These may include motions to suppress evidence, to compel discovery, or to resolve other legal questions. In most cases, witnesses are not needed at the motions hearing. If a witness is needed at this hearing, he/she will receive a notice from the United States Attorney's Office.
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At some time before the trial date, the Assistant United States Attorney in charge of the case may contact you by letter or phone, asking you to appear at a witness conference to prepare you for trial. The purpose of this witness conference is to review the evidence you will be testifying about with the Assistant United States Attorney who will be trying the case. You are entitled to a witness fee for attending this conference.
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In many felony cases, the only contact witnesses have with the prosecutors comes at the witnesses' conference and at the trial. Normally, when the trial date has been set, you will be notified by a subpoena--a formal written order from the court to appear.
You should be aware that a subpoena is an order of the court, and that you may face serious penalties for failing to appear as directed on that subpoena. Check your subpoena for the exact time at which you should appear. If for any reason you are unable to appear as the subpoena directs, you should immediately notify the Assistant United States Attorney who is working on the case.
Usually, felony trials go on as scheduled; however, this is not always the case. Sometimes the defendant may plead guilty at the last minute, and the trial is therefore canceled. At other times, the defendant asks for, and is granted, a continuance. Sometimes the trial has to be postponed a day or more because earlier cases being heard by the court have taken longer than expected. When possible, the Assistant United States Attorney handling the case or the Victim-Witness Specialist will discuss with you any proposed scheduling change. Also, the United States Attorney's Office will do everything it can to notify you of any postponement in advance of your appearance at court.
Although all of the witnesses for trial appear early in the day, most must wait for some period of time to be called to the courtroom to give their testimony. For this reason, it is a good idea to bring some reading material or handwork to occupy your waiting time. If you are waiting in a courtroom, you should remember that it may be against the rules to read in court.
A felony trial follows the same pattern as the trial of any other criminal case before the court. The prosecution and the defense have an opportunity to make an opening statement, then the Assistant United States Attorney will present the case for the United States. Each witness that is called for the United States may be cross-examined by the defendant or the defendant's counsel. When the prosecution has rested its case, the defense then has an opportunity to present its side of the case. The United States may then cross-examine the defendant's witnesses. When both sides have rested, the prosecution and the defense have an opportunity to argue the merits of the case to the court or, in a case which is being heard by a jury, to the jury, in what is called a "closing argument." The court or the jury will then make its findings and deliver a verdict of guilty or not guilty of the offense charged. After you have testified in court, you should not tell other witnesses what was said during the testimony until after the case is over. Thus, you should not ask other witnesses about their testimony, and you should not volunteer information about your own.
<Top of Page>In a criminal case, if the defendant is convicted, the Judge will set a date for sentencing. The time between conviction and sentencing is most often used in the preparation of a presentence investigation report. This report is prepared by the United States Probation Office. At the time of sentencing, the Judge will consider both favorable and unfavorable facts about the defendant before determining the appropriate sentence to impose.
The function of imposing a sentence is exclusively that of the Judge. In some cases, he/she has a wide range of alternatives to consider and may place the defendant on probation (in which the defendant is released in the community under supervision of the court for a period of years), or place the defendant in jail for a specific period of time, or impose a fine, or formulate a sentence involving a combination of these sanctions.
The court will also consider requiring the defendant to make restitution to victims who have suffered physical or financial damage as a result of the crime. If you are a victim, you should cooperate fully with the United States Attorney's Office and the United States Probation Office on preparing a Victim Impact Statement regarding the impact of the crime and the need for restitution. A Victim Impact Statement is a written description of your physical, psychological, emotional, and financial injuries that occurred as a direct result of the crime. A Victim Impact Statement is read by the Judge who will be sentencing the defendant.
Victims and witnesses may attend the sentencing proceedings and also may have the opportunity to address the court at this time. The Assistant United States Attorney and the Victim-Witness Specialist will tell you if such an opportunity exists for you and will talk to you about such a presentation.
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PART III: What Happens In A Misdemeanor Case?Any criminal offense is punishable by imprisonment for a term not exceeding one year is a misdemeanor. Any misdemeanor that carries a penalty of imprisonment for not more than six months, a fine of not more than five hundred dollars ($500), or both, is a petty offense.
Misdemeanors include such offenses as minor assaults, simple possession of controlled substances, some tax law violations, and other offenses. Petty offenses include offenses against traffic laws as well as many regulations enacted by the agencies of the United States.
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1. CRIMINAL INFORMATIONS OR COMPLAINTS
A misdemeanor case can be initiated in several ways. The United States Attorney may file a criminal information or a complaint with the court charging a misdemeanor. This is usually done after review of the evidence by an Assistant United States Attorney with a law enforcement officer's assistance. It is the United States Attorney's task to decide whether a case will be brought, and how that case will be charged. That review may involve the Assistant United States Attorney speaking to witnesses and victims, or it may be that the law enforcement officer will report the statements of victims and witnesses to the United States Attorney.
Once the complaint or information is filed, a date is set for the defendant to appear before the United States Magistrate for arraignment. In cases where an arrest has been made prior to the filing of a complaint or information, the arraignment takes place immediately.
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The arraignment before the United States Magistrate is a hearing during which the defendant is advised of his or her rights against self-incrimination and to the assistance of counsel, of his or her right to have the case heard before a United States District Court Judge or before a United States Magistrate, and of the dates for further proceedings in the case.
The Magistrate will review facts presented by the United States Attorney and by the defendant and set conditions of bail release. Those conditions may include a promise to appear on the date set for trial of the case, and/or the promise of a money bond to be forfeited if the defendant fails to appear, or other such conditions of release as seem fair and just to the Magistrate. The purpose of a bond is to ensure that the defendant will be present when the case is heard for final disposition. It is not necessary for victims or witnesses to appear at this arraignment, unless they have been specifically instructed to do so by the case agent or the Assistant United States Attorney. In any event, you will be advised of any pre-trial release of the defendant.
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Petty offenses are most often initiated by the issuance of a traffic violation notice (TVN). A TVN is issued to defendants by the law enforcement officer at the time of the offense. They command the defendant either to pay a collateral fine to dispose of the matter or to appear before the United States Magistrate on the date written on the ticket. Most often, the case will be heard for trial before the United States Magistrate on that date, if the collateral is not paid. If you are a victim or witness in one of these petty offense cases, the United States Attorney's Office may request that you attend a witness conference prior to trial.
<Top of Page>A trial of a misdemeanor case follows the same pattern as the trial of any other criminal case before the court. The prosecution and the defense have an opportunity to make an opening statement, then the Assistant United States Attorney will present the case for the United States. Each witness called for the United States may be cross-examined by the defendant or the defendant's counsel. When the prosecution has rested its case, the defense then has an opportunity to present its side of the case. The United States may then cross-examine the defendant's witnesses. When both sides have rested, the prosecution and the defense have an opportunity to argue the merits of the case to the court or, in a case which is being heard by a jury, to the jury in what is called a "closing argument." (Some serious misdemeanor cases are heard with a jury, either before the Magistrate or before the United States District Court Judge.)
The court or the jury will then make its findings and deliver a verdict of guilty or not guilty of the offense charged.
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In petty offense cases, the court may proceed immediately after the verdict to sentencing. The defendant and the United States each have an opportunity to speak to the issue of sentencing. In misdemeanor cases, the court may request a presentence investigation and report from the United States Probation Office. If such a report is ordered, sentencing will be suspended for a period of time to permit the report to be prepared. If the case before the court involves financial or physical injury to a victim of a crime, the court must consider restitution (repayment of damages to the victim as part of the sentence imposed).
A Victim Impact Statement, prepared by the victim, can be used to establish this element of damage. In cases in which damage has been suffered as a result of a misdemeanor offense, the victim should bring that damage to the attention of the Assistant United States Attorney handling the case, to ensure that the damage is set before the court. The victim should cooperate fully with the Assistant United States Attorney and the United States Probation Officer to determine the extent of the impact of the crime.
The function of imposing sentences is exclusively that of the Judge, who has a wide range of alternatives to consider and, depending upon the case, may place the defendant on probation (the defendant is released into the community under the supervision of the court for a period of time), or place the defendant in jail for a specific period of time, or impose a fine. Victims and witnesses may attend the sentencing proceedings and also may have the opportunity to address the court at this time. The Assistant United States Attorney handling the case will tell you if such an opportunity exists for you and will talk to you about such a presentation.
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PART IV: Testifying In Federal Court1. Before you testify, try to picture the crime scene--the objects there, the distances, and exactly what happened, so that you can recall the facts more accurately when you are asked. If the question is about distances or time, and if your answer is only an estimate, be sure you say it is only an estimate. Beware of suggestions by attorneys as to distances or times when you do not recall the actual time or distance. Do not agree with their estimate unless you independently arrive at the same estimate.
2. Speak in your own words. Don't try to memorize what you are going to say. Be yourself. Prior to trial, go over in your own mind those matters about which you will be questioned.
3. There is no dress code in a courtroom; however, it is important to dress in a manner that shows respect for the courtroom proceedings.
4. Avoid distracting mannerisms such as chewing gum while testifying. Smoking is not allowed in federal courtrooms.
5. From the moment you enter the courtroom or courthouse, your behavior should be appropriate to the seriousness of the proceedings.
6. When you are called into court for any reason, be serious and avoid saying anything about the case until you are actually on the witness stand. Also, do not read in the courtroom unless asked to do so by the Judge or the attorneys.
7. When you are called to testify, you will first be sworn in or affirmed. When you take the oath or affirmation, say "I do" clearly.
8. Most important of all, you are sworn to tell the truth. Every true fact should be readily admitted. Do not stop to figure out whether your answer will help or hurt either side. Just answer the questions to the best of your memory. If you don't understand the question, say so. Don't make up an answer.
9. Do not exaggerate. Don't make overly broad statements that you may have to correct. Be particularly careful in responding to a question that begins, "Wouldn't you agree that . . .?" The explanation should be in your own words. Do not allow an attorney to put words into your mouth.
10. When a witness gives testimony, he/she is first asked some questions by the lawyer who called the witness to the stand; in this case, it is an Assistant United States Attorney. This is called the "direct examination." The witness is then questioned by the defense lawyer in "cross-examination." Sometimes the process is repeated two or three times to help clear up any confusion. The basic purpose of direct examination is for you to tell the Judge and jury what you know about the case. The basic purpose of cross-examination is to raise doubts about the accuracy of your testimony. If you feel you are being doubted in cross-examination, remember that to raise doubt is the defense counsel's job. Do not lose your temper. Always be courteous even if the lawyer questioning you appears discourteous.
11. Jurors are the ones who decide the facts of the case. Always speak clearly and loudly so that every juror can easily hear you.
12. Do not nod your head for a "yes" or "no" answer. Speak so that the court reporter (or recording device) can hear the answer.
13. If you don't understand the question asked by any of the attorneys, ask the attorney to repeat or rephrase the question so that you understand exactly what is being asked.
14. Give the answer in your own words, and if a question can't be truthfully answered with a simple "yes" or "no", ask to explain your answer.
<Top of Page>15. Answer only the question asked you. Do not volunteer information not actually asked for.
16. If your answer was not correctly stated, correct it immediately. If your answer was not clear, clarify it immediately. If you realize you have answered incorrectly, say "May I correct something I said earlier?"
17. The Judge and the jury are interested in the facts that you have observed or personally know about. Therefore, don't give your conclusions and opinions, and don't state what someone else told you, unless you are specifically asked.
18. Unless certain, don't say, "That's all of the conversation." or "Nothing else happened." Instead, you might say, "That's all I recall." or "That's all I remember happening." It may be that after more thought or another question, you will remember something important.
19. Sometimes witnesses give inconsistent testimony--something they said before doesn't agree with something they said later. If this happens to you, don't get flustered. Just explain honestly why you were mistaken. The jury, like the rest of us, understands that people make honest mistakes.
20. Stop instantly when the Judge interrupts you, or when an attorney objects to a question, and wait for the Judge to tell you to continue.
21. Give positive, definite answers when at all possible. Avoid saying, "I think," "I believe," or "In my opinion." If you do not remember certain details, it is best to say that you don't remember.
22. Sometimes an attorney may ask this question: "Have you talked to anyone about this case?" It is perfectly proper for you to have talked with the prosecutor, police, or family members before you testify, and you should respond truthfully to this question. Say very frankly that you have talked with whomever you have talked with --the Assistant United States Attorney, the victim, relatives, or anyone else. All that we want you to do is tell the truth.
23. After a witness has testified in court, he/she should not tell other witnesses what was said during the testimony until after the case is over. Thus, do not ask other witnesses about their testimony and do not volunteer information about your own.
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We hope that this Handbook has answered many of your questions as to how the federal criminal justice system operates and what is expected of you in your role as a potential witness. As explained in this Handbook, witnesses have important responsibilities in this process, and their full cooperation is essential if the system is to operate effectively. Your contribution, in time and energy, is very much appreciated by everyone in the United States Attorney's Office.
If you have any other questions or problems related to the case, please contact our Victim-Witness Coordinators:
Albert E. Smith
Victim-Witness Specialist
United States Attorney's Office
Thomas B. Mason Building, Suite One
310 First Street, S.W., Room 906
Roanoke, Virginia 24011
Telephone: (540) 857-2957
Email: albert.smith@usdoj.gov
Veronica L. Massie
Victim-Witness Specialist
United States Attorney's Office
U.S. Courthouse and Federal Building, Suite 104
255 West Main Street
Charlottesville, Virginia 22902
Telephone (434) 293-4283
Email: veronica.massie@usdoj.gov
LINKS TO VICTIM-WITNESS RESOURCES:
- Criminal Injuries Compensation Fund
(Virginia Workers' Compensation Commission)
- Department of Criminal Justice Services
(Commonwealth of Virginia)
- Office for Victims of Crime
- National Center for Victims of Crime
- National Criminal Justice Reference Service
- National Organization for Victim Assistance
- Victim Assistance Online