Forensic Victimology 2nd Edition Chapter Eighteen: Forensic Victimology on Trial

Forensic Victimology on Trial Victimology is a regular feature of civil and criminal trials. In cases involving victim death, evidence about the victim may be presented by fact witnesses such as family members and investigators; or by expert witnesses. In cases that involve a living victim, the victim may testify to these things in person along with corroborating details from fact witnesses or medical and mental health professionals.

The Victim at Trial The vast majority of cases brought against criminal defendants never go to trial. There are a number of circumstances that can cause this result – sometimes the prosecutor finds there is a lack of evidence to proceed; sometimes the judge finds there is a lack of evidence to proceed; sometimes the accused pleads guilty and a trial is unnecessary; and sometimes the accused makes a deal, pleading guilty to lesser charges for a reduced sentence.

The Victim at Trial As a case moves forward and new information is revealed, the decision to prosecute, drop, or plea the case may be revisited. Victimology can play a key role in deciding whether the case goes to trial. The victims’ role at trial is typically one of performance for the judge and jury. They perform the role of victim to gain sympathy, or that or pure fact witness to make a particular record of events.

Evidentiary & Admissibility Issues It is the role of the judge to act as a filter for the information that both prosecution and defense hope to use in support of their versions of events. This is done by determining what is relevant to the specific issues at hand and what is not. Theoretically, any victim information that is deemed relevant and does not also fall within any of the exclusionary rules present is admissible at trial.

Evidentiary & Admissibility Issues Exclusionary rules are used in a court of law to ensure that evidence deemed relevant and admissible is not confusing, misleading, or otherwise a distraction from the task at hand. An exclusionary rule relating to forensic victimology is the rule pertaining to privilege. Relevance refers to whether or not the victim information serves to prove or disprove a fact in question.

Evidentiary & Admissibility Issues Judges have a large amount of discretion in determining whether or not certain information and evidence will be relevant to the jury. In order to ensure a fair trial, it is the duty of the judge to exclude any evidence that he or she sees fit based on a balance between its probative value and any foreseeable prejudice.

Shield Laws Rape shield laws are designed to protect victims from humiliation and harassment in the courtroom by limiting the introduction of evidence pertaining to a victim’s sexual history. These laws also encourage the victim to report the assault and assist in bringing the offender to justice by testifying in court.

Shield Laws However, problems exist with these laws: These laws have further endorsed the notion that rape victims should be unequivocally believed and supported – regardless of any evidence against the accused. Failure to project an uncritical pro-victim attitude if often perceived as politically incorrect or unnecessarily cold. These laws have the potential to make it easier for prosecutors to make their case – especially when there is an unsympathetic victim history that might be relevant to the facts at hand.

Victim Impact Statements (VIS) Victim Impact Statements (VIS) are accounts of victims or their family members designed to inform the judge, jury, and/or parole boards of the impact that the crime has had on their lives. They can take the form of physical, financial, psychological, and emotional harm. They are presented in court prior to sentencing but after a conviction has been made, or during parole hearings. They allow victims to explicitly detail in their own words how the convicted criminal’s actions have affected their lives.

Victim Impact Statements (VIS) Benefits of VIS include the following: They can give a face and voice to those who have suffered a loss; They can be empowering and potentially healing; and They may promote a positive environment for victim cooperation and trial.

Victim Impact Statements (VIS) VIS have also been used as a tool for the prosecutor to introduce irrelevant and inflammatory details to play on the emotions of jurors or other triers of fact. The U.S. Supreme Court holds that VIS are properly admissible so long as they are not unduly prejudicial, to the point or being fundamentally unfair to the defendant.

Expert Testimony According to the Federal Rules of Evidence, the court may permit a witness qualified as an expert to provide an opinion regarding “scientific, technical, or other specialized knowledge” if such testimony “will assist the trier of fact”. Some courts will apply the following tests to determine admissibility: Frye test - requires a showing that methodology be generally accepted in the scientific community for admissibility. Daubert test - holds that expert testimony may be admitted if it is both relevant and reliable. These tests are legal guidelines for admissibility, not scientific standards for reliability.

Expert Testimony The Role of Experts As a general rule, witnesses in court are only allowed to speak regarding what they have perceived with their senses, not their opinions. However, expert witnesses are an exception to this rule. Expert opinion evidence is admitted when a subject comes into question during the proceedings that the court does not have the specialized knowledge required to make an information decision about. The role of the expert witness is to educate the court regarding their areas of specialized knowledge: to provide not only the results of any examinations performed but what they mean.

Expert Testimony Examiner Bias Victimological evidence is charged with emotional and political content. Investigators and forensic examiners must content with not only their own biases when dealing with these groups, but also the biases of others who interject themselves into the equation. Observer effects are a form of bias characterized by distortions resulting from the context and mental state of the forensic examiner, to include his or her employer, peer relationships, and subconscious expectations and desires.

The Role of Forensic Victimology Forensic examiners may be asked to examine victim-oriented behavioral evidence and contextualize it before the trier of fact. This is the forensic aspect of forensic victimology. Forensic examiners should conduct themselves as both scientist and educator. Victimological information should be gathered objectively and consistently, and then used to describe or evaluate the victim and their circumstances so that judges and juries are privy to information that may be relevant to their decisions. Typically, victimological evidence must serve a particular purpose related to a legal issue to be admissible.

Legal Vs. Scientific Sufficiency What is sufficiently reliable for legal purposes may not be sufficiently reliable for inclusion in a victimology. In circumstances where victim statements cannot be trusted, for whatever reason, the forensic examiner has a clear professional duty to warn, or advise, that any findings based solely on the word of an untrustworthy victim may not rise to the level of reliability required for the purpose of a forensic analysis and subsequent expert testimony.

Expert Victimologists Victimology comes in at trial as evidence through a number of professional and expert witnesses. The following are examples: Forensic criminologists Forensic pathologists Medical professionals Toxicologists Mental health professionals Crime scene analysts Criminal profilers