Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

2.VICTIM ADVOCACY

2.1.YOUR RELATIONSHIP WITH THE ADVOCATE

Many victim advocacy services are mandated by statute. Most prosecutors’ office policies require additional services. But effective prosecution in domestic violence and sexual assault cases calls for heightened awareness and attention, above and beyond required and mandated services. Both prosecutor and advocate must develop expertise in victim and offender dynamics, and both must develop a successful working relationship.

2.1.1.Developing the Partnership

Evaluate your present working relationships with each of the advocates in your office. Do you approach cases as a team? Do you and the advocates know each other’s work habits and procedures? Do you and the advocates discuss the progress of each case? Do you and the advocates evaluate cases together, and troubleshoot potential problems? Have you asked for feedback from advocates on your interviewing style, on your demeanor, on your listening skills, on your courtroom presentation, on your attention to victims’ issues and needs -- particularly safety? Working in partnership as a team is crucial for the victim and critical for an effective prosecution. Advocates are an integral part of the prosecution team. Familiarize yourself with your office’s guidelines regarding how advocates and ADAs can work together to conduct interviews and meetings with victims.
1. Advocates perform vital services for victim-witnesses.

Victim Witness Advocates began working in District Attorneys’ Offices in 1975, in response to perceived insensitive treatment of victims by law enforcement officials and the courts.

Advocates guide crime victims, their family members, and witnesses through the criminal justice system. They explain the process of a criminal prosecution; notify victims and witnesses of the scheduling of proceedings and the final disposition of a case; and provide information about the availability of witness protection, witness fees financial assistance, and other social services, including creditor and employer intercession services. They help victims and witnesses “cope with the realities of the criminal justice system and the disruption of personal affairs attending a criminal prosecution during a time of personal trauma.”
Commonwealth v. Harris, 409 Mass. 461, 470 (1991), citing Mass. Gen. Laws ch. 258B, §§ 3, 5 . The services advocates provide are invaluable – both to the victim personally, and to the success of the case.
(Studies) indicate that in many cases, an increase in victim support from family, friends and trained personnel can be enough to empower victims to exit the cycle of violence. Advocacy services apparently reduce some victims’ dependency on the criminal justice system by helping them find the strength to escape on their own. And for those who need prosecutorial intervention, the presence of an advocate or supporter enables them to better assert themselves in getting the help they need.
Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges and the Court System, 11 Yale Journal of Law and Feminism, 3 (1999). But in order to do their job, advocates must know what you know. Just as medical professionals pass the concise “bullet” of critical information from E.M.T. to surgeon, you must effectively pass summarized information to the advocate -- not just the next court date or any change in bail status, but also whether the defendant made comments, how he acted, who came to court to see him, what tack the defense attorney appears to be taking, how the judge appears to be responding to the case, what legal issues have come up, etc. Likewise, you should seek out and be receptive of information from advocates about their contacts with victims and witnesses, as well as their perceptions. Both prosecutor and advocate bring skills, knowledge, expertise and perspective to your work. Taking the time to share knowledge and expertise with each other will enhance both of your skills, knowledge and perspective.

2. Effective advocacy requires skills, training, good instincts and constant attention.

Advocacy in domestic violence and sexual assault cases is particularly demanding and complex. There are often so many issues complicating the victim’s response and recovery: the reach of an abuser’s continued manipulative behavior, especially after charges have been brought; confusion about whom to blame; seeming ambivalence about safety; a desire to protect the abuser; misplaced feelings of responsibility or shame; hurtful responses from friends and family; and behaviors which may appear self-defeating, such as “forgetting,” recanting, or minimizing. An advocate is trained to respond to these complexities. An experienced advocate builds a rapport with the victim, understands the victim’s coping strategies, and assesses their strengths and limitations in the context of participation in a prosecution. This information is critical for a prosecutors’ trial preparation.
3. Many decisions will be difficult, if not wrenching, and two heads will often be better than one -- if the second head is the advocate.

No manual or training session can provide you with a formula to apply to every domestic violence or sexual assault case. For example, you will have cases where it is not readily apparent when to push harder for a victim’s cooperation, or when to step back. If you force a victim to testify, and she lies to protect her abuser, you have created ammunition for the defense -- a transcript of sworn testimony -- the next time she comes back and is willing to cooperate. Another example: the victim may tell you she wants the defendant held without bail, and fears for her life should he be released, but beg you not to relay her feelings to the court. In this, and in numerous other scenarios, you will be making decisions which have enormous implications for the victim’s short term and long term safety, as well as for the success of the prosecution. If you have invested the effort to develop good communications with your advocate, who will be tuned in to the people and events at issue, you will benefit from discussing the issues together, and reviewing your goals and options together.
4. You are busy. The advocate can help.

Your caseload is huge. You have a myriad of responsibilities. You are constantly under pressure because of upcoming indictment deadlines, discovery requests, motions, memoranda filings, trials, and conflicting court schedules. Working as a team, advocates can maintain ongoing contact with victims and witnesses and provide you with critical information. Advocates are able to respond when you are tied up in court or preparing for court. Advocates provide services that are highly time-consuming.

2.1.2.Preventing Discovery Conflicts

1. Do not put an advocate in the position of becoming a witness or being subpoenaed.
You will be held responsible for knowing and subsequently disclosing discoverable information that your advocate knows (if it is material, relevant, and not privileged). You do not want the advocate to be sequestered as a witness during trial and also have to spend valuable time on the stand -- you want the advocate to be available to do his or her job and be with the victim throughout the trial. Make sure all advocates know not to initiate inquiries of a victim/witness into discoverable areas which the victim/witness has not previously discussed with an investigator, police officer, or prosecutor. Make sure all advocates know that if a victim/witness initiates discussion of a discoverable topic not previously covered in an interview, the best practice is to ask an investigator, police officer, or prosecutor to conduct the interview.
2. Ensure full compliance with discovery. Ensure the release of all exculpatory evidence.
It is your responsibility to ensure that any exculpatory information obtained by the advocate is given to the defendant, pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). As you work together, continually educate advocates about this issue.
Prosecutors therefore are responsible for asking advocates about their conversations with victims or witnesses, reviewing the advocates’ notes, and disclosing any exculpatory evidence therein. Although the primary burden in this area rests on prosecutors, advocates themselves have a duty to relay to the prosecutor any information they obtain that they believe is exculpatory.
Commonwealth v. Bing Sial Liang, 434 Mass. 131 (2001). If the victim recants to the advocate (or to you), reduce it to writing and serve it on defense counsel even if you don’t believe the truth of the recanted statement. Advocates are employees of the prosecutors’ offices, and “an individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Kyles v. Whitney, 514 U.S. 419, 437, (1995). As a matter of practice, prosecutors are encouraged to take the most liberal view possible of “exculpatory” evidence in order to minimize the likelihood of error. Commonwealth. v. Baldwin, 385 Mass. 165, 173 (1982). (For discussion of exculpatory evidence, statutory privileges, and discovery obligations, see infra section 5: Discovery.)

3. If an advocate’s notes do not contain material, exculpatory information, or “statements of a victim or witness,” they are protected as work product. Do not disclose them for purposes of discovery.
The Supreme Judicial Court ruled that notes of advocates are subject to the same discovery rules as the notes of prosecutors. Commonwealth v. Bing Sial Liang, 434 Mass. 131 (2001). Thus, as noted above, exculpatory information within an advocates’ notes must be disclosed, and prosecutors are responsible for asking advocates about their conversations with victims or witnesses, reviewing the advocates’ notes, and disclosing any exculpatory evidence therein. Id. And statements of a victim or witness, as defined in Mass. R. Crim. P. 14 (d) (writings or recordings of the witness), must also be disclosed from advocates’ notes. Id. “But in all other respects, the notes are protected as work product pursuant to Mass. R. Crim. P. 14 (a)(5), 378 Mass. 874 (1979).” Id. Because advocates “perform as part of the prosecution team, the work of advocates is subject to the same legal discovery obligations as that of prosecutors and their notes are subject to the same discovery rules.” Id.