June 6, 2009 (Original publish date) • By Dennis Beaver
Imagine that a family member was seriously injured in an accident with a drunk driver. Not just any drunk driver, but someone who, over the past 20 years picked up several DUI’s, driver’s license taken away, but they kept on driving. And drinking.
I can tell you as a former Deputy D.A. and from my years in the general practice of law, such people do not deserve sympathy. Addicted to alcohol they may well be, but nothing forces them to drive while drunk. They do so, fully aware of just how dangerous it is, but they don’t care. They belong in jail or state prison, for a long time.
So, now, in your case, the defendant went on trial and was found guilty. Sentencing is a few weeks away. As a direct victim of that person’s criminal behavior — you can do something to help keep this person behind bars. You do it through active participation in the Criminal Justice Process, in particular, with the Victim Impact Statement. Research has shown that presenting a statement in court — either in writing, or reading aloud — can have a significant effect on what that judge does.
But it wasn’t always that way. Beginning in the 1980’s victims of crime were given the right to have a voice in the sentencing stage of a case. Prior to that time, in most jurisdictions, victims had no rights at all to make the consequences of that crime clear to the judge. It was thought that the Prosecuting Attorneys would speak for the victim. Sometimes, they did a good job of it. On occasion, they did not.
“This is your opportunity as a victim to help the judge understand just how your life and the lives of others have been affected. It is your only chance to paint a word picture of your lives before, and afterwards at the sentencing. By being present in court, facing the judge and defendant, you have far more power to see to it that justice is done,” Eureka Criminal Defense Attorney, Greg Rael told me when I asked his feelings about the importance of the Witness Impact Statement.
“In felony cases, judges are required to recite on the record what they have read in the court’s file, which forms a basis of their sentence. Even though judges have usually considered all of the written materials, there is no substitute for a personal appearance in court,” he maintains.
“The personal appearance of a victim in court can have a substantial impact on the judge, far exceeding what a written statement alone can do. This is true even if the victim or family is just sitting in court, for, when the Judge is aware of their presence, the chemistry changes,” he points out.
“Obviously, being in court at the time of sentencing and, realizing that you could be speaking to a packed courtroom can raise some nervousness issues, especially if you are uncomfortable with public speaking. In reality, victims should not be concerned about their lack of public speaking experience. The judge will be much more interested in the sincerity of your statement, and will not be influenced by your being nervous or inarticulate,” he stressed.
“Interestingly I have seen cases where the prosecutor’s position on the case did not represent what the victim was hoping for. Also, I’ve seen many cases in which it was important to the victims that the sentence reflect their sense of fairness and that the sentence not be too lenient or overly punitive,” Attorney Rael observed.
“The whole principle of victim’s rights assumes that a victim might have a different point of view than the D.A. We find this to often be the case where a 17-year-old girl has had a sexual relationship with her adult boyfriend. Even though a 17-year-old cannot legally give consent — it’s often a situation where she is far more mature than her parents realize. She never wanted anything bad to happen to him — but here he is, facing sentencing for what is commonly refer to as Statutory Rape.”
“Her parents and the D.A. want the guy to go to prison, but not the young lady. Being in court, explaining her beliefs, and showing herself to be emotionally mature will be critically important to the actual sentence,” Mr. Rael concluded.
Now, you might wonder if it is always a good idea for the victim to make that statement. We’ll look at what can go wrong next week.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.