UNDERSTANDING. the Criminal and Civil. Justice Systems

Transcription

1 UNDERSTANDING the Criminal and Civil Justice Systems

2 The driver that killed Joshua had already been convicted of drunk driving before he caused the crash that killed my son. That night he was drunk and fleeing the police. When he went to court for the crash he pled not guilty, went to trial, but was found guilty and sentenced to 15 years for vehicular manslaughter. In my opinion, 15 years was not nearly enough. I worry that when he is released he will drink and drive again and possibly destroy someone else s family like he destroyed mine. Joshua was the type of man who loved everyone. He was good-hearted and would always be willing to go out of his way to help someone in need. It is a tragedy that such a wonderful person was taken so suddenly and senselessly. I share Joshua s story to try to prevent what happened to him from happening to someone else, to honor his memory, and to thank my MADD Advocate who was there for my family. She understood the process and was kind and understanding, I don t know how I would have gotten through the trial without her. Sandra s son Joshua was only one month away from his 33rd birthday. He left behind three daughters who, along with the rest of his friends and family, miss him very much.

3 Index Criminal Justice System Substance Impaired Driving Rights for Victims of Crime Complications in the Criminal Justice Process The Crash Investigation Arrest of Subject Prosecution of the Defendant Plea Agreements The Trial Process Sentencing Appeals Process Probation and Parole Concerns About Prosecution Healing During the Criminal Justice Process Civil Justice System Deciding to Bring a Civil Case Differences Between Criminal and Civil Case Liability of the Defendant Proving Your Case in Court Insurance Hiring a Civil Attorney Arbitration Discovery Pre-trial Conferences/Pre-trial Motions The Trial Process Criminal justice System Process Final Thoughts

4 Criminal Justice System For many people, their experience with the criminal justice system is limited to what they ve seen on television. The reality can be very different and unexpected. If the person responsible for the crash survived, you may be unprepared for what you are about to experience. It is common for victims and survivors to feel powerless and intimidated by the criminal justice system. When you are in the vulnerable position of having been victimized by another person s actions, it may take all you have to cope with the aftermath of the traumatic event. You may not have much energy left to interact assertively with a justice system that tends to be challenging. This section is designed to provide a brief overview of the criminal justice process for substance impaired driving offenses, for both drunk and drugged driving, regardless of the jurisdiction. Most state substance impaired driving laws are very similar. However, there are specific differences in how substance impaired driving cases are handled, not only in each state but also in each jurisdiction. You should speak with your local MADD Victim Advocate and the prosecuting attorney s office for specific details about Laws are different from place to place. the laws in your state and the criminal justice procedure in the presiding court.

5 Substance Impaired Driving Substance impaired driving can consist of several factors. It is illegal in every state in the U.S. to drive with a Blood Alcohol Concentration (BAC) of.08 or greater. It s also possible to be impaired with a combination of alcohol and other drugs, or drugs by themselves. Illicit drugs, as well as some prescription drugs, can cause impairment, making it dangerous to drive while taking such drugs. Most substance impaired driving offenses are deemed a violation of state laws and, therefore, are considered crimes against the State. The State has a responsibility to The State has the prosecute the offender responsibility of for the commission of prosecuting the a crime and attempt to obtain a conviction. offender for a The prosecuting criminal offense. attorney represents the State s case against the defendant. He or she is not the victim/survivor s personal attorney. Victims/survivors typically do not have their own attorneys in criminal cases. In instances where the offense occurs on federal land, a federal court may preside over an impaired driving case and a federal prosecutor may be assigned to pursue the case. When someone violates the law and drives substance impaired, they may hurt or injure someone else if they cause a crash. When that occurs, the prosecutor in the case may determine there is sufficient evidence to charge the person with more than a DUI. Charges may include Vehicular Manslaughter (when someone has been killed) or Vehicular Assault (when someone has been injured). 2

6 Rights for Victims of Crime All states, as well as the federal government, have enacted laws regarding victims rights. About two-thirds of the states have also enacted state constitutional amendments to include those rights. In some states, crime victims rights only apply to victims of felonies, while in other states, victims of misdemeanors are also granted rights. A victim is typically defined as someone who has been harmed by another person criminally. Each state defines who is allowed to exercise rights on behalf of victims, which could include family members, parents or guardians, or those who have a legal power of attorney. The following is a general list of victim rights. These rights differ based on jurisdiction, and the list is not intended to serve as legal advice. Victims may have the right: Crime victims rights laws have been enacted in every state. To be treated with fairness, dignity, sensitivity, and respect; To attend and be present at criminal justice proceedings; To be heard in the criminal justice process, including the right to confer with the prosecutor and submit a victim impact statement at sentencing, parole, and other similar proceedings; To be informed of proceedings and events in the criminal justice process, including the release or escape of the offender, legal rights and remedies, and available benefits and services, and

7 access to records, referrals, and other information; To protection from intimidation and harassment; To restitution from the offender; To privacy; To apply for crime victim compensation; To the expeditious return of personal property seized as evidence whenever possible; To a speedy trial and other proceedings free from unreasonable delay; To enforcement of these rights and access to other available remedies. If victims are not afforded such rights and feel their rights have been violated, there may be opportunities for them to file a complaint. Some states have provided a forum for filing a victims rights violation complaint. The Office for Victims of Crime may be able to assist victims with information on how to Consider filing file such a complaint a complaint if on a state by state basis. For information you feel like on your rights and how your rights have to file a complaint, been violated. please visit gov/map.html. A victim of a federal crime (where the case is being heard on a federal level with a federal prosecutor) may file a complaint against any employee of the Department of Justice who violated or failed to provide the rights established under the Crime Victims Rights Act of The Department of Justice has established the Office of the 4

8 Victims Rights Ombudsman to receive and investigate complaints filed by crime victims against its employees. To file a complaint you can call Complications in the Criminal Justice Process Our justice system works within the presumption that you are innocent until proven guilty, which is why there is such a need for solid evidence to not only bring the case before the court, but also to prove it. Sometimes, due to the way an offense has occurred, there may be complications that affect the possibility of bringing charges or succeeding in prosecution. Hit and Run In most impaired driving cases the offender is apprehended by law enforcement. Yet, in some hit-and-run vehicular crashes, the offender is never found, or found long after evidence of substance impairment is gone. The offender may not face any charges or consequences for what they have done, which may add another difficult component to the healing In cases where there is no prosecution, extreme feelings of anger and bitterness are normal. journey of those bereaved or injured. It is also difficult to focus anger when the person responsible has not been apprehended. Extreme feelings of anger, bitterness, helplessness, and hopelessness may emerge. When the Offender is Killed When the offender is killed in the crash, victims/survivors report mixed emotions. Some feel a sense of ultimate justice,

9 although this does not diminish their grief about what happened to them or their loved ones. Others feel it would have been better for the offender to be held accountable and face the criminal justice system. Some victims/survivors may feel sorrow or pity for their offender and their family, considering the loss of a human life in a preventable, tragic situation. Determining Fault And yet, in other crash situations, it may be hard to determine who was at fault for the crash itself. It s possible that the sober person may have caused the crash by pulling out in front of a driver that, although substance impaired, didn t actually cause the crash. Their impairment may not have been the primary cause of the collision. Sometimes, when it is too difficult to determine who was at fault, charges may not be brought for the crash itself. The Crash Investigation The Traffic Crash Report, or Accident Report as it is sometimes called, is prepared by the law enforcement agency that investigates the crash. This is usually the Municipal or City Police Department if the crash occurred within the city limits. The County Sheriff s Department typically investigates crashes outside of the city limits. The State Highway Patrol (or Troopers or Rangers) investigates crashes on state highways or interstates. The Traffic Crash Report will contain detailed information about the vehicle(s), automobile insurance, personal information on all parties involved, witness contact information, weather and roadway conditions, a detailed description and diagram of the crash event, and 6

10 determination of the cause of the crash. This report is often available within a couple of weeks of the crash. The law enforcement agency with jurisdiction over the crash will conduct the investigation. The law enforcement agency will identify and secure all possible evidence to determine what factors contributed to the crash event, which persons may be ultimately responsible for the crash, and which laws, if any, have been violated. At the crash scene, medical personnel are expected to remove injured people as soon as possible to provide the best medical attention to them. Removal of deceased crash victims from the scene, however, doesn t carry the same priority. Often, those who have died remain at the scene for investigative purposes. The use of seatbelts and child restraints must be documented as well as the placement of bodies within the vehicle and at final rest. Determining who was in control of the vehicle is crucial. This process may take hours or even days, if testing is needed, which is of little comfort to the victims families, but may be critical in the prosecution of offenders. Due to the need to secure all possible evidence to determine whether a crime has been committed, law Not being able to see your loved one after a crash may be painful. enforcement officials may not allow family members the opportunity to be with their loved ones at the crash scene. The majority of law enforcement crash investigators will capture video and photo evidence of the crash scene for

11 documentation of the event. Very detailed photographs and graphic video of the scene are often used in the prosecution of people who have been suspected of committing a crime. A separate Traffic Homicide Investigation Report will be prepared in some jurisdictions, if the crash involved a death or serious injuries. The Traffic Homicide Investigation Report will be much more thorough than the Traffic Crash Report. Proper testing Likewise, this report will and investigation often not be completed is important and made available for successful until after the homicide prosecution investigation is of a case. complete. This process can take months. Crime victims/survivors often feel an urgency to obtain copies of these reports. If you wish to secure a copy of these reports, contact the investigating officer. Be sure to review the reports with your advocate or attorney. If you see errors, report them immediately to the investigating officer, whose name should be included in the report. Even if the errors seem minor, they may be crucial in court. There are usually notations on the report if the driver has been suspected of drinking or using other drugs. If so, you will see a Blood Alcohol Content (BAC) level or pending results indication on the report. BAC is determined by breath, blood or urine testing shortly after the crime was committed. If the tests were not performed, you can question why they weren t. Valid BAC testing is essential to assist in the prosecution of the case. If this is not done, cases are subject 8

12 to dismissal at the discretion of the law enforcement agency or prosecutor, or at the direction of the judge. Arrest of the Suspect In order to arrest a person for an impaired driving violation (DUI, DWI, OWI, etc.), a law enforcement officer must have probable cause to believe that all elements of the offense are present. The law enforcement officer must believe that the person in question was operating or in actual physical control of the vehicle while under the influence of alcohol, another drug, or both. In order to convict a person of substance impaired driving, the prosecutor must establish that all elements are present. With regard to under the influence, courts have generally held that phrase to mean that the ability to operate a vehicle has been affected or impaired. In cases where a person is injured or dies, the suspect may be arrested immediately for the charge of substance impaired driving and then have the charges amended by the office of the prosecutor and presented to the court at a later date. You should be aware that the suspect may not be formally arrested and charged with a crime for several weeks or longer. Due to laws that protect the innocent (the suspected impaired driver is innocent until proven guilty), a formal arrest may not occur until the evidence to substantiate the charges has been determined and documented. Evidentiary testing by official crime labs is often back-logged, and therefore, it may take weeks or even months to conclude the suspect s blood test

13 results. Sometimes, there will be no arrest until this positive evidence is determined. If the suspect was injured in the crash, law enforcement also typically wants to wait to arrest so that the state doesn t pay for their medical care. Bail or Bond Hearing Sometimes bond is set immediately following arrest or at the arraignment. Sometimes it is set at a separate hearing. Bail or bond is an amount of money produced to a court by the defendant in exchange for pre-trial release and his or her promise to appear in court. The right to reasonable bail is guaranteed to defendants under the concept of innocent until proven guilty. Some defendants may be released from detainment on their own recognizance when the judge feels certain that the defendant will appear for each court hearing in their case. However, in most states, bail may be high if the defendant is perceived as a danger to the community or if the judge feels that the defendant may flee. The defendant can usually post bond through a bonding company for about 10-15% of the actual amount required. In some situations, the prosecuting attorney may ask a crash victim to prepare a statement for the intent of increasing the amount of bail set by the court. Suspected offenders aren t always arrested immediately after a crash. A defendant will often post bond while awaiting prosecution. 10

14 Prosecution of the Defendant Once a suspect is arrested, there is a time limit determined by state statutes, referred to as speedy trial law, in which the charges must be pled, tried or dismissed through the court system. The judge may allow the prosecution a time extension beyond the speedy trial limit if circumstances arise, such as requests for extensions by the defense attorney. Once all the sufficient evidence is collected and reports are completed, the law enforcement agency will turn the investigation documentation over to the prosecutor s office to pursue criminal action against the suspected impaired driver. Most times, the law enforcement officials will suggest by statute which offenses have occurred. You may ask if the investigating agency has a victim advocacy program or a victimwitness assistance program. It s also possible that there is a victim-witness assistance program located in the prosecutor s office as well. The victim assistance personnel can keep you informed of the status of the case and provide services you may need as a crime victim. Services include referrals to appropriate agencies, victim counseling and assistance in applying to the State Victim Compensation program for reimbursement of uninsured expenses resulting from the crash. Your MADD victim advocate may also provide many of the same services. There may be resources available to you as a victim of a crime.

15 The Prosecuting Attorney After the investigating agency has transferred the case to either the county attorney, district attorney or state attorney, call the prosecuting attorney s office to find out which prosecutor has been assigned to the case. The information will be filed under the suspected impaired driver s name. Let the prosecutor know that you want to be informed of all stages of the criminal justice process. In most states, you will not be informed unless you specifically request this. Upon notification of court appearances, you may then decide whether to attend or not. Mail a follow-up letter to both the prosecutor and the victim advocate indicating your phone number, your desire to be informed, the facts of the crime as you understand them, and any feelings you have about bail for the accused, plea bargaining, or any other aspect of the case. Ask in your Stay in letter to be informed contact with if the prosecutor the prosecutor and charges the offender a victim advocate differently from the for the status investigating agency s of a case. recommendation. Upon receiving a substance impaired driving case, the prosecutor will promptly evaluate the case, decide whether a prima facie case can be established, and decide whether to drop the charges, enter into a plea agreement with the defendant or proceed to trial. Prima facie means that based on an initial review of the facts and the law, it appears that the state has a case, i.e. that a crime was committed, and it is probable that the accused committed the crime. 12

16 To evaluate the strengths and weaknesses of the case, the prosecutor must determine whether he or she can prove all elements of the offense charged typically that the defendant drove, operated, or was in actual physical control of a vehicle within the state, while under the influence of alcohol or other intoxicating substance, or while the blood alcohol level exceeded the limit set forth in the state s statute. The Defense Attorney The defense attorney is either assigned by the court or privately hired by the defendant to pursue the defendant s best interests. The attorney for the defendant or one of the attorney s investigators may phone you, write to you, or appear in person. Before you communicate with any attorney or The defense attorney is not an advocate for the rights of victims/ survivors. investigator, confirm their identity. A defense attorney is not a district attorney even though he may refer to himself as a D.A. The defense attorney is not an advocate of your rights as a crime victim/survivor. You do not have to speak with the defense attorney unless you receive a subpoena for evidentiary discovery. If the defense attorney contacts you or the crash victim/ survivor, he or she should be referred to the prosecutor for requested information. If you receive a subpoena, notify the prosecuting attorney promptly. The prosecutor should be present any time you are required to give testimony. Arraignment of the Defendant After reviewing the evidence of the case,

17 the prosecuting attorney may: charge the offender with the criminal charges recommended by the investigating agency; charge the offender with different, fewer, or additional charges; or decide not to charge the offender because of insufficient evidence. In most states, one of two procedures will be utilized to determine It is common for initial charges to change when evidence is reviewed. whether probable cause of sufficient evidence exists to proceed to trial. A preliminary hearing may be held in which the prosecutor and a few witnesses appear before the judge. If the judge determines that sufficient evidence exists, the accused will be scheduled for arraignment. Or a grand jury hearing is conducted in which the evidence is presented by the prosecutor to a group of citizens rather than a judge. Grand jury proceedings are closed to the public, including the victims/survivors. The accused is not present while others testify. The accused may or may not testify. If the grand jury determines that sufficient evidence exists, they hand down a true bill of indictment, and the accused will be scheduled for arraignment. If they do not think sufficient evidence exists, the case is no billed. At the arraignment, the suspect is brought before the judge who informs him or her of the charges pending and of constitutional rights, including the right to a court-appointed defense attorney. At this point, the accused suspect is now referred to as the defendant. 14

18 The defendant may enter a plea of guilty or not guilty at this time. If a guilty plea is entered, the judge reserves the right to sentence the defendant or set a date for sentencing. Defendants are typically guided by the defense counsel to enter the not guilty plea. The trial process then begins. A defendant may agree to a plea agreement at many points during the adjudication process. It is important to be aware that very few substance impaired driving cases are actually concluded by trial. The overwhelming majority of them are resolved through plea agreements between the prosecuting attorney, the defendant and the defense attorney. Case Discovery and Pre-trial Hearings After arraignment, the prosecutor and the defense attorney will each gather evidence to support his or her case. During the discovery phase, witnesses will be subpoenaed to give testimony to determine if they will be needed during trial. It is typical for several court hearings to take place before an actual trial date to allow attorneys to argue motions for evidence suppression, change in venue, and to dispute the accuracy of evidence and manners in which evidence was obtained. You may hear the defense attorney request that the judge dismiss the case during arguments. This is common court procedure, but sounds very alarming if you are not prepared. If the defendant has been arraigned on charges you don t understand, ask the prosecutor to explain the elements that must be proven to get a conviction. The

19 prosecutor should discuss the strengths and weaknesses of the case with you. If you understand these, you may be able to provide additional information that will be helpful to the prosecution. You may know of additional witnesses or have ideas about key evidence. Retaining Evidence Generally, you may assume that the investigating officers have collected all the evidence they need. However, it is wise to document everything about the crash at the time it comes to your attention. You may think you ll remember all the facts, but documentation will ensure a good recollection of all details. Document details about the crash as you go. Additional witnesses may come forth who were not interviewed by the investigating officer. If so, refer them to the officer or to the prosecutor who will take their statement. If you are aware of witnesses who do not appear on the crash report, you should immediately notify the investigating officer or the prosecutor. Photographs have probably been taken at the crash scene and at the medical examiner s office. It is possible, however, that other pictures would be useful in both the criminal and civil cases. You may be able to take photos of the recovery process of the injuries sustained by the crash victim/ survivor. A recent picture of the victim/ survivor before the injury or death may be presented to the prosecutor to reinforce that this case involves a human life. It will personalize your loved one who is unknown to the court. If you take pictures that you 16

20 think may be helpful, have someone witness you taking the photographs. You and the witness should sign and date the photos on the back, and take them to the prosecutor. Ask for the return of clothing or personal effects of your loved one that may be in the investigator s office, the hospital or the medical examiner s office. Some of them may need to be retained for the trial, but you Have someone view photos or evidence before you to help prepare you for what you may see. should be given those that are not essential to the case. Ask about the condition of these things before you look at them. It can be very upsetting to open a package of torn and blood-stained clothing when you are not prepared. Keep all bills and receipts for expenses resulting from the crash. Begin a chronological record of all financial expenditures or losses due to the crash. These may include medical and funeral expenses, lost wages, and costs of counseling. This information will be critical if the offender is found guilty and is ordered to pay restitution. It is also necessary in filing for State Crime Victims Compensation or insurance benefits and will be essential if a civil suit is filed. Witness Testimony Witnesses whose testimony can substantiate the elements of a case should be contacted early in the process. They may include bartenders, wait staff, bar patrons or party attendees, any passengers in the defendant s car, other persons involved in the crash, eyewitnesses, medical personnel, law enforcement officials, and

21 expert witnesses. Substance impaired driving trials may involve complex scientific data regarding the processes of alcohol absorption, specific drug reactions, distribution, and elimination, and warrant expert testimony. If possible, the prosecutor should thoroughly prepare all witnesses well before the trial begins. The prosecutor should familiarize each witness with the questions that are likely to be asked at trial by both the prosecutor and defense attorney and permit the witness to review pictures, charts and other exhibits that may be presented during trial. In the event you are called to testify in court, the following suggestions may help you testify with relative ease and maximum credibility: Dress conservatively. This means a business suit for men and a dress or business suit for women. Take notes or a written statement with you to the witness stand if you think you need them. However, be aware that the judge, attorneys, and jury may be allowed to examine them. You should review them with the prosecutor beforehand. If the defense attorney asks if you have discussed your testimony with the prosecuting attorney, it is appropriate to respond yes. The attorney may have helped you organize your statement, but you are testifying to the true impact on you and your family. If you don t understand a question asked by one of the attorneys, simply say so, and ask that it be repeated. If you do 18

22 not know the answer to a question, say so. If you feel an attorney is trying to manipulate you into an answer that is not true, turn to the judge and tell him/her that you will need to explain your answer. Be descriptive as you tell of the physical, emotional, and financial impact of the crash. Describe particular events that were/are painful for you. Your goal is to enable the judge or jury to come as close as possible to understanding how you feel. Maintain eye contact with the attorney who has asked you the question. Don t look to the prosecutor for help when being questioned by the defense attorney. Look at the judge or jury if the attorney asks you to explain something to them. If you request that the defendant pay restitution to your family, be prepared to present actual bills and statements of the amounts paid or owed. Always be honest. Take your time. Pausing before your answer indicates that you are taking the questions seriously and thinking before you speak. If you approach the task of testifying with integrity, your testimony will be respected. Court Continuances Always be honest when testifying. Ask to be informed of pretrial hearings, including requests for continuances. Pretrial hearings are open to the public (including you), although the attorneys usually tell you

23 it is unnecessary for you to be there. During this time, both attorneys have the right to request continuances or postponements. Defense attorneys frequently request numerous continuances to age the case. They know that the longer they can postpone trial, the more likely the State will lose its witnesses, and witnesses memories will fade. Ask the prosecutor to vigorously oppose unnecessary continuances. Continuances may be requested by the prosecutor or by the defense attorney and are often granted for legitimate reasons, such as work conflicts, unavailability of witnesses, etc. They do not necessarily mean that your case is being ignored. In some states the judge is required to state on the record the reason for granting a continuance. Plea Agreements Continuances are very common, but can be very frustrating. To avoid going to trial, the defendant may: agree to plead guilty to one or more charges in exchange for the dismissal of one or more other charges; plead guilty to a lesser degree of the charged offense; or plead guilty to the charged offense in exchange for the prosecution s agreement to recommend a lenient sentence, to not recommend the maximum sentence, or to make no recommendation at all. Most impaired driving cases are resolved through a plea agreement. In some 20

24 circumstances, sentencing agreements are beneficial. If the preliminary investigation was inadequate, the offender may have been arraigned on a charge the State cannot prove. Critical witnesses may no longer be available. It may be better in these circumstances to allow the defendant to plead guilty to a lesser charge and be held accountable, rather Communicate your desired outcome with the prosecutor. The Trial Process than to go to trial and have the defendant walk free. When a case goes before a jury to decide, the outcome is always uncertain. If the defendant persists in pleading not guilty, the case will be set for trial. He or she has a constitutional right to choose whether the case is to be decided by a judge (bench trial) or a jury. In most jurisdictions, the State must accept the form requested by the defendant. Be prepared for numerous postponements or continuances after a trial date has been set. If the defendant chooses a jury trial, jury selection may take days or weeks before the trial actually begins. The defense attorney may try to prevent you from attending the trial. A common tactic of the defense is to subpoena you as a potential witness and then ask the judge to invoke the rule of sequestration a rule stating that witnesses cannot listen to each other testify and must therefore be sequestered out of the courtroom. Even though you may not be called to testify, you will, thereby, be kept out of the courtroom, never to be seen by the judge or jury.

25 Here is a brief synopsis of the criminal trial procedure: Opening statements are given by both attorneys. The State calls witnesses to the stand in order to prove that the defendant is guilty as charged. The prosecutor s questioning of each State witness is called direct examination. The witness is then cross-examined by the defense attorney. After crossexamination, the witness is given redirect examination by the prosecutor and re-cross examination by the defense. The witness is then dismissed, unless either attorney plans to call the witness back to testify later. Once dismissed, witnesses may usually remain in the courtroom. After the state has presented all its witnesses, the defense will present its witnesses, going through the same procedures of direct and crossexamination. The defendant is not required to testify in the case. After all the evidence has been presented, each side may introduce witnesses to rebut testimony previously presented. Sometimes this rebuttal testimony comes from former witnesses not previously dismissed. Sometimes they are new witnesses. Each side presents closing arguments. Typically, the prosecutor summarizes the evidence before the defense argues and then rebuts the defense s arguments. 22

26 Both sides then rest their case. The judge gives the jury instructions for their deliberations or, if it is a bench trial, retires to deliberate. The Verdict At the end of trial, a verdict of guilty or not guilty is announced by the jury foreman or the judge. If the jury does not come to a complete agreement of guilty or not guilty, you then have a hung jury and the State must decide to try the defendant again or drop the case. This is usually an emotionally difficult time for victims/survivors. While a defendant may not, in truth, be innocent, he or she may not be proven guilty. The standard of proof in a criminal case is beyond a reasonable doubt. Evidence must establish the facts so It s a good idea to bring someone with you to the sentencing for support. clearly, positively, and explicitly that there can be no reasonable doubt that the case was proven. Judges and juries are the best method the legal system has to determine justice, but they are human and sometimes make errors. Sentencing If the defendant is convicted or pleads guilty, the case will proceed to sentencing. Sentencing may occur immediately following the conviction or plea or be scheduled for a later hearing. In some jurisdictions, the judge decides the sentence and in others, the jury does.

27 Following a guilty verdict or plea and prior to sentencing, most courts order the probation department to conduct a presentence investigation on the defendant to collect information about what sentence would be most appropriate. The Many factors investigation report will come into play include the defendant s when deciding work history, criminal record history, and on an offender s family history. A sentence. convicted offender may be sent to jail or prison for few or many years. If the prison sentence is probated, conditions of probation can vary widely. The court may consider any mitigating circumstances prior to imposing sentence. Both the state and the defendant are usually allowed to review the pre-sentence report and correct or point out any errors. Victim Impact Statements Laws exist in every state that allow for the victim, or the victim s family, to provide a written statement to the court about the impact of the crime on their lives. These statements are presented after the defendant has been convicted or pleads guilty and before sentencing (in most states). Oral impact statements may be allowed in your jurisdiction. You may be called to the witness stand to testify about the impact of the crime upon your life. Your statement should not repeat evidence already presented, but should simply tell what the crime has meant to you. Victim Impact Statements usually last three to five minutes. 24

28 MADD has a guide that may help you prepare your victim impact statement, Victim Impact called the Victim Statements Impact Statement can be a very Booklet. Ask your important part MADD Advocate of determining a for a copy. sentence. Restitution Restitution is money or services ordered by the court to be paid directly to the victim or surviving family by the offender to restore, in part, the victim/survivor s loss. Victim/survivor requests for restitution may cover: medical expenses, funeral expenses, lost wages, lost or damaged property, counseling fees, and other expenses considered reasonable by the court. In homicide cases, a family s funeral and travel expenses and reasonable attorney fees incurred in closing the victim s estate have been found to be proper restitution items. Most states require the court to consider the current financial resources of the defendant, the defendant s future ability to pay, and in some states, the burden restitution will place on the defendant and his or her dependents. Find out what entity processes restitution in your county.

29 Appeals Process Following a conviction and sentencing, a defendant has the right to appeal the case, or in some circumstances the sentence, to a higher court to consider errors in procedure or application of the law at the trial court level. You need to be prepared for this, especially if the sentence is maximum. Most convicted offenders are released on appeal bonds until the appeal is heard, which may be years later. Under the concept of innocent until proven guilty, a trial court decision is not considered final until appeals are heard. Probation and Parole Probation is a sentence ordered by a judge, usually instead of, but sometimes in addition to, serving time in jail or prison. It allows the convicted person to live in the community under the supervision of a probation officer. The judge will specify restrictions on the offender s activities during the probationary period. Violation of the conditions of probation may result in serving time in jail. Parole is the conditional release of a prison inmate after serving part of their sentence, allowing the offender to live in the community under supervision. Parole is granted by a parole board or commission. The parole board may consider factors, such as the offender s behavior in prison and level of rehabilitation, and let the offender out early. The parole board can also specify restrictions on the person s activities while on parole. Violation of the conditions of parole may result in revocation and re-imprisonment. 26

30 The criminal justice system has assigned paroling and sentencing officials with a grave responsibility: to protect the overall safety of citizens by refusing to release dangerous and violent criminals back into the mainstream. To make competent and You can write informed decisions, a letter to the paroling officials must parole board if hear from the police, prosecutors, courts, an inmate is up prison officials, and for parole. victims/survivors. Sentences assessed by the court are seldom sentences served by the offender. Primarily because of jail and prison overcrowding and inmate control, the concept of good behavior credit is common. The offender may only serve a portion of his or her stated sentence and then be released, short of the actual sentence. Concerns about Prosecution Review procedures are available in most jurisdictions to investigate the conduct of attorneys, if you feel they have been unethical in the treatment of the case. Most states have a prosecutor s council or similarly named investigative group to look into complaints about prosecutors. Local and state bar associations also If you feel like have procedures an attorney or for investigating judge involved in complaints and the case has acted taking appropriate inappropriately, actions. Attorneys you can file a may be disbarred complaint.

31 or reprimanded by the State Supreme Court in many states. Most states also have Judicial Conduct Commission to investigate misconduct on the part of judges. Healing During the Criminal Justice Process Becoming an active participant in the criminal justice system may cause stress or diffuse energy that could be used for your emotional, physical, and mental healing. You may decide that you aren t up to it and choose to let justice take its own course without your involvement. It s your choice whether or not to take part in the criminal justice process. Everyone s healing journey is different. Some say that regardless of the outcome, participating in the criminal justice system gave them a sense of completeness or closure. It will not cause you to grieve any less or erase the horror of your injury or your loved one s death. 28

32 Civil Justice Process You or someone you love has been injured in a crash, or your loved one was killed. Amid the pain and anguish, you also face legal and financial challenges. You may choose to file a civil suit against the driver or against a third party who might have contributed in some way to the crash. For The civil justice most people, this is process can foreign territory. The thought of meeting be difficult to with an attorney, not understand and to mention knowing maneuver. how to select one, is a frightening prospect. This section is intended to help alleviate some of those fears by providing information you need to find the right civil attorney for you and to maintain a positive working relationship with him or her throughout the court process. It is not intended as a substitute for experienced legal counsel or as legal advice. Deciding to Bring a Civil Case As you consider bringing a civil suit against the defendant, make a commitment to yourself and your family that you ll weigh all the pros and cons of doing so before you actually initiate any action. The media is full of stories of people threatening to sue, filing suits, and winning (and losing) lawsuits. What those stories often don t convey is the emotional and psychological price paid by those involved. Civil lawsuits are often extremely time consuming and emotionally

33 draining. Additionally, legal resolution may not come for years. A successful civil suit may provide you with a sense of justice and may result in financial resources needed by you or your Carefully family. It may also result consider whether in changes in laws or not to bring or practices that will a lawsuit ultimately keep society before hiring an safer. These positive attorney. outcomes make a civil suit worthwhile in some instances. Be sure that as you work with an attorney to honestly assess the legal merits of your case. Work with the attorney and trusted loved ones to weigh the psychological factors. The circumstances that have led you to consider legal action were sudden, violent and beyond your control. You had no choice in what happened but you do have choices in how you respond. Differences Between a Criminal and Civil Case If you sue the driver or a third party in a civil suit, you will be required to play a more substantial role than the criminal case. You are the plaintiff (the entity initiating the suit) rather than the State. Deciding to file a civil suit is totally separate from initiating the criminal case. While punishment is the desired outcome of the criminal suit, financial recovery of monetary damages is the desired outcome of the civil suit. You may feel uncomfortable getting financial reward for what happened because it feels like blood money. On the other hand, you may have costs associated with the crash that were not covered 30

34 by insurance, Crime Victims Compensation, or any restitution the criminal judge may have ordered the offender to pay. the offender to pay to you. A civil case is a separate case than the criminal case. Liability of the Defendant Damages may be paid to you for past and future medical expenses, permanent scarring or disfigurement, loss use of a limb or other bodily function, travel to and from medical appointments, lost wages, as well as lost future earning capacity, pain and suffering (past, present and future), loss of love and companionship, and funeral expenses. Funeral expenses. However, no matter the quality of your case, if the defendant has neither insurance nor recoverable income nor assets, a civil suit may be wasted time, energy, and money. If the defendant was driving under the influence of alcohol or other drugs and does have income and assets, your attorney may still advise against a suit. The offender will still owe the judgment although you may have a difficult time collecting on that judgment. Collecting a judgment may be challenging when the offender doesn t have any insurance or has limited assets. Instead of, or in addition to, filing a case against the substance impaired driver responsible for the crash and his or her insurance company, you may also have an action against a third party. A third party

35 is any person or entity whose actions may have contributed to the circumstances of the crash. In drunk driving cases, dram shop statutes and case law may provide potential liability for a restaurant, bar, or liquor store that negligently allowed an underage or intoxicated person to purchase or drink liquor who was subsequently involved in a crash resulting in death or injury. Both the business and individual that actually sold or served the alcohol may be liable. Other third parties may include those who knew the offender was impaired but allowed him or her to drive anyway; the person who purchased or provided the vehicle; or the social host who provided the alcohol to a minor or obviously intoxicated person. If the offender was driving a company vehicle or on company time at the time of the crash, his or her employer may also have some liability. Third party liability varies widely from state to state. An attorney can help you assess the probability of third party Talk with an responsibility in attorney to find your state. out if there are If a public entity such third parties who as the city, county or may also be liable state was in any way for the crash. responsible through commission, omission, or negligence, financial recovery from them also may be possible. Traditionally, governments and governmental entities such as police departments have been immune from civil suits based on the theory of sovereign immunity. Appellate courts in a number of jurisdictions have now found them legally and financially responsible for such things 32

36 as inappropriate parole release, inadequate probation supervision, improper street or highway maintenance or signage, and failure to arrest a substance impaired driver who then kills or injures someone. Proving Your Case in Court You and your civil attorney are responsible for proving your civil case in court. Remember that you can win a civil case even though the criminal case may not have been successful. In criminal court, the judge or jury must be convinced beyond a reasonable doubt to convict the defendant. In civil court, the judge or jury must be convinced only by a preponderance of the evidence, generally a 51% likelihood, of the defendant s responsibility or by clear and convincing evidence, somewhere around 70%. In many cases, evidence or admissions presented in criminal court may be used in civil court. However, this does not mean that you should wait to discuss your case with, or even hire, a civil attorney. The earlier an attorney is hired, the easier it will be for him to gather information on your case. By waiting weeks or months, witnesses become harder to find, physical evidence may be lost or damaged and memories fade. Additionally, each state has a statute of limitations establishing a certain time period after which a civil suit can no longer be filed. Many states have limits on how much time you have to file a civil case.

37 Insurance Your insurance company and the responsible driver s insurance company may be attempting to settle the case. Insurance companies are required by law to negotiate settlement of cases in good faith. Insurance companies are required to make reasonable offers, although their idea of reasonable and yours may differ. Be sure the offer is based on the maximum allowable for your property damage, medical expenses, lost wages past, present, and future and pain and suffering. It is usually not necessary to file a civil suit if you are dealing only with property damage where market value of your vehicle can be easily determined. However, personal injury and death cases are much more complex. Do not settle with an insurance company until you are absolutely certain that all costs associated with the crash are covered. This can take months even years. Request copies of each settlement offer in writing to avoid confusion and to have proof in the event that you receive conflicting information. Do not sign any settlement agreement or releases until you are absolutely certain of the terms and conditions. You may want to consider paying an attorney just to review the settlement agreement and release, and to explain it to you. It is critical that you are aware of what you re agreeing to by accepting the insurance Be sure of company s offer. By what you are signing the release, signing before you sign away any and you sign. all claims against the offender forever. 34

38 If you have a property damage claim as well as a personal injury or death claim, each of these can be settled independent of the other. If you have agreed to a settlement of the property damage claim only and are reserving your personal injury or wrongful death claim, make sure the settlement agreement is limited to the property damage claim only. If you have any doubts, paying an attorney to review and explain the documents is a wise investment. If you decide to hire a civil attorney, he will handle all insurance issues. You will no longer have to speak with the defendant s insurance adjuster or with yours. The attorney s investigators will collect evidence, interview witnesses and gather information from the time he is retained, even though the civil case may not be filed for some time. Hiring a Civil Attorney You may feel unable to look for an attorney because of your injuries or because you are so depleted of energy due to grief or post-traumatic stress. Coping with anything else seems almost impossible. Consider asking a trusted friend to help with the preliminary work; sharing this brochure Be sure to is a good way to do your begin. Ultimately, homework however, you will need to interview the before hiring final candidates and an attorney. make a decision. You will be working with your attorney over a long period of time, and it is important that you feel comfortable with them. You would most likely want an attorney who specializes in personal injury and