Crime Survivors' Handbook What Do I Do Now?

Transcription

1 Crime Survivors' Handbook What Do I Do Now? Published by the Young Lawyers Division Citzens' Education Committee of the North Carolina Bar Association Introduction The Players Misdemeanors and Felonies What are my rights? What rights don't I have? What are my options? What should I do right away? How do I deal with the police? How do I file criminal charges? What happens after criminal charges are filed? Crime Victim Compensation Programs Meanwhile Resources State Services National Groups Directory of Crime Victim and Witness Assistants Other North Carolina Groups North Carolina Domestic Violence Service Providers Introduction Crime takes many different forms, ranging from physical violence and injury, to damage or theft of property. In 1992 the Federal Bureau of Investigation reported that a serious crime is committed in the United States every two seconds. Someday, you, too, may become a victim of crime. To a layperson, the criminal justice system can seem slow, frustrating and unfair. You may often feel that you are wasting your time and that no one cares about what happened to you. The more you understand about the system and your rights and responsibilities within it, the more you will be able to obtain results that are satisfactory to you. This booklet summarizes the criminal process, your role in the legal system, and the resources that are available to assist you, the crime victim. This pamphlet is not intended to provide legal advice. In order to obtain more information about any subject discussed in this booklet, you should contact the local court or agency responsible for your case, or an attorney. The Players

2 You - You, the crime victim, are an important person in this process. You may be the actual victim of a crime or a member of the victim's family. Perhaps you feel that the prosecutor and the police have not given your case the attention it deserves - this may be because these officials are trying to help others who, like you, are the victims of crime. You should keep in mind, however, that the system is designed to protect you and to punish the perpetrator. Law Enforcement - Law enforcement officers will respond to your call for help, and will investigate the crime. City police generally handle crimes that occur within the city limits, while the Sheriff and sheriff's deputies will handle crimes that occur in the county, outside the city limits. You can find out who will be investigating your case by asking the officers you speak to when the crime is reported. The Magistrate - If the police do not charge the perpetrator, the Magistrate can hear your complaint and, if you present satisfactory proof of a crime having been committed, the Magistrate can help you file a criminal complaint against the perpetrator. If the perpetrator is arrested, the Magistrate is also the first person who can set bond conditions for the perpetrator to get out of jail. When the warrant is issued, the Magistrate will set the first court date. The Clerk of Court - The clerk of court keeps track of all civil and criminal filings in the county. The clerk will be able to tell you your court date, the judge who will hear your matter, and the courtroom in which it will be heard. You also can check the clerk's records to check the status of your matter, as well as any other prosecutions against the perpetrator. The Prosecutor - The district attorney is responsible for prosecuting all criminal charges that are filed within the county. The district attorney is an elected official, and may be assisted by a number of Assistant District Attorneys (ADAs) who appear in court and prosecute crimes. If you are involved in a felony case, you can call the district attorney's office and find out which ADA was assigned to prosecute your case; that ADA can tell you the status of the case, including court dates. If your case involves misdemeanor charge(s), it will be handled by the ADA assigned to the courtroom in which the matter is heard. You should cooperate with the ADA by providing her with as much information as possible about the crime. You do not need to hire an attorney for a criminal matter since the district attorney represents your interests. If your testimony is needed at trial, you will be subpoenaed to appear in court. The Victims and Witness Assistant - This person serves as your link with the prosecutor and law enforcement. He or she will help you through the criminal process, help you complete a Victim Impact Statement and Victim Compensation Form, help arrange transportation to court, and help find local resources and support to deal with problems you may have as a result of the crime. The Victim and Witness Assistant also is responsible for coordinating the activities of law enforcement and the judicial system to ensure that you are treated in accordance with your rights. Misdemeanors and Felonies What's the difference? Misdemeanor offenses differ from felonies in the length and types of available punishment, and in the legal process which may result in conviction and punishment. Common misdemeanor offenses include: Checks returned for insufficient funds (NSF) simple assault DWI (first-third offenses) an attempt to commit any felony Felony crimes are generally considered more serious than misdemeanor offenses. Common felony offenses include: Murder/manslaughter

3 burglary arson rape assault with a deadly weapon kidnapping perjury death by vehicle DWI (fourth offense) drug trafficking NSF check (more than $2,000) What's the Procedure? Misdemeanor charges are handled in district court, and all court appearances are before a district court judge. Felony charges are initially handled in the district court, where matters such as appointment of defense counsel and bond requirements are considered. Eventually, felony cases are either reduced to misdemeanor charges and resolved in district court - either by trial or plea agreement - or they are submitted to the grand jury and then transferred to the superior court for further proceedings and trial. Various proceedings relating to felony matters are described in greater detail at pages 8-11 of this booklet. What are my rights? You have the right to be treated with fairness, dignity, and respect for your privacy. You have the right to receive information regarding immediate medical attention, and not to be unreasonably detained by law enforcement before seeking medical assistance. You have the right to information regarding protection from threats of harm arising out of your cooperation from law enforcement, and you have the right to receive that protection. You have the right to have stolen property returned to you when it is no longer needed as evidence or for law enforcement's investigation. You have the right to assistance with your employer to try to minimize lost wages and/or benefits while you cooperate with law enforcement. You have the right to a secure waiting area during court proceedings, away from the perpetrator and his or her family and friends. You have the right to information about the obtaining witness fees and victim compensation. You have the right to object to revealing your home address during the trial of the perpetrator. You have the right to be informed if a court proceeding for which you have been subpoenaed is continued to a different date. You have the right to be present during the entire trial of the perpetrator, unless the judge orders all witnesses barred from the courtroom. You have the right to have a Victim Impact Statement prepared and presented to the judge for consideration at sentencing. You have the right to be informed about plea bargaining procedures, and whether the prosecutor will recommend a plea agreement. You have the right to be present or informed of final disposition of the criminal case, if you have asked to be present or informed. You have the right to be informed of available civil remedies, and applicable time limits for seeking them. For very serious crimes, you have the right to be notified, in advance, of any proceedings in which the release of the perpetrator is considered, if you have asked to be notified.

4 For very serious crimes, you have the right to be informed if the perpetrator escapes or is released from custody, if you ask to be notified. What rights don't I have? You do not have the right to testify. The prosecutor assigned to your case will decide if you should testify. In most cases, your testimony will be vital to the case, and you will be urged to testify. In some cases, however, your testimony will not be necessary to obtain a conviction, and you will not be asked to testify. You do not have the right to dictate the terms of a plea agreement, or to stop the prosecutor from negotiating with defense counsel or offering a plea agreement to the perpetrator. The prosecutor will try to obtain the best possible plea agreement, after weighing the evidence of the case and the defenses raised by the perpetrator. While you have the right to be informed that there may be a plea agreement, you cannot control the terms of that agreement. You do not have the right to bring a lawsuit against law enforcement, prosecutors, or court officials for a violation of any of the rights that you do have, as set out above. You do not have the right to enforce any of the rights set out above, if that enforcement would violate the constitutional rights of the perpetrator. You do not have the right to recover your losses from the perpetrator, as part of the criminal process. The judge may order restitution paid to you by the perpetrator, but is not required to do so. Often, restitution that is ordered is only a fraction of the total loss suffered by a victim. If you want to recover your losses, you need to file a civil lawsuit against the perpetrator, or you may file an application for compensation with the Crime Victims Compensation fund (see p. 12 below). You do not have the right to drop the charges once a criminal prosecution has begun. Only a prosecutor can drop the charges. In most cases, if you tell the prosecutor that you do not want to continue the prosecution, he will consider your request along with other considerations including the seriousness of the offense, the perpetrator's payment of restitution, and the perpetrator's prior criminal record, among other things. What are my options? 1. Bring CRIMINAL CHARGES. 2. As a victim of crime, you can bring criminal charges, which will be prosecuted by the State of North Carolina through the local district attorney's office. The purpose is to punish the perpetrator for violating the law, as opposed to providing you with compensation for your injuries. 3. File a lawsuit in the civil courts of the county where you live, where the perpetrator lives, or where the offense occurred. The purpose of a civil action is to get you relief for the harm done to you. Civil cases are not a part of a perpetrator's criminal prosecution. You do not need to decide between civil and criminal remedies - you may pursue both remedies for the same incident. If you bring a civil lawsuit against the perpetrator to recover your injuries, you can ask for money for your actual losses, which may include medical bills, lost wages, repair or replacement of property, pain and suffering, permanent disability, etc. The law also may allow you to ask for punitive damages against the perpetrator. Finally, you can get an injunction ordering the perpetrator to stay away from you. 4. Submit a claim to the North Carolina VICTIM'S COMPENSATION PROGRAM for recovery of your actual out-of-pocket losses (see below at p. 13 for more information).

5 REMEMBER, you do not have to go through the system alone, if you do not want to. The Clerk of Court can help you with the necessary forms to commence a civil action, or to obtain a temporary order against the perpetrator. The local bar association can help you find lawyers in your area who will help you file the necessary documents, and advise you on how to press criminal charges. Many local bar associations have programs that provide these services at little or no cost. What should I do right away? 1. Call 911. If you are a victim of crime you should immediately call the police or sheriff's department for help. The dispatcher will ask you for as much information as you can provide, including your telephone number and address. If you think you may need medical help, say so and the dispatcher will notify medical personnel. If you do not notify law enforcement officials of the crime within 72 hours, you may not be able to recover your economic losses from the Crime Victims Compensation fund (see pps ). Be ready to protect yourself from harm for at least a short while. The police are required to respond to your call as soon as practicable, but may not be able to reach you immediately. 2. Get Medical Treatment. If you are the victim of a violent attack, you should seek medical attention, even if you don't think you are hurt. Medical personnel are trained to gather evidence that might identify the perpetrator and establish your injuries. It may be important to have this evidence later, when the case goes to court. In case of a sexual assault, you may request that the local rape crisis center be called and an advocate provided to immediately assist you. 3. Gather Evidence. As soon as you and those around you are safe, you should start gathering evidence: o Write down as much as you can remember about the crime. Be as specific as possible about WHO, WHEN, WHERE, and WHAT happened:! If the perpetrator was a stranger, try to remember distinctive features (glasses, scars, tattoos, birthmarks, clothing, accents).! Identify witnesses - anyone who might have seen or heard what happened.! If the crime occurred in your home, make an inventory of what's missing (if it's a burglary), but be careful not to move or touch anything until the police say it's okay. o Keep any clothing or other property that might help prove what happened. If you are the victim of physical violence, DO NOT take a shower or change your appearance before the police arrive. o As soon as possible, have a friend or family member take pictures of your injuries, the crime scene, and any damage to property which may have occurred. o Later, get estimates for repairs or replacement of property damaged or stolen during the crime. Try not to get upset if you can't remember very much. This is a very traumatic experience, and you might not remember much for several weeks. How do I deal with the police? Law enforcement can immediately arrest a suspect if they have good reason to believe that that person has committed a crime. They can also arrest a suspect if they reasonably believe the abuser has violated a court order by hurting you or coming to your house. If the police witness the crime, they are required by law to make an arrest on the spot. Of course, you should never remain in a place of danger in order to allow the police to witness the violence. When the police arrive...

6 Turn over evidence of the crime. When the police arrive, give them torn or bloody clothing, pictures or any other evidence you may have. Be sure to give the police names and phone numbers of all witnesses to your attack, if there are any. Turn over any court papers. If there is a court order that the perpetrator has violated, give the police a copy of it so they can arrest the perpetrator for violating the order. You also should give the police a copy of separation or divorce papers, if there are any. Ask the police to make a report of the incident. Ask the police to take pictures of your injuries and to conduct an investigation. You should ask for the police officer's name, badge number, and telephone number so that she can be a witness for you in any civil or criminal proceeding you may bring against the perpetrator. Get the number of the police report and a copy of the report. Write this information down so it can be reported to the district attorney if you sign a criminal complaint. Transportation. Law enforcement officers can take you where you need to go to get help, whether it be the home of a friend or family member, shelter or hospital. The police can also take you to the magistrate's office if you want to file a criminal complaint. In all cases of domestic violence, leave the house and take your children and important things with you. Cooperate with law enforcement as much as possible. Your failure to cooperate may later deprive you of compensation under the Crime Victims' Compensation Program. (see p. 12) Follow up with law enforcement. Find out the file number for your case, and who will be investigating the matter. Try to be patient; police investigators generally work very hard, and may not be able to give you much information when you call. If the police do not intend to investigate your case or do not follow up with criminal charges, you can initiate criminal charges yourself by contacting the magistrate. How do I file criminal charges? Before you file criminal charges yourself, you should find out whether the law enforcement officers responding to your call or investigating your case intend to file charges on your behalf. If for some reason you can't wait or law enforcement will not file charges, you can contact the magistrate in the county where the offense occurred. You will need to describe what happened to you to the magistrate. Take along with you any witnesses to the crime and any evidence of injury or damage, including pictures, torn or blood-stained clothes and medical reports. Upon hearing your sworn testimony, the magistrate should issue a criminal summons or a warrant, which will then be served upon the perpetrator. What happens after criminal charges are filed? Once the perpetrator is charged, he or she will be arrested and brought before the magistrate, who will consider whether the perpetrator may be released on bond (money or property posted to secure the defendant's appearance in court) or personal recognizance (a promise to appear at the next court date). The magistrate also sets the date of the first appearance, which is usually one-three days after arrest. If it's a felony case, call the District Attorney's office to find out who will be handling your matter. Otherwise, contact the Clerk's office to find out when and where the matter will be heard, and then speak to the ADA in the courtroom who is handling your case on that date. If there are any witnesses to the crime, you should let the ADA know as soon as possible and request that they appear at the trial. You should give the ADA the names and badge officers of police who responded to your call. First Appearance - at the first appearance, the district court judge advises the defendant of the charges against him or her, explains the defendant's constitutional rights, answers any questions the defendant may have and, if requested, appoints an attorney to represent the defendant. The district judge may also consider the bond set by the magistrate and may either decrease or increase the bond, or may impose

7 additional conditions on release. If the crime is a misdemeanor, the judge will set a date for trial. If the crime is a felony, the judge will set a date for a probable cause hearing. In felony cases, however, various hearings are held before the matter is brought to trial, including the probable cause hearing, indictment by the grand jury, the arraignment, and pretrial motions hearings. You will need to be present at some of these hearings, but not all. The district attorney can tell you whether you will need to be present for a hearing. (You can also contact the Clerk of Court to find out the day and time of a hearing, but the Clerk cannot tell you whether you will need to be present). At the first appearance in a felony case, the district court will set a date for the first of these hearings, the probable cause hearing. Probable Cause Hearing - Felony cases begin with a probable cause hearing in the district court, which must occur within three (3) days after the perpetrator's arrest. At this hearing, the perpetrator is brought before the judge and the district attorney is required to prove "probable cause," that is, that an offense was "probably" committed, and that the perpetrator "probably" did it. The purpose of this hearing is to decide whether there is enough evidence to go forward with the case in the superior court. The district court may also consider the bond arrangements (i.e., to increase or decrease the bond, impose additional conditions, etc.) Many times, the perpetrator's lawyer will waive hearing, and the matter will automatically go forward to the grand jury for indictment. Sometimes the probable cause hearing is cancelled if the District Attorney has already presented the matter to the Grand Jury. However, sometimes the perpetrator's lawyer will require that the District Attorney produce his evidence. In those cases, you may be required to testify at the probable cause hearing. If the judge decides that there is no "probable cause," the case is not necessarily over. The district attorney can still take the case to the grand jury directly. The Grand Jury - The grand jury is composed of citizens of the county. These citizens hear evidence from the district attorney's witnesses, and decide if there is enough evidence to believe that the defendant committed a crime. A "true bill" of indictment issues if the grand jury finds there is sufficient evidence. If they find there is insufficient evidence they return a "no true bill." You may be required to testify to the grand jury, but you will not be allowed to be in the courtroom to hear other people's testimony, since grand jury hearings are secret. Arraignment - Once a "true bill" issues, the matter will be set for "arraignment." At the arraignment, the defendant appears before a superior court judge, who advises the defendant of the charges against him and of his constitutional rights. The judge will ask the defendant to plead "guilty," or "not guilty." If the defendant pleads "guilty," the judge will impose sentence or will schedule a sentencing hearing at a future date. If the defendant pleads "not guilty," the judge sets a trial date. You generally do not need to be in the courtroom for the arraignment, unless the defendant's bond is considered and you want to be present. Pretrial Motion Hearings - Once the defendant is arraigned, the district attorney and the defendant's lawyer will exchange information regarding the crime. There may then be hearings to discuss various pretrial matters, including whether evidence should be suppressed, whether the defendant is competent to stand trial, etc. The defendant's attorney may try to speak with you to find out about the crime, but you do not have to speak with him/her if you do not want to. Once all pretrial matters are determined by the judge, the judge will set a trial date. Continuances - Criminal cases are often continued for several weeks, or even months, in order to allow the defendant to seek counseling, to hire an attorney or to subpoena witnesses. The district attorney can oppose continuances. It is up to the judge to grant or deny a request for a continuance. Finally, the Trial - Know what you want to say to the judge, and trust the district attorney to present the evidence necessary to get a conviction. Be prepared to have all of your evidence (photographs, witnesses, medical records, repair estimates) in court on short notice. Be aware that the perpetrator will be in court and will probably have a lawyer who will ask you questions. Do not get upset if the perpetrator contradicts what you say. Judges will expect some contradictions in the testimony. Keep calm, if you can. Remember, your sworn testimony may be all the evidence you need to get the perpetrator convicted. If you are required to be present at any of these hearings, you need to be sure to go to the right courtroom at the right time that day, ready to testify about the details of the crime. Bring your witnesses and evidence. Plan to arrive in the courtroom minutes early to speak with the ADA regarding your testimony.

8 Testifying Tips Your appearance and behavior when you are not testifying is as important as your behavior and appearance when you are testifying. Do not discuss the case in the halls, restrooms, or anywhere that a friend of the defendant or a juror may overhear. Maintain a serious and dignified manner in and around the courthouse and throughout the trial. Don't chew gum. Dress appropriately for court. Do not speak or whisper in the courtroom during the trial; if you have questions, write them down and give them to the Victims/Witness Advocate or the ADA. Don't let your appearance detract from the seriousness of your testimony. If you find yourself becoming extremely upset during the trial, quietly leave the courtroom. If you become upset while testifying, pause until you regain your composure, or ask the judge for a short break. Never speak to a judge or juror, unless you are testifying under oath in the courtroom, or the judge asks you a question in the courtroom. If the trial is covered by the press, you may be approached and questioned by reporters. You should refrain from answering any questions or making any comments until after the trial is over. REMEMBER, you may be the district attorney's most important witness. You may be the district attorney's only witness. Your testimony may be crucial to the defendant's conviction. Thus, it is very important that you keep track of the dates and times of all hearings and go to the right courtroom at the appropriate time on the day of a hearing. If you do not appear to give testimony against the defendant on a day scheduled for hearing, your case may be dismissed, and you may have to pay court costs. The Punishment - If the defendant is found guilty or pleads guilty, the punishment will depend on the circumstances of the case, the defendant's prior criminal history, and the terms of any plea agreement. The judge will decide the sentence, but the judge will consider the district attorney's recommendation. The judge will also consider any Victim Impact Statements submitted by the crime victim or his or her survivors. The Victim Impact Statement explains the emotional, physical and financial impact of the crime upon the victim or his or her survivors. The Victim/Witness Assistant can help you prepare this statement. If the crime is serious enough, the defendant could be sentenced to a long prison term, even up to life imprisonment or death. Since 1993, North Carolina has had structured sentencing, which requires specific sentences for specific offenses. The district attorney should be able to tell you what she believes the sentence will likely be, based upon the State's sentencing guidelines. You also may be entitled to restitution (repayment of your losses) from the perpetrator, but will need to produce receipts, copies of medical bills, etc., or an itemized listing of damaged or missing property so that the district attorney can prove the amount of your loss. Most district attorney's Victim/Witness programs have a victim impact statement form that you can use to list your expenses or losses. Another method for obtaining restitution is through a formal pre-trial intervention program. Only first-time offenders of non-violent, non-drug related crimes are eligible for this program. The program allows a firsttime offender to compensate the victim in order to avoid receiving a criminal record. The offender must pay a fee to enter the program, be employed or attend school, participate in counselling and have the approval of the victim, law enforcement and the district attorney's office before enrolling. If the perpetrator is ordered to pay restitution by the judge, he or she will most likely do so as part of his or her probation. He or she will make periodic payments to the Clerk of Court, who will forward those payments to you. Several months may pass before this process begins, however, and frequently it is several years before all restitution funds are paid. Appeals - If a perpetrator is found not guilty, the prosecutor may be able to appeal that decision, but only in limited circumstances. If the perpetrator is convicted, he or she may decide to appeal. Sometimes a perpetrator will be released on bond pending a decision on the appeal, which could take months or even

9 years. The Assistant District Attorney who handled your case should be able to explain any appeal rights the perpetrator may have, how the appeal will progress, and what will happen after the appeal. Parole - offenders who are not sentenced to a minimum term of imprisonment are eligible for parole (early release) at any time. Offenders who have received a minimum sentence are only eligible for parole after serving the minimum term imposed, or upon serving 1/5 of the maximum term imposed, whichever is less, less any credit allowed for good behavior. An offender serving a sentence of 30 days to 18 months for impaired driving is eligible for parole after serving 1/3 of his or her maximum sentence. Parole is determined by the Post-Release Supervision and Parole Commission. Whenever the Commission considers an offender for parole, it must send a notice to the last known address of any of the victim's immediate family members who have requested in writing to be notified. This notice must be mailed at least 30 days prior to the offender's parole hearing. The Commission is required to consider any information the victim or his or her family provides to it in determining whether to parole the offender. You may write to the Commission and express your feelings of opposition; you may also ask your family, friends, clergy, special interest groups, state and local legislators, and law enforcement officers to send opposition letters. However, even though these letters are confidential, the offender's attorney may have access to them and may share them with the offender. If you attend the parole hearing, you will not have to confront the offender, but you will have to present your views to the Commission. You may not have an opportunity to express your views if the Commission has already decided to deny parole. The Commission may refuse to release an offender on parole if it believes that (a) there is a substantial risk that the offender will not conform to the reasonable conditions of parole; (b) the offender's release will unduly depreciate the seriousness of the crime or will promote disrespect for the law, (c) the offender's continued correctional treatment, medical care, or vocational or other training in the institution will substantially enhance his or her capacity to lead a law-abiding life if he or she is released at a later date, or (d) there is a substantial risk that the offender will engage in further criminal conduct. If you make a prior written request, you will receive written notice of the Commission's decision granting or denying parole, within ten days of that decision. The Commission may also give notice to local newspapers and other news media, but is not allowed to give the media the name of any victim. If the offender is denied parole, he or she will be eligible for another parole hearing in one year. If the offender is released on parole, the term of parole is one year or less. Various parole conditions may be imposed; common conditions include: the offender must not commit further offenses, and must maintain gainful employment or attend school to complete his or her training, undergo medical or psychiatric treatment, and regularly report to his parole officer. The victim may request, as a parole condition, that the offender have no contact with her or her family members. If the offender violates a condition of parole, parole may be revoked and he or she may be re-imprisoned. Crime Victim Compensation Programs N.C. Crime Victims Compensation Commission Under North Carolina law, victims who suffer personal injury or death can receive compensation for actual or anticipated economic losses up to $20,000, plus an additional $2,000 for funeral, cremation or burial expenses. Either the victim, his dependents, or a third person who provided benefits to the victim or his family, may file a claim for compensation from this fund. The fund pays for medical expenses, rehabilitation costs, funeral expenses of up to $2,000, work loss of up to $200 per week for 26 weeks, and replacement services losses of up to $200 per week for 26 weeks. The fund will not compensate for noneconomic losses such as pain and suffering or physical impairment, nor will it cover loss of personal property or for losses paid by insurance. A claim for compensation under this fund must be made within one year of the date of the criminally injurious conduct. A claim is made by filing an application with the Director of the Crime Victims Compensation Commission. The application can be obtained from the district attorney's office or from the N.C. Division of Victim and Justice Services in Raleigh, N.C., Applicants are required to provide at least the following information: