Victims of crime, and other people who have knowledge about the commission of a crime, are often required to testify at a trial or at other court proceedings. The federal criminal justice system cannot function without the participation of victims and witnesses. Complete cooperation and truthful testimony of all witnesses and victims are essential to the determination of the guilt or innocence of a person accused of committing a crime.
Crime victims and witnesses might experience feelings of confusion, frustration, fear, and anger. If you are a victim or a witness, the Victim-Witness Program of the United States Attorney's Office can help you understand the rights given to you by law.
The United States Attorney's Office is committed to ensuring that crime victims and witnesses are treated fairly by the criminal justice system. This pamphlet will provide answers to many of your questions and will help you understand your rights and responsibilities.
GENERAL INFORMATION FOR VICTIMS AND WITNESSES
Participants in the Criminal Justice System
The Victim-Witness Program
Each United States Attorney's office has a Victim-Witness program which is staffed by at least one Victim-Witness Coordinator or Victim Advocate. The goal of the Federal Victim-Witness Program is to ensure that victims and witnesses of federal crimes are treated fairly, that their privacy is respected, and that they are treated with dignity and respect. Victim-Witness Coordinators and Victim Advocates work to make sure victims are kept informed of the status of a case and help victims find services to assist them in recovering from the crime.
Victims' Legal Rights
Below is a list of rights given to victims by the Crime Control Act of 1990. This piece of legislation provided crime victims with a "Bill of Rights." Department of Justice employees are required to use their best efforts to ensure victims receive these rights. Victims' rights laws apply to victims whether or not the victim testifies as a witness.
Victim Services Required by Law
Victims are entitled to general information about the criminal justice process and notice of important case events including:
Victims are entitled to information about available services including:
Victims are entitled to reasonable protection from a suspected offender:
Victims are entitled to the following additional services:
Information for Witnesses
General Witness Information
If you are required to testify as a witness in a trial or other proceeding, you will receive a subpoena telling you when and where to go to court. A subpoena is a formal court order telling you to appear in court, and there are serious penalties for disobeying a subpoena. If you know in advance of anything that might keep you from attending a required court appearance, let the United States Attorney's Office know immediately so that an attempt may be made to adjust the schedule. However, scheduling is at the discretion of the court and sometimes cannot be changed.
Will this be at my expense?
How do I receive my reimbursement?
There are many different stages involved with a case, including numerous hearings. Despite the best efforts of everyone concerned, court hearings to not always take place on schedule. If you are required to appear for a hearing or trial, the United States Attorney's office will make every attempt to notify you in advance of any postponements or schedule changes.
How Cases Are Resolved
Although many criminal cases go to trial, many other criminal cases end without a trial. For example, a defendant may plead guilty to the crime, or the Government may dismiss the case (not try the case) for a variety of reasons. Different scenarios are discussed below:
Declination: When the United States Attorney chooses not to prosecute a particular case, this is called declination.
An Assistant United States Attorney has the discretion to decline to prosecute a case based on several considerations, some of which the Assistant United States Attorney may not be able to discuss with you. The Assistant United States Attorney is ethically bound not to bring criminal charges unless the legally admissible evidence is likely to be enough to obtain a conviction. However, even when the evidence is sufficient, the Assistant United States Attorney may decide that there is not a sufficient federal interest served by prosecuting the particular defendant in a federal case. In many cases, the defendant may be subject to prosecution in another state, local, or tribal court (including a state court for the prosecution of juvenile delinquents) and prosecution in this other forum might be more appropriate than prosecution in federal court.
Dismissal: When the United States Attorney or the court chooses to dismiss the case after it has been filed with the court, this is called dismissal.
The Assistant United States Attorney may ask the court to dismiss a case that has been filed in court. The Assistant United States Attorney may do this because the court will not allow critical evidence to be part of the case, or because witnesses have become unavailable. There are times when evidence that weakens the case may come to light after the case has started. In other instances, the court may dismiss a case over the objection of the Assistant United States Attorney if the court determines that the evidence is insufficient to find the defendant guilty.
Pre-trial Diversion: When the United States Attorney decides not to try a defendant right away, or not to bring charges immediately, a defendant may be placed in a Pre-trial Diversion Program.
Under this program, the United States and the defendant enter into a contract in which the defendant agrees to comply with certain conditions, and agrees to be supervised by the United States Probation Office for a period of time. If the defendant successfully complies with all of the conditions, no charges will be brought. However, if the defendant fails to meet a condition, charges may be filed.
The Pretrial Diversion Program is designed for those defendants who do not appear likely to engage in further criminal conduct, and who appear to be susceptible to rehabilitation. The objective of the program is to prevent future criminal activity by certain defendants who would benefit more from community supervision and services than from traditional punishment.
Plea Agreements: When the United States Attorney reaches an agreement with a defendant, a plea agreement is established. A guilty plea can take place at any time, and can even take place after trial has begun.
To the public and to many victims, plea bargaining has a negative image. In reality, it is a very good tool to resolving a case and making sure a conviction is certain. Criminal cases always involve risks and uncertainties. A jury verdict of guilty is never a sure thing. With a plea agreement, a conviction is guaranteed, and a sentence is imposed. By pleading guilty, the defendant waives his or her right to trial.
Trial: Many cases do go to trial. Trials are discussed in What Happens in Felony and Misdemeanor Cases.
Frequently Asked Questions
The criminal justice process can be complex and lengthy. Federal and tribal law enforcement agencies, and staff from the United States Attorney's offices will provide you with a variety of notification and assistance services to keep you informed on the status of your case.
The Victim-Witness Coordinator at the United States Attorney's Office will be your main contact throughout the prosecution phase of the case. Please contact the Coordinator if you have any questions.
Listed below are answers to some questions that are frequently asked by victims and witnesses:
What kind of support services or assistance can the Victim-Witness Coordinator offer?
How will I find out information about the case?
The United States Attorney's Office will provide you with information throughout the progress of the case, including notification of the filing of charges against a suspected offender or the dismissal of any or all charges; notification of a plea agreement; and notification of the date set for sentencing if the offender is found guilty, as well as the sentence imposed.
The Victim-Witness Coordinator will routinely provide information or assistance concerning transportation, parking, lodging, translators, and related services. In addition, every effort will be made to inform you about changes in the court's schedules.
If you have questions about the case in which your are involved, you are welcome to call the Victim-Witness Coordinator or the Assistant United States Attorney who is handling the case. The Assistant United States Attorney may also be contacting you for information at various stages of the proceedings.
How can I tell the court how this crime has affected me?
During a trial, it may seem as if most of the attention is paid to the defendant and not to the affects the crime has had on the victim. However, if the defendant is found guilty or pleads guilty to a crime in which you are a victim, you may have an opportunity to let the court know how the crime affected your life. A victim may submit a Victim Impact Statement, a written statement of the affects of the crime and his/her feelings about the crime, to the probation officer. This statement will be included in the pre-sentence report prepared by the probation officer for the judge prior to sentencing.
Victims may attend the sentencing hearing, and victims of violent crimes or crimes involving sexual abuse will also have the opportunity to address the court at this time. This is called victim allocution, and is discussed further in The Sentencing Hearing section. The Assistant United States Attorney or the Victim-Witness Coordinator will tell you if such an opportunity exists for you, and will talk to you about the aspects of a presentation.
How do I know when the offender in my case may be released from prison?
What do I do if I am being threatened by the defendant or others acting on behalf of the defendant?
If anyone threatens you at any time while you are involved with the case, or you feel that you are being harassed because of your connection to the case, you should immediately notify the federal law enforcement agency conducting the investigation or the United States Attorney's Office. These telephone numbers are listed in your telephone directory under United States Government. In emergency situations, always contact your local law enforcement (911) first.
What is a bond and what factors are considered when releasing a defendant?
There are two main factors the court considers when deciding whether or not to release a defendant pending trial: Risk of flight, and risk of danger to the community.
If the court is satisfied that the defendant will appear in court and that the defendant does not pose a threat to the community, the court may release the defendant while he or she is awaiting trial.
Sometimes the court may require the defendant, or someone acting on his/her behalf, to post cash or property which is known as a bond; or it may simply require the defendant to promise to apear. Since most federal criminal defendants are released on bond pending trial, you should not be surprised if you happen to see the defendant prior to trial.
Can I observe the trial?
Am I entitled to a witness fee for every day that I am required to appear in court in connection with the case?
Can I discuss the case with others?
Defense attorneys and investigators working for defendants often contact victims and witnesses. It is not unusual or inappropriate for the defense lawyer or an investigator for the defense to contact you for an interview. While you may discuss the case with them if you wish to do so, you do not have to talk to them. The choice is entirely yours.
The Assistant United States Attorney may discuss some parts of the case with you to inform you and prepare you for testifying. However, there may be some instances when the Assistant United States Attorney may not be able to answer some of your questions because it may endanger the case or other witnesses.
After you testify in court, you are not allowed to tell other witnesses what was said during the testimony until after the case is over. Please do not ask other witnesses about their testimony, and do not volunteer information about your own testimony.
Below are some general suggestions and tips when discussing the case:
My property is being held as evidence. How, and when, can I get it back?
Sometimes, law enforcement officers hold property belonging to victims and witnesses as evidence for trial. If your property is being held as evidence and you would like to try to get your property back before the case is over, notify the law enforcement officer or the Assistant United States Attorney who is handling the case.
In some, but not all cases, arrangements can be made for early release of property. In any event, at the conclusion of the case, your property should be returned to you promptly. In those instances where this is not possible, the Assistant United States Attorney will explain the reasons for not returning the property.
How can I get my money back?
Many people lose money as a result of being victimized. There are two possible ways for you to recover your losses; Compensation and Restitution. There is, however, no guarantee that your losses will be recovered.
Compensation:Crime victims' compensation programs are administered by each state, territory, and the District of Columbia and provide financial assistance to victims and survivors of victims of criminal violence who are not otherwise covered by insurance. These funds are intended to cover:
Each compensation program has its own rules regarding the types of losses for which victims may recover and the amount of money victims may recover. Also, each compensation program has its own instructions for applying for crime victims' compensation. Consult with your Victim-Witness Coordinator to determine how to apply for compensation.
Restitution: After a defendant is convicted of certain types of crimes, the judge may order the defendant to pay restitution as part of the sentence. Restitution occurs when an offender gives back the thing(s) he or she stole (or damaged) or when the offender pays the victim for his or her loss. Restitution can be either discretionary or, in some cases, the judge is required by law to award the victim restitution for the full amount of the victim's losses. Examples of these cases include child support recovery, sexual abuse, domestic violence, telemarketing fraud, sexual exploitation and other abuses of children, consumer product tampering, most violent crimes, and most crimes against property, including fraud.
Receiving restitution payments: You will normally receive your restitution payments from the Clerk of the District Court. The defendant should not make payments directly to you. The court clerk of courts maintains a record of payments and disbursements on all court-ordered restitution for accountability purposes. You may receive one large lump sum payment, but more than likely you will receive smaller payments from time to time. This will depend on the defendant's ability to repay the restitution and on the number of other victims involved.
It is your responsibility to keep the U.S. District Clerk of Court informed of your current address. If you move, you should contact the Clerk of Court immediately so that any restitution payments can be forwarded to you at your new address.
WHAT HAPPENS IN FELONY AND MISDEMEANOR CASES
This section explains the way felony and misdemeanor cases move through the court system. Witnesses and victims are not needed at every step in the process and not every case follows all of the available steps. In fact, many cases end before they reach trial. Even so, it may be useful for you to be familiar with all the steps that the case in which you are involved might go through.
Any offense punishable by death or imprisonment exceeding one year is a felony. The prosecutors and the courts handle felony cases differently from misdemeanor cases. Misdemeanor cases differ from felonies in that misdemeanor cases have shorter possible sentences.
The Filing of a Criminal Complaint
Some felony cases begin when the United States Attorney's Office, working with a law enforcement officer, files a criminal complaint before a United States Magistrate Judge.
The complaint is a sworn statement of facts stating that there is probable cause to believe that the accused person has committed a crime and violated the laws of the United States. If the Magistrate Judge accepts the complaint, a summons or arrest warrant will be issued for the defendant, if he or she has not already been arrested.
Victims and witnesses of federal offenses may be interviewed by a law enforcement officer prior to the filing of a complaint. In those situations, the officer will report the victims' or witnesses' statements to the Assistant United States Attorney assigned to the case. The Assistant United States Attorney may or may not decide to interview the witness in person.
The Initial Appearance
The initial appearance is the defendant's first hearing after arrest. It takes place before a United States Magistrate Judge, usually the same day the defendant is arrested. There are three purposes for this hearing. At initial appearance, the defendant is advised of his or her rights, and the charges are explained. Next, the defendant is assisted in making arrangements for legal representation. The court may appoint an attorney for the defendant if necessary. Finally, at the hearing, the court determines whether the defendant is a danger to the community or a risk of flight, and whether he or she can be safely released.
Witness testimony is typically not needed at the initial appearance. However, you may attend if you so desire.
Although some defendants are detained (held without bond), many defendants charged with a felony are released at the end of this hearing. They, or someone acting on their behalf, have either posted money to guarantee their return for trial and other hearings, or they have been released on conditions which include their promise to return for future hearings or the trial. The conditions of bond may include a requirement that they not personally contact victims or witnesses in the case.
If you are the victim of a federal domestic violence offense, you have the right to address the court at the initial appearance. You will be allowed to tell the judge whether or not you believe the defendant poses any threat to you if he or she is released.
In all types of cases, if you have any concerns about the conditions of the defendant's release, please discuss them with the Assistant United States Attorney handling the case.
Grand Jury Proceedings
Some cases begin with Grand Jury proceedings rather than with the filing of a criminal complaint.
A Grand Jury is a group of citizens who meet to examine the evidence against individuals who may be charged with a crime. The Grand Jury's work is done in complete secrecy. Only an Assistant United States Attorney, a stenographer, and the witnesses subpoenaed to deliver Grand Jury testimony are allowed in the grand jury room.
After hearing the evidence presented by the Assistant United States Attorney, the Grand Jury will decide whether there is probably cause to believe that a crime has been committed. If the Grand Jury decides that there is probable cause to believe that the defendant has violated a criminal law of the United States, they will return an indictment. If the Grand Jury finds that this is not true, they will return a "no bill."
Although a Grand Jury proceeding is not a trial, it is a serious proceeding. Witnesses are placed under oath, their testimony is recorded, and their testimony may be used later during the trial. It is important to carefully review what you remember about the crime before testifying before the Grand Jury. You must tell the truth. Before testifying before the Grand Jury, you will probably meet with the case agent or the Assistant United States Attorney.
The Grand Jury does not necessarily call every witness to testify. Sometimes the Grand Jury will return indictments on the basis of an agent's testimony alone. If you are called to testify, the Assistant United States Attorney should be able to give you an approximate time when your testimony will be heard. Unfortunately, it is not always possible to schedule testimony to the minute. Your appearance may involve waiting to be called before the Grand Jury, so you should bring some reading material or other work along with you. You should be aware that if you are testifying at trial, your statements made to the Grand Jury must be disclosed to the defendant.
The Preliminary Hearing
A preliminary hearing will be held in cases where an indictment does not follow a criminal complaint right away. The United States Attorney does not have to prove the defendant's guilt at this hearing, but must present evidence to show that there is good reason (known as "probably cause") to proceed with the charges against the defendant.
Usually, the law enforcement officer alone can provide sufficient evidence showing that it is probable that the defendant committed the offense. Occasionally, witnesses may be subpoenaed to testify. If you receive such a subpoena, you should contact the Assistant United States Attorney who is handling the case as soon as possible.
The Felony Arraignment
At the arraignment hearing, the charges in the indictment are read to the defendant, and his or her bail conditions are reviewed by the court. The defendant is given an opportunity to plead guilty or not guilty to charges at this time.
Witnesses are usually not needed at this hearing.
Hearings on Motions
Before the trial, the court may hear requests, known as "motions" by the defendant or the United States. Examples of these may include motions to suppress evidence, to compel discovery, or to resolve other legal questions.
If you are needed at a motion hearing, you will be notified the United States Attorney's Office.
The Pre-Trial Witness Conference
Some time before the trial date, the Assistant United States Attorney in charge of the case may contact you by letter of phone asking you to come to a pre-trial conference.
The purpose of this conference is to prepare you for trial, and to review the evidence. You are entitled to receive a witness fee for attending this conference if you are otherwise eligible for witness fees.
The Felony Trial
In many felony cases, the only contact witnesses have with the prosecutors comes at the pre-trial conference and at the trial.
Normally, when the trial date has been set, you will receive a subpoena. You may face serious penalties for failing to appear as directed on that subpoena. Check your subpoena for the exact time and place at which you should appear. If for any reason you are unable to appear as the subpoena directs, you should immediately notify the Assistant United States Attorney who is working on the case.
Felony trials usually proceed as scheduled; however, sometimes a trial may be delayed. There are a number of reasons why a trial is delayed or postponed. The defendant may plead guilty at the last minute. If this happens, the trial will be canceled. At other times, the defendant or the Assistant United States Attorney asks for, and is granted, a continuance to a future date. Sometimes the trial has to be postponed a day or more because other cases being heard by the court have taken longer than expected. The United States Attorney's Office will do everything it can to notify you of any postponement in advance of your appearance at court.
Although all of the witnesses for trial are usually asked to appear early in the day, it is not uncommon to have to wait for some period of time before being called to the courtroom to give testimony. For this reason, it is a good idea to bring some reading material or other work to occupy your waiting time.
Usually, you will first be questioned by the Assistant United States Attorney. Then the defendant's attorney has the right to question you. the Assistant United States Attorney may then ask follow-up questions. The defendant will be present in court. The judge may also ask you questions.
After you have testified in court, you should not tell other witnesses what was said during the testimony until after the case is over. Thus, you should not ask other witnesses about their testimony, and you should not volunteer information about your own.
The Felony Sentencing Hearing
If the defendant is convicted, the judge will set a date for sentencing. The sentencing hearing offers victims several important opportunities to tell the court how the crime has affected them. These opportunities are called Victim Impact Statements and allocution.
Victim Impact Statement: When the defendant is convicted, by plea or by trial, the victim may submit a "victim impact" statement. This statement is a written description of the victim's physical, psychological, emotional, and financial injuries that occurred as a direct result of the crime. Generally, the Victim Impact Statement form will be provided to the victim by the Victim-Witness Coordinator, the Assistant United States Attorney, or by the probation officer. The defendant and his/her attorney typically see the Victim Impact Statement.
Pre-Sentence Report: The probation officer will incorporate information from the Victim Impact Statement into a pre-sentence report that he/she must submit to the court before the defendant is sentenced. A pre-sentence report is a document completed by the Probation Office which details the defendant's criminal history, the defendant's background, and the impact of the crime. This pre-sentence report will become a formal part of the court record and, as such, will be seen by the defendant and his or her attorney.
Victim Allocution: If you are the victim of a violent crime or a crime of sexual abuse, the close family member of a child victim, deceased victim, or an incapacitated victim, you will have an opportunity to inform the court about the crime's impact on you. The defendant will be present when this occurs.
Only the judge has the power to impose a sentence. Judges follow federal sentencing guidelines when issuing a sentence. These guidelines exist to assure that sentences are relatively uniform and fair. Sentencing alternatives permitted under the guidelines include placing the defendant on probation, which allows the defendant to be released into the community under supervision of the court for a period of years. Alternatively, the judge may sentence the defendant to a period of incarceration and/or may impose a fine on the defendant. The judge may also formulate a sentence involving a combination of these sentencing alternatives.
Restitution is the payment of money by the defendant to the victim or to the court for damages caused by his/her actions. The court will issue an order of restitution in cases where restitution is mandatory and will consider issuing a restitution order in cases where restitution is discretionary. (See "How can I get my money back?" in Frequently Asked Questions). If you are a victim, you should cooperate fully with the United States Probation office in preparing a Victim Impact Statement regarding the impact of the crime and the need for restitution.
Any criminal offense punishable by imprisonment for a term not exceeding one year is a misdemeanor. Misdemeanors include such offenses as assaults, possession of controlled substances and some tax law violations. Petty offenses are a type of misdemeanor and include offenses against traffic laws and wildlife violations on federal land, as well as many regulations enacted by the agencies of the United States.
Initiating Misdemeanor Cases
Misdemeanor cases are not presented to a Grand Jury and can be initiated in a variety of ways. The United States Attorney may file a criminal information or a complaint with the court charging a misdemeanor.
This is usually done after an Assistant United States Attorney and a law enforcement officer review the evidence. It is the United States Attorney's task to decide whether a case will be brought and how that case will be charged.
The Assistant United States Attorney may speak to victims and witnesses, or the law enforcement officer will report the victims' and witnesses' statements to the Assistant United States Attorney.
The Misdemeanor Arraignment Hearing
Once the complaint of information is filed, a date is set for the defendant to appear before the United States Magistrate Judge for arraignment. In cases where an arrest has been made prior to the filing of a complaint or information, the arraignment occurs immediately.
The arraignment before the United States Magistrate Judge is a hearing during which the defendant is informed of his or her rights, advised of the right against self-incrimination, informed about assistance of counsel, notified of his or her right to have the case heard before a United States District Court Judge or before a United States Magistrate Judge, and notified of the dates for further proceedings in the case.
The Magistrate Judge will review facts presented by the Assistant United States Attorney and the defendant, and will set conditions of bail release. Those conditions may include the defendant promising to appear on the date set for trial, the promise of a money bond to be forfeited if the defendant fails to appear, or other conditions of release that seem fair and just to the Magistrate Judge. The purpose of bond is to ensure that the defendant will be present when the case is heard for final disposition. It is not necessary for victims or witnesses to appear at the arraignment unless they have been specifically instructed to do so by the case agent or the Assistant United States Attorney. In any event, you will be advised if the defendant is released pretrial.
The Misdemeanor Trial
A trial of a misdemeanor case follows the same pattern described in detail in The Felony Trial section.
The Misdemeanor Sentencing Hearing
In petty offense cases, the court may proceed immediately to sentencing after the verdict has been delivered. The defendant and the United States each have an opportunity to speak to the issue of sentencing. In misdemeanor cases, the court may request a pre-sentence investigation and report from the United States Probation office. If such a report is ordered, sentencing will be postponed for a period of time to allow for the preparation of the report. If the case before the court involves financial or physical injury to a crime victim, the court will consider restitution. Restitution is discussed in detail in "How can I get my money back?" in the Frequently Asked Questions section.
A Victim Impact Statement, prepared by the victim, can be used to show the court the harm suffered and how this crime affected the life of the victim. The victim should cooperate fully with the Assistant United States Attorney and the United States Probation officer to determine the impact of the crime. Victim Impact Statements are discussed fully in "How can I tell the court how this crime has affected me?" in the Frequently Asked Questions section.
We hope that this booklet answers many of your questions as to how the federal criminal justice system operates and your rights as a victim or your role as a witness. Victims and witnesses have important responsibilities in the criminal justice system, and full cooperation is essential for the criminal justice system to operate effectively. Your contribution of time and energy is appreciated by everyone in the United States Attorney's office.
If you have any other questions or problems related to the case, please contact the Victim-Witness Coordinator or the Assistant United States Attorney assigned to the case.