3.3-A. Final Pretrial Conference: Review Charges, Jury Instructions, Any Special Considerations
The final pretrial conference is the time to address any final issues before jury selection.
- Be sure all counts and language of the charging instrument are accurate.
- Provide the court with any requested jury instructions, along with a short trial brief to explain the basis for your requests. Be sure to review any model or pattern jury instructions to be sure the language is appropriate for your case and propose any necessary changes or new instructions you would like for the court to give at the conclusion of the case.308
- Confirm with the defense and with the court any stipulations agreed to, and decide how they should be communicated to the jury.
- Review any courthouse security concerns and request that the court enter any appropriate orders to prevent or address intimidation during the trial.
- Review witness lists for both the prosecution and the defense.
- Advise the court of any concerns regarding scheduling, particularly to avoid lengthy waiting times for any experts who may have demanding schedules, and the victim.
Immediately before trial, ensure that all exhibits are present, and personally examine any items such as clothing to ensure that the condition and contents of exhibits are as they should be. The jury should not encounter anything unanticipated when the exhibits are taken back to the jury room (e.g., an overlooked baggie of drugs in the pocket of a jacket).
Assign an investigator or advocate to keep the victim informed about the daily progress of the case, being careful to observe sequestration concerns by not disclosing details about evidence or testimony.
3.3-B. Keep the Focus on the Offender and Defend Against Strategies Designed to Prejudice the Jury Against the Victim
At trial, it is important to paint the reality of the crime. Imagine yourself painting a picture or creating a movie scene to show the jury how the events unfolded. Images — photos and diagrams of the crime scene — help to make it real for the jury. Suppose a victim reports they allowed the offender to come in to use the bathroom. A diagram showing the location of the front door, the bathroom, and the furniture will help the jury to understand that when the offender walked in the opposite direction from the bathroom to assault the victim in the living room, his intention all along was not to use the bathroom but to assault the victim.
Take the victim step by step through the events leading up to the assault. For example, if the victim met the offender at a party that night, have the victim describe how they met, what they talked about, what the victim noticed about the offender — nice smile, engaging personality, funny, attentive. Ask if the victim liked the offender. Ask whether that feeling changed at some point during the evening. When did it change? At some point, the offender became frightening and powerful. A great question to ask is, “When did you realize you were in danger?”
Some jurors may be inclined to think, “Well, she was drunk, she went to his room, what did she think would happen?” It is important for all jurors to understand that what the victim thought would happen was that she was going to get to know him better and have a nice time, but not that he would commit sexual violence. No one has ever been assaulted because they got drunk. People are assaulted because there was a rapist who was looking to take advantage of someone who was drunk, unconscious, or incapable of walking, talking, or moving. Some drunk people get sick or need help; rapists will go through the motions of appearing to help these people, but are actually isolating the victim in order to assault them.
Additionally, throughout the trial, consider and uphold victims’ statutory rights, which may include (but are not limited to) the rights to fairness, dignity, and respect. These rights should be emphasized throughout trial and when filing motions in limine to mitigate defense attempts to unfairly characterize the victim.309