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

3.3-B-1. Satisfy the Elements

See Appendix E for the Charging Tool to ensure all the elements of the charged crime are satisfied.

3.3-C. Educate the Jury Panel and Select an Unbiased Jury

The jury selection process is the first opportunity for a prosecutor to begin educating jurors in a sexual violence case and allows prosecutors to identify and strike jurors whose biases will interfere with their ability to follow the law and render a fair verdict. Using deliberate and thoughtful language when explaining the facts of the case, providing context for victim behavior, and inquiring about jurors’ life experiences can help prosecutors dispel myths and counter the defense strategies that seek to exploit them.³¹⁰

Jury selection and juror education are critical to success in these cases. There are so many myths and misunderstandings about sexual violence, rapists, and sex assault victims that everyone has heard and some have embraced. Even with increased public awareness around sexual violence, many people still believe that most rapists are strangers and use deadly weapons and/or inflict serious physical injuries upon their victims. The truth, of course, is that most rapists are known to the victim and the weapons of choice are betrayal of trust, careful planning, and alcohol or drugs. Jurors must be educated about this not only during voir dire, but throughout that course of the trial. A good voir dire sets the stage for empaneling a jury ready to listen, with open minds, to the prosecutor’s evidence and arguments.

Successful juror education begins with voir dire, continues throughout the entire trial, and culminates with a strong closing argument. An appreciation of the facts about sexual violence is key to that success. A skillful jury selection is only the initial step in an effective prosecution strategy that will yield the best possible result in prosecuting these difficult cases.³¹¹

Practices surrounding jury selection vary among jurisdictions. In most, the prosecutor can ask questions, speaking directly to the prospective jurors. In some jurisdictions, only the judge is permitted to question members of the panel, though the parties are permitted to submit requests that the court ask certain questions. Be familiar with the number of peremptory challenges permitted to each side.

There may be sexual violence survivors on the panel. Protect their privacy and have an advocate on hand, or at least know where to refer survivors, if anyone needs to talk to one after being excused.³¹²

• Select jurors who are open-minded, free of bias, and committed to listening to evidence — those who will be fair to both sides.³¹³
• Be familiar with the judge’s practice regarding peremptory challenges and those for cause.
• Challenges for cause should be based on the record and stated respectfully, particularly if made in the presence of the panel.
• Be familiar with jurisdictional case law concerning the qualifications to serve and grounds for excusing jurors for service (g., criminal convictions, illness, personal business).
• The defendant should be present and permitted to listen to any sidebar discussions.
• Select jurors who will render a verdict based on the evidence, applying the law as instructed.
• Craft jury questionnaires or submit questions that seek to uncover bias if voir dire is limited.
• Prepare the jury for your theme and theory of the case.
• Ask questions based upon common experiences to lay the groundwork for evidence to be offered at trial, like delayed disclosure or inconsistent statements (g., “Have you ever experienced something that caused trauma, embarrassment, or shame? Did you want to tell people right away?”).
• If the defense challenges for cause a panelist you would like to retain, request the opportunity to rehabilitate.
• Know the law concerning impermissible peremptory challenges under Batson and its progeny.³¹⁴ Be prepared to defend your own challenges and oppose any improper challenges by the defense that result in the impermissible exclusion of potential jurors.
• Observe nonverbal cues or body language, noting them to support a challenge for cause or to defend exercise of a peremptory challenge.³¹⁵
• If jury position determines who will be the foreperson of the jury, make a special effort to ensure that a favorable juror exhibiting leadership qualities is selected for that position.

3.3-D. Open Your Case Advocating for Justice

Craft a compelling opening statement that addresses the reality of the crime, including the most significant facts, with a focus on what the offender did to perpetrate the crime.

• The opening should be a general roadmap, not an itinerary with details of every roadside stop. Your goal is to give the jury an overview of where they are headed, not turn-by-turn directions.
• The opening is also not the place for argument; save that for summation.
• Introduce your theme and preview the State’s theory of the case, as well as the kinds of evidence you anticipate to introduce at trial.
• Highlight evidence that merits special attention so the jury will not miss its significance during testimony.
• Place the crime and the evidence with which you intend to support it in context (by describing the setting or how the victim and the perpetrator first made contact).
• Describe evidence honestly as part of the reality of the crime, including any evidence which may be viewed as negative.
• Be cautious in predicting exactly how your victim will testify. A general statement to the effect that the victim will tell you, in their own words, what they experienced that day is enough.
• Where relevant and permissible, discuss the anticipated substance of expert testimony in connection with evidence — for example, “You will hear the testimony of Judy Advocate, who has worked with hundreds of sexual violence victims over the past fifteen
  years, to explain that victims have very individual responses to a traumatic event like sexual violence, and that it takes many of them time to process what happened to them before they are able to tell anyone.”
• Remind the jury that at the end of the trial, you will have the opportunity to review the evidence with them to think about how it all fits together. Express your confidence that, after hearing the court’s final instructions on the law, the jury will return a verdict finding the defendant guilty of the charged offense(s).

3.3-E. Use Direct Testimony, Witness Order, Introduction of Evidence, and Trial Strategy to Recreate the Reality of the Sexual Assault for the Jury

Develop a strategy for witness order, based on facts and circumstances of the case, allowing for the needs of the victim and other witnesses. Calling the victim early in the case may reduce the anxiety of waiting to testify.

It may be useful to first call one or two other witness to provide brief testimony setting the scene — perhaps the first responding officer, a witness who was with the victim during the events leading up to the incident of sexual violence, or one to whom the victim made an excited utterance immediately after sexual violence.

Where you anticipate the victim may exhibit behaviors linked to their trauma – such as a flat affect or giggling during testimony – you may want to consider putting on your victim behavior expert first so that the jury will view the victim’s testimony through a trauma-informed lens.

Direct examination of the victim is the lifeblood of the case. Carefully prepare the victim to testify, and corroborate their testimony with evidence from secondary witnesses. Remember to elicit sensory details about the sexual violence, as well as the victim’s emotional and physiological responses. This evidence helps forge a powerful connection with the jury, who can relate to the victim’s reactions based upon their own knowledge of human experience.

A useful approach to the examination is to first cover the basic chronology of events, then make a second pass going into significant details, and finally return to summarize the most important points.

Avoid asking questions that sound accusatory — “Why didn’t you scream?” “Why did you wait till the next day to tell anyone what happened?” “Why didn’t you leave when he became aggressive?” Instead, ask the victim to describe the situation, and what they were thinking about, or concerned about, when certain things happened. “How loud was the music at the party?” “What was going through your mind when you got up the next day?” “How did you feel when he grabbed you by the arm and pulled you toward him?” Ask questions that mirror your trauma-informed interview with the victim; e.g., “Are you able to tell the jury what happened after he got you alone in the back room?”

Remember, there are no “bad facts” in these cases. The truth is the truth, and there is great power in the truth. The fact that the victim was drinking, or was using drugs, is part of the reality of the case. It enables you to emphasize the offender’s choice of victim — that he selected someone who was significantly impaired — suggesting planning and premeditation on his part.

Pay attention during the victim’s testimony for especially powerful phrases about what the victim experienced, or what the offender did, that effectively cut through all the defense arguments about motive to lie. Use those quotes in your summation.

Be mindful of the psychological and emotional toll that testifying in court will have on the victim. Be sure that a support person is available and request a break if the victim is becoming overwhelmed or exhausted. It is also important to coordinate with the judge and court staff to identify and address any attempts to intimidate the victim inside the courtroom.

Be careful to request limiting or curative instructions, where appropriate (e.g., in connection with “other bad acts” evidence or the inadvertent eliciting of improper evidence), even if the defendant fails to do so. Reversals and retrials are very difficult for victims and witnesses, particularly in sexual violence cases. Allowing significant defense errors to go uncorrected can result in reversal — perhaps years later — on a petition for post-conviction relief based on ineffective assistance of counsel. That serves neither justice nor the victim.

3.3-F. Plan Cross-Examination Strategy

If the victim has been properly prepared for cross-examination, this portion of the victim’s testimony should not present any surprises. If any questions are objectionable, make the objections promptly. If it appears that the questions are approaching areas that have been the subject of a pretrial ruling precluding such evidence, request a sidebar to remind the court, and counsel, of the order. If the victim is becoming distressed or upset by the questioning, determine whether the questions or tone are objectionable, or whether the victim is simply reacting to proper attempts to challenge credibility. In the latter case, a short break might give the victim an opportunity to regroup.

After cross is completed, consider whether it left any erroneous impressions requiring clarification on re-direct. If not, excuse the victim. Remember, any re-direct allows further cross-examination to the extent of areas covered on re-direct. There is no point in having the victim recount the same testimony and be subjected to another round of cross.

Regarding defense witnesses, formulate a cross-examination strategy that supports the theory and theme of your case. Listen carefully to the testimony of defense witnesses, particularly the defendant. Focus on internal inconsistencies or implausible testimony, as well as inconsistencies with prior statements.

Defense witnesses can be impeached by showing they have deficient personal knowledge, impaired memory,³¹⁶ a lack of opportunity to observe, or bias in favor of the defendant. Listen carefully to nuances in the testimony suggesting any hesitation or discomfort and follow those up with further questions. Determine what the goal of witness testimony is, as it relates to the defense, and focus your cross on undermining that goal.³¹⁷

3.3-G. Where Appropriate, Introduce Expert Testimony to Enable the Jury to Decide the Case Fairly

Strategize about the optimal time for the expert(s) to testify, considering the most effective point in the case and the expert’s schedule. To the extent possible, avoid calling successive expert witnesses; you do not want to overwhelm the jury with too much expert testimony at once. Refuse any defense offers to stipulate to qualifications; you want the jury to hear the details about the expert’s qualifications and extensive expertise.

Take the time to allow the expert to explain the theory underlying the testimony, and the process involved in testing lab samples. Use of charts or exhibits, such as anatomical models or diagrams of a DNA molecule, can be useful to help the jury more clearly understand what the expert is telling them. If asking for an opinion on a hypothetical question, be sure the elements of the hypothetical are supported by evidence admitted at trial.

There are several areas of expert testimony that must be avoided and are considered a danger zone because they can result in mistrials or overturned convictions. These include prohibitions against:

• Opinions as to the veracity of victim or witness statements.
• Opinions about defendant’s guilt or innocence.
• “Profile” testimony — whether the defendant or the victim exhibits the characteristics of a perpetrator or victim.
• Testimony about statistics (in some jurisdictions).³¹⁸
• Testimony about statistics on false reports of sexual violence (in all jurisdictions).

Determine whether it is appropriate to recommend a cautionary instruction on the expert’s testimony, informing the jury about the purpose of expert testimony, and reminding the jury that it is free to accept or reject all or any part of the expert’s testimony. Many model or pattern jury charges include such an instruction, which may be given at the time the expert testifies and again at the conclusion of the case.

Observe the demeanor of defense witnesses, particularly the defendant, and comment during summation on any evident evasiveness or hostility — unless, of course, the victim also exhibited problematic demeanor during cross. In that case, it is probably best to avoid comment on demeanor.

• Avoid any expressions of personal opinion. Use rhetorical questions to accomplish the same goal. “Does it make sense that the defendant would…?” “Why would the victim…?”
• Avoid injecting your own training and expertise into summation. Summation must be based on evidence admitted at trial and reasonable inferences that can be drawn therefrom.
• Do not compare the defendant to an animal or disparage the defense as relying on “trickery.”
• Do not ask the jurors to put themselves in the shoes of the victim; rather, ask them to imagine how this victim must have felt, as it pertains to the victim’s thoughts, acts, or behavior.
• Do not suggest that an acquittal would endanger the victim or others.

3.3-J. Final Jury Charges and Verdict Sheet

• Resolve any final issues with the proposed jury charges, including any proposed by the defense.
• Instructions to consider lesser-included offenses should be given if the evidence arguably would support a finding of not guilty on the greater offense and guilty on the lesser charge.³²⁰
• Review the proposed verdict sheet. Are any special interrogatories (g., special sentencing enhancement factors) necessary? Are all lesser-included offenses included? Are the instructions on the verdict sheet (e.g., if not guilty on this count, proceed to consider the next count) easy to follow?

Be sure the victim is advised when the testimony is drawing to a close, in the event the victim wishes to be present for closing argument. The prosecutor and advocate should carefully discuss options with the victim to help inform the victim’s decision. Some victims want to be present for argument; others might find it distressing to listen to the defense argument. Regardless of whether the victim wishes to attend summations, find out whether the victim would like to be present when the verdict is returned. Find a way to contact the victim for the verdict, and ascertain how much time travel time would be needed for the victim to come to court. Determine if the court is willing to accommodate a brief delay in return of the verdict to allow the victim to be present; otherwise, the victim may have to wait at the courthouse if they wish to be present.