3.4-A. Guilty Verdict/Guilty Plea
- Move to revoke bail and set a date for sentencing with sufficient time to conduct the pre-sentence investigation and any necessary sex-offender evaluation.
- Spend time with the victim to explain the plea or verdict, answer questions, and express appreciation for victim’s participation. Close collaboration with victim witness personnel or victim advocates are key to providing support where a victim experiences a myriad of emotional responses to moving into this phase of the response.
- Explain the range of potential sentences and provide a realistic idea of where in that range the court is likely to sentence. The victim should not have unrealistic expectations of a lengthy prison term if the court is likely to order probation or the minimum prison term in light of the absence of prior convictions. Assure the victim that there will be an opportunity at sentencing to tell the court about the impact of the crime on the victim, as well as any preferred outcome.
- The prosecutor or advocate can assist with preparing a victim-impact statement, including requests for restitution.
- Prepare the victim to be interviewed in regards to the pre-sentence investigation if they consent.
- Review and re-evaluate victim protection considerations.
- Explain what the victim must do to ensure notification of any appeals, change in custodial status, or probation/parole proceedings.
3.4-A-1. File a Detailed Pre-Sentence Memorandum
- Review statutory provisions regarding sentencing.
- Highlight any aspects of the case supporting statutory aggravating factors. Explain why mitigating factors do not apply.
- Cite any applicable caselaw pertaining to sentencing.
- Note any mandatory penalties and the applicability of any special sentencing provisions pertaining to sex offenses (e.g., mandatory evaluation or treatment; registration requirements).
- Allow the victim an opportunity to speak or have their statement to the court read at sentencing. Advise the court whether the victim wishes to speak at sentencing or to submit a statement in writing.321
- Prepare the victim for the defendant’s allocution. What the defendant will say cannot be predicted. Some are tearful and apologetic; some are angry and continue to insist on their innocence. Assure the victim that whatever the defendant says will not undo the verdict. Explain that courts often do not look kindly on defendants who refuse to accept the jury’s verdict. The victim can simply consider the source — this is the same person who committed sexual violence against the victim.
- In the event a probationary sentence is a possibility, propose any appropriate conditions that will support victim safety and offender accountability.
3.4-A-2. Argue for an Appropriate Sentence
Review the pre-sentence report for inaccuracies or omissions, bringing any errors to the court’s attention. At sentencing, do not repeat every detail of your sentencing memorandum, but summarize the factors the court should consider, emphasizing the most important. Request that the court impose the specific sentence you have recommended. If the victim is present and wishes to speak, ask for the court’s permission to do so. Be sure that the court does not inadvertently fail to ask the defendant whether they wish to speak before sentencing; failure to permit the defendant to speak can result in a remand for a new sentencing proceeding.
3.4-B-1. Communicate Verdict to the Victim:
With a not-guilty verdict, or a guilty verdict on a lesser charge, explain that such a verdict does not necessarily mean that the jury disbelieved the victim; it simply means the jury had a reasonable doubt, based on all of the evidence in the case, about some element of the crime as defined in the statutes. This is a message that should be communicated throughout the course of the case. Allow the victim to express any anger, frustration, or disappointment they might be feeling. Answer any questions about what can be done to assure the victim’s continued safety.
The verdict should not affect any civil orders of protection and even if one was not in place previously, the victim may now be able to obtain one. If the victim has a civil attorney, coordinate with that attorney to follow up with any necessary proceedings.
Express your appreciation for the victim’s courage in participating in the process all the way through to the end. Explain that if the defendant has other open cases, depending on the specific rules of the jurisdiction where the trial is pending, the victim in this case may still be a potential “other crimes” witness in the other cases. Also remind the victim that the trial itself may help to deter the defendant from future offending and that the evidence uncovered in this case may help to identify other victims the defendant may have previously assaulted.
3.4-C. Post-Trial Debrief
Large and medium-sized offices should encourage selected case debriefs throughout the year. Prosecutors should debrief with colleagues on significant aspects of the case — from the first point of engagement with the victim through the final disposition — to identify and discuss any evidence missed, and any interaction, interview, investigation practice, or litigation method that was problematic. Prosecutors should consider both adverse and successful aspects of the proceedings and prosecutorial decision-making to learn from mistakes, identify emerging issues, and share successful strategies. Receive any criticism respectfully and with an open mind, rather than responding defensively; there is no need to apologize for decisions or actions you are convinced were the right ones, but mistakes should be acknowledged. In smaller offices, it may be necessary to seek prosecutors in your larger network with whom to debrief as a way of improving your practice. Debriefing with national technical assistance providers, like AEquitas, is also helpful to sharing information and lessons learned with the larger field.322