Lawyers Manual - Unified Court System

394 Stephanie Nilva and Kristine Herman
As a complaining witness in a criminal case, the victim does not have a role
in the criminal justice process other than as a witness to a crime. Once the arrest
is made, the District Attorney’s Office will ask the victim to come in for an
interview/intake about the criminal case, and she will likely be asked to sign a
corroborating affidavit at that time. Some counties allow a victim up to 90 days
to decide whether or not to sign a corroborating affidavit, while other counties
require a victim’s participation within the first 24 hours after an arrest or they
will “decline to prosecute.” If the victim cannot be reached or does not come in
to the DAs Office, the ADA may “decline to prosecute.” Some jurisdictions use
a domestic incident report (DIR) to convert the case to an “information” — a
formal misdemeanor charge brought without a grand jury. 13
If the victim decides not to participate in the prosecution, ADAs may decline
to prosecute or the case may remain in court for up to 90 days. Additionally,
depending on the other forms of available evidence (e.g., 911 calls, medical
records, photographs of injuries, or eye witness testimony), the case may proceed
without the participation of the victim. However, ADAs are often reluctant to
prosecute a case without more evidence than a witness’ statement.
Once a victim has decided to participate in the prosecution, her presence is
not necessary at any court dates with the exception of hearing and trial dates,
but she will be expected to return to the District Attorney’s Office to be
prepared for a trial. Since victim advocates or ADAs do not always inform
victims of the status of a given case after each court appearance, your staying in
touch with the ADAs may be important to her safety. Otherwise she may not
know whether she has a current order of protection or if her abuser has been
released from jail.
Usually an order of protection will be granted to your client. The order of
protection is typically valid for the duration of the criminal matter. If there is a
conviction, an order of protection may be issued at that time for six months for
a non-family Adjournment in Contemplation of Dismissal (ACD), up to three
years for a misdemeanor and five years for a felony. If the criminal case is
dismissed or the defendant is acquitted, the client will no longer have a valid
order of protection unless she received one from Family Court.
The District Attorney’s Offices determine the course of the case and
whether or not to take the case to trial or offer a plea. As a witness in the
criminal matter, the victim can make her goals for the case known to the
District Attorney’s Office. However, even when she has expressed wishes, the
prosecutors handling the case may not always communicate the victim’s views
to the court. Most ADAs determine the levels of protection and orders to seek