Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

ix. The Trial
Preparation
Thorough preparation before court proceedings is crucial for survivors. The trial and pretrial proceedings
can be the most invasive and traumatizing part of a survivor’s experience in the justice system. The reason is
that this stage is more directly adversarial than any other. The defense will attempt to discredit the survivor
before and during trial by obtaining personal records and by cross-examining her or his testimony.
In some circumstances a survivor will have rights to privacy, but in almost all cases the process will
feel aggressive and confrontational. There is no way to make court proceedings easy for survivors, but
undoubtedly it is best for them not to be surprised by the harshness they may experience.
To that end, one of the advocate’s chief roles leading up to and during the trial is, as always, to make sure
the survivor understands the process and knows her or his rights at various times during the prosecution.
Before trial, the advocate should spend as much time as the victim needs describing the proceedings—
where everyone will sit, what roles they play, and the general sequence of events. Also, the victim should
understand that what the advocate says is only a generalized description, and that every proceeding has
unique events that can affect what happens.
IMPORTANT: If identifying the perpetrator is an issue in the case, never inform the
survivor that the perpetrator will be in the courtroom. That information will compromise
the survivor’s in-court identification and will cause the case to be thrown out. If the
survivor asks, you can respond by saying, “I don’t know, but if you see him you can point
him out when you’re on the stand.”
Whenever possible, the advocate should always call the judge’s office to arrange a time before the trial
when the survivor can visit the courtroom with the advocate. A courtroom visit will help the survivor
visualize the proceedings, making the advocate’s depiction clearer. If possible, the advocate can even take
the survivor to see another criminal trial.
In addition to being mentally and emotionally prepared for the experience as a whole, preparing for the
specific times the survivor will participate in proceedings is also essential. The rest of this section will
discuss those individually.
Pretrial Litigation
Throughout the time between the indictment and trial, both the prosecutor and the defense attorney will
investigate the facts of the case to try to make their arguments stronger. The defendant will usually request
information, records, or access to locations from the survivor or other witnesses and agencies. This is a
critical time in a sexual assault prosecution. It can be very traumatic, because the defense is completely
focused on obtaining as much information as possible to discredit the survivor. For the same reason, the
process has a significant impact on the outcome of the case.
Commonly, the defense will seek access to the survivor’s private records, including those from therapy
or counseling, school, work, and anything else available. To do that, the defense attorney will send the
agency in possession of the record a “subpoena,” which is a formal request sent under color of the court’s
authority. If the information the defense seeks is not a physical record, but instead the substance of a
conversation with the survivor, the defense attorney will send a subpoena to a person who spoke with the
survivor, demanding they appear in court to testify.
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