Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

Preparing for Pretrial Litigation
Because the pretrial process is conducted entirely through litigation, there is little for the legal advocate
to do in court to protect the survivor’s privacy directly. However, an effective advocate can lay the
groundwork for protecting the victim’s privacy by helping the victim prepare.
For example, one problem victims might encounter is that the agencies that have private records sometimes
turn the records over to defense attorneys, mistakenly believing the attorney’s subpoena has the power of
a court order. When a victim or other entity believes the defense has requested confidential information,
the information should not be turned over to the defense until the court has made a decision.
ADVOCACY ACTION: Victims can often prevent that problem altogether by contacting the
agency or agencies that have the records in advance and instructing them not to release
any records without first speaking with the victim. That will give the victim the opportunity to
notify the prosecutor and can prevent unnecessary and potentially damaging disclosures.
The advocate should also encourage the survivor to ask the prosecutor about privacy issues and how to
protect personal information. Even though the prosecutor does not represent the victim, it will usually be
in the prosecutor’s interest to keep the victim’s personal information out of the defense’s hands.
However, keep in mind that prosecutors are sometimes less familiar with enforcing victims’ rights than
they are with prosecuting criminal offenses. Therefore, consulting with the prosecutor about privacy
issues is not always an adequate substitute for private representation by a victims’ rights expert. At the
same time, not all civil plaintiffs’ attorneys have expertise in victims’ rights either. Therefore, survivors
who want personal representation should take much care in selecting their lawyers. Whatever the
situation, as an advocate with expertise in victims’ rights, you can contribute meaningfully to an effective
prosecution by always fostering cooperative relationships with your local prosecutors.
The Survivor’s Testimony
For many survivors, testifying against the attacker in court is the single greatest source of anxiety and
re-traumatization in the whole criminal justice process. This section offers guidance on how to minimize
trauma and maximize effective testimony from the survivor.
Direct Examination
The direct examination is the time when the prosecutor questions the survivor on the witness stand.
The purpose of the direct exam is for the prosecutor to help the survivor tell her story in a way that
helps prove the criminal case. Therefore, the prosecutor will ask the survivor strategic questions,
guiding the survivor to make necessary points. The survivor’s answers are called the “testimony.”
The survivor will answer in front of the jury, the judge, the defendant, and the defendant’s lawyer.
The prosecutor will want to meet and interview the survivor before trial in order to prepare for the
testimony, and the advocate should be present at that meeting. No one can tell the survivor how
to answer; that is called “coaching the witness,” and it can result in an acquittal. However, it is very
appropriate for the prosecutor to let the survivor know what questions to expect and to let her practice
answering openly and truthfully.
In addition to preparing for the questioning, the prosecutor and/or advocate should also talk with
the survivor about objections from the defense attorney. The defense attorney will probably shout out
“objection” in the middle of the direct examination, which can be jarring and confusing for the survivor.
60