Download Forensic Victimology 2nd Edition

Forensic Victimology
2nd Edition
Chapter Eighteen: Forensic
Victimology on Trial
Forensic Victimology on
Trial
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Victimology is a regular feature of civil and criminal
trials.
In cases involving victim death, evidence about the
victim may be presented by fact witnesses such as
family members and investigators; or by expert
witnesses.
In cases that involve a living victim, the victim may
testify to these things in person along with
corroborating details from fact witnesses or medical
and mental health professionals.
The Victim at Trial
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The vast majority of cases brought against criminal
defendants never go to trial.
There are a number of circumstances that can
cause this result – sometimes the prosecutor finds
there is a lack of evidence to proceed; sometimes
the judge finds there is a lack of evidence to
proceed; sometimes the accused pleads guilty and
a trial is unnecessary; and sometimes the accused
makes a deal, pleading guilty to lesser charges for a
reduced sentence.
The Victim at Trial
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As a case moves forward and new information is
revealed, the decision to prosecute, drop, or plea
the case may be revisited.
Victimology can play a key role in deciding whether
the case goes to trial.
The victims’ role at trial is typically one of
performance for the judge and jury.
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They perform the role of victim to gain sympathy, or that
or pure fact witness to make a particular record of
events.
Evidentiary & Admissibility
Issues
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It is the role of the judge to act as a filter for the
information that both prosecution and defense hope
to use in support of their versions of events. This is
done by determining what is relevant to the specific
issues at hand and what is not.
Theoretically, any victim information that is deemed
relevant and does not also fall within any of the
exclusionary rules present is admissible at trial.
Evidentiary & Admissibility
Issues
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Exclusionary rules are used in a court of law to
ensure that evidence deemed relevant and
admissible is not confusing, misleading, or
otherwise a distraction from the task at hand.
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An exclusionary rule relating to forensic victimology is
the rule pertaining to privilege.
Relevance refers to whether or not the victim
information serves to prove or disprove a fact in
question.
Evidentiary & Admissibility
Issues
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Judges have a large amount of discretion in
determining whether or not certain information and
evidence will be relevant to the jury.
In order to ensure a fair trial, it is the duty of the
judge to exclude any evidence that he or she sees
fit based on a balance between its probative value
and any foreseeable prejudice.
Shield Laws
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Rape shield laws are designed to protect victims
from humiliation and harassment in the courtroom
by limiting the introduction of evidence pertaining to
a victim’s sexual history.
These laws also encourage the victim to report the
assault and assist in bringing the offender to justice
by testifying in court.
Shield Laws
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However, problems exist with these laws:
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These laws have further endorsed the notion that
rape victims should be unequivocally believed and
supported – regardless of any evidence against the
accused.
Failure to project an uncritical pro-victim attitude if
often perceived as politically incorrect or
unnecessarily cold.
These laws have the potential to make it easier for
prosecutors to make their case – especially when
there is an unsympathetic victim history that might be
relevant to the facts at hand.
Victim Impact Statements
(VIS)
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Victim Impact Statements (VIS) are accounts of
victims or their family members designed to inform
the judge, jury, and/or parole boards of the impact
that the crime has had on their lives.
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They can take the form of physical, financial,
psychological, and emotional harm.
They are presented in court prior to sentencing but after
a conviction has been made, or during parole hearings.
They allow victims to explicitly detail in their own words
how the convicted criminal’s actions have affected their
lives.
Victim Impact Statements
(VIS)
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Benefits of VIS include the following:
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They can give a face and voice to those who have
suffered a loss;
They can be empowering and potentially healing;
and
They may promote a positive environment for victim
cooperation and trial.
Victim Impact Statements
(VIS)
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VIS have also been used as a tool for the
prosecutor to introduce irrelevant and inflammatory
details to play on the emotions of jurors or other
triers of fact.
The U.S. Supreme Court holds that VIS are properly
admissible so long as they are not unduly
prejudicial, to the point or being fundamentally
unfair to the defendant.
Expert Testimony
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According to the Federal Rules of Evidence, the
court may permit a witness qualified as an expert to
provide an opinion regarding “scientific, technical, or
other specialized knowledge” if such testimony “will
assist the trier of fact”. Some courts will apply the
following tests to determine admissibility:
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Frye test - requires a showing that methodology be
generally accepted in the scientific community for
admissibility.
Daubert test - holds that expert testimony may be
admitted if it is both relevant and reliable.
These tests are legal guidelines for admissibility, not
scientific standards for reliability.
Expert Testimony
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The Role of Experts
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As a general rule, witnesses in court are only allowed to
speak regarding what they have perceived with their
senses, not their opinions. However, expert witnesses
are an exception to this rule.
Expert opinion evidence is admitted when a subject
comes into question during the proceedings that the
court does not have the specialized knowledge required
to make an information decision about.
The role of the expert witness is to educate the court
regarding their areas of specialized knowledge: to
provide not only the results of any examinations
performed but what they mean.
Expert Testimony
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Examiner Bias
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Victimological evidence is charged with emotional and
political content.
Investigators and forensic examiners must content with
not only their own biases when dealing with these
groups, but also the biases of others who interject
themselves into the equation.
Observer effects are a form of bias characterized by
distortions resulting from the context and mental state of
the forensic examiner, to include his or her employer,
peer relationships, and subconscious expectations and
desires.
The Role of Forensic
Victimology
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Forensic examiners may be asked to examine
victim-oriented behavioral evidence and
contextualize it before the trier of fact. This is the
forensic aspect of forensic victimology.
Forensic examiners should conduct themselves as
both scientist and educator. Victimological
information should be gathered objectively and
consistently, and then used to describe or evaluate
the victim and their circumstances so that judges
and juries are privy to information that may be
relevant to their decisions. Typically, victimological
evidence must serve a particular purpose related to
a legal issue to be admissible.
Legal Vs. Scientific
Sufficiency
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What is sufficiently reliable for legal purposes may
not be sufficiently reliable for inclusion in a
victimology.
In circumstances where victim statements cannot
be trusted, for whatever reason, the forensic
examiner has a clear professional duty to warn, or
advise, that any findings based solely on the word
of an untrustworthy victim may not rise to the level
of reliability required for the purpose of a forensic
analysis and subsequent expert testimony.
Expert Victimologists
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Victimology comes in at trial as evidence through a
number of professional and expert witnesses. The
following are examples:
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Forensic criminologists
Forensic pathologists
Medical professionals
Toxicologists
Mental health professionals
Crime scene analysts
Criminal profilers