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LEGAL TOPICS
Rights of Victim Witnesses in Criminal Cases
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Protecting the rights of victims is part of the job of victim witness advocates and prosecutors employed by the New Jersey State Office of Victim Witness Advocacy. Even so, it is important for victims to know their rights during the criminal justice process. Sometimes, it is even necessary for victims to seek representation by a civil attorney. This article includes information about the rights of all victim witnesses, but is provided by our new project that assists victims of trafficking. If you are a victim of sex or labor human trafficking and have questions about your rights or need legal assistance, contact LSNJ PROTECT at 1-844-576-5776.

What is the role of a victim witness advocate and prosecutor in the criminal justice system?

A victim witness advocate works within the prosecutor’s office and is responsible for providing information, support, and advocacy to victims. Victim witness advocates work alongside prosecutors who are responsible for representing the state of New Jersey in criminal matters. Victim witness advocates help victims navigate the criminal justice system and advocate for the rights of victims.

What can a victim expect from the criminal justice process?

Your rights as a victim are protected in the New Jersey Constitution and are listed in the NJ Victims’ Bill of Rights. A victim has a right to be treated with dignity and compassion and to be informed about what is going on at each stage of the criminal justice process.

These are the specific rights a victim has during the criminal process

Pre-arrest criminal investigation

Before making an arrest, the police must have probable cause that a person committed a crime. They must have enough evidence that a reasonable person would believe the suspect committed the crime.

A victim can give a statement to the police but is not required to do so. A statement can be informal, such as telling the police what happened at the scene or it can be a formal statement written or videotaped at police headquarters. A victim has the right to have an attorney present when making a statement.

The arrest

The accused may be arrested at the crime scene and brought to jail, or released on a summons. If the accused is not present at the time the crime is reported, the police will have to find the accused to arrest him or her.

A victim has a right to be informed of this arrest.

Post-arrest, first-appearance court hearing

If the accused is arrested, he or she will go to court within 48 hours. The prosecutor may decide to release the accused until the trial, or make a motion to detain the accused in jail until the trial. If the prosecutor moves to detain the accused, a court hearing where the judge will decide what happens will be held within 72 hours of the first court hearing. A prosecutor can also place a condition on the release of the accused that there is to be no contact with the victim.

A victim has a right to be informed about the release of the accused.

Detention hearing

In a detention hearing, the prosecutor tries to convince the judge that the accused must stay in jail until his trial either because he will pose a risk to the public, not show up at court, or obstruct justice. The judge will hear the arguments of the prosecutor and the defense attorney and decide if the accused will be released.

A victim can testify at this hearing. A victim has a right to be present at every public hearing.

Post-arrest criminal investigation

A prosecutor is an attorney who represents the state and pursues justice for the victim and the state. After the arrest, the police will give all of the information they have gathered to the prosecutor’s office and the prosecutor will decide whether to continue. If they do, the accused must then be indicted by a grand jury in order for the case to go to court.

Victims have a right to provide more information to the police and also to communicate with the prosecutor and/ or a victim witness advocate. The prosecutor can decide at this time that there is not enough evidence to continue to charge the accused and that the case should be dismissed. Or, the prosecutor can decide to send the case to the lower court, which is known as downgrading the charge. For a felony level charge, the next step would be to present the charges to a grand jury who will decide if the case will go to court.
Felony level charges range from first degree, the most serious, to fourth degree, the least serious.

Grand jury

The grand jury is a group of 23 people chosen by a judge and prosecutor to hear evidence from the prosecutor and decide if there is enough evidence to send the case to court. If the grand jury decides there is enough evidence to find probable cause, they will return an indictment, formally charging the accused.

The victim can testify before the grand jury.

Post-indictment arraignment

The post-indictment arraignment (or legal process of going before the judge) must occur within two weeks of the indictment. It is the first public hearing in court. The judge will ask the accused through his or her attorney if he or she will be entering a plea of not guilty.

Victims have a right to be informed of all public proceedings and to be present at all such proceedings. However, a victim can be denied presence at a trial because there is a risk that the victim’s testimony could be influenced by other testimony. If the accused enters a plea of not guilty, the case will proceed to the next event. Victims have a right to be informed about any plea offer made by the prosecutor and to communicate with the prosecutor about the offer.

Initial case disposition

The case will be heard in court and the accused will have the right to file motions and have them heard and also to plead guilty.

Final case disposition conference

The final disposition conference is intended to be the last opportunity for the accused to plead guilty before the case goes to trial. The court can decide to schedule additional court dates if it believes that doing so will be useful in resolving the case.

Pre-trial conference

The pre-trial conference is intended to be the last event before trial, although the court can decide to give the accused more time. A trial date will be set at this event.

The prosecutor will usually issue a subpoena to the victim, which is a legal document ordering the victim to appear at trial. Because a subpoena is a court order, a victim could be jailed for failing to appear at trial.

Trial

Trial is the only time when a victim’s right to attend can be limited. The court usually issues a “sequestration order.” This order requires all witnesses to appear only for their individual testimony and not to observe other testimony that could improperly influence their own testimony.

During a jury trial, the prosecutor  and defense attorney will select a jury of 12 people to decide the case. Once a jury is selected, the prosecutor and defense attorney will make an opening statement to the jury. After the opening statement, the state will present evidence including a victim’s testimony.

The defense attorney has  the  right  to question the victim as well, a process called “cross-examination.” The defense attorney will try to point out inconsistencies in a victim’s statement. Once the state concludes its case, the defense will present its case, which can include calling other witnesses  and even the accused.

After the defense is finished with its case, the case will be sent to the jury for a decision. All 12 jurors must make the same decision or the jury will be considered a “hung jury” (meaning they were unable to make a decision). The jury can find the accused guilty or not guilty. If the result is a hung jury, the case will be re-tried, unless the accused pleads guilty or the prosecutor decides to dismiss or downgrade the charges.
If the accused is found not guilty, the charges can never be brought again.

If the accused is found guilty, a sentencing date will be set and the victim will have the right to be present and speak.

Following trial

At the sentencing, the judge will decide what the punishment will be. The judge can decide to give the  accused jail time (for sentences of less than a year), prison time (for sentences of a year or more), or probation, during which the accused must comply with specified conditions but will not go to jail or prison unless the conditions are violated.

Anyone who suffers losses from criminal activity has the right to seek and secure restitution from those convicted of the crimes that caused their loss. Restitution is not automatically ordered. Victims must communicate with a victim witness advocate regarding the amount of restitution sought and documentation to justify the amount they are seeking with documentation. Restitution is ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.

Victims have a right to the prompt return of any property that was used  as evidence once it is no longer needed. All victims have the right to be free from intimidation, harassment or abuse by any person, including the defendant or any other person acting in support of or on behalf of the defendant. Due to the involvement of the victim or witness in the criminal justice process, the judge can make “no contact with the victim and the victim’s family” a condition of the sentence. The condition generally does not last beyond the sentencing period except in cases of child sexual assault. In these cases, a Nicole’s Order can order “lifetime no contact.”

Post-sentencing

New trial/appeal: the convicted person may protest the process or ruling provided by the trial court. If this happens, the case continues.

Notice of release from custody

Victims have a right to be informed of the scheduled release date of the defendant, and the release or escape of the defendant from custody.

Victims have a right to be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified of the parole or other release of the offender.  


LSNJ PROTECT can help

Victims of human trafficking face isolation that extends beyond the victimization period as victims attempt to pick up the pieces of their lives and rejoin society.

LSNJ PROTECT can assist victims when they face a trafficker in court. If you are a victim of human trafficking, contact LSNJ PROTECT (1-844-576-5776) to learn more.

I’ve been a victim of human trafficking.
How can I assert my rights?

  • Although a victim witness advocate protects your rights, only the court can issue orders to enforce your rights.
  • You can represent yourself, seek representation by an advocate who is not an attorney, request an attorney through LSNJ PROTECT (1-844-576-5776), or find a private attorney.
  • To enforce your rights, you or your representative should file a motion (a request for relief) before the court. The court will hold a hearing to decide if you are able to represent yourself. If you are granted the right to do so, you can file motions on your behalf. If not, an advocate who is not an attorney cannot file motions on your behalf.
  • Motions should center around the rights contained in the New Jersey Victim’s Bill of Rights, and can include:
    • Financial compensation for counseling through the Victims of Crime Compensation Office (VCCO);
    • Prosecutor communication regarding the plea offer to be extended;
    • Extended presentation at sentencing.
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7/24/2020
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