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the legal process?
and could take over 20 minutes to read
| Return to Victim Services Page |
Send E-mail to N.O.V.E.L. Justice Staff |
The Mississippi Department of Corrections
Being a victim of a crime can be a very difficult experience. Each person copes with the aftermath of victimization
in a unique way. Whether you or a family member has been victimized, you may feel anger, guilt, shame,
insecurity, fear, powerlessness, and depression. You do not have to go through all of these emotions alone. Many
people can help you understand this experience and can support you through the recovery.
This information has been written specifically for crime victims. The more you know about the criminal justice
system, the more comfortable you will feel as various events occur. We know this information will not solve all your
problems or answer all your questions, but we hope it will serve as a useful guide to explain how and where to find
help.
The United States has an adversarial system of justice in which we consider a person innocent until proven guilty.
We demand a fair process for all people charged with crimes, to reduce the possibility of an error that would
convict an innocent person.
Following an arrest and before trial, the court may hold several hearings. The number of hearings often depends
on the seriousness of the offense.
After a warrant is issued and a suspect is arrested or otherwise charged, the case officially enters the criminal
justice system. Ordinarily, the first appearance a defendant makes before the court after an arrest is at
arraignment. The court advises the defendant of the nature of the charges, assures legal representation for him or
her, and sets bail.
All state constitutions guarantee a defendant the right to bail if the court concludes the defendant will appear for
trial and will not endanger the victim or the public. However, most constitutions also gives victims the right to be
protected from further harm by the defendant and to speak at the bail hearing. The judge will decide whether to
impose bail and conditions of release to protect the victim and the public. If a defendant posts bail and then fails to
appear for any scheduled hearing, the cash or property may be forfeited to the state government and an arrest
warrant issued.
A Grand Jury may consider the case. The Grand Jury is made up of citizens who hear and review the prosecutor’s
evidence against the accused person in a closed hearing. This process may occur either before or after an arrest
is made. If the Grand Jury finds sufficient evidence to take a case to trial, it will issue an indictment.
Police officers, victims and witnesses appear by subpoena (court order). They give testimony that usually does not
become part of the public record, although there are exceptions. No one is permitted to observe grand jury
proceedings, although if you receive a subpoena to testify, you must go.
The judge often holds several court hearings before the actual trial. One of these may be a suppression hearing in
which the defense challenges part or all of the prosecutor’s evidence. The purpose is to ensure that all evidence
was gathered properly and within legal guidelines.
Following all the pretrial hearings, the case is ready for trial. However, a defendant may choose to enter a plea of
guilty to a charge, which means there is no trial and no presentation of evidence or witnesses. The prosecutor
reads a brief statement of facts into the court record, and a summary of any agreements about the plea. A
defendant can plead guilty or no contest.
A no contest plea means the defendant can be convicted and sentenced for the criminal charges, but the plea
cannot be used to prove the offense in a civil case.
Although most states have rules to assure that trials are held promptly, you should understand that the pretrial
process may take six to twelve months, or more, to complete.
The prosecutor and the court cannot control all of the delays in the process. Continuances are inevitable and may
cause you great stress. Keep in mind that court dates often change.
The police officer, prosecutor, defense attorney, judge, jury, and probation officer play important roles as the case
moves through the court.
Law Enforcement
When a crime occurs, usually the first person to respond is a law enforcement officer who investigates the offense.
The officer in charge may gather physical evidence, question witnesses, photograph or video the scene, and
collect as much information as possible. If police find enough evidence to show that a specific person committed
the offense, they may file criminal charges against that person or refer the case to the county or municipal
prosecutor. Police officers may or may not arrest a defendant when they file charges.
Once you report a crime to the police, you should understand that the case can go forward even without your
consent or cooperation. In cases of domestic violence and child abuse in particular, victims or parents of victims
sometimes change their minds about wanting to see the offender prosecuted.
However, these are serious offenses, and the prosecutor may take the case to trial anyway. A victim advocate can
help you sort through your feelings about this issue.
If the police question you, you should talk as honestly and openly about your relationship with the defendant as
possible. If you are a survivor of a homicide victim, you also must give open and honest answers about the victim.
Withholding background information can hinder the investigation. You may add information to your statement as
you remember things more clearly. Tell the police about any items of evidence that may be helpful to the case.
The police officers must remain objective in their investigation and look at all possibilities. Often the police cannot
give the victim much information until after they question or arrest a suspect. The police may keep certain
information about the crime private, in order to confront a suspect who knows details of the crime only the
perpetrator could know.
You may want more information from the police and the prosecutor than they can give. The investigative phase of
a crime can be very hard on victims and survivors. This is a good time to call a victim support group for assistance.
In some cases, police identify a suspect but do not have enough evidence to file criminal charges. In other cases a
suspect is not immediately identified. Police keep the case files for serious crimes open for a long time. Crimes
sometimes are solved long after they occur. The police will not stay in constant contact with you, but you may
contact them regularly.
The Medical Examiner:
Homicides must be reported to the medical examiner or coroner of the jurisdiction where the victim is pronounced
dead or where the body is found. Often it is the medical examiner who decides that the person did not die from
natural causes, and orders an autopsy to be performed.
The purpose of the autopsy is to determine the cause of death and to independently document any trauma
suffered by the victim. The medical examiner may order an autopsy without getting a signed consent by the next of
kin. The medical examiner will keep control over the body of the victim until it is released to the funeral home of
your choice.
Victims of sexual assault may be asked to submit to a medical exam at a nearby hospital. If the sex offense has
just occurred, an immediate medical exam may provide evidence crucial to conviction of the offender, and your
cooperation is tremendously important.
These exams may be traumatic both for adults and children. Most larger communities have victims’ organizations
that will send a trained advocate to the hospital with you. If no such advocate can come, you can usually bring a
close friend or family member with you to the hospital.
Victims of domestic violence, physical child abuse, assault, and drunk driving also may be asked to submit to a
medical exam. The sooner these exams take place after the offense, the more evidence can be preserved.
Although these exams generally are less traumatic than exams for sex offenses, you still may want to bring an
advocate or a friend with you for support.
The investigating agency may have to hold your personal possessions as evidence. The police agency or
prosecutor handling the case will decide what can be released to you. But you do have a right to these items as
soon as is possible.
Next, the prosecutor who is an attorney who is the legal representative of the government. The prosecutor
represents the interests of the people of a community against an individual who has been charged with a crime.
One or more prosecutors take charge of the case through all pretrial hearings, the trial, and certain appeals.
If the case goes to trial, the prosecutor must prove "beyond a reasonable doubt" that the defendant committed the
offense. Prosecutors generally do this by having witnesses testify and by presenting physical evidence.
Many cases do not go to trial because the accused pleads guilty or no contest. Sometimes the defendant agrees
to plead guilty or no contest in exchange for the prosecutor’s promise to dismiss or reduce some charges, or to
make favorable recommendations at sentencing.
This arrangement is called a plea bargain or plea agreement. In deciding whether or not to offer a plea bargain, a
prosecutor looks at the strength of the evidence, the credibility of the witnesses, and the likely sentence.
Although victims have the right to confer with the prosecutor, the ultimate decision to offer a plea bargain rests with
the prosecutor. The prosecutor considers society’s best interests, not just the individual interests of the victim or
the victim’s survivors.
The prosecutor or a victim-witness coordinator can give you case information and advice on dealing with defense
attorneys and reporters, help prepare you for trial and sentencing, and give you information on applying for crime
victim compensation.
Next, the judge has many functions in the criminal justice system. First, he or she must make impartial decisions.
- A judge cannot take sides in a criminal case and must treat both the defendant and the state fairly.
- The judge cannot have any personal contact with the victim or members of the victim’s family while the case
is pending.
- The judge cannot have exparte (one-sided) contact with any of the attorneys, witnesses, jurors or other
people involved in the case.
A judge decides what evidence can be admitted in the case, using case law, rules of evidence and rules of
procedure. Judges also must manage the timing of the case by setting deadlines and requiring the prosecution
and defense to meet these deadlines.
Victims and their families want the case resolved as soon as possible so that they can go on with their lives.
However, they must remember that many things can slow down the case.
A judge or jury may try a case and decide guilt. At a trial, the prosecution first presents evidence and testimony.
The defense then may, if it chooses, present testimony and evidence on behalf of the defendant. The defendant is
never required to testify, but may do so if he or she chooses.
After hearing all the evidence, the judge or jury deliberates and reaches a decision. A jury’s decision in a criminal
case must be unanimous. If a jury cannot reach a decision, the judge may set a new trial before a different jury.
After a felony trial the judge schedules a later time for sentencing. In misdemeanor cases, the judge may sentence
the defendant immediately.
A jury is a panel of citizens randomly selected from the community. Before seating jurors in a criminal case, the
judge or attorneys question potential jurors. The questioning helps choose fair and impartial jury members. For
example, a jury member should not have special knowledge of the offense or be related to any party in the case.
The jury decides if the prosecution has proven the defendant guilty, based on the evidence presented in court.
Jurors usually do not hear information about the character of the defendant or the victim, to assure that they decide
the case based on the current offense and not on feelings about a person’s past behavior or character.
Sometimes you may feel frustrated about what facts the judge will and will not allow the jury to hear.
If you decide to watch a trial, you need to understand that you cannot attempt to influence the jury in any way.
Some of the evidence and testimony may be very painful to hear, but reacting in any way could be considered
grounds for a mistrial. Jury members may feel sympathy for victims, and an outward display of emotion could
affect their ability to remain fair and impartial.
Also be careful about conversations in hallways, elevators, restrooms, or even restaurants near the courthouse.
Jurors could be present and overhear these comments.
Are you a witness?
As a victim, your role as a witness may be crucial in assuring prosecution. If you receive a subpoena you should
go to the designated place at the proper time. In major cases the prosecutor may talk with you before trial to hear
the facts as you know them.
Even if you do not wish to testify, the prosecutor may continue to prosecute the case. This is because crimes are
offenses against society as well as crimes against the victim. The prosecutor may subpoena you as a witness.
If you testify, try to remember the following tips for effective testimony:
- Always tell the truth. Do not guess at answers or offer your opinion unless the judge asks you to do so. If you
don’t know the answer to a question, simply say that you do not know.
- Think before you speak. Make sure you understand the question.
- Answer only the question asked and then stop. Don’t memorize your answers.
- Speak up loudly enough for everyone in the courtroom to hear you. Answer questions out loud so that the
tape recorder picks them up instead of nodding your head.
- Try to stay calm. Do not become angry or argue, even if one of the attorneys is hostile or implies something
that you think is untrue.
- Stop talking if an attorney objects or if the judge interrupts. Begin again when the judge tells you to continue.
If you have forgotten the question, ask for it again.
If you are asked whether you have discussed the case with anyone, answer truthfully. It is perfectly permissible to
have talked with the police, prosecutor, defense investigator or attorney, family and friends.
Role of the Probation Officer.
If the defendant is convicted of a felony, either by trial or by guilty plea, the case is assigned to a probation officer.
The probation officer is an employee of the Department of Corrections. In most felony cases, the judge sets the
sentencing date several months after the conviction so the probation officer can prepare a pre-sentence report.
A pre-sentence report or investigation is a study of the offender that includes prior criminal history, education,
jobs, drug/alcohol involvement, and mental health treatment. The report also states the facts of the case briefly,
and describes the effect of the crime on the victims.
The victim impact statement is an important part of the pre-sentence report. This statement lets you tell the judge
about the physical, mental, emotional and fiscal injury you have suffered.
You may ask for restitution and for conditions of probation to help protect you and your family. You may give an
oral statement to the pre-sentence investigator, or send a written statement to the judge, the prosecutor, and the
defense attorney. You have the right to speak at sentencing in addition to making these other statements.
After sentencing, a probation officer is responsible for supervising the felony offender during any term of
probation. The probation officer monitors the offender to make sure that the offender follows the orders of the
court. The probation officer assists the offender in finding work, training, housing, and treatment.
Sentencing is usually the last action of the trial court. After conviction of an offender, the judge imposes some
sanction or punishment within the limits set by the legislature. A judge will have some leeway, but the criminal code
sets out the minimum and maximum length of sentence.
The sentencing hearing usually is fairly short. Evidence may or may not be presented during the hearing. The
defense attorney will make a statement on behalf of the offender, noting factors that the judge could use to lower
the penalty. The prosecutor will give the government’s position, which may include reasons why the judge should
lengthen the sentence. The offender may speak on his or her own behalf, and the victim may speak as well.
Sentences Can Have Several Parts:
Jail time, suspended time, probation conditions, and fines.
Jail sentences may range from no time in jail to more than 99 years.
At the time of sentencing, offenders receive credit for any jail time served prior to trial and sentencing.
The judge may suspend part or all of a jail sentence and place the offender on probation. The offender stays on
probation for a specific time, with restrictions on activities.
Probation conditions may require an offender to keep a job or stay in school, support a family, or get counseling or
substance abuse treatment.
Probation conditions also may require the offender to stay away from you or to pay you restitution.
If the offender does not meet these conditions, the judge may put the offender in jail, or impose other restrictions.
Restitution
If you have suffered out-of-pocket expenses as the result of property damages, lost wages or medical expenses,
the judge may order the offender to pay restitution to you. It is important to specify losses when requesting
restitution and to keep receipts for your expenses. The judge may hold a hearing to prove the amount of restitution.
Restitution payments can be collected while an inmate is in prison. Offenders often make payments weekly or
monthly and the payments are forwarded to the victim. In some cases, a victim can get a civil judgment to enforce
the order of restitution.
Restitution in criminal cases covers only your actual expenses. To recover for pain and suffering or loss of
companionship, you must file a separate civil lawsuit against the defendant.
The Appeal Process
Offenders convicted at trial may appeal their cases. This means the entire case, from investigation through
sentencing, can be reviewed by a higher (appellate) court. The defense submits a written brief noting the areas
where errors may have occurred. Common reasons for appeal include an invalid arrest, improperly admitted
evidence, and incorrect jury instructions.
Some offenders also may appeal the length of their sentences. The prosecution submits a brief responding to the
offender’s arguments. These briefs, along with a transcript or tape of the trial, go to the appellate court for review.
The attorneys also may present oral argument before the court.
The appellate court may either affirm the conviction or overturn the trial court decision. If the court overturns the
conviction, the prosecutor sometimes retries the case.
A convicted offender also may ask the trial court judge to modify the sentence or overturn the conviction.
The offender may argue that the defense attorney was ineffective, new evidence has been discovered, or the
judge misunderstood the law. Sometimes new evidence and testimony is given to support a motion for this type of
post-conviction relief.
The appellate and post-conviction process may take quite some time and may add to your frustration with delay.
You have the right to be notified about these proceedings and to attend them if you have registered with the
prosecutor’s office for notification. However, most appeals are won by the prosecution.
Many victims feel better if they allow the burden of the appeal to rest with the prosecutor, and spend the waiting
period working on their own recovery process. If you have questions about appellate procedure, ask the
prosecutor’s office or the local victim assistance program for more information.
Offenders convicted at trial may appeal their cases. This means the entire case, from investigation through
sentencing, can be reviewed by a higher (appellate) court. The defense submits a written brief noting the areas
where errors may have occurred. Common reasons for appeal include an invalid arrest, improperly admitted
evidence, and incorrect jury instructions.
Some offenders also may appeal the length of their sentences. The prosecution submits a brief responding to the
offender’s arguments. These briefs, along with a transcript or tape of the trial, go to the appellate court for review.
The attorneys also may present oral argument before the court.
The appellate court may either affirm the conviction or overturn the trial court decision. If the court overturns the
conviction, the prosecutor sometimes retries the case.
A convicted offender also may ask the trial court judge to modify the sentence or overturn the conviction.
The offender may argue that the defense attorney was ineffective, new evidence has been discovered, or the
judge misunderstood the law. Sometimes new evidence and testimony is given to support a motion for this type of
post-conviction relief.
The appellate and post-conviction process may take quite some time and may add to your frustration with delay.
You have the right to be notified about these proceedings and to attend them if you have registered with the
prosecutor’s office for notification. However, most appeals are won by the prosecution.
Many victims feel better if they allow the burden of the appeal to rest with the prosecutor, and spend the waiting
period working on their own recovery process. If you have questions about appellate procedure, ask the
prosecutor’s office or the local victim assistance program for more information.
It may appear to you that the court system favors the accused. However, victims and survivors do have rights. Most
states have passed laws that address the rights of victims. Most often these rights also apply to the parents and
guardians of child victims and the survivors of victims who have died.
This information has provided by our friends at the
Mississippi Department of Corrections
