By Christy Harris
Assistant Criminal District Attorney in Dallas County
Early one morning, a man drove his elderly mother to an appointment. As their small SUV entered an intersection on a green light, a pickup truck hurtled down the service road, blew through a red light, and slammed into the small SUV, instantly killing the man and his mother. The pickup driver was charged with manslaughter, and within days multiple family members of the two deceased victims began contacting our office looking for information. I quickly realized that the next of kin from multiple sides of the family would be very involved, and many of them would need early and frequent individual contact.
The role of contacting victims
Just thinking about picking up the phone to call next of kin (or a complainant or witness) can be exhausting because you don’t know what you’re getting into. Will they answer the phone? What questions will they ask? Will you be able to communicate effectively? Will they be on board—or too on board? The many unknowns when we enter these conversations can intimidate even experienced prosecutors who have made hundreds of such calls. The truth is, sometimes these interactions go smoothly and sometimes they are difficult, but forming these relationships early is one of the best things prosecutors can do to aid the families and the overall prosecution of a case.
As misdemeanor attorneys, we learn the basic importance of witness contacts, using them to gather information about the facts of the case, restitution, and more. Once promoted into felony, we make similar contacts on more serious cases, but the advice generally remains the same: Find out what actually happened during the offense. This approach, while valid, undervalues the potential relationship we can establish with next of kin, complainants, and witnesses. Contact with witnesses provides an early opportunity to build trust and rapport as well as manage their expectations. If prosecutors build that foundation early and maintain it throughout, it pays dividends when it comes time to resolve the case.
In Dallas, we are fortunate to have many wonderful victim assistants and victim advocates on staff. Assistants connect families with a variety of resources, from crime victims’ compensation to crime scene cleanup, and advocates make early contact on violent offenses and are trained in counseling. These valuable team members frequently speak with next of kin or complainants before a prosecutor does, which makes it tempting to rely on the information they gather rather than reaching out ourselves. This is a mistake. Remember: A victim assistant or advocate serves a different purpose from that of a prosecutor or investigator! Victim assistants and victim advocates reach out to come up with safety plans, suggest options for grief counseling, and the like; they are not calling to find out if a witness can prove up the indictment, nor should they. Their role is to support the victims and families through the criminal justice process. It’s the prosecutor’s job to determine whether we can prove the case—we are the ones who need to make the hard calls, both literally and figuratively.
A mental plan of action
With any witness contact my motto is, “It’s not the what, it’s the how.” In other words, the means we use to communicate matters just as much as the content we deliver. The foundation of any effective witness contact is getting comfortable calling people. If you sound uncomfortable on the phone, you won’t sound trustworthy.
In college, I spent summers making calls for my dad’s office. I was uncomfortable calling people I didn’t know, with names I sometimes couldn’t pronounce, not knowing if they’d answer, be nice to me, or even speak the same language. As uncomfortable as that was, the experience turned out to be invaluable to me as a prosecutor. The more calls I made, the more I adjusted to making conversation with strangers. Over time I realized people on the other end of the call could be just as uncomfortable answering the call as I was initiating it, leading me to better understand potential reactions I might encounter in the witness contacts I make as a prosecutor.
Having gained that baseline comfort level, my next priority is to prepare myself. I familiarize myself with the facts, check court settings, and run criminal history for the defendant and complainant. I think about the person I’m calling and his or her relationship to the case. I think about how I will introduce myself and the reason for my call. I consider the person’s possible reactions to my call and how to handle any expectations s/he may have, especially if he or she has already interacted with a different prosecutor. I prepare to explain the offense, range of punishment, and any offers made, and to set appropriate boundaries and expectations.
Once I have a mental plan of action, I dial. During that initial conversation, I ascertain the best contact moving forward. Ideally, I’ll establish a single contact for regular communication. However, that’s not always possible, as in the aforementioned manslaughter case where I kept in touch with two relatives. It was double the work, but doing so made everyone feel heard, providing for a smooth disposition of the case.
Show compassion and understanding throughout the communications. Remember, you won’t know their circumstances when you call—maybe this person is at work, just waking up, sick, out of a job, or dealing with a multitude of stressors affecting his response to you. Keep this first call relatively brief. Use it primarily to introduce yourself and set up a face-to-face meeting. While a phone call is a great and necessary starting point, face-to-face contact provides natural human cues such as eye contact, facial expressions, and demeanor that help establish a foundation of trust and authenticity in the relationship.
Meeting in person
When scheduling the face-to-face meeting, include an investigator, victim advocate, and possibly your trial partner. For prosecutors who haven’t been practicing long, you would be well-advised to have an experienced senior prosecutor in the meeting. It is up to you to set the tone for the meeting and to bring it back in line if necessary. Be frank but kind. You cannot guarantee an outcome for the case, but you can promise to be honest and forthright. I frequently acknowledge to families that I am deliberately blunt because I believe total honesty is best. Explain the charge, range of punishment, and court process, including a rough timeline. Ask them for patience throughout a potentially long process.
Tell them from the beginning that you care about their opinions and their input matters, but they will not be making the final decisions. This case is not Civilian v. Civilian—it’s State of Texas v. Defendant. Justice requires evaluation of the case without personal ties. We as prosecutors have education, experience, and ethical considerations to guide our decisions and determine a just resolution.
Be a good listener. Don’t be in a hurry. When you talk about the offense, be careful to not presume anything based on an offense report or witness statement in the file. Ask follow-up questions without feeding them information. Have them provide a few photos of their loved one (in cases with deceased victims) so you can select the best one for trial. Be up front about any expected challenges at trial such as witness issues, self-defense, a youthful offender, or even an unlikeable complainant. Being forthright early and throughout the case will serve you well later in the process.
Before I end the meeting, I make sure they know how to reach me, encouraging them to check in monthly by phone, text, or email. Doing so empowers them to know they have the freedom to reach out to me, and it creates a process for regular communication.
Emotions run high in these conversations, so prosecutors must keep their composure. Breathe and be calm. If you find yourself unable to give a calm and rational response, find a way to quickly step away or end the meeting, and follow up later after you’ve had a chance to calm down. Remember it’s OK to say, “I don’t know,” “I’ll get back to you,” or even “I won’t be able to share that information to protect the integrity of the prosecution of the case.” These statements increase the prosecutor’s credibility because they illustrate your forthrightness.
Another important point: Caring about the case and the victims doesn’t mean carrying it for them. This took me years to figure out. I once had a case where a young couple was robbed at gunpoint while walking their dog. They felt enormous fear and anger about what happened and wanted everyone working the case to be as upset as them. As a young felony prosecutor, this couple’s burden became my burden. I listened to the families and let their emotions fill me up like a vessel, to the point that I carried their concerns as if they were my own. It affected my sleep, my work, and my life, which is neither sustainable nor necessary. I had to learn that I could effectively prosecute a case without also physically and emotionally carrying others’ burdens. Now, I can listen without making their burden my own, and by doing so I let families feel heard and give them an outlet for their pain while building a foundation of trust between us. I developed this visual: Instead of a vessel filled to the brim, I became a rubber dart board—I feel the pain, but I don’t let it sting or cling.
Following up
As the case progresses, prosecutors should have periodic brief conversations with the family to keep them reasonably informed about case settings and meaningful progress. Reach out if custody status changes or a plea offer is made or altered. If they contact you, return their call the same day whenever possible. These brief conversations continue the rapport you built in the beginning and maintain a successful relationship.
Notify the family when a trial date is set. Explain where final plea negotiations ended and whether they should brace themselves for trial to be reset once or several times. Remind them that trial doesn’t guarantee conviction. Normalize their feelings as much as possible and equip them with solutions to handle unexpected emotions during trial, such as turning to a victim advocate for assistance. Prepare them for the jury to hear negative facts about their loved one, such as criminal history, actions during the offense, social media posts, photos, or gang involvement. Explain how much (if any) they will be permitted in the courtroom. There may be portions of trial they cannot—or should not—watch. Be as firm as needed.
I tried a case in which a woman jumped onto a car that was then driven onto a highway, where she was flung into the roadway and killed. The crime scene photos were horrific. However, the family kept insisting they needed to see video and photos to truly understand what happened to their loved one. I was clear from our first conversation that they would never see the video or photos. No good would come from them seeing the victim that way. They begged, so I brought one of our office’s victim advocates into the conversation to help me effectively communicate how being in the courtroom would only cause them further emotional trauma and would not bring them the closure they so desperately wanted. They finally understood and agreed to remain out of the courtroom during the most graphic parts of the trial.
Communication during trial
During trial, the victim advocate, investigator, and co-counsel are our best allies. Utilize them—there is a trial team for a reason!
When the family arrives, greet them and make them comfortable. Be compassionate and confident (but not cocky). They need to trust the prosecutors. With the victim advocate’s help, remind them about unpredictable emotional reactions and how to handle them. Keep your own emotions in check—remember, the family is looking to you to set the tone. Breathe and appear calm, no matter how fast your pulse might be racing.
Sometimes, we don’t get the desired outcome from the judge or jury. Lay the groundwork from the beginning that trials are unpredictable and outcomes are not guaranteed. In the event of a guilty verdict on a lesser included or even a not guilty verdict, rely upon that foundation to guide them through an upsetting result. Acknowledge their disappointment and do your best to diffuse the situation if it becomes emotional.
Other times, we might decide on a plea offer that upsets the family. When delivering the news, be kind, forthright, and firm. Acknowledge their feelings. Show sympathy and compassion. Remember that our job is to see justice done, not merely seek convictions. The family might never be OK with the outcome, but we make evaluations based on the law and evidence and must follow through and do the right thing for the case. It is understandable for families to get emotional, and it will be up to the prosecutors to remain calm and rational. Delivering bad news is one of the least fun parts of our job, but when the time comes, the groundwork we laid early in the case and the way we deliver the news can make all the difference. It is essential to set expectations from the beginning. Bring along a victim advocate when delivering potentially upsetting news. Victim advocates respond to victims’ needs and concerns differently, thus providing a well-rounded approach to a difficult conversation.
Case outcome
Regarding my manslaughter case, I maintained regular communication with both sides of the family as it progressed. Although their opinions about desired case resolution started far apart, these conversations brought their desires more in line with each other, helped them have trust in the system, and enabled us to move toward a solid resolution: a plea agreement.
We arranged for various members of the family to give victim impact statements at the plea hearing. While we waited for court to start, my investigator took them to our secure witness waiting room to meet with victim services, which provided support on an emotional day and connected the family with parole board information to empower them moving forward. By utilizing a team approach, we helped this family feel seen and heard through a tragedy and close one chapter in their long grieving process.
Conclusion
As prosecutors, we must learn how to listen, understand, acknowledge, and care. Our work unfolds in ways that are neither predictable nor guaranteed, but preparing ourselves to communicate compassionately and professionally with witnesses, complainants, and next of kin provides us with the most promising pathway in our quest for justice.