By Brandy Robinson
First Assistant District Attorney in Austin County
Every case is different. Every witness is unique. Still, certain emotions commonly weave throughout criminal cases, especially those where someone has been physically or sexually abused.
Perhaps one of the strongest emotional reactions that survivors feel is guilt. When an abuse survivor blames herself for the abuse, the idea of testifying naturally becomes more difficult. Many survivors see testifying as confessing their darkest secrets to a room full of strangers rather than an empowering opportunity to take control. Although prosecutors lack the power to eliminate a victim’s shame and anxiety on the road to recovery, the following sayings may help us to at least ease their path along the way and help them navigate the difficult journey through trial.
1) “My job is to ask the right questions. The only job you have is to tell the truth.” They say it takes hearing something at least three times to retain it. If any phrase is worth repeating thrice, it would be this one.
Witnesses typically enter the criminal justice system uncertain about their role. They may worry that they will have to volunteer lengthy opinions about right or wrong or speak at length about what the offender’s fate should be. We can help reduce that stress by conveying, early and often, that truthfully answering questions is a witness’s only responsibility. The outcome of the case is not.
Prosecutors should also stress that our job is to ask the questions that give the witness the best chance to describe what happened, not to make the witness decide the offender’s fate. When describing how direct and cross examinations work, we can remind the witness that no matter who is asking the questions, the witness’s job never changes. If a witness is worried that the defense may create a false impression, we can assure her that we will have a chance to ask more questions afterward to clear up any misunderstandings. I sometimes tell a witness not to worry if I decide not to go back into a topic after cross-examination—it may be that I believe the witness did so well in covering those areas that there is no need to repeat them.
When we repeatedly discuss the truth in witness preparation, we are not just setting behavioral expectations; we are also offering the comfort that there are no wrong answers about what happened, as long as they are true answers. This encourages the witness to give the prosecutor more—and more accurate—information without the witness worrying about how it may affect the case. If we are truly seeing justice done, one of the most important things we can do is to affirm that the witness has done the right thing by telling the truth—warts and all.
2) “You are one piece of a puzzle. If a jury finds someone ‘not guilty,’ it doesn’t mean they didn’t believe you. It just means that they didn’t think they had enough pieces of the puzzle.” In voir dire examples, some prosecutors use puzzle pieces to explain reasonable doubt to jurors. The concept of putting a puzzle together to prove a case can also be helpful to explain a witness’s role at trial. We can tell witnesses that we prosecutors look at all the pieces and then use witnesses to put that puzzle together for the jurors. We hope at the trial’s end that the jury can see the big picture of what happened, but sometimes that can be hard for a jury to see. The puzzle example may help to create manageable expectations for survivors by readying the witness for the possibility of an acquittal without giving her a feeling of impending doom.
Many survivors suffer from anxiety that the entire case rests on their shoulders. They greatly fear that if a jury acquits the defendant, it means the jury did not believe them. With this type of survivor, the idea that each witness is only one piece of the puzzle can help lessen that concern and soften the blow of a potential loss.
Some survivors suffer from the opposite concern—they worry that law enforcement has not taken their case seriously enough. For these folks, care should be taken in using the puzzle approach, because we want to avoid minimizing their experiences. However, the puzzle example might still be useful to explain why plea bargains are offered. Sometimes, through no one’s fault, prosecutor may have only two or three pieces of a puzzle in a case. The fewer pieces we have, the more difficult it is to show the jury what happened, which makes it harder to win at trial, even when we believe a witness.
The puzzle approach can also help a witness disassociate from some of the self-blame that he or she might feel about testifying in the first place. Survivors, especially children, often internalize a lot of guilt and feel responsible for any negative impacts that followed their outcry. Discussing witnesses as pieces of a greater puzzle all working together to tell the truth may help a vulnerable witness to feel supported.
3) “There is no wrong way to feel about what happened.” Many witnesses have a set notion of what they are supposed to feel about a traumatic event. This notion may come from popular media, family or peer pressure, or the witness’s own conflicting thoughts about what has happened and her role in it.
I once spoke with an elderly woman who was sexually assaulted by a stranger at gunpoint. At times during the long assault, the defendant seemed remorseful, spoke politely to her, or acted “considerate” by allowing her to rest. This only intensified her later shame.
Abusers who use threats, coercion, or emotional manipulation rather than brute force often cause their victims to experience powerful feelings of guilt or complicity. This problem is particularly pronounced with children who may still feel some affection for an abuser who has groomed them. Unfortunately, when a witness feels some emotion that she believes is inappropriate, testifying may amplify that internal conflict. It can make a witness feel like a fraud for not feeling what everyone, including possibly the witness herself, thinks she should feel.
Let the witness know that there is no one “right” way to feel about what happened and that her feelings may change over time. Also, remind the witness that if she is feeling something, there is a good chance other people who have been in similar situations have felt the exact same thing. Telling a witness that there is no right or wrong way to feel can free the witness to be more honest with you, which is one of our primary goals.
As prosecutors, our job is not to counsel witnesses on how to deal with their feelings long-term. But we do need to make testifying as painless as possible. Part of that job is often accomplished by saying something as simple as, “I talk to a lot of people who have been through similar things, and it is normal to feel many different things. There is no wrong way to feel about this.”
4) “You are not alone.” Many survivors of abuse feel like outsiders hiding a secret past that no one could ever understand. Although public knowledge of abuse has grown over the years, many survivors still have little to no idea how common it is. It can be tremendously helpful for those people to hear that their feelings and experiences are more common than they think. If a victim is feeling isolated, it can help to explain that many of the people that she sees every day, including her peers, may have experienced similar events and never talked about it.
Prosecutors can tell crime victims that because of the nature of our jobs, we talk to many people who have been through similar experiences, and often those people wait months, years, or even a lifetime to talk about what happened to them. We can also explain that some of those people who were scared to talk eventually realized that telling someone else could be a positive thing. Then we can remind them about counselors, mental health advocates, or other resources that are available to process the emotional aftermath that speaking about abuse can bring.
5) “You did the right thing.” Whether it is long-term abuse or a one-time incident, those who have been abused often spend days or even years second-guessing their decisions during traumatic events. Much like some survivors need to hear that there is “no wrong way to feel,” sometimes they need to hear that there was “no wrong way to act.”
The elderly rape survivor I previously described told me that one of her greatest shames was that she did not physically fight her attacker. Instead, she prayed aloud throughout her assault. I told her that her faith may have saved her life. When her abuser was caught, he confessed that hearing the woman’s prayers had deeply affected him and may have kept him from harming her even worse.
We all have unpredictable instincts that kick in during times of great stress and danger. Sometimes a person needs to hear that our instincts are there to protect us, and any instinct that saved your life was the right one. That thought can also provide the comfort that some people need to encourage them to be completely honest about the facts of the case. Giving survivors the confidence to know that prosecutors will not judge them for their actions during abuse, no matter what those actions were, can help to open that door to an honest discussion of events.
No matter what events have occurred, remind the survivor that when it comes to the court process, being honest is always the right thing to do.
Conclusion
Each crime victim is different, and the approaches listed here may not work well or be appropriate for every person. But they can be useful tools when dealing with sensitive subjects. The only job a witness has is to tell the truth, but that can be so much easier said than done. We owe it to these survivors to prepare a safe environment for their journey through trial that encourages them to tell their stories truthfully.