A majority of identity theft cases never make it to court. Victims whose cases do go to trial may find valuable information in the following document. Additional resources can be found at the local Prosecuting Attorney´s Office, in the Division of Victim Witness Services.
Keep in mind, as you read this information, that each case is unique. What one victim experiences may not be your experience, even within the same jurisdiction and court. This general information is not meant to take the place of legal advice from an attorney, or advice from a DA victim assistance counselor. However, it might help you understand the complexities of the judicial process.
This fact sheet covers the following topics:
• Your Rights as a Crime Victim.
• Redacting Information: Protecting Your Privacy and Information.
• Your Role as a Victim in the Courtroom.
• Explanation of Various Phases in the Judicial Process.
• What to Expect at Each Phase.
• Some Legal Definitions You Might Need to Know.
YOUR RIGHTS AS A CRIME VICTIM (from Roles, Rights and Responsibilities: A Handbook for Fraud Victims Participating in the Federal Criminal Justice System - U.S. Department of Justice, Material # NCJ172830, pg. 12). Please note: your rights may vary, determined on the laws that govern court cases in your state.
In general, you have the right to:
• Be treated fairly and with respect to your dignity and privacy.
• Be reasonably protected from the accused offender, from verbal, written, implied or physical harassment or threat.
• Be notified of court proceedings.
• Attend all public court proceedings related to the offense, unless the court determines that your testimony would be materially affected if you heard other testimony at the trial.
• Confer with the attorney for the government.
• Request and have the court hear an order of restitution.
• Prepare a victim impact statement about the crime´s emotional, physical and financial impact on you for inclusion in the pre-sentencing investigative report.
• Receive information about the conviction, sentencing, imprisonment and release of the offender.
• Receive information and referrals to programs that can help you.
REDACTING INFORMATION - PROTECTING YOUR PRIVACY AND INFORMATION
Throughout the process of clearing your name, you have filled out a number of affidavits. On these forms is some information you might not want publicly known. This could be your new driver´s license number, mother´s maiden name, former addresses or names used, new address, birth date and account numbers.
Many victims do not know that you may request that identifying information be redacted (blackened out) from documents being put into court records or given to the defense attorney during discovery. Unfortunately, we have heard of cases where the perpetrator has gotten these documents and now has even more information than he/she originally had. Talk with the detective and DA on your case about your options. These will vary from jurisdiction to jurisdiction.
YOUR ROLE AS A VICTIM IN A COURTROOM
Throughout the court process, take detailed notes. Note names of people who testify, the name of the judge, DA, court reporter and even the probation officer. Write down who said what, judicial rulings, anything the defendant says. Jot down questions about things you don´t understand or items you feel were ignored. You can ask the DA or victim assistance counselor about those later.
• Dress in business attire. Impressions do count and the judge/jury will be aware of your presence. Your attire will reflect your seriousness, credibility, and respect to the court.
• Do not interrupt the attorneys or the judge. You are a guest in the courtroom. You may be the victim, but this is not about you. It´s about the defendant. Keep any emotions of anger, frustration, or pain well under control. If you must say something of vital importance to the DA during the hearing, write it down on a slip of paper and hand it to the bailiff/marshal for delivery.
• Do not approach the attorney or the judge without an invitation.
• Talk with the DA on your case before the trial or hearing begins. Ask what to expect at that hearing and if your testimony or a victim impact statement is appropriate at that time.
• Have four (4) copies of your victim impact statement printed and ready to present to court. This is the time to mention your out-of-pocket costs for restitution. Include a separate sheet with the financial statement of detailing costs. Attach copies of the receipts to your financial statement.
• You might also say a quick hello in person to the DA when you arrive, just to let him/her know you are present. The bailiff or marshal can point the DA out to you before all hearings begin.
• If you are to testify, you usually will be told ahead of time, and receive either a subpoena or summons to appear. Someone from the DA´s office will usually go over your testimony prior to your appearance.
• Remember that any comments you are asked to make should be brief and to the point.
VARIOUS PHASES IN THE JUDICIAL PROCESS
The following are common terms in the process. However, each case is different and yours may vary from the outline below.
Arraignment: This must be done within 48 hours of an arrest. This is when the defendant comes before a judge for the first time, to answer the accusations made by the “state.”
Pretrial Readiness Conference: Usually a meeting in the judge´s chambers. This is when the prosecutor shows or discloses (disclosure) all the evidence they have collected in a case to the defense attorney so that they may adequately prepare the defense. It is also a time that the possibility of a plea bargain may be discussed. You probably will not be present during this phase.
Plea Bargain: A Plea Bargain may be made and accepted any time during the process, as long as a jury has not yet announced its verdict.
Preliminary Hearing: The first hearing of the evidence before a judge. The preliminary hearing judge determines if there is sufficient evidence to hold the defendant over for trial. The judge may ask if the defendant waives his/her right to a jury trial.
Evidentiary Hearing: A hearing to discuss the validity of evidence that will be considered during trial. Evidentiary hearings may be held at anytime during the trial.
Judge or Jury Trial: A case is tried before a ruling body, either a judge and jury, or just a judge. All defendants have the right to have a case heard before a jury of their peers. Or they can waive (give up) that right and agree to a hearing (trial) before a judge. In trials before a judge only, the judge rules both on the points of law and the innocence or guilt of the defendant.
Sentencing Hearing: The sentencing hearing is the time when a judge sets the punishment if a defendant is found guilty. Prior to this hearing, victims in the case will be contacted by the Probation Department and interviewed. It is the responsibility of the Probation Department to determine emotional, physical and financial damages to victims and to consider that information in their recommendations to the court regarding sentencing.
Review Hearing: Some judges maintain jurisdiction over a case after sentencing. This is a way to make sure that all terms of sentencing and probation are being met and that the convicted defendant is following those terms.
WHAT TO EXPECT AT EACH PHASE
The Arraignment: You probably will not be asked to speak at this hearing and may not be involved. Sometime after the arraignment, someone from the DA´s office may contact you to let you know about the date of the trial.
Depending on your city or county, you should expect that this DA will not be the DA who later will try the case. Frequently, victim contact is just an administrative function, and the DAs rotate this duty. If you become aware that your perpetrator has been arrested, and you have not been contacted by the DA, you should call the DA´s office and ask for the calendar coordinator. You may need to be persistent.
If you are involved in the arraignment, you will be a spectator. Typically, the defendant will go up to the front of the room along with his/her attorney. The court will read the charges and ask how they plead. Expect to hear the words, “Not guilty.” Do not react to this; this is just a legal process. The judge will quickly review the DA´s charges. Then the judge will set a preliminary trial date, a readiness hearing date and decide bail.
The Trial: Keep in mind; this is the people´s case, represented by the prosecutor, not yours. The DA may not present the information you wish. He/she may not focus on points you think are important and may even settle for a plea bargain without consulting you.
Many things figure into the way a prosecutor presents a case. The prosecutor must consider the type of penalty asked for, and how many counts (acts of criminal behavior) charged in the case. For example, sometimes your case is just one of several cases that are being charged against an alleged imposter.
The DA will focus on the crimes that have the best chance of successful prosecution, or that hold the highest resulting penalty. Those crimes may not be yours. Sometimes a DA has a wealth of criminal activities to prosecute, but going after each incidence won´t help improve his/her case. The judge might see such actions as persecution, or a waste of time. Be aware that the penalty might not change between 31 counts and 15 counts in a specific case.
Again, take notes. Keep your cool and act in a professional manner. You may not even need to say anything until the imposter is found guilty and the court moves into the sentencing phase. If you are called to testify, follow the directions given to you by the DA´s office prior to trial.
This is the time to submit your first copy of the Victim Impact Statement to the judge.
Sentencing: If the defendant is found guilty, the judge will set a date for sentencing. If, however, a plea bargain has been struck, the case will move directly to sentencing. You will be notified of the date of this phase and you should talk with the DA prior to this date. You should also talk with the Probation Officer assigned to the case.
Typically, the Probation Department will talk with you, possibly by telephone, as well as with the defendant. The probation officer will want to find out how you have been affected by this crime, how you have been harmed and your ideas about sentencing.
You have the right to submit a written Victim Impact Statement. If you want, you can also make a statement in court. The judge must read anything you submit to the court, prior to sentencing. Please do yourself a favor: Prepare a statement, keep it concise, accurate, clear, and complete. This is the best way to have your message heard clearly by the court. You may attach a financial statement detailing your costs and expected costs; include copies of any receipts that verify expenses.
Review Hearings: If the imposter is found guilty, the judge will pass sentence. That sentence may include probation with review hearings. The Probation Department will give a report to the judge regarding probation progress (or lack thereof), and law enforcement is also permitted to search the convicted felon´s residence, car, person and belongings for any probation violations. Before a Review Hearing, victims who suspect that the felon is breaking probation or the law should notify either the police detective that was on the case or the assigned probation officer. Review Hearings give victims another chance to address the court, especially if probation violations affect them.
SOME LEGAL DEFINITIONS YOU MIGHT NEED TO KNOW
Acquittal: A legal finding that the defendant has not been proven guilty beyond a shadow of a doubt.
Action: The case, cause of action, before the court.
Affidavit: A written statement of facts made under oath before a notary or court officer.
Arrest: To hold a suspected criminal with legal authority. Unlike in TV, this may not be a dramatic event but rather a person walking into the police station and turning themselves in to authorities.
Bail or Bond: A court-ordered monetary amount to be given by the defendant and held in trust by the courts to guarantee his/her future appearance in court. This is often done through a bail bondsman.
Bench warrant: An order issued by a judge for the arrest of a person.
Brief: A written summary and argument of the appropriate laws that pertain to this case, presented to the court by the attorneys in the case, biased to each point of view.
Continuance: A postponement, for good cause, of the scheduled court date.
Defense attorney: The lawyer hired by the defendant, or an attorney appointed by the court. This could also be a public defender.
Defendant: The alleged imposter (everyone is innocent until proven guilty).
Deposition: An oral statement made by a person before a court reporter, captured in writing and considered advance testimony.
Dismissal: The dropping of a case by a judge without further consideration.
District Attorney or Prosecutor: The lawyer who will prosecute the case for the city/county/state. They do not represent you, the victim, and you cannot dictate their actions or decisions. However, they will help to make sure your feelings are considered in the sentencing and do look out for your interests in general.
Docket: The list of cases on a court´s calendar.
Forgery: The act of making or altering a written document for the purpose of fraud or deceit; for example, signing another person´s name to a check.
Fraud: Intentional deception which results in injury (physical, emotional or financial) to another.
Libel: A false statement made in writing, print or picture, which injures the character or reputation of another or exposes them to public ridicule.
Mediator: A person (often an attorney or retired judge, either appointed by the court or mutually agreed upon by both parties) who listens to a case and facilitates agreements. An arbitrator has the authority to make a ruling.
Motion: A written request to the court for an order/ruling in favor of the applicant.
Overruled: In court, a judge´s rejection of the attorney´s objection to a question by the opposing side.
Own recognizance (OR): When a defendant is released without bail, after promising to appear, using his/her word as bond.
Plea: The defendant´s answer (guilty or not guilty) to the charge(s) made against him/her. The combined complaint and answer are called “pleadings.”
Probation: A period of time when the Probation Department monitors a convicted defendant. Probation requires regular meetings with an officer of the court to ensure that all terms of a sentence are met.
Released on recognizance (ROR): when a defendant is released without bail, after promising to appear, using his/her word as bond.
Remand: A court´s ruling to send a case back to a lower court for further action.
Restitution: The court-ordered payment by a defendant to victims for damages.
Search Warrant: A judge´s order that allows law enforcement to search for specifically designated items of/at the defendant´s person, property or premises.
Slander: Similar to libel, but applies to oral statements.
Stayed: As in, “jail time is stayed.” For now, that part of the sentence is not being executed; the defendant is not required to do that portion of the sentence.
Subpoena: An order directing: 1) a person to appear in court to testify, or 2) certain documents are brought to court.
Summons: An order to the defendant to appear in court to deal with a legal issue.
Sustained: In court, the judge agrees with the attorney´s objection to the opposing attorney´s question. The witness should NOT answer the question. In some situations, the attorney may try to reword the question and find another way to ask it so that the opposing attorney has no grounds to object.
Tort: A wrong or injury that does not grow out of a breach of contract and for which one is entitled damages, for example: fraud, slander or libel.
Waive: To give up or relinquish, as in “do you waive your rights?”
Copyright © 2011, Identity Theft Resource Center®. All rights reserved. Any requests to reproduce this material, other than by individual victims for their own use, should be directed to ITRC@idtheftcenter.org. This fact sheet should not be used in lieu of legal advice. This article is referenced as "Fact Sheet 109: The Court Experience" on the Identity Theft Resources Center website.