Testify Or Not: Is It Required for Victims?

Victim Testimony in Court: What the Law Says

When it comes to criminal proceedings, one of the common requirements is that victim(s) are called to testify in court. However, this does not always mean that victims are expected to take the stand every single time. The circumstances involving a particular case will largely dictate any requirements for victim testimony. It is important to note that victims can refuse to testify even if prosecuting an individual for a crime . Under the 1974 Supreme Court case, Compulsory Process Clause v. Bull Ruling, it was established that there must be a proper balancing of the rights of an accused person and the need of a government to convict alleged criminals. Even in cases where a crime is clear, compelling a witness who does not wish to testify is a violation of their constitutional rights as a victim.

Rights and Legal Protections for Victims Testifying in Court

To further protect victims of these crimes and their families, the law provides certain rights. Victims are entitled to "present information to the court at a hearing on the issue of bail and shall be notified of and invited to provide information at hearings to consider the release of the defendant into the community." 18 Pa.C.S. § 11.108. Also, under Title 18, Chapter 91, the Victims Bill of Rights, victims and their families are entitled to be notified of, present information to and participate in "sentencing, parole and probation" hearings. Victims have the right to attend hearings and proceedings, including pre-sentence investigations. 18 Pa.C.S. § 11.201. Finally, victims and their families have the right to be provided information regarding "the availability of medical, counseling and other social services." 18 Pa.C.S. § 11.203.
The law also allows a victim to furnish a victim impact statement to the court before sentencing, allowing the victim to provide the judge with information regarding the impact that the crime has had and will have. 18 Pa.C.S. § 11.201. A victim may also be allowed to address the court directly at sentencing. 18 Pa.C.S. § 11.502. Also, victims may seek protection from the court, such as an order limiting public attendance and protecting the victim by prohibiting disclosure of the victim’s address and telephone number. Child victims or witnesses must be protected by not permitting them to testify in the presence of the accused and by allowing them to testify by testimony taken outside the courtroom or via closed circuit television. 23 Pa.C.S. § 5985 and 18 Pa.C.S. § 5985.1.
Depending on the circumstances of each case, victims of violent crimes, such as rape, may not be required to testify at a preliminary hearing.

Exceptions to When A Victim Does Not Have to Testify

There are a few circumstances under which it may not be necessary for a victim to testify – even if the victim wants to testify – in order for the state to proceed with the prosecution. While not strictly a "circumstance" under which a victim may be excused from testifying, plea bargains are one scenario that could preclude a victim from testifying. Certain plea bargains – such as the Alford plea – allow a defendant to plead guilty – and be convicted of – a crime without admitting guilt. Since the defendant pleads guilty but does not admit to the facts of the case, the prosecution no longer needs the victim to testify because they already have enough evidence to convict on the plea alone. The prosecution may also dispense with the need for the victim to testify in cases in which the defendant pleads guilty. In fact, absent the defendant’s plea of guilty or nolo contendere (no contest), the prosecution will not be able to proceed to trial. If the victim does not want to testify – or has valid and legitimate reasons why testifying may not be in their best interest – the only way for the prosecution to secure a conviction may be through a plea bargain. A prosecutor may make this bargain if they feel that the evidence they have is sufficient to secure a conviction – even without victim testimony – or that testifying would unduly strain the relationship between the defendant and the victim. The more cooperative you are, the more easily the prosecutor will be able to make that bargain. In some jurisdictions, a crime victim may be excused from testifying as a witness at trial if the offense is misdemeanor-level simple assault, and the victim and the defendant are living together in an intimate relationship after the alleged offense and there is a concern that testifying could re-open the wounds of the past and disrupt that relationship. It is in this case that the prosecutor is likely to make a plea bargain if they feel that otherwise they cannot secure a conviction.

How Victim Testimony Impacts Court Cases

The most common way testimonies are introduced into a court case is through a witness taking the stand. A witness will tell what they know and what they observed to be the facts at a certain time and place. A victim of a crime can be one of these witnesses – they can give first-hand testimony of what happened to them, how they were impacted, and how it changed their life.
Victim testimony can significantly impact the outcome of a case. The firsthand account of a crime provides the prosecution with a tool to show what the defendant did, their mental state at the time, and how the crime affected the victim. The prosecution’s ability to convey this information through witness testimony is imperative to prosecute a person accused of being a criminal effectively . This testimony can be used to create a timeline of events and show how the accused’s actions resulted in the crime. Their testimony can also demonstrate the value of items stolen, the amount of damages caused, or the seriousness of an injury against the victim.
The defense may question how the accuracy of what the victim remembers, just because they saw something happen with their own eyes doesn’t mean their memory of the event can’t be flawed in some way. They may call into question statements made by the victim and how reliable they are. Cross-examination will come into play during a trial to ensure the history told by the victim was accurate.

Testifying in Court is Not Always Necessary

While the law may not require a victim to testify in all instances, the government and its agents may be required to file motions asking courts to allow in some form of testimony in lieu of live courtroom appearances. These alternative forms of witness testimony – video presentations, written affidavits, and witness statements – are governed by a body of law that includes both rules of evidence and constitutional principles and may be available to victims and crime witnesses in federal criminal cases.
Other forms of testimony may also be appropriate in limited circumstances. With respect to pre-trial hearings or other proceedings where the defendant’s due process rights are not implicated, the trial judge may permit testimony by video, written affidavit, or witness statement. Affidavits and witness statements are accepted as the equivalent of live testimony subject to conflicting testimony, cross-examination, and impeachment. Courts have also allowed video presentations to be admitted in lieu of witness testimony either because the witness is dead or for logistical reasons associated with physical distance. And providing testimony in the form of testimony preserved by videotape deposition has long been permitted in federal criminal trials.
The point is that, whenever possible and consistent with the defendant’s right to confront witnesses, courts will go out of their way to admit the statement of a victim or other witness. Such testimony may be presented in pre-trial proceedings, out of jurisdictions, on video, and by affidavit.

Legal Help for Victims Who Might Have To Testify

As with any other area of the law, victims should not enter the criminal justice system unaware of the steps involved. Many criminal cases do not get to trial and therefore victims may never have to take the witness stand. However, victims may be called to testify at any time from when the police are first called to the incident, through sentencing, even in cases handled through plea deals. It is important that victims understand the process involved in testifying should the need arise.
Often when a case goes to trial, this occurs a year or more after the crime was committed. Victims find themselves being asked to testify about what happened, about personal background information and more without any recent memories to rely upon. Some victims will have notes they wrote to themselves or to others after the incident to help them remember. For instance , after the incident or events stopped, you may have written an e-mail to a family member or friend describing what happened or how you felt. These can be helpful in refreshing your recollection during court because the statements were made at a time close to the event.
It is very important for victims to have legal representation throughout the process. Victim advocates can provide victims with help understanding the process, but if you meet with a victim advocate and the case does not go forward or charges are never pressed, that advocate cannot go to court and represent you. Your rights as a victim are very important and it is critical for victims to understand their rights and to have someone looking out for their best interests. If a victim wants to make sure their rights are properly protected they should have a lawyer represent them in the process.