CASE PRESENTATION (in the Courtroom)

Tips for working with child victims with developmental disabilities

A. PREPARING THE PROSECUTOR—RECOGNIZING YOUR OWN BIASES

This may seem to be self-evident, but you need to take a moment to address your own preconceptions, and ideas about your case and victim. You will need to ask yourself if you are prepared to work with someone who communicates or moves differently. Ask yourself what your own reactions to this disability may be.

  • Are you unsettled or nervous about speaking with a person with mental retardation or who is hearing impaired?
  • Are you concerned about your own reactions being telegraphed to the jury in court?
  • What can you do to prepare yourself to model for the jury and the court the proper manner of interacting with your victim?
    • Begin your preparation by taking time to learn about the disability and about your victim or witness.
    • Learn how to interact with them by finding out beforehand their individual needs and preferences. For example, if your victim relies on a wheelchair, is it appropriate to assist them with that chair as they navigate the courtroom? Will they be able to sit for 1-2 hours without taking a break? How will they motion to you that they are uncomfortable? What about the court process are they most worried about?

 

This preparation can go a great distance in putting your client at ease. Moreover, knowing this information in advance will help you to anticipate needs and interpret your client’s communication so you can advocate on his/her behalf during court proceedings. Avoiding surprises and being prepared for some deviations in courtroom process will help the jury and the court to also be at ease. In addition, being aware, yet considerate, of your victim’s needs related to his/her disability) can assist the jury to appreciate the seriousness of your case.

 

B. PREPARING AND PRESENTING THE EVIDENCE

In cases of interpersonal violence, there is too often a tendency by prosecutors to rely solely on testimony of the victim. They downplay the importance of corroborative evidence and overvalue the importance of witness testimony. When the witness is someone with a developmental disability, the individual may be incorrectly perceived as lacking credibility.

 

In cases with victims with disabilities, it is important not to underestimate the importance of the physical evidence in the case. This includes being prepared to rely on the evidence of your victim and not merely the testimony of the victim. For instance, where a defense to rape is consent, merely showing the jury a non-communicative victim can be enough evidence to counter the defense and lead to a conviction.

 

In the artificial world of the criminal trial, detached from reality by rules of evidence and procedure, the prosecutor needs to be comfortable presenting the victim as evidence. Towards this end, be prepared to present the following:

► Testimonial evidence from experts on the victim’s disability and functional abilities

► Testimonial evidence from those who know the victim best, including friends, family members, educators, social service professionals, etc., on the victim’s level of adaptation, and the victim’s struggle to overcome obstacles.

► Photographic, documentary, or testimonial evidence of the readily apparent nature of the victim’s disability (keep in mind, under Penal Code section 368, the prosecution is required to show as an element of the offense that the defendant knew or reasonably should have known of the victim’s status as a dependent adult).

The prosecutor should also be prepared for any eventuality:

► Anticipate calling the victim to the stand, and be prepared for delays, obstacles, and difficulties since the courtroom setting may often be overwhelming to persons with disabilities. Attempt to limit distractions, such as courtroom movement and noise, so as to keep the witness focused on the questions being asked.

► Anticipate the possibility of the court denying your victim the ability to testify as lacking in capacity to testify (see Part II, above). Be prepared to call your victim as evidence for the jury to observe and understand how the victim acts and reacts to questions and the environment of the courtroom (regardless of what his/her IQ might be).

► Anticipate that your witness will be subjected to leading questions by defense counsel.

Individuals with developmental disabilities will often answer questions in the affirmative to please the questioner, and so as not to appear that they do not understand what is being asked. It is therefore incumbent upon the prosecutor to be prepared to engage in redirect examination, asking open ended questions so that the witness can explain the previous “yes” answer given on cross.

 

C. PREPARING THE VICTIM/WITNESS

Not to be overlooked is preparing your victim for court. Individuals with developmental disabilities run the spectrum from individuals who are barely verbal to those who are quite engaging and expressive, and from those who need constant attention and care to those who are fairly independent. By now it seems axiomatic that prosecutors need to take time to meet with the victim and introduce them to the court process. It is imperative, however, that you do not forget to walk the victim through the process, including:

► Getting to your office, the courtroom, and the location where they be waiting to be called for testimony. Be prepared to make accommodations for transportation, since many individuals with developmental disabilities are unable to travel independently.

► Going through the steps for finding parking (often an issue for those requiring special transportation).

► Reviewing the actual questions you will be asking them, and reviewing potential evidentiary items they will be asked to identify while on the witness stand. Be careful, however, not to over-prepare the witness, so that the answers appear rote or rehearsed during the actual courtroom testimony.

► Showing the witness the layout of the courtroom, including where the jury will be located, and how they can make themselves heard or observed by the jury. Also show the witness where the judge, counsel, and defendant will be seated and explain what each person does in the court process.

► Discussing and answering concerns they may have about their own safety, and about having to confront their abuser. Reassure your victim that they will be protected at all times.

► Finding out what special accommodations your witness will need (microphone, assistance, support person, interpreter, power outlet, etc.) A witness who is at ease with the surroundings will be better able to focus on the questions and answers involved in testifying, and provide better testimony. Your meetings with the victim or witness will also give you insight into what motions you will need to address with the court pretrial.

 

D. PREPARING THE COURT

A well prepared prosecutor gives advanced notice to the court and defense counsel that the victim may need special accommodations. Motions addressing the simple need for wheelchair access, a hearing device, or assisted testimony are quick to draft. They also serve two important purposes.

  • First, they assure that the victim or witness will be provided with the accommodation.
  • Second, and more importantly, these motions put the entire court staff on notice that this case will be both serious and challenging. There may be delays for getting the victim into the courtroom and in a position to testify; testimony may tax the ear of the court reporter if the witness speaks very, very quietly or unintelligibility; or unexpected events may occur on the stand due to a witness’ spastic muscle activity.

 

The simple act of giving notice allows all of the parties involved to be prepared. When dealing with victims and witnesses with developmental disabilities, often the court and defense counsel are under the misperception that having an intellectual disability renders one incompetent to testify. This is far from true.  In the case of a dependent person with a substantial cognitive impairment, the individual may merely be required to tell the truth. Individuals with developmental disabilities are often able to meet these standards. It is incumbent upon the prosecutor to educate the court as to the appropriate evidentiary standards to be applied.

 

E. PREPARING THE JURY

Along with the pre-trial motions discussed in Part II (e.g., motions for victim support persons or videotaped testimony), a thorough prosecutor prepares a set of jury selection questions tailored specifically to expose and weed out those potential jurors with biases or prejudices towards individuals with disabilities.

► Be direct and ask jury panelists about how they use such terms as handicapped, disabled, those with disabilities, crippled deaf, hearing impaired, or retarded, and what they think of the terms and the people to whom they are applied.

► Ask about juror’s individual experiences with those with disabilities – relatives, family members, co-workers, friends, neighbors, and even strangers.

► Ask panelists if they can be patient in listening to testimony that comes from a voice box, translator, or assisted speech device.

 ► Discuss the actual victim’s and witness’s disabilities, and how it may slow the pace of trial, requiring extra attention being paid to understand the testimony. Ask the potential jurors whether they would be able to judge that testimony fairly as they would any other witness.

Just as prosecutors in gang violence cases prepare juries to hear testimony from less that perfect witnesses, prosecutors working cases with victims with disabilities must make sure the jury understands that the victim or witness may also have special considerations. While these considerations may appear to be detrimental to the case, prosecutors need to show the jury that these are actual strengths to the case.

 

F. PREPARING FOR OPENING AND CLOSING ARGUMENT

In cases with people with disabilities, address the issue of the disability early and upfront. Make the jury more comfortable with the status of your victim.

  • In your opening statement, humanize your victim by explaining what the victim’s condition entails. Emphasize the victim’s vulnerability, and focus on the defendant’s predatory behavior.
  • In closing argument, describe in powerful, emotional, and resonating language how the victim has survived what we view as challenges in their lives, only to be further victimized by the defendant. Take the perceived liability of the disability and turn it into a strength for your case. Be positive in your approach. Remember, there are never bad facts in a case – only challenging ones!


Schubert, A.M., Svare, T.D., Laurino, R.D., & Wheeler, B. (2007). Effective prosecution of cases involving victims with developmental disabilities: A protocol for investigators and prosecutors. California: University of Southern California. Retrieved from:  http://www.markwynn.com/wp-content/uploads/Effective-Prosecution-of-Cases-Involving-IWDDS.pdf