INVESTIGATION AND PRE-TRIAL PREPARATION (in the field)

 

Tips for working with child victims with developmental disabilities

The investigation and prosecution of cases involving victims with developmental disabilities present unique and interesting challenges for both investigators and prosecutors.

There are issues which are universal to the prosecution of any case, as well as issues that are held in common with other special populations (e.g., child abuse, elder abuse, immigrant populations). However, some issues that never arise in other criminal cases must be addressed both in the investigation and the prosecution process, in order to effectively present this type of case to a jury. Several modifications or enhancements that are necessary to promote an effective investigation and prosecution include the following practices.

 

A. THE POLICE INVESTIGATION-- Investigative Interviews

 

1. The Victim

A thorough understanding of the nature of the Victim’s disability is the keystone to the investigative process. The investigative team should focus on how the disability expresses itself in functional terms, including:

    (a) how the victim’s disability may make them vulnerable to victimization [e.g., impairments in judgment, ability to understand the consequences of what is being proposed, ability to get away from the dangerous situation (physically or through problem solving)]

    (b) how the disability will affect the victim’s ability to provide reliable information related to the investigation and testify in a court

    (c) what accommodations may be needed in the interview process to maximize the quality of information provided by the victim. It is suggested that a forensic interview specialist3 be enlisted to conduct this interview. Details related to interviewing the victim are addressed below.

 

2. Lay Witnesses

Numerous individuals should be interviewed when investigating a case involving a victim with developmental disabilities. Topics that should be covered include the following:

► General Topics

     □ Understanding the Victim’s typical routine; likes, dislikes, and fears; friends/relationships; how           the victim communicates best (with a support person, communication device, writing or                     computer, etc.)

     □ The who/what/when/where of disclosure of the crime

     □ Establishing the suspect’s access to the victim

     □ Establishing the suspect’s knowledge of the victim’s disability

     □ Addressing the Victim’s ability to consent (in sexual assault cases)

     □ The facts specific to the case

► Physical signs and/or symptoms observed by the witness that may corroborate the crime

► Behavioral signs or changes observed by the witness. The witnesses to be interviewed

include the following:

  √ Parents

  √ Guardians

  √ Siblings

  √ Friends

  √ Neighbors

  √ Service Coordinators, Social Workers and Counselors

  √ Service Providers

     􀀵 Personal Care Providers

     􀀵 Supported Living providers

     􀀵 Job coaches

     􀀵 Drivers/transportation personnel

  √ Educators

  √ Employers/Supervisors

  √ Anyone who had frequent contact with the Victim

  √ First Responders

  √ “Fresh Complaint” or Spontaneous Statement witnesses: those who the

Victim disclosed to first or made a spontaneous statement regarding the crime.

Critically assess any information you receive from witnesses, bearing in mind that individuals with disabilities are often victimized by persons they know and who have control over their services and supports.

 

3. The Defendant

A statement by the Defendant may prove very useful in prosecuting cases involving victims with disabilities. In some instances, the Defendant may make admissions that corroborate the Victim’s account. In other instances, the Defendant may lock him/herself into a certain defense that can later be challenged or refuted. A full investigation of the Defendant’s background should be conducted, if possible, prior to the interview of the Defendant. This includes the Defendant’s prior criminal record (whether reported or not), as well as the Defendant’s access to the Victim and the extent of his or her contact with the Victim. Additionally, alternate methods of securing a statement from the Defendant should be considered. These include:

► Use of pretext phone call

► Computer records

► Letters, notes or other writings by the Defendant

 

B. CRIME SCENE INVESTIGATION

 

In many cases involving victims with disabilities, there may be a delayed disclosure of the criminal conduct. As a result, there may not be a crime scene to be processed. However, because victims with disabilities often provide statements involving concrete facts, physical evidence supporting those facts can be very effective for the prosecution. As such, even if there is delayed disclosure, the scene of the crime should be fully documented. The processing of the scene should include the following:

► Collection of any potential forensic evidence

► Photographs

► Diagrams

 

1. Medical Examinations

In appropriate cases, a medical examination of both the Victim and Defendant should be conducted. In some instances, even if a victim is incapable of testifying, a case may be prosecuted successfully if medical and forensic evidence are obtained that proves the guilt of the Defendant. Medical examinations should include the following:

► Statement by the Victim of the circumstances of the crime

► Documentation of any injuries

► Collection of forensic evidence

 

2. Forensic Evidence Analysis

A thorough review of all available forensic evidence should be conducted. This includes items collected from the crime scene as well as from any medical examinations. This evidence (or lack thereof) may play a significant role in the prosecution of the Defendant. For instance, where it is clear a woman with a disability is incapable of consenting to sexual intercourse, the discovery of semen in her sexual assault kit will provide very damning evidence against the Defendant.

 

3. The Forensic Interview

The successful prosecution of a case involving a victim with disabilities rests on an effective interview. It is highly recommended that this interview be conducted by a forensic interview specialist who has been specifically trained in interviewing individuals with disabilities. It is suggested that the interview be conducted in an appropriate environment, i.e.,

 (1) accessible to individuals with physical and sensory disabilities,

 (2) with accommodations for individuals with a variety of disabilities, including high 

  distractibility

 (3) to ensure for privacy

Utilizing a child advocacy center may provide this environment; but be sensitive to the fact that adults with disabilities are not “children” regardless of their mental age and should be interviewed with consideration to both their chronological age and their intellectual capacity.

Many counties have advocacy centers wherein law enforcement officers work closely with social workers trained specifically in interviewing victims of crimes (but again, be aware that not all of these individuals will have experience interviewing victims with more severe disabilities). If there is no advocacy center in the county, enlisting the use of a neighboring county’s center is recommended.


C. THE PSYCHOLOGICAL INVESTIGATION

 

It is imperative in any case involving a victim with disabilities that a psychological investigation be conducted. In many crimes, the prosecution must specifically prove that the Victim has a disability. As such, the jury must be presented with evidence not only establishing the disability, but demonstrating the significance of that disability. This psychological investigation should encompass the following:

 

1. A complete and current assessment of the Victim, to include:

    □ Adaptive functioning level

    □ IQ level

    □ Mental age or educational grade level equivalent

    □ Cognitive reasoning ability (including such factors as judgment and insight)

    □ Relevant expert opinion (Victim’s ability to consent)

 

2. Production of Records Related to the Disability

    □ Regional Center records

    □ School records

    □ IEP (Individualized Educational Plan) records

    □ Records in possession of other agencies

      - Child Protective Services

      - Adult Protective Services

      - Other governmental agencies

 

3. Production of Records Regarding Prior Victimization

     □ Police reports

     □ Mandated reporter reports

 

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