VICTIMS AND DEFENSE ATTORNEYS
Victims and defense attorneys are on opposite sides and therefore are natural enemies within the adver- sary system. Whether hired privately for a fee or provided free to indigents, these lawyers have a duty to advise suspects, defendants, and convicts about legal proceedings and the options they can exercise. Defense lawyers have an obligation to zealously represent their clients’ best interests, which usually translates to getting out of trouble with the law entirely, or at least being sentenced to less than the maximum punishment.
Conflicts often break out between victims and defense lawyers over two matters: how long the process takes and the number of court appearances needed, as well as the line of questioning directed at victims who testify in court when they appear as prosecution witnesses. From a victim’s view, defense attorneys might engage in two abusive practices: asking judges for postponements of their clients’ cases to wear victims down and using unfair tactics to undermine the credibility of complainants when they appear as prosecution witnesses.
Postponing Hearings
The Sixth Amendment to the Constitution guaran- tees the accused the right to a speedy trial. Hence, problems of congested court calendars and needless delays usually have been approached from a defen- dant’s standpoint. Many states and the federal courts have set limits on the amount of time that can elapse between arrest and trial (not counting con- tinuances requested by defense attorneys). But complainants serving as government witnesses also suffer from the uncertainty that envelops unre- solved cases, and they share a common interest with defendants in having legal matters settled in as short a time as possible.
If accused people have been released on bail, however, defense lawyers may have an incentive to stall proceedings to “buy time on the streets” and to wear down witnesses for the prosecution. As delays mount and complainants appear in court unneces- sarily, they and other crucial prosecution witnesses
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may lose patience with the protracted deliberations of the legal system. Their commitment to see the case through to its conclusion may erode. Stalling succeeds when a complainant or another key wit- ness gives up in disgust and fails to appear in court as required. For example, a victim who lost her hand- bag to an unarmed bandit might miss so many days from work that the lost wages far exceed what the robber took, so she may eventually drop out. Stal- ling for time might also pay off if victims or other witnesses for the prosecution forget crucial details, move away, become ill, or die in the interim. At that point, the defense attorney can move for a dismissal of charges (Reiff, 1979). Prosecutors can also manipulate continuances for their own ends. If defendants are in jail rather than out on bail, then government attorneys may stretch out proceedings to keep them behind bars longer and as a way to pressure them to give in and accept unfavorable plea offers. In the process, the defendant’s right to a speedy trial could be violated.
Postponements can prolong and intensify the suffering of complainants. In order to be available if called to testify, they might have to arrange repeatedly for child care, miss school or work, cancel vacations, and break appointments, only to discover (often at the last minute) that the hear- ings have been rescheduled. To defeat this wear- the-victim-down strategy, some defense motions for postponements could be opposed more vigor- ously by prosecutors. Similarly, requests for a post- ponement should be rejected by judges if they suspect the defense’s call for a continuance is a stalling tactic (President’s Task Force, 1982). To prevent complainants and police officers from showing up in court on days when hearings have been postponed, victim/witness assistance pro- grams in prosecutors’ offices operate last-minute notification systems.
As a general rule, the more serious the charges against the defendant are, the longer it takes to resolve the case. Cases resolved by negotiated pleas don’t take as long as cases resolved by trials (Boland et al., 1992). Researchers determined that murder cases in state courts took an average of more than one year to be resolved, rape cases required
about 245 days, and robbery cases went on for more than 150 days from arrest to sentencing, according to a study of nearly 50,000 felonies pro- cessed in the nation’s 75 largest counties during 2009 (Reaves, 2013). However, in some high- crime areas, huge backlogs cause even greater delays, prolonging the anxiety of both complainants and defendants waiting for the final outcome of their conflicts.