Overview of the court process
The court process does not begin until the prosecutor or district attorney (depending on your community) agrees to take the case. This may be days, weeks or months after the sexual assault depending on the investigation and whether the suspect has been found or arrested. If the prosecutor does not think the case is strong enough to go to trial, she/he could make a decision not to take the case. This does not mean they do not believe the victim. It usually means the prosecutor believes the evidence is not strong enough to get a guilty verdict in court. If the case is accepted, there will be many steps before the actual trial. The following are a few of the possible hearings along the way. Remember, the court process can be different from state-to-state. It is best to verify specific information for your community.
- The Arraignment
This first step is a brief hearing before the judge within a few days after the accused is arrested. The charges are explained to the defendant (the person accused of the crime). Usually, a plea of guilty or not guilty is made in order for the case to go on. The defendant could be kept in jail until the trial, but he will probably be released on bail. The victim does not have to be at the arraignment since she will not be called to testify at this time. However, if she wants to be there, she can be present.
- The Preliminary Hearing
This is the first time the case is presented to a judge in an open courtroom. Usually, all persons involved will be there, except for a jury. The victim will probably have to testify at the preliminary hearing. The judge must decide if there is “probable cause” (reason to believe) that the defendant committed the crime. If so, the case will go on to the grand jury. If not, the case will be dismissed. In some states, the case goes directly to the grand jury (and skips the preliminary) or goes directly to trial.
- The Grand Jury
The grand jury is a private hearing involving the jury and the prosecutor. The defendant is not there. The witnesses (including the victim) will be called one at a time into the grand jury room to testify and answer questions under oath. The grand jury must decide if there is a reason to believe that a crime occurred and the accused could have committed the crime. The grand jury has three choices to make about the case: whether it should go to trial; whether it should be dismissed (charges dropped); or whether the charges should be reduced and the case sent to a lower court.
The trial may not occur until months after the assault. Delays can happen due to many different reasons, including when the offender was arrested, when the grand jury hearing took place and whether the judge ordered a psychiatric evaluation of the accused. The trial is usually held in an open courtroom which means that the public can attend. Sometimes the judge will order the court closed to the public. Witnesses in the case (including the victim) are usually not allowed in the courtroom except when they are testifying. The defendant, his defense attorney, the prosecuting district attorney and the judge are present in the court during the entire trial. If there is a jury, they will also be there. The decision to have a jury is up to the accused.
Rape trials usually last one or two days depending on the number of witnesses and the evidence. During the trial, the victim will be asked questions by the prosecuting attorney and the defense attorney. In most states, the defense attorney is not allowed to ask questions about the victim’s past sexual experiences unless it relates directly to the case. This is referred to as a rape shield law. The victim should address any questions about the rape shield law or other issues to the prosecutor before the trial.
After all of the evidence has been presented, the judge or jury will determine the verdict. If the verdict is guilty, a sentencing hearing will likely be scheduled for later. If the verdict is not guilty, the defendant is free to go. This can be an especially difficult time for the victim, regardless of the outcome. Many communities have victim-witness advocates or rape crisis counselors available to help crime victims through the court process from start to finish. Their services are free and can be very helpful to sexual assault victims and their family members.
- The Sentencing Hearing
Before determining the sentence, the judge will hear from the defense attorney, the offender or his character witnesses. The victim could also be asked to provide a verbal or written statement (“victim impact statement”) about how the crime affected her life. After the sentencing is over (weeks, months or years later) the offender could request an appeal. If so, the victim has the right to be present. Crime victims should notify the prosecutor in writing if they want to be informed of any appeals, requests for early release, probation requests or parole review board hearings.