Navigating the Criminal Justice System
Gun violence causes death and injuries throughout the US on a daily basis. In many cases, shooting incidents are considered homicides or attempted homicides and become part of the criminal justice system. For some survivors of gun violence, this is the first time that they are exposed to the criminal justice process, which can be complex, confusing and frustrating. Below is some general information about the criminal justice process to give you a sense of what you might expect to happen. Please be advised that there are differences in how cases are handled across different jurisdictions and even among different prosecutors within the same office. Your local District Attorney’s office or county victim assistance program may also be able to provide you with guidance.
At the start, you should know that you have rights under the Victims of Crime Act. This is especially important to remember, because the criminal justice process can at times be disappointing or frustrating for survivors of gun violence. Understanding how the different pieces of the criminal justice system work might help you to best prepare for what is ahead. Seek support from friends and family, victim assistance workers or a mental health professional to help you in your journey.
The Victims of Crime Act was passed into law in 1984. This federal legislation provides victims of crime with certain rights. Every state in the US has adopted some form of crime victims’ rights. While these vary from state to state, most include the following:
- Right to be treated with dignity, respect and sensitivity
- Right to be informed
- Right to protection
- Right to apply for compensation (learn about Crime Victim Compensation here)
- Right to restitution from the offender
- Right to prompt return of personal property
- Right to a speedy trial
- Right to enforcement of Crime Victims’ Rights
The criminal justice process begins before, during or after a crime is committed and law enforcement becomes involved. Law enforcement officers respond to a crime and begin their investigation to determine what happened, who was involved, what evidence they need to collect to determine what happened, and whether to arrest a suspect or suspects. If they are able to find enough evidence to develop probable cause (the belief that a person or persons are likely to have committed the crime), the police may then arrest someone in the crime by taking the suspect into custody or issuing a citation for the suspect to appear in court at a specific time. Police investigators may also be involved in follow-up investigations as the case is prosecuted, interviewing witnesses and gathering additional evidence. In some instances, no arrests are made because police lack evidence to do so, or the perpetrator cannot be identified or found.
Charges and Formal Complaint
Depending on jurisdiction, after gathering enough evidence on a case to develop probable cause and effect an arrest, law enforcement either gives that evidence to the prosecutor’s office for review or drafts a complaint for presentment to a judge along with the suspect for arraignment. If a prosecutor is required, he or she may be with the city, county, state or federal prosecutor’s office. The prosecutor then decides whether or not there is enough evidence to pursue a case and if so, what charges will be brought against the suspect. If they continue with the case, they file a document called a “complaint” that details the charges, location and time of the crime,names of the defendant or defendants and underlying facts.
The defendant then appears before a judge in the first court appearance, which is generally called an arraignment hearing, to hear the complaint and be informed of their rights. If the judge decides there is enough evidence, they will convert the “complaint” into an “information” which denotes that a Judge has to hold or release the defendant on the charges. The defendant has a right to be represented by an attorney throughout the criminal justice process. The judge will determine if the defendant is able to pay for their attorney fees. If not, the judge appoints a public defender to the case. Defendants may also decide to represent themselves. At the arraignment, a defendant will generally enter their plea of guilty or not guilty; if the defendant pleads not guilty, the judge may schedule a preliminary hearing or set a trial date.
Posting Bail or Bond
At the initial appearance, the judge will determine if the defendant may be released on their own recognizance or on bail, or if the defendant will be held until trial. Bail is money paid to the court to allow the defendant to be released from jail until the trial. A bail bond is bail paid to the court on behalf of the defendant, usually by a bail bondsman or bond company.
It is important to remember that bail or bond is not a determination of guilt because the defendant is presumed innocent until proven guilty. Bail or bond is a way to make sure a defendant will return to court for the prosecution of the case. If the court is concerned the defendant is a flight risk and will not return for the process, the judge will order a higher bail or bond rate or will hold the defendant without the possibility of posting bail.
If the defendant does not plead guilty at the arraignment hearing, a preliminary hearing is scheduled where the judge reviews the charges and makes a further determination on whether or not they believe there is sufficient evidence to prosecute the case. If the judge decides there is enough evidence to prosecute, the case will be scheduled for trial.
A trial is where the jury will hear testimony, review evidence, and consider arguments regarding the alleged crime. The state’s case is presented by the prosecution. The defendant is not required to put on additional evidence. While many defendants may call witnesses or introduce evidence, they are not required to do so. For survivors who have never been involved in the criminal justice process, discovering that the prosecution represents the state’s interests and not those of the victim or victim’s family in a case may be confusing and frustrating. In their role, prosecutors work with law enforcement to keep the public safe by bringing criminals to justice – they do not prosecute a defendant solely to bring justice to the victim or the victim’s family. However, many prosecutors work hard to make sure they are working with the survivors of a crime and do their best to consider the survivors’ wishes in their prosecution of a case, as far as the law will allow.
At any time during the process, a prosecutor may offer a plea deal to the defense. A plea agreement, plea deal or plea bargain is any agreement between the defense and prosecution when the defendant agrees to plead guilty or nolo contendere (a plea by which a defendant in a criminal prosecution accepts conviction as though a guilty plea had been entered but does not admit guilt) in exchange for some consideration by the prosecutor. That could mean a lesser charge, or a lesser sentence.
Many prosecutors will discuss a potential plea agreement with the survivors before offering this to the defense, but not all do. Plea deals typically limit the bases upon which a defendant may appeal. A plea deal can avoid a lengthy trial process and the necessity of having a survivor testify, both of which can be beneficial to the survivor. However, some survivors may struggle with a plea bargain, particularly if the plea leads to a lesser charge or sentence than the survivor believes is just and fair. Communicating regularly with the prosecutor in your case may help to bring understanding to the decisions that are made as part of the legal case processing.
Attending Court Proceedings
As a survivor of gun violence, you may or may not want to attend the criminal court proceedings in your case. If you are not subpoenaed by the court to testify, the decision to attend is entirely up to you. If you do decide to attend, it is helpful to know how the court expects everyone in the courtroom to present themselves and behave during legal arguments, testimony and court rulings.
- Attending the trial will likely be an emotional process. Remember to take care of yourself and seek emotional support throughout.
- Dress appropriately.
- Leave buttons, poster, flags, or anything displaying the victim at home.
- Drinks and food are usually not allowed in the courtroom, although there may be exceptions.
- Follow the bailiff’s instructions throughout the process. If the bailiff instructs you to sit or stand, do so.
- Do not talk or whisper during the proceedings.
- In many courthouses, you may not bring your cellphone into the courtroom. Even if you are allowed to have it with you, you generally cannot use it — even to send text messages or emails — while the court is in session.
- Do not attempt to speak with members of the jury.
- Likewise, do not attempt to make contact with the defendant or their family members.
- When the verdict is read, the judge will ask everyone to refrain from emotional or verbal outbursts. If individuals have emotional outbursts, judges may have them removed from the courtroom.
Victim Witness Statement
At the conclusion of a trial, if the defendant is convicted of a crime, the judge will sentence the individual or individuals in the case. At the sentencing, victims of the crime are given a chance to submit, in writing, what is called a victim impact statement. In some courts, a survivor is also given the opportunity to stand before the judge, the jury and the convicted to share their story as it was submitted to tell the court how gun violence has changed their lives.
Writing a victim impact statement is not a requirement, but it is an opportunity to tell the court about how the crime has affected you and your family. When writing your victim impact statement, think of all the different ways the crime has changed your life:
Take your time and write a rough draft, being as descriptive as you possibly can and feel comfortable being. Eventually, you will need to submit a statement that will take no longer than 10 minutes to read, so you may need to revisit your rough draft multiple times before you feel it is ready. Consider asking a family member or friend to review your statement before submission. This process can be both emotionally draining and healing, so be gentle with yourself and ask for support when you need it.
If the defendant was convicted and sentenced to incarceration, the judge will determine when their sentence begins. While many defendants go immediately to prison, others are given some time before the date of their incarceration.They now have the right to appeal their conviction and their sentence. The appeals process can take years, and sometimes the decision can result in a new trial.
In many states, defendants who are serving their sentences may become eligible for probation or parole. If probation or parole is granted, the offender is given an opportunity for release back to the community under certain conditions, including supervision and monitoring. Violation of terms of probation or parole can lead to imprisonment. In many instances, the probation or parole agencies will accept a victim witness statement for consideration.
When There Is No Resolution
In some cases of gun violence, there are no arrests because the perpetrator cannot be found, is deceased, or there was not enough evidence to make an arrest. Even if an arrest does occur, a prosecutor may decide they cannot prosecute the case based on a lack of evidence. Some cases are prosecuted and the judge or jury decides not to convict. All of these scenarios may cause more pain and despair for the survivors. It’s important to take care of yourself throughout this process, reach out for emotional support from family and friends and become involved with the process as much as you feel comfortable doing. There are ways to develop a plan of self-care that might help you as work through this process.
For more information, refer to the Office for Victims of Crime.
DISCLAIMER. This information does not and cannot constitute or substitute legal advice. Everytown for Gun Safety Support Fund is an organization dedicated to educating and bringing awareness around the issue of gun violence prevention, and does not provide legal or treatment advice. This fact sheet merely provides general information and tips. More importantly, legal issues are complex; consultation with a qualified legal representative may be necessary. This page is intended as a starting point to discuss potential needs with a legal representative.