After the Webinar: Understanding and Implementing Victim Services Documentation Processes. Q&A with the Presenters

Webinar Presenters Amy Durall and Meg Garvin answered a number of your questions after their presentation, Understanding and Implementing Victim Services Documentation Processes. Here are just a few of their responses.

 

Audience Question: Under Brady, would the prosecutor need to turn over the name and address and what types of services the victim is requesting? Or is that not in the typical scope of Brady? 

Meg Garvin:  So generally, no, the prosecutor would not have to turn that information (i.e., the address) over because of other privacy protections that exist. Again, this is one that you really want to talk to your prosecutor about, and maybe even general counsel or counsel for law enforcement. So, you understand what will and won’t go to the defense. Most jurisdictions have protection over locating information so that the victim wouldn’t be subject to further harm, threats, or things like that. But it would be something to check in with the prosecutor or general counsel about, just to say what is the scope of our jurisdiction’s privacy law.

With regard to a victim’s name, generally, a victim’s name, or victim’s pseudonym if there are privacy concerns, will have already been disclosed to the defense. With regard to the types of services being provided, this should be a standard response that victims are receiving advocacy, information, and services as described on a website.

Amy Durall:  And I’ll just add to that. I’ve worked in a couple of different jurisdictions, and one was exactly the way you described where in general, victim information wasn’t subject to discovery and Brady processes. In another jurisdiction, there was a lawsuit following a wrongful conviction that changed the standards and practices around discovery obligations. That led to very specific processes around the discovery obligations for all information, including victims’ information. And so, we had to have very different conversations in that in that jurisdiction. So, it’s really important that people check in with local prosecutors, and other professionals who they’re working with, to make sure everyone has a solid understanding of discovery processes, Brady disclosure obligations, and open records release requirements.

Meg Garvin:  And one footnote here, and I think we’ll have a question about this later, too. This is an exact moment when a victims’ rights attorney is incredibly critical because if in your jurisdiction, the prosecutor is saying yes, that information should be disclosed, and you have a survivor who’s concerned about it. This is the moment where victims’ rights attorney can come in and say, I’m going to litigate this because we disagree with the state’s interpretation.

 

Audience Question: What is the value of having a victim rights attorney? So, can you kind of expand on that, Meg? 

Meg Garvin:  What I just shared in response to the last question was just an example. The idea is, that survivors need empowerment, right? We know a lot about trauma and its impacts. One of the things we know is that when someone owns their own narrative, when they own their own story they can have voice and choice in the process (which is true of an accused as well as a victim) they actually do better recovering from trauma. What we also know is that our legal systems are set up for represented persons. They are not set up for someone to do well when they are unrepresented. We’ve seen that with the accused, but we don’t think about it with a victim. A prosecutor is not the victim’s lawyer. Victims have independent rights everywhere in this country, either by constitution or statute, and in order for those rights to have true meaning, and to be voiced in the way that the individual survivor wants requires legal representation. The Office for Victims of Crime as well as the Office on Violence Against Women fund legal services for victims to protect their rights. New Jersey’s crime victim compensation allows lawyers to recover funding if they represent on rights. It’s just a really critical thing to ensure that survivors who experience less trauma, are more empowered, and their rights are meaningful.

Amy Durall: One example from a jurisdiction that I worked in where we engaged the services of victims’ rights attorneys involved sexual assault victims who were being denied the opportunity to have an advocate or support person with them during engagement or interviews that were being conducted by law enforcement. It was a right for victims in that jurisdiction, and they were being denied that right. So, after trying to work through collaboration with system partners, we engaged a victims’ rights attorney to help further those conversations and specifically represent a couple of victims who were very concerned about having someone present with them during law enforcement contact.

 

Audience Question: We’ve been told that a subpoena requiring the address of the victim overrides confidentiality, any take on that, Meg or Amy? 

Meg Garvin:  So, that’s a really complicated question, because the question of what the subpoena is, whether the court has already authorized the subpoena, if it’s a lawful subpoena, etc. all comes into play. And then the question of whether it overcomes confidentiality is only one piece of the question of whether it overcomes privacy. A lawful subpoena absolutely can overcome confidentiality in certain circumstances. It generally cannot, however, overcome privilege. So that’s a really specific question. Then again, the conservative approach is always to assume it could happen, and so to operate on that assumption when you’re working with survivors and then have a partner that you consult with about what the parameters are legally about what you can and cannot protect and also have a victims’ rights attorney on speed dial, if possible.

 

Audience Question: What if your notes are separate and sworn personnel cannot access them? What’s the with the privacy and disclosure and all that?

Meg Garvin:  So, again, a really complicated question. Amy and I were both kind of just smiling right there. So, the mere separation of records does not answer the question of whether you are part of the prosecution team, meaning whether you are under Brady obligations.  Whether you would get wrapped into a Brady obligation cannot be resolved by just simply saying, “Oh, my records are over here, and your records are over there.” It’s a really complex analysis. Some of the resources that we’ve shared at the beginning of this training help you dissect that. To not be covered by Brady you have to have a lot of separation; particularly if you’re law enforcement-based. If you’re a community-based, but you’re collaborating with the law enforcement, there’s a lot of easier ways to create that separation. So, if the goal in your jurisdiction is to create separation such that your records and your advocacy for survivors are not subject to Brady, that would just be a technical assistance request. Amy can help, and NCVLI can help.  The question becomes how do you structure things to ensure that protection, or how do you have transparency so the survivor knows that you are a part of law enforcement and Brady? And I want to make sure there’s no judgment. Those are both great ways to structure. It’s all about transparency.

Amy Durall:  And I was just going to dovetail onto that. Don’t make the mistake of assuming that the only way to effectively serve victims and co-victims is to offer confidential communication. There really are effective responses and actions that are taken when people have shared access to documentation and can openly communicate with each other (with the consent of victims and co-victims). That’s the reason that victim services professionals are placed in law enforcement agencies, so that they’re available at those intersections, so that through that communication and documentation they can advocate for the rights and needs of victims and co-victims. And so,  you need to challenge your thinking – is that your personal desire for that protection? Or is it the desire of the person you’re serving? We have to check in with the people that we’re serving to really understand what they want and need and not make the assumption that everybody wants a cookie-cutter way to interact with the system.

 

Audience Question: What if a victim sends you pictures of evidence, who do I turn this over to, or am I obligated to turn it over to anybody? 

Amy Durall: So, I’m going to jump in, because this happened routinely when I worked for law enforcement and I will tell you that my default position is,  if you work for law enforcement you’re obligated to turn those over. We would tell people that in our initial explanation of our role. We reiterated our obligations as we continued communication with victims and co-victims. And when we would get pictures, photos, text messages, and emails sent to us, my first action is to get with the assigned investigator, or if a case had not been assigned to an investigator, get with a sworn supervisor and say, this is the information that I’ve received, document it in the system, turn it over to the appropriate personnel, and make sure that the person that I’m serving understood what actions I was taking.

 

Click Here to Watch a Recording of Understanding and Implementing Victim Services Documentation Processes.  

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