My first law review article was recently published in the Brooklyn Law Review, entitled, “Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination.” I was motivated to write on this subject after hearing numerous anecdotal accounts of the ways that defendants who were representing themselves used the right to cross-examine as a last chance to harass and intimidate the crime’s victims.
The introduction of the article is below. You can read the abstract and download the full article here. The article may be cited as Katharine L. Manning, Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination, 87 Brook. L. Rev. 1197 (2022).
INTRODUCTION
In 2010, a woman set to testify in a rape case in Seattle instead ran from the courtroom and to the roof of the King County Courthouse, where she tried to jump.[1] What spurred her? She was about to be cross-examined in person by the same man she said had sexually assaulted her multiple times as a child.[2] Prosecutors ultimately dropped the charge so that she did not have to testify.[3][CC1]
In Florida, an eight-year-old boy watched as his father murdered his mother and sister.[4] The father then doused the boy in gasoline, lit him on fire, and stabbed him multiple times.[5] Three years later, the boy faced his father in court.[6] The father chose to represent himself in his trial and personally cross-examined his son, challenging his recollection of the horrific circumstances of the attack.[7]
In a courtroom in New York, a defendant on trial for rape was represented by counsel throughout the case.[8]When it came time for the testimony of the victim, however, he elected to proceed pro se so that he could cross-examine her himself, convinced that they had a “special relationship” despite having been strangers before the assault.[9] Upon learning that she was to be cross-examined personally by her assailant, the victim sank to her knees in the witness room, her sobs audible in the adjoining courtroom.[10] Because she could not bear to let the charge be dismissed due to her refusal to submit to his questioning, though, the victim took the stand.[11] The resulting display of power and intimidation by the defendant sickened the prosecutor, who later said, “I felt like we gave him a chance to victimize her again, in front of all of us.”[12]
The right to represent oneself in criminal proceedings, as the defendants in the above instances chose to do,is intended to preserve the dignity and autonomy of the defendant.[13] The right to confront one’s accusers aims to ensure accuracy and honesty.[14] Too often, though, those rights combine to create a scenario that achieves neither dignity nor accuracy. A defendant who proceeds pro se and personally cross-examines the victim is given a final opportunity to harass, bully, and control the victim. The victim is subject to retraumatization, which harms their ability to testify completely and accurately and makes it more likely that they will withdraw from testifying entirely. Instead of greater accuracy, testimony is clouded and sometimes destroyed solely due to the history and relationship between the questioner and the questioned.
There is a better path. The constitutional rights to self-representation[15] and to cross-examination[16] are not absolute and may be limited to further an important state policy.[17] Those policies can include protecting children and other witnesses, preserving victims’ rights, and ensuring that the interests of justice are met. Courts have recognized that in such circumstances, requiring the defendant to provide questions to standby counsel to ask the victim meets constitutional confrontation requirements, while also protecting victims from unnecessary retraumatization.[18] This article contains a roadmap for prosecutors and victims’ attorneys[19] who seek to protect victims by limiting pro se cross-examination.[20]
Responsibility for protecting victims and witnesses, however, does not solely rest with prosecutors and victims’ counsel. Courts have an affirmative obligation to protect witnesses from harassment during testimony.[21] In addition, victims have rights in criminal proceedings, including the right to protection from the accused and to be treated with respect for their dignity.[22] Courts are required to ensure that victims receive these rights in the criminal case.[23]
The court’s role in protecting victims from retraumatization is especially important given that the prosecution’s interests may not perfectly align with the victim’s interests. Prosecutors may be reluctant to raise an objection that can create a constitutional issue on appeal, even where the potential for victim retraumatization is grave. In addition, the courtroom spectacle of a defendant harassing and intimidating the victim can create distaste in the jury and a greater willingness to convict. For instance, one prosecutor who handled a case where the defendant cross-examined his victim personally remarked that “you could see the pain on the jurors’ faces as they watched it unfold.”[24] He continued, “I hate to talk like this, but it was good for the case.”[25]
Legislatures and court rules committees should also provide explicit protections for victims against pro se cross-examination. A court rule or victims’ right that follows the constitutional strictures set forth by the Supreme Court would aid prosecutors and judges in considering the traumatizing effect of personal cross-examination on victims and ensuring appropriate protections are in place.This article analyzes the Supreme Court’s jurisprudence on the parameters of the rights to self-representation and cross-examination, then reviews lower court rulings applying this jurisprudence in instances of pro se cross-examination. This analysis aims to illuminate the path for the use of standby counsel to protect victims during cross-examination while ensuring defendants’ constitutional rights are sufficiently safeguarded.
[1] Alleged Rapist’s Rights vs. Accuser’s Rights Debated After Suicide Attempt, KREM (Nov. 6, 2010, 4:47 AM), https://www.krem.com/article/news/local/northwest/alleged-rapists-rights-vs-accusers-rights-debated-after-suicide-attempt/293-169427993 [https://perma.cc/SV8T-892Y].
[3] Jennifer Sullivan, Guilty Verdicts in Rape Trial Interrupted by Suicide Attempt, Seattle Times: The Blotter (Dec. 8, 2010, 1:25 PM), [https://perma.cc/JJ63-FW99] (“[T]wo charges involving one alleged victim were dropped after the distraught 21-year-old woman climbed to the roof of the King County Courthouse on Nov. 4 and threatened suicide.”); see also Mary Fan, Adversarial Justice’s Casualties: Defending Victim-Witness Protection,B.C. L. Rev. 775, 777 n.14 (2014).
[4] Julian Mark, A Boy Is the Sole Survivor of a Family Massacre. His Dad, the Suspect, Was Allowed to Question Him in Court, Wash. Post(June 17, 2001, 7:13 AM), https://www.washingtonpost.com/nation/2021/06/17/ronnie-oneal-son-murder-trial-tampa/ [https://perma.cc/DJ4T-3K9Z].
[7] Id. (“[A] jury listened to [the] 11-year-old boy describe what he survived three years ago: hearing his mother hit with a shotgun blast, seeing his sister stabbed in the head with an ax, and then feeling himself get soaked in gasoline and lit on fire.”). The cross-examination itself can be viewed at 10 Tampa Bay, Accused Killer Ronnie Oneal III Cross-Examines His Son at Murder Trial, YouTube (June 16, 2021), https://www.youtube.com/watch?v=1SDl2yFartY [https://perma.cc/3JKW-UPBX].
[8] Interview with Prosecutor (Aug. 2, 2021) (notes on file with author).
[13] See Faretta v. California, 422 U.S. 806, 819–20 (1975).
[14] Maryland v. Craig, 497 U.S. 836, 846–47 (1990).
[19] In some jurisdictions, but not all, victims may have attorneys represent them in criminal cases. See, e.g., 18 U.S.C. § 3771(c)(2) (“The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection (a).”); La. Rev. Stat. Ann. § 46:1844(D)(1) (West, Westlaw through the 2021 Reg. Sess. & Veto Sess.) (“The victim or the designated family member shall have the right to retain counsel to confer with law enforcement and judicial agencies regarding the disposition of the victim’s case.”).
[20] Prosecutors generally have an affirmative obligation to ensure that victims receive their rights in the criminal case, including the right to protection from the accused. See, e.g., 18 U.S.C. § 3771(a)(1), (c)(1) (respectively giving victims a right “to be reasonably protected from the accused” and prosecutors a duty to notify victims of and ensure their receipt of their rights).
[21] See, e.g., Fed. R. Evid. 611(a)(3) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: . . . protect witnesses from harassment or undue embarrassment.”).
[22] See, e.g., 18 U.S.C. § 3771(a)(1), (8) (granting victims the rights to be “reasonably protected from the accused” and “treated with fairness and with respect for the victim’s dignity and privacy”).
[23] See, e.g., id. § 3771(b)(1) (“In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described . . . .” (emphasis added)).
[24] Interview with Prosecutor, supra note 8.
[CC1]Hi Ms. Manning, thank you for addressing our comments from the last editing round. In addition to proofreading and checking quotes, this round included more intensive Bluebooking.
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