The Role of the Criminal Justice System in Elder Abuse Cases

Candace J. Heisler, JD

ABSTRACT. The criminal justice system can provide a powerful tool for protecting victims of elder abuse by communicating a message to the offender that the conduct is unlawful and reprehensible and by assisting the offender in ending the criminal behavior. This paper addresses the benefits of involving law enforcement and the courts and describes law enforcement, prosecution, and court procedures applicable to an elder abuse case. The role of adult protective service staff in identifying elder abuse through their routine contact with clients is discussed.

Twelve percent of all Americans, some 29.2 million people, are more than 65 years of age. In 1985, 2.8 million of them lived in California and by the year 2000 this number is expected to rise to 3.8 million. Overall, the elderly are the fastest growing minority in the United States.
It is estimated that each year one out of every 25 elderly persons is victimized. Approximately one million incidents of elder abuse occur annually; in California, approximately 150,000 seniors are believed to be victimized. Experts believe that elder abuse is nearly as common as child abuse.
In spite of a staggering number of incidents, elder abuse cases rarely are reported to authorities. In a survey of more than 175 law enforcement representatives from 47 states, 54% of the respondents rated elder abuse as “somewhat of a problem” and 2% rated it as a “major problem.” While many of the respondents believe that the problem of elder abuse is significant, their agencies did not receive referrals commensurate with the extent or severity of elder abuse.
Most instances of elder abuse involve family members. As such, most elder abuse is actually family violence. The recognition of the problem of elder abuse follows the development of awareness of domestic abuse, particularly spousal abuse, and child abuse. Many of the lessons already learned in other forms of domestic violence are equally applicable to elder abuse victims.
The fact that most elder abuse is actually domestic violence may partially explain why the crime is so often underreported or, when it is reported, why victims are sometimes reluctant for prosecution to occur. “Reluctance may… stem from confusion, inadequate emotional or financial support, or lack of understanding about the process and end results of prosecution… or from fear resulting from defendant’s intimidation.” In addition, victims may be reluctant “out of the desire to put the incident behind them and forget that it occurred; a feeling of shame, that perhaps their behavior in some way caused the attack; an unwillingness to face the assailant again in the courtroom . . . and fear of the court process and being put on trial when testifying.”
Successful intervention by the criminal justice system must credit and validate the victim’s traumatic experience without making the victim responsible for the ultimate action taken against the offender. To be effective, court processes must be sensitive to the fears and needs of the elderly victim. Professionals who work with and advise elder abuse victims must understand the victim’s concerns and the procedures and resources available within the criminal justice system to assist the victim. These include: (1) placing ultimate responsibility for arrest, charging, and disposition of a criminal case with the police, prosecution, court, probation, and corrections departments; (2) offering victim support services and state-mandated indemnification programs through local victim witness or advocacy units; (3) implementing special procedures in cases with elderly victims; (4) prosecuting elder abuse cases in a vertical manner, that is, by having the same attorney handle the case throughout the entire criminal justice process; (5) providing an array of sentencing alternatives for the court ranging from diversion programs to imprisonment; and (6) using protective orders to ensure the victim’s safety and non-harassment by the alleged offender.
Studies have clearly demonstrated that domestic violence escalates in frequency and severity over time. For example, in a leading study of homicide cases in Kansas City, researchers found that in 85% of the domestic violence homicides occurring in a two-year period police had been called to these residences for a domestic violence incident at least once prior to the deaths. In 50% of the cases, police had responded at least five times.” The National Crime Survey has found that the risk of revictimization in domestic violence cases is high.
Effective intervention in elder abuse and other domestic violence cases requires an understanding of the reasons behind the violence and the use of approaches that challenge these explanations. Historically, both victim and offender viewed violence in the home as private, family matters that, if left alone, would resolve themselves. Social institutions and societal norms encouraged such views. When police were summoned, they mediated between the parties or counseled them. These responses, however, reinforced the view that violence is an acceptable method to exercise control and power over another. The offender learned that violence was an effective, short-term method to exercise ultimate control within the family unit. When social institutions decline to intervene or condemn such conduct, the offender feels empowered to continue and the victim feels powerless to stop the violence or get help.
Society can communicate a message of approbation by imposing sanctions on the offender and by protecting the victim. By criminalizing elder abuse the court counters the belief that violence is an effective and acceptable means of maintaining power and control. When the criminal justice system takes responsibility for prosecuting the case from the victim, society makes it clear that the conduct is a public concern, not a mere private, family affair. Further, by making the prosecutor, rather than the victim, responsible for deciding the charges, the offender learns that threatening, coercing, or manipulating the victim is ineffective in avoiding criminal responsibility.
Given the lessons learned from other forms of domestic violence and the recognition of certain similarities between successful interventions in spousal and child abuse cases and elder abuse matters, it is evident that all branches of the criminal justice system – law enforcement, prosecution, and courts – and community professionals have critical roles to play. Each, through its actions, must communicate a message that the conduct is criminal, that the system will protect the victim, and that the victim will be believed.
Law enforcement must listen to and credit the victim’s account of the incident(s) that occurred and immediately take action against the offender. In a leading study conducted in Minneapolis, researchers found that arrest was twice as effective as non-arrest in deterring further violence and that the most effective intervention occurred when the police arrested the batterer after listening to the victim’s story while the offender was present.
Prosecutors must develop aggressive charging and prosecution policies based on the recognition that the state, not the victim, must assume responsibility for case decision-making. The Attorney General’s Task Force on Domestic Violence studied family violence and issued recommendations. Prosecutors were advised to “approach cases of domestic violence from a fresh perspective and be flexible and sensitive in dealing with the emotional complexities of these cases. To most effectively build upon police intervention, prosecutors should organize special units to process family violence cases.” Because family violence involves offenses inflicted not only against the individual but against the state as well, prosecution is a critical element of intervention. Prosecutors can play a key role in holding abusers accountable for their actions while at the same time help to prevent future violence.
Courts must recognize the significant role judges can play in forcing offenders to recognize the seriousness of their conduct. The Attorney General’s Task Force on Family Violence reported:… Judges are the ultimate legal authority in the criminal justice system. If they fail to handle family violence cases with the appropriate judicial concern, the crime is trivialized, and the victim receives no real protection or justice. Using the yardstick of the court to measure conduct, the attacker will perceive the crime as an insignificant offense. Consequently, he has no incentive to modify his behavior and continues to abuse with impunity… Judges should not underestimate their ability to influence the defendant’s behavior. Even a stern admonishment from the bench can help to deter the defendant from future violence.”
Professionals who assist the elderly population are experts who are trained to detect elder abuse and are frequently required to report the abuse. Whether or not a professional is subject to a reporting statute, once abuse is identified the professional must make the victim aware of available options. The case worker must understand what the system can do and how it performs. Without correct information the professional cannot accurately advise and assist the victim. When criminal justice intervention does occur, the professional should support the victim, confirm that the household and care-giving tasks previously performed for the victim by the offender are carried out, and work with the prosecutor and law enforcement agency to ensure that the needs of the victim and offender are addressed.

BENEFITS OF CRIMINAL JUSTICE SYSTEM INTERVENTION

Intervention by the criminal justice system can achieve the following goals:

Stop the violence or other criminal behavior;
Protect the victim;
Protect the public;
Hold the offender accountable for the conduct;
Rehabilitate the offender;
Communicate the societal intent to treat the conduct as a crime, not a private matter; and
Provide restitution to the victim.

Criminal justice procedures can protect victims from further violence not only by arrest and court intervention at sentencing but at every stage of the proceedings. Criminal courts can issue no-contact or stay-away orders prohibiting the charged persons from calling, seeing, harassing, or coming within a certain distance of the victim, the victim’s home, and other locations frequently visited by the victim. Courts can order charged persons to vacate the victim’s residence and can limit return visits to the home to collect personal property to stated times when the charged person is accompanied by police. Violations of these court orders can be punished as contempt, a separate crime, or can be the basis for the revocation of either bail or release on a suspect’s own recognizance (OR).
Courts also can make protective orders after conviction, i.e., at the time of sentencing. For example, courts can continue no-contact or stay-away orders for the duration of any probation period. They also can order sentenced defendants to seek, participate in, and complete counseling and other treatment programs for substance abuse, anger control, family interaction, psychiatric problems, or any other medical or psychological condition. Such programs can be residential, outpatient, or both. Courts can incarcerate sentenced persons to punish or deter them from further criminal conduct or to protect victims. Courts can order convicted defendants to obey orders made by other courts such as the civil or probate courts. This can be particularly significant if there are valid restraining orders, orders for accountings in fiduciary abuse matters, or conservatorship proceedings.
Courts can assist victims by ordering defendants to make restitution for losses due to theft or vandalism, for medical or counseling expenses, for changing locks, and for relocating and moving. Courts can order defendants to seek and obtain or maintain employment to enable restitution payments to be made. Courts can monitor compliance with restitution and other conditions of probation by ordering periodic progress reports. Violations of the terms and conditions of probation can result in revocation of probation and imposition of a new sentence, including imprisonment.
The criminal justice system also can assist victims with their needs at the time of the incident, during the pendency of the case, and afterward. Immediately after an incident, law enforcement can assist victims in obtaining emergency protective orders when the courts are closed. Many prosecutors’ offices provide victim-witness assistance programs. These units can refer victims to community-based organizations or multi-disciplinary teams that provide seniors with case management, client assessment, or help in obtaining legal services. Victim-witness advocates can assist victims while the case is pending by explaining the criminal justice system, legal options, and the victim’s role in a case. Advocates can ascertain the victim’s desires and needs and communicate these to prosecutors handling the case. They can determine if victims need or want court-ordered stay-away or no-contact orders. Victim-witness advocates can arrange transportation to the courthouse for the victims when testimony or interviews are required, can provide a safe and comfortable waiting area in the courthouse for victims who will testify, can accompany victims to court and remain during their testimony to provide emotional support, and can provide witness fees to cover meals and expenses incurred as part of the court proceedings. Victim witness programs also can assist victims in completing applications for victim indemnification and by appearing at state compensation board hearings on behalf of the victims when awards are considered.
The criminal justice system can show flexibility in its handling of these special victims while still protecting the constitutional rights of suspects. In California, for example, cases involving elderly victims are afforded mandatory, preferential early trial settings. Victim testimony, in appropriate cases, can be taken outside the courthouse such as in a hospital or long-term care facility and can be videotaped. Procedures to expeditiously obtain the victim’s testimony are available in instances where the victim is leaving the area, is not likely to recall the incident if significant time passes, or is not likely to survive until the prosecution is completed.

BRINGING A CASE TO THE CRIMINAL JUSTICE SYSTEM

Effective criminal court interventions in elder abuse cases are the result of careful observation and documentation. It is imperative that professionals working with elderly clients note all contacts, even when everything appears in order and there is no concern that the client is in peril. These notes will demonstrate what is normal in this client’s life and will be used to contrast later observations. These notes also will be used to identify potential witnesses in the event of future victimization and are relied upon by the police, prosecution, and courts in deciding what action to take.
When a professional believes all is well, he or she still should document all contacts and observations, including the time, place, date, and persons making the observations. Information concerning the victim’s capabilities, activity level, needs, and degree of awareness, as well as significant statements, should be noted.
In instances when the professional is not certain all is well, he or she should make the same types of detailed notations as those done on the occasions when it appears that all is in order. In addition, the professional should document any unusual marks or injuries and their locations and note if similar markings have previously been observed. The client and caregiver should be questioned separately about the suspicious injury. Explanatory statements should be quoted exactly. Changes in the client’s demeanor, living situation, level of activity, and willingness to communicate should be noted. The professional may want to increase the frequency of visits and/or consult a physician about the suspicious injury. Finally, it may be appropriate to discuss the case with other groups or the community multidisciplinary team or to call the police. Even if the police are unable to make an arrest, their investigation may be sufficient to discourage further action by the caregiver or may provide sufficient information to obtain other relief. For example, in one San Francisco case, police received a report of suspected abuse of a demented woman by her son who was also a mental health patient. While community professionals believed that the son posed a serious danger to his mother, their previous efforts at separating the pair had failed. When police interviewed the son, he denied any abusive acts but admitted forcibly taking money from his mother. The mother, the only witness to the alleged abuse, denied being assaulted or robbed. While the evidence was insufficient to permit prosecution, it nevertheless enabled community professionals to achieve an intervention, i.e., legal separation of the two parties, which was effective in meeting the victim’s social service and safety needs.
In cases where a professional suspects elder abuse has occurred and police are called, the police will need to know the following; Who is the victim and where is he or she located? Does the victim need immediate medical care? Who is the alleged suspect? Is he or she present or likely to return? Who is the caller? Where is the caller located? What has occurred? What does the caller want to be done? Such information is generally taken on the telephone by a police operator or dispatcher.
If a welfare or well-being check is desired, the caller must provide facts to indicate that this follow-up is needed. For example, are there unusual noises or smells coming from the premises? Are there uncollected newspapers or mail? Has a caregiver denied contact with or access to the elder? Has the victim missed an appointment? Have other attempts to contact the client failed?
The information provided by the caller will assist police in determining the priority to assign to the call and the level of response required. In some jurisdictions, this information will determine if a police unit will be dispatched or if a police report form will be mailed to the reporting party. Calls regarding elder abuse and calls for well-being checks should be handled in person by a police unit.
Once the call is made, and assuming it is safe to do so, the caller or reporting party should remain in the area where the police will be arriving. Once the officer arrives, the professional should restate all the information that was given to the police operator.
After the police have responded and all parties and witnesses are safe, the professional will need to provide additional information to the law enforcement investigator. This person may or may not be the same officer who initially responded to the reported abuse. The information needed includes names, addresses, and telephone numbers of additional witnesses; the names, agencies, addresses, and telephone numbers of agencies and case workers serving the elderly client or the caregiver-suspect; the names and telephone numbers of family members and friends who are familiar with the victim, the suspect, or both, and the conservator, if any; the professional’s personal history and relationship with the victim and suspect; the behavioral changes or indicators that tell the professional that a crime may have occurred; and information concerning the victim, including medical state and mental capabilities.
The professional has a key role to play. As an expert, the professional knows crucial information that, ultimately, can play an important part in the prosecution’s case. The police frequently are not familiar with the type of information needed to prove an elder abuse case and will not know the critical questions that must be asked. Many are untrained in the special methods required to investigate these cases. The professional must take the initiative in providing factual and specific information and in insisting that a report be written. The professional should ask what steps will be taken in the case and what follow-up procedures will be employed by the law enforcement agency. The professional should then offer to assist the law enforcement staff in subsequent stages of the case. In that way, rather than being cut out of the case, the professional can ensure that the needs of the client and offender are considered and met.

ROLE OF THE PROSECUTOR

The prosecutor generally becomes involved in an elder abuse case after the police have made an arrest. In some instances the police will consult with the prosecutor before making an arrest, as in the course of a case when arrest or search warrants are needed. In some states the investigation of an elder abuse case may even be conducted, at least in part, by the prosecutor’s office.
In California, a case begins with the filing of a complaint. Complaints are issued by the local prosecutor’s office after a review of police reports, witness statements, physical evidence, and, in some instances, a face-to-face meeting with key witnesses. Prosecutors have wide discretion to decide which cases will be charged. The decision is based on the compelling nature of available evidence, seriousness of the offense, availability of witnesses, offender’s criminal history, desires of the victim and other concerned parties, available resources in the criminal justice system, and office priorities. Initially it must be determined if there is sufficient evidence to meet the legal burden of proof-guilt beyond a reasonable doubt and to a moral certainty. This burden of proof is the greatest provided for in law and is much greater than that required in civil cases, i.e., preponderance of the evidence and clear and convincing evidence. National prosecution filing standards mandate that if there is insufficient evidence to prove guilt beyond a reasonable doubt, no charge should be brought.
Generally, the decision to charge must be made very soon after the arrest. In California, for example, a felony case must be charged within 48 hours of the arrest. If the necessary evidence is not available at the time of charging, the case must be discharged and any in- custody defendant must be released. If the case can later be proved, the suspect can be arrested again and the prosecution commenced.
The period between arrest and charging is a critical one. It places extra responsibility on the agency representative who is overseeing the victim client’s case. Successful prosecution requires the professional to follow-up after the arrest and work cooperatively with the case investigator and the prosecutor’s office. The professional can be of immeasurable help by preparing his or her own written statement or by providing a taped interview. The professional can assist in several other ways, such as, in identifying and contacting other witnesses, helping calm and reassure the victim, and assisting law enforcement in locating a victim who has gone to stay with relatives or who is in hiding. The professional can help build a case in a number of ways. These include: (1) identifying available records, concerned agencies, and treatment facilities; (2) identifying witnesses who can give information on the victim’s condition at particular points in time; (3) helping identify the circumstantial evidence of abuse; (4) assisting with compiling and identifying direct evidence of abuse; (5) documenting the victim’s condition before and after the incident; (6) providing information about the suspect including: his or her relationship with the victim, the possible motivation for the suspect’s behavior, the professional’s interaction with the suspect, and the effect the victim’s aging has had on the suspect; (7) providing the social history of the suspect and the victim; (8) recommending experts to be consulted for several possible areas and issues including: aging, diseases, conditions associated with aging, differentiating trauma from aging, interpreting bruising patterns, and recognizing battered elder syndrome; (9) providing information relevant to meeting defenses; (10) providing information on prior conservatorship or civil proceedings; (11) supplying an assessment of the victim, including level of confusion, competence, and special victim needs if the case proceeds to court; (12) identifying persons who will perform the housekeeping and care-giving functions previously completed by the suspect; and (13) identifying additional witnesses or agencies that have knowledge of the victim or suspect. If there has been a multi-disciplinary team meeting focusing on this client, the prosecutor or an investigator assisting the prosecutor needs to contact the participants to locate additional evidence.
Once the prosecutor has the available evidence, a determination can be made whether the victim will be required to testify. While in most elder abuse cases the victim will be called as a witness, there are some cases that may be proved without a victim ever testifying, and there are others that may be proved even if the victim later becomes forgetful or is reluctant to testify. In each instance, successful prosecution will require careful documentation; early collection of formal statements from victims and other witnesses; obtaining taped “911” telephone calls to police that were made by victims seeking assistance; locating and interviewing paramedic, emergency room, and other medical personnel who dealt with the victim; and identifying and interviewing expert witnesses. Two cases in San Francisco illustrate how elder abuse cases can be proved even when the victim is unavailable, forgetful, or reluctant.
In the first case, victim Ms. C was in her eighties and lived with her daughter L in Ms. C’s home. Several community agencies had tried to assist the two in living together without physical conflict. L had problems associated with substance abuse. On the first occasion when police were called to the home of Ms. C, they found her badly beaten on both lower arms. In fact, areas of missing skin were noted. A board was found in the residence that appeared to have been used to commit the attack on Ms. C. Police interviewed Ms. C who stated L had assaulted her with the board. A few days after L was charged, Ms. C asked that charges be dropped. The prosecutor consulted with the police, the victim advocates working with the victim, and representatives of community agencies that had worked with Ms. C and her daughter. Each individual contacted expressed concern that the defendant posed a serious danger to Ms. C’s wellbeing and would continue to abuse her without court action. The staff at the community agencies believed that Ms. C was confused, easily manipulated, and unable to understand the danger she faced. Ms. C suffered from mental infirmities related to aging and had memory lapses as a result. Faced with this information, the prosecutor concluded that the interests of justice mandated continued prosecution in spite of Ms. C’s request for the case to be dismissed. When the prosecutor refused to dismiss the charge, Ms. C claimed she had not been attacked by L. However, because of the early collection of a formal statement from Ms. C, L entered a guilty plea to the charge of felonious assault and was placed on probation. The pattern of assault, arrest, and then recantation was repeated twice more. Subsequent incidents were reviewed in the same manner as the first, and in each case, the prosecutor concluded that prosecution must continue. In each case, a formal statement was taken from Ms. C that was later used as evidence. Ultimately, the court found that probation was ineffectual in protecting Ms. C and stopping the violence. After the third incident, the court revoked L’s probation and committed her to prison.
While procedures that require a reluctant victim to testify may appear draconian, there are occasions when no other action is adequate to protect the victim or to dissuade the offender from committing further acts of violence. Formal statements taken from a victim after an incident can be used to prove what happened when the victim later is uncooperative, like Ms. C, or when a cooperative victim cannot later recall what occurred during the incident.
There are, of course, some cases where the victim cannot testify. This is always the case in homicide prosecutions, and it may be true with elderly victims. In San Francisco, a man was prosecuted, tried, and convicted for elder abuse and felonious assault committed against his mother, Ms. S. Ms. S, a woman in her eighties, was an Alzheimer’s patient who suffered from dementia for several years prior to the incident. She was unable to speak and was totally dependent on others for her care. The son was the total-care provider and when he became overstressed, he agreed to put Ms. S in a nursing home. Staff members were concerned by the way he handled Ms. S in the facility and were alarmed when he announced he was moving her back to the family home. On the date Ms. S was released, she was thoroughly examined for bruises and other marks. All observations were documented. Fourteen hours later the son summoned an ambulance for his mother. She was discovered laying in a corner, comatose, her body covered with bruises. Doctors revived Ms. S and continued to treat her. They also summoned police who thoroughly photographed Ms. S and began an investigation. The son stated his mother had fallen due to the effects of her medication and her advanced Alzheimer’s condition. He denied assaulting her. Prosecution evidence was completely circumstantial. It consisted of nursing home staff evidence of the victim’s condition at discharge; ambulance stewards’ evidence of the victim’s condition on their arrival; medical testimony on the victim’s condition at admission; expert medical testimony that the bruising was caused by criminal agency, not accidental falling; aging experts’ testimony that the injuries were not caused by the aging processes; and law enforcement officials’ testimony regarding certain statements made by the son and the condition of the home. That evidence was sufficient for a jury to convict the son.’

THE CRIMINAL PROCESS

The criminal process is composed of several stages: arrest, charging, court proceedings, sentencing, and appeal. While each state has its own specialized procedures, virtually every felony case will proceed through the process described in this section.
Arrest generally follows the investigation of a report made to law enforcement agencies or the observation by an officer of suspected criminal conduct. Reports to law enforcement can be made by victims, witnesses, neighbors, professionals working with clients, persons mandated by law to report suspicious conduct, or concerned members of the public. Once the investigation establishes that suspected criminal conduct has occurred and the identity of the alleged perpetrator also is established, an arrest may be made. The quantum of evidence required to justify an arrest is significantly less than that needed to establish guilt. It is generally called probable cause.”
There are two key decisions that must be made. First, is there sufficient evidence for an arrest? Second, is there sufficient evidence to file a charge? The first is usually decided by law enforcement and the second by the prosecutor. In general, the prosecutor will review all arrests to decide which cases will proceed to trial. The timing of that review varies. In California, the review occurs after the arrest and before the first appearance in all felony cases. Under California law, felony prosecutions must be initiated by a prosecutor.
Once a person is brought into the court system, he or she is charged with one or more criminal violations. At the first court appearance, often called the arraignment, the offender, now called the defendant, is advised of the charge and given an opportunity to employ and appear with private counsel or, if indigent, provided with a court appointed counsel after his or her request to the court.
Local law dictates which crimes and defendants may be eligible for pretrial release. If a defendant is in custody at arraignment, the defendant’s attorney or counsel will often ask that bail be set or, if already set, that the amount be reduced or that the suspect be released without bail on his or her promise to return to court. This is called release on one’s own recognizance (OR). Thereafter, the court obtains a plea from the defendant. The best known pleas are guilty; not guilty, and nolo contendre (or no-contest). Most often, the plea will be not guilty.
At this stage, prosecutors generally request stay away or no contact orders directing the defendant to stay away from the alleged victim and not call, visit, or harass that person. Such orders may be oral, written, or both. The victim, the social agency representative, and other witnesses are not required to appear at the arraignment.
After arraignment, a process occurs that assures there is sufficient evidence to merit a trial and weeds out groundless charges. Many jurisdictions present cases in secret proceedings to a grand jury that takes testimony from witnesses, deliberates, and, in instances in which it finds sufficient evidence, returns an indictment. The person named in the indictment is arrested on the indictment and brought before a court for further proceedings.
If the grand jury process is not used or is not available, cases are presented at the preliminary hearing to a judge who listens to testimony and decides if there is sufficient evidence. Unlike the grand jury process where only the prosecutor, jurors, and testifying witnesses are present, at the preliminary hearing the defendant and his or her counsel are present along with the judge and witnesses. The defendant may cross-examine all witnesses and may present a defense to the charges. If the court finds sufficient evidence, the court orders the defendant to stand trial. In California, prosecutors rarely use the grand jury because indicted defendants are currently entitled to a post-indictment preliminary hearing. At such a post-indictment hearing, all witnesses are again examined, defense counsel may cross-examine these witnesses, and the court then decides if probable cause is demonstrated. This process requires that witnesses testify twice before trial and adds to the length of time that passes before a trial can be held.
Whether the grand jury or preliminary hearing procedure is used, once the judge or grand jurors are satisfied that a trial is warranted, the case will be set for trial. Most cases result in a plea of guilty prior to trial. Those that do not will be tried, generally before a jury. It is possible, however, for the defendant, defense counsel, and prosecutor to waive the right to a jury trial. In those instances, a judge will hear the evidence and decide guilt.
Trial commences with the selection of a jury. Thereafter, the prosecutor makes his or her opening statement that outlines the anticipated evidence. The defense may then make its opening statement, or it may reserve its opening statement until it begins its own case, or the defense may waive the opening statement. Following the opening statement(s), the prosecution presents its case. Witnesses are called and questioned by the prosecutor and cross-examined by the defense. This process continues until each side has completed questioning the witness. The prosecution calls all remaining witnesses who are examined in the same manner as the first witness. Physical evidence and exhibits may be offered. Eventually, all witnesses are examined and all permissible evidence received. The prosecution then rests.
At the completion of the prosecution’s case, the defense routinely asks that the case be dismissed for failure of proof. If the motion is granted, the case is over and the defendant is acquitted. If the motion is denied, the defense may choose to present a case. The defense can rest on the state of the evidence and present no evidence. Such a procedure is employed when the defense feels the prosecution has failed to convince the jury of the defendant’s guilt, has failed to prove the defendant guilty beyond a reasonable doubt, or when the defense has presented its case through the cross-examination of the prosecution witnesses. If no defense is presented, the defense rests.
If the defense presents witnesses, it calls its first witness who is then directly examined by the defense. Cross-examination is conducted by the prosecutor. The examination continues until both sides have finished questioning the witness. The process is the same for all defense witnesses. No defendant can be required to testify. If a defendant chooses to testify, he or she is subject to the same procedures and rules as any other witness. When the defense has completed its case by calling all witnesses and submitting all evidence, it rests.
The prosecution may counter, or rebut, the defense case. It may call additional witnesses and present additional evidence. Rebuttal is limited to the issues raised in the defense case. If witnesses are called, the order is the same as during the case in chief of the prosecution. Eventually the prosecution rests its rebuttal case.
The defense may ask the court to dismiss the case on grounds that the evidence is insufficient. If the motion is granted, the case is dismissed. If the motion is denied, the case proceeds to summation.
In the summation or closing argument stage, each side tries to convince the jury that the evidence should be viewed, in light of the applicable law, in favor of the position of their respective clients. The prosecution argues first. The defense argument follows. Thereafter, because the prosecution has the burden of proving the defendant’s guilt, it concludes with a final rebuttal or closing argument.
The court completes the case by instructing the jury on the applicable rules of law. After reviewing the possible verdict forms, the court sends the jury to a deliberation room.
The jury selects a foreperson and deliberates on the facts. Once it decides what the facts are, it decides if those facts are sufficient to establish guilt beyond a reasonable doubt and to a moral certainty. If they are, the jury finds the defendant guilty. If there is insufficient evidence of guilt, the defendant is acquitted. The jury returns its verdict to the court where the verdict is read and entered into the court record.
If the defendant is acquitted, the court’s jurisdiction over the person is concluded. If the defendant is convicted, the court orders the person to return to court for sentencing. If a defendant is out of custody, the court may remand the person into custody or allow the defendant to remain at liberty pending the sentencing hearing.
During the period between conviction and sentencing, the probation agency will conduct an investigation of the facts of the case and the history of the defendant. It will generally attempt to contact the victim to determine the victim’s point of view and restitution needs. It also will consider information from concerned parties, including community service providers, employers, family members, and friends of the victim and defendant. The report will provide the defendant’s social background, psychological and substance abuse profile, employment history, and significant mitigating or aggravating factors. The report will contain a sentencing recommendation.
During the sentencing investigation, the defense attorney may contact the probation department to provide information and to supply support and character reference letters about the defendant. In appropriate cases the defense may make arrangements for the defendant to enter a treatment facility in the event the court will authorize such a program. In addition to assisting the defendant in making a positive presentation to the probation officer, the attorney will prepare motions for a new trial based upon legal errors or jury misconduct that are alleged to have occurred during the trial.
The prosecutor is permitted to supply information to the probation officer about the suspect and victim and may provide a legal statement about the case. The prosecutor also may make a sentencing recommendation. The prosecutor will prepare a response to the defense motion for a new trial.
Motions for a new trial must be heard and decided before sentencing. Such motions are argued and considered by the court. If granted, a new trial is ordered. If denied, the defendant will be sentenced. The court has an array of sentencing options to achieve the goals of: protecting the victim; making him or her whole; protecting the general public; holding the offender accountable; stopping the violent behavior; treating the conduct as criminal; and rehabilitating the abuser. The court’s sentencing options include: sentencing the defendant to the state penitentiary for the term prescribed by law; placing the defendant in a special correctional facility such as a narcotics rehabilitation center or, in the case of a youthful offender, in the state youth authority; or placing the defendant on probation with a series of conditions appropriate to the circumstances of the defendant and the facts of the case.
Common conditions of probation include: a period of confinement in the county jail; a work furlough program; home detention; counseling for family violence; anger or substance abuse control; psychiatric or psychological treatment in residential or out-patient centers; performance of community service; payment of restitution; chemical testing for substance abuse; prohibitions against weapons possession; waiver of Fourth Amendment protections against warrantless searches and seizures without probable cause; regular reporting to a probation officer; an order to seek and maintain employment; the obeying of all laws of the community; payment of probation costs incurred in supervising the offender’s probation; payment of a fine; and payments to a state victim indemnification program. The court also may order that the defendant must stay away from and have no contact with the victim or that all visits must be supervised by a third party or occur at a particular location for the duration of the probation. The court may order periodic reports concerning the defendant’s progress on probation and compliance with the terms and conditions of the probation order. Violation of the terms and conditions may result in revocation of probation and the defendant’s commitment to the state penitentiary.
Persons convicted at a trial of criminal offenses have a right to appeal. Appeal follows sentencing and is commenced by the filing of a notice of appeal.

THE CRIMINAL JUSTICE SYSTEM: THE VICTIM’S PERSPECTIVE

At many stages of a prosecution the desires and needs of the elder abuse victim should be considered. In this way, the criminal justice system protects and empowers the victim.
While the facts in individual cases guide whether a victim can or will directly participate in the proceedings, usually the victim will be required to do so at certain stages and invited to do so at others.
At the investigation, arrest, and charging stages, the victim may report the criminal conduct, provide a formal statement either in writing or on audio or videotape regarding the incident and prior victimization, permit visible injuries to be photographed, sign a consent form permitting the release of his or her medical treatment records concerning the reported victimization, indicate his or her attitude and desires about prosecution, advise police of the need for a stay away or no contact order, and provide a list of expenses that may be subject to restitution. Many of these may be relevant to the court’s consideration of the person’s release on bail or on the person’s own recognizance (OR) or a denial of bail during the pendency of the case.
In return, the victim should expect the investigating officer to contact him or her and should call or meet with a representative of the victim/witness or family violence program of the prosecutor’s office. The victim advocate will provide counseling, safety planning, referral to outside agencies and shelters, emotional support, and an explanation of the criminal process. The advocates also will assist in obtaining and preparing state victim indemnification forms and will advocate on behalf of the victim with the prosecutor on matters of charging, obtaining protective (stay away) orders, and case disposition.
At arraignment, the victim need not appear. If a stay away order is issued, the victim will be notified of its existence and told how to report violations. If a written order is issued, the victim should be provided with a copy.
The next stage is a probable cause hearing. Whether it occurs in front of the grand jury or takes place at a preliminary hearing, the victim will usually be required to appear unless physically or mentally unable to do so. The victim generally will be subpoenaed to court. Prior to the court appearance, the victim will meet with the prosecutor to review his or her testimony and to discuss the victim’s needs and desires. If a disposition is contemplated, it generally will be discussed with the victim. The contact with the prosecutor may occur prior to the court date or on the court date prior to going to the courtroom. Victim advocates can assist the victim at this stage by arranging transportation, providing a safe and comfortable waiting area away from the courtroom, and accompanying the victims to court and staying with them while they wait to testify and during the time they give testimony. Victim advocates are available to answer questions about the events occurring in court, the identification and role of participants, and the purpose of the proceedings; and to reassure victims that they are safe and will not be confused or mislead. An advocate can also inform the victim about the outcome of the hearing if the victim is not present at the time of the final ruling.
Between the probable cause hearing and the trial, the victim advocate will continue to check on the victim and ensure that the person is safe and aware of the current case status. If a case is settled without a trial, the advocate or prosecutor will advise the victim.
If the case proceeds to trial, the prosecutor will again meet with the victim and review the facts as well as the evidence. The prosecutor will prepare the witness for his or her testimony. The advocate will provide the same services at the trial as were provided at the earlier probable cause hearing.
If a sentencing report is prepared, the victim will be contacted to provide information concerning his or her desires, the offender’s needs, the desirability of a stay-away order during any period of probation, the expenses incurred as a result of the crime, and background information on the incident and other offenses. In some states, victims are invited to submit a victim impact statement. Victims may appear at sentencing and, in some cases, may address the court directly.
Traditional methods and approaches for dealing with elder abuse may have discouraged victims and service providers from turning to the criminal justice system for help. However, increased awareness of the seriousness of domestic violence and elder abuse has led to the evolution of new attitudes, the enactment of new laws, and the development of new procedures that enable the system to play a strong part in deterring further violence. In serious cases, the criminal justice system may provide the only way to protect the vulnerable elder. As social service professionals and members of the criminal justice system grapple with the problem of elder abuse, we must recognize our need to work cooperatively, to understand one another’s guiding principles and points of view, and to teach and learn from one another. As part of our interdisciplinary approach, we must train one another in our procedures, establish local protocols, develop community shelters and centers for the elderly, and raise public awareness about the plight of elder abuse victims. Working together, we are a powerful weapon against those who victimize the elderly.