Victim testimony rule getting a second look

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An administrative rule regarding victim testimony during probation revocation hearings has been on the books for more than 20 years, but has never been used.

The rule states that a victim can give testimony outside of the presence of the defendant “when there is substantial likelihood that the witness will suffer significant psychological or emotional trauma … or when there is substantial likelihood that the witness will not be able to give effective, truthful testimony …”

It is being promoted by the Attorney General J.B. Van Hollen and Department of Corrections Secretary Ed Wall as part of National Crime Victims’ Rights Week, and is expected to be used in cases that arise from a violent situation between two people. The DOJ is putting an emphasis on it for its use in domestic violence cases, where they say there is a good chance that a victim will change or recant their statement if the victim is in the room with an offender.

Revocation hearings are often done in county jails, as a defendant is often being held without bond following their arrest. A DOC probation and parole officer acts as a prosecutor, though the defendant has an attorney as well. An administrative law judge presides over the proceedings.

All probation and parole officers will be required to watch a training video to learn about how to request that a victim not be in the room with a defendant. Defense attorneys will also get a chance to object to the request.

Jill Karofsky, director of the DOJ’s crime victim services office, said the rooms where the hearings are held are often small, which can cause victims anxiety when they have to essentially confront their aggressor.

“The fear of the victim is certainly real and they’re afraid they will be physically hurt,” Karofsky said, explaining that victims can often be coerced or controlled with just a look.

The rule was enacted in December 1991. Karofsky, who has been at the DOJ since 2010, said she doesn’t know why the rule wasn’t getting promoted until now.

“I don’t know why the probation and parole agents haven’t used it, other than to say they’re not trained as lawyers,” Karofsky said. “They may not have been aware of it, or there wasn’t someone around to make them aware of it,”

DOC spokeswoman Joy Staab did not immediately comment about why the rule went unused for so long.

Karofksy, who started out at the DOJ as a violence against women resource prosecutor, said the push to figure out how to use this rule started when she was hired. She said she talked to administrative law judges, who talked to her about the then-unused rule.

“I got contacted within the first couple weeks … by prosecutors saying, ‘We have a problem with probation hearings as state victims in the same room as perps,’” Karofsky said. “Victims going in there who have injuries sitting literally within feet of those who did something to them.”

Still, use of the rule may be met with pushback. Randy Kraft, spokesman for the State Public Defender’s office, said its attorneys are concerned about anything that could affect due process.

“While we understand efforts to protect all individuals in justice proceedings … any mandates that separates the accuser from the accused runs the risk of eroding this time-honored constitutional principle,” Kraft said.

And Milwaukee defense attorney Christopher Cherella questioned why the rule has been around for so long but never utilized.

“There has to be a reason why this rule has been on the books and nobody has implemented it,” Cherella said. “The DOJ has taken the position that there aren’t some constitutional issues … [but] why muddy the waters if you don’t have to?”

Karofsky said logistics of exactly how the testimony will be taken will depend on the resources of a certain county jail. Testimony may be taken in a separate room, via video feed or telephone, or prior to the hearing.

Either way, she said, defense attorneys will get a chance to ask or submit questions for a victim to answer.

“It’s an important thing that offenders get the processes that they’re due,” Karofsky said. Follow @eheisigWLJ