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Making It Stick: Protecting the Record for Appeal

NCJ Number
Teresa M. Garvey, J.D.
Date Published
April 2012
4 pages
This article guides prosecutors in building a strong and favorable trial court record in sexual assault cases that supports the conviction and the sentence imposed, so as to withstand a challenge on appeal.
Creation of the record must begin at the investigative stage. Investigators should be trained in evidence-collection techniques that will survive any motions to suppress or exclude important evidence. Police reports should document in detail officer's observations about the victim's appearance and demeanor, as well as the crime scene. Any weapons used in the crime should be collected. Officers should encourage the victim to seek medical treatment even if her injuries are not apparently severe. This article also provides guidance on questioning the suspect in accordance with legal parameters, and it provides advice on the charging stage of the case. If the case is resolved with a plea agreement, the prosecutor should ensure that all of the terms and conditions of the agreement are clearly stated on the record at the time of the plea. In the absence of a plea agreement, trial preparations should begin as soon as possible. It is important to determine at the earliest opportunity whether and to what extent the victim is cooperative. Without victim cooperation, the prosecutor must plan how to prove the case without her cooperation or even with her opposition. Foreseeable trial problems should be identified and researched. Guidance is also provided on the correct handling and recording of rulings on the admissibility of evidence. In addition, the article addresses the preparation of motions, the summation, jury instructions, and preparation for sentencing. The article concludes with the advice that the proper creation and protection of the record during all phases of a criminal case is critical to preserving a conviction on appeal. 16 notes