A majority of identity theft cases never make it to court. If they do, you’ll want to arrive armed with the knowledge of what your rights are and what tools the law allows you to use to rectify your identity theft issue. Keep in mind, as you read this information, that each case is unique. What one victim experiences may not be your experience, even within the same jurisdiction and court. This general information is not meant to take the place of legal advice from an attorney, or advice from a DA victim assistance counselor. However, it might help you understand the complexities of the judicial process.
Throughout the process of clearing your name, you have most likely filled out a number of affidavits. On these forms is some information you might not want publicly known. This could be your new driver’s license number, mother’s maiden name, former addresses or names used, new address, birth date and account numbers.
Many victims do not know that you may request that identifying information be redacted (blackened out) from documents being put into court records or given to the defense attorney during discovery. Unfortunately, we have heard of cases where the perpetrator has gotten these documents and now has even more information than he/she originally had. Talk with the detective and DA on your case about your options. These will vary from jurisdiction to jurisdiction. Throughout the court process, take detailed notes. Note names of people who testify, the name of the judge, DA, court reporter and even the probation officer. Write down who said what, judicial rulings, anything the defendant says. Jot down questions about things you don’t understand or items you feel were ignored. You can ask the DA or victim assistance counselor about those later.
There are some very basic expectations you should understand for each step in the trial. At the arraignment, you probably will not be asked to speak, and may not be involved. Sometime after the arraignment, someone from the DA’s office may contact you to let you know about the date of the trial. Depending on your city or county, you should expect that this DA will not be the DA who later will try the case. Frequently, victim contact is just an administrative function, and the DA’s rotate this duty. If you become aware that your perpetrator has been arrested, and you have not been contacted by the DA, you should call the DA’s office and ask for the calendar coordinator. You may need to be persistent.
If you are involved in the arraignment, you will be a spectator. Typically, the defendant will go up to the front of the room along with his/her attorney. The court will read the charges and ask how they plead. Expect to hear the words, “Not guilty.” Do not react to this; this is just a legal process. The judge will quickly review the DA’s charges. Then the judge will set a preliminary trial date, a readiness hearing date and decide bail.
Following the arraignment, the formal trial will begin next. Keep in mind; this is the people’s case, represented by the prosecutor, not yours. The DA may not present the information you wish. He/she may not focus on points you think are important and may even settle for a plea bargain without consulting you.
Many factors figure into the way a prosecutor presents a case. The prosecutor must consider the type of penalty asked for, and how many counts (acts of criminal behavior) charged in the case. For example, sometimes your case is just one of several cases that are being charged against an alleged imposter. The DA will focus on the crimes that have the best chance of successful prosecution, or that hold the highest resulting penalty. Those crimes may not be yours. Sometimes a DA has a wealth of criminal activities to prosecute, but going after each incidence won’t help improve his/her case. The judge might see such actions as persecution, or a waste of time. Be aware that the penalty might not change between 31 counts and 15 counts in a specific case.
Again, take notes. Keep your cool and act in a professional manner. You may not even need to say anything until the imposter is found guilty and the court moves into the sentencing phase. If you are called to testify, follow the directions given to you by the DA’s office prior to trial.
If the defendant is found guilty, the judge will set a date for sentencing. If, however, a plea bargain has been struck, the case will move directly to sentencing. You will be notified of the date of this phase and you should talk with the DA prior to this date. You should also talk with the Probation Officer assigned to the case.
You have the right to submit a written Victim Impact Statement. If you want, you can also make a statement in court. The judge must read anything you submit to the court, prior to sentencing. Please do yourself a favor: Prepare a statement, keep it concise, accurate, clear, and complete. This is the best way to have your message heard clearly by the court. You may attach a financial statement detailing your costs and expected costs; include copies of any receipts that verify expenses.
If the imposter is found guilty, the judge will pass sentence. That sentence may include probation with review hearings. The Probation Department will give a report to the judge regarding probation progress (or lack thereof), and law enforcement is also permitted to search the convicted felon’s residence, car, person and belongings for any probation violations. Before a Review Hearing, victims who suspect that the felon is breaking probation or the law should notify either the police detective that was on the case or the assigned probation officer. Review Hearings give victims another chance to address the court, especially if probation violations affect them.
“The Court Experience for Identity Theft Victims” was written by Matt Davis. Matt is a Victim Advisor at the Identity Theft Resource Center. We welcome you to post/reprint the above article, as written, giving credit to and linking back to the ITRC Blog.