If you have ever watched a crime show, you have undoubtedly heard the following phrase: 

“You have the right to remain silent. 

Anything you say can and will be used against you in a court of law.”

And although your streaming service or cable TV may not recite the following, it completes this set of rights:

“You have the right to an attorney. 

If you cannot afford an attorney, one will be provided for you.

If you decide to answer questions without an attorney present, you will still have the right to stop answering until your attorney arrives.”

Otherwise known as the Miranda Rights, this widely known speech lists a suspect’s rights upon their arrest. Although this verbiage is familiar, many do not understand the significance of these rights. These words, or a form of these words that communicates all of the necessary information, must be recited before any questioning of an accused individual. This precedent was set in 1966, under the Supreme Court case Miranda v. Arizona. Although this lawsuit is named after plaintiff Ernesto Miranda, it addressed four separate cases in which defendants were questioned by law enforcement and gave verbal admissions without a reading of their rights. In several of these proceedings, these confessions were then used by prosecuting attorneys to determine guilt. The Supreme Court ruled, upon appeal, that the Fifth Amendment rights of these individuals were not met, as this amendment stands to protect all citizens from incriminating themselves in situations where proper procedural safeguards securing this privilege do not occur. As a result, the convictions of each of these four lawsuits were reassessed and although in one case, California v. Stewart, the judgment was affirmed, in the remaining three cases, Vignera v. New York, Westover v. United States, and Miranda v. Arizona, the judgments were reversed, the cases were deemed mistrials, and they were re-tried in court. The clarification of defendants’ rights that occurred within Miranda v. Arizona was not a one-time instance. There is a pattern of criminal rights being clarified or even furthered. In 1961, Mapp v. Ohio established the precedent that evidence can only be used in court if it is obtained legally, and in 1963, the Supreme Court ruled that legal counsel must be provided to defendants if they cannot afford it in Gideon v. Wainwright. Repeatedly throughout history, the rights of those who are criminally charged have been fought for and furthered in the highest courts, but what about the individuals who have not been accused of a crime but find themselves within this system as well?

Our criminal justice system is so preoccupied with determining guilt or innocence that sometimes the most vulnerable individuals going through the system itself are overlooked. In political discussions, we commonly hear arguments surrounding prison reform and the death penalty, and although these are necessary topics of discussion, society focuses so heavily on the issues within places of incarceration that many forget about the broader criminal justice system and where else improvement can and should occur. It is crucial to discuss the protection of individuals imprisoned under our justice system as well as the victims within our court system.

To better understand the experience of victims within the criminal justice system, I spoke with two remarkable women at the Travis County District Attorney’s Office, Emily Scholten, Assistant District Attorney, and Neva Fernandez, Director of Victim Services, who have built incredible careers based on helping victims within the legal system.

ANYA MCCORMACK: How would you describe your position at the DA’s office? 

EMILY SCHOLTEN: I take cases all the way from the moment that they come in through law enforcement through disposition, whether that be a plea or trial. 

NEVA FERNANDEZ: I manage the counselors who work with the victims of violent crimes in our office in order to make sure that we are engaging with them in a trauma-informed way. 

AM: What has been the most impactful aspect of your role? 

ES: Working with victims. 

NF: For me, the most impactful part is building a program that has best practices for working with victims. For the community, hopefully, we have made the experience of victims who have to engage with the criminal legal process more tolerable, it is not good no matter what, but hopefully we have done some harm mitigation.

AM: How would you describe the experience of a victim within the criminal justice system?

NF: I think it is extremely difficult, there is a loss of control from the crime itself, and then the criminal legal system does not give them a whole lot of power or control in the process. They do have rights, and we do try really hard to make them aware of what those rights are and that we are affording them those rights, but the criminal legal system is set up to protect the rights of the accused, so it is difficult for the victims. It is a new concept that we need to be thinking about defendants and victims because the system is set up for defendants, and I think we can do better. 

ES: The criminal justice system is not set up to help victims, and I have seen that be really hurtful and frustrating for victims at every level. From a Class C, the lowest misdemeanor, all the way up to murder cases. Victims are often super frustrated and sometimes get very disenchanted with the whole system. Depending on the case, some victims walk away feeling okay, but they just really feel like sometimes it is unfair. Especially in cases in which their loved ones are taken from them and they will never see them again, and then they see how many rights the defendant has. 

AM: What changes do you think would improve the experience of victims within the justice system?

ES: So, I know that victims and victims’ families would love to have a bigger say in how quickly cases move and the possible ranges of punishment on certain types of crimes, it is not uncommon for me to have to tell victims that sometimes what they want would require a change in the law. I happen to have victims that have done that, that have advocated. 

NF:  Our office makes a referral to civil legal aid crime victim’s rights attorneys in the first letter that we send to victims. That should be done in all district attorneys’ offices. I do think that having somebody – when they talk to us is not confidential, because what we know has to be handed over to the defense – so connecting them to attorneys who can answer their questions and have confidentiality can restore some of that helplessness and restore that power lost to them. 

AM: Do you think these individuals are overlooked within public policy?

ES: About the only time that we hear about victims is if some politician wants to be “tough on crime” and then they will insert a victim’s name in the law, and it creates a harsher penalty. You never hear about a law that is enhancing a victim’s access to something, at least not since I have been a prosecutor. 
We expect to hear the Miranda Rights as recited by a police officer to an arrestee, and while many may recognize these rights from an episode of Criminal Minds, Chicago P.D., or a mystery novel, most do not question the other side of these rights – the side that is commonly left undiscussed. We live in a society captivated by dramatics, where the entertainment industry often portrays the story of the accused rather than that of a victim. Not only does our society focus on the perspective of suspects, but our criminal justice system does as well. This system is based entirely on the rights of the criminally accused, and while these rights are necessary and important to uphold, there is another side to these stories, and more attention should be allocated towards protecting the rights and experience of victims within our court systems. We can do better – and we should.