Exercise 15

A magistrate judge conducts a preliminary hearing involving aggravated stalking charges under §30-3A-3.1(A) based on allegations that the defendant repeatedly was seen in the alley directly behind the victim's residence late at night armed with a baseball bat. Prosecution questioning of the victim revealed she never clearly saw the person's face at any time, rather only a dark, shadowy outline of a male holding a baseball bat as if preparing to strike her kitchen window. The victim testified the person was the defendant, whom she identified as the "creepy guy" she ran into once at the gym four months ago. Defense counsel cross-examined the victim regarding the clarity of her late-night powers of observation, and in response to the first question she began to physically shake and cry intensely. The prosecution objected and asked the court to put a stop to cross-examination.

How should the judge rule?

A. Agree with the prosecution and stop cross-examination due to the need to protect the victim and given the terrifying nature of the stalking.

Answer A is incorrect. Concerns by the judge about the victim being treated with dignity, respect and sensitivity are valid under the Victims of Crime Act. However, in preliminary hearings the identity of the defendant as being the offender is critical for determining whether there is probable cause to bind the accused over for trial. See Rule 6-202(C). Defense questioning was directly relevant to the issue of the strength of the victim's identity of defendant as the being the shadowy, dark outline. Therefore, cross-examination should be allowed and the judge can always limit or caution defense counsel later in the process.

B. Disagree with the prosecution and allow the questioning given its relevance to the issue of the identity of the late-night figure.

Answer B is correct! Concerns by the judge about the victim being treated with dignity, respect and sensitivity are valid under the Victims of Crime Act. However, in preliminary hearings, the identity of the defendant as being the offender is critical for determining whether there is probable cause to bind the accused over for trial. See Rule 6-202(C). Defense questioning was directly relevant to the issue of the strength of the victim's identity of the defendant as being the shadowy, dark outline. Therefore, cross-examination should be allowed and the judge can always limit or caution defense counsel later in the process.