The People v. Vicarious Trauma Responses; Can a Prosecutor Cry?
In September of 2024, a defendant was instructed to “please rise” and face the jury foreman. The soft-spoken foreman reiterated a word of monumental gravity six times: “guilty”. One count of Rape in the First Degree, two counts of Criminal Sexual Act in the First Degree and three counts of Incest in the Third Degree stood then, not as before, as proven convictions rather than mere accusations. As a younger felony assistant, I bowed my heard into my arms and laid upon the table, all while the defendant was standing receiving the news of his fate, perhaps standing for the final time as a free man. The older assistant who worked on the trial with me looked at me and uttered, “first time?” as I laid my head on the prosecutor’s table, slumped over, holding back tears.
You know there is an old rumor around the district attorney’s office that if the prosecutor cries during a trial, it results in a mistrial. I have not done the research myself, but I imagine it is true. Witnesses are allowed to cry on the stand, certainly there is no rule regarding the defendant’s tears and acrimony, perhaps not for the defense attorney either. But as a prosecutor, we are made to stand tall. In September of 2024 during that trial, I had trouble keeping my emotions in check. A man raped his own daughter, I thought to myself! That is what we proved at trial and that is what the verdict of the jury cemented. The culmination of months of preparation, including meeting with and consoling a woman we all knew was raped by her own father, hinged on that one word. How could my counterpart—the other attorney on the case—not show any emotion? What tools did he possess that I did not? Does secondary stress not affect him?
It is not an easy task to prepare a rape case for a woman who was raped by her own father. Even worse, what if you know there is a good chance of losing at trial? Rape in New York is tricky business; the law does not necessarily recognize a victim who freezes and does not say NO. No means no, but what about freezing still while it happens? Well, that is what happened in this case, and sickeningly enough, the defendant had a decent case of arguing that the victim consented to having sex with her own father. Secondary trauma is knowing that a convenient quirk in the law could allow a rapist to walk. More to that point, what secondary trauma response would I have—if I have not already—if the defendant were acquitted?
I have seen other victims cry, sometimes into my arms, during meetings. This case, though, will stick with me. Sure, the victim cried during our various preparations, but it was the times she did not cry that were jarring. She would freeze. Perhaps, this was the same freezing that took place while her own father ejaculated in her. That look in her eye while she recalled that traumatic experience still sticks with me, and I am the professional who is supposed to not be bothered by it; in fact, showing too much emotion can cause a mistrial.
As a prosecutor, we are kept up at night by various things, often, they are tragic. In effect, the time I spend outside the job can resemble the “signals of a stress reaction” as elicited by Rousseau (2025). The symptoms of a stress reaction include: anxiety, guilt, grief, denial, and fear (Rousseau, 2025). As a result of handling cases that involve the stark trauma response of others, I find myself having many restless nights. My average bedtime is 1:30 a.m.; I need to wake up at 7:30 a.m. I feel like the job I do is important, but I also have to face the fact that I do not feel well or content. I would say I suffer from confusion, poor attention, poor concentration, and withdrawal, all factors identified by Rousseau (2025) as a stress reaction. I feel like, as prosecutors, our “trauma almost invariably involves not being seen, not being mirrored, and not being taken into account” (Van der Kolk, 2014, p. 97).
I often wonder if the adversarial system of justice is a way to disguise the shared trauma that criminal justice stakeholders face. If I am to act like I won a battle by getting a conviction, perhaps that can mask the depressing realities and facts behind the alleged criminal conduct. Much as a veteran in a war cannot win the war on his own, one prosecutor cannot win the war on crime. Knowing this futility, without distracting ourselves, can cause us to become “withdrawn and detached, even if [we] had functioned well before” (p. 30). Thus, I do think prosecutors are trained to be warriors, based on my experience, for this very reason: we will not work as hard if we realize there is a certain futility to all the hard work we do. Much like a veteran who returns from war and becomes detached, there are certain aspects of criminal law that mirror trauma responses. Instead, when confronted with stressful and traumatic experiences, “the greatest sources of our suffering are the lies we tell ourselves” (p. 31).
As of the writing of this post, another trial victory was secured by this writer. Eerily enough, a similarly soft-spoken jury foreperson recited the words “guilty” three times. Although not an incest/rape case like before, this case involved a child victim. This time, there was no holding my head in my arms on the prosecutor’s table, rather, I felt numb. This is not to say that I did not care, but I did not react. It provided me with a mental crossroads: would I rather feel emotionally invested or would I rather feel numb? By this point, I have felt both; I do not know which is scarier. Much like the original rape trial, this trial also involved weeks of preparation. Do you think it is easy preparing a 10-year-old child for trial testimony; is it easy explaining to the child’s parents that (in Spanish, which this writer learned how to speak) “nada malo va a suceder si ganamos el juicio, podemos pedir la corte por una orden de proteccion.” That is, we often have to make assurance to crime victims that we will try to protect them even before we even know if guilty verdict will be reached.
Such experiences make the prosecutor an expert in what this writer calls street therapy. Van der Kolk (2014) notes that other professionals like teachers are “thoroughly schooled in emotional-regulation techniques” (p. 304). Believe you me that prosecutors receive no such training. We learn it as a matter of necessity, on a need-to-know basis. While “the cultures of Japan and the Korean peninsula have spawned martial arts” as a means to combat trauma responses, we have a diploma on a wall and our law license (all of which require much stress to obtain). While “other traditions around the world rely on mindfulness,” we rely on one or two words: “guilty” or “not guilty”. We are tasked with easing the minds and building up the mindfulness of the people we represent, but no one is really there to erect the prosecutor’s mindfulness.
On a similar note, we are responsible for the memories of victims who, as a result of their trauma, might forget critical details. Whereas in the confines of the psychiatrist’s office it may be perfectly fine for a rape survivor to not recall certain details to his or her therapist. On the witness stand, however, if a witness forgets something, it can be used against them, and by extension, against us. This is just the ghost in the machine of the criminal justice system; every defendant has a right to be tried and convicted upon competent evidence. But, as we know from the trauma research, traumatic experiences can render an otherwise competent person into an incompetent one. It is noted “how fickle memory” is on a good day; furthermore, “autobiographical memories are not precise reflections of reality; they are stories we tell to convey our personal take on our experience” (p. 261). As a prosecutor, is it any wonder that the trauma response of our victims are also the trauma responses of our own? We have to own their testimony; we take our victims as we find them. Thankfully, the way humans process traumatic events, like being forcibly raped by one’s own father, help provide veritable testimony as, “the adrenaline we secrete to defend against potential threats helps engrave those incidents into our minds” (p. 262).
A lawyer named Tom, a subject noted in Van der Kolk (2014), seemed to experience the same phenomena as this writer; “maybe the worst of Tom’s symptoms was that he felt emotionally numb” (p. 35). Anyone involved in the daily accrual of vicarious trauma, such as a prosecutor, has had days where he or she “could not really feel anything except for [their] momentary rages and [their] shame” (p. 35). Perhaps, I would prefer to feel emotional as I did during my first trial rather than the second one; “he always felt as though he were floating in space, lacking any sense of purpose or direction” (p. 35). I am proud of the job that I do, and I like to do it well. Good prosecutors, who are abundant in the office I work for, ensure the defendant receives a fair trial. But the vicarious trauma, as shown by the experiences of this writer, show how it can wear one down.
Rousseau, D. (2025). Signs and Signals of a Stress Reaction. Boston University.
Van, K. B. A. (2014). The body keeps the score: Brain, mind, and body in the healing of trauma.