OVC Provider Forum Transcript

Enforcing Victims' Rights in Court
Carol Dorris, Meg Garvin  -  2008/12/10
How can I, as an advocate, encourage the criminal process to move more quickly? Victims often have to wait for delay after delay, all the while feeling anxious about their testimony and the outcome, while they are trying to "put it all behind them."
1.  Carol Dorris
 A number of states have passed laws granting victims the right to a speedy trial which often includes limiting the number of continuances that may be granted by the court. A legislative overview of the victims right to a speedy trial and a state-by-state comparison is available on the National Center for Victims of Crimes Public Policy page that will give you a sense of how various states are handling this issue (http://www.ncvc.org/ncvc/main.aspx?dbID=DB_PublicPolicy185). You can also search for the right to a speedy trial on VictimLaw, a free, online database of state, federal, and tribal victims rights laws which was developed by the National Center under a cooperative agreement with the Office for Victims of Crime, Office for Justice Programs, U.S. Department of Justice. This resource, which is accessible at www.victimlaw.info, will enable you to conduct a topical search on the right to a speedy trial for all of the states and territories which will bring up a list of results relating to that right. Clicking on each result will allow you to review the actual text of each legal provision listed. While it takes some time to get new legislation passed, by reading some of the laws of other states, you might get some ideas that you can suggest to criminal justice officials in your state to encourage the process to move along more quickly.
2.  Meg Garvin
 Approximately 25 states (plus the federal government) provide victims with some right to speedy disposition of the criminal proceedings involving their offense. While this right cannot guarantee that a trial or any other particular proceeding happen TODAY if such immediacy would violate the defendants right to prepare for trial or the states ability to do so, the right has successfully been used in many jurisdictions to argue that a continuance should be denied, that no further continuances should be granted, and for very strict scheduling orders that require regular check-in by the parties to show progress on the very issue that the party claimed required a continuance (e.g. if the defense says it needs a continuance because it needs more time to locate and interview an expert, the court can ask for progress updates on that as part of its scheduling order). NCVLI has sample briefs and memoranda arguing these points we are happy to share www.ncvli.org. In addition, many jurisdictions have specific statutesrules that allow for priority scheduling for particularly vulnerable populations of victims such as child-victims or elderly. As advocates we all need to work with prosecutors and the courts to ensure that they know of the tremendous toll delay is taking on our victims and encourage use the victims right to speedy disposition as a tool to expedite proceedings. If it is the prosecutor who is the one seeking a delay and you know that your victim needs or wants expedited proceedings, I encourage you to think through how best to refer that victim to a private attorney (which NCVLI can help with) to enter an appearance in the criminal case and assert the right on behalf of the victim. If you are in a jurisdiction without a right to speedy disposition or a special statute applicable to your victim and getting the right passed in your legislature or court rules is not currently doable, other rights may provide the basis for similar arguments such as the right of the victim to be treated with fairness, dignity and respect.
What education or credentials should a person have in order to obtain employment as a legal advocate for the local courthouse or police department?
1.  Carol Dorris
 While this particular question is somewhat beyond my area of expertise, I do know that OVCs Training and Technical Assistance Center provides a number of training opportunities for victim service providers. These include the National and State Victim Assistance Academies, Victim Assistance Training Online (VATOnline), and other workshops that they offer. Their Web site might be a good place to start for more information. We are also currently working on encouraging more undergraduate/graduate criminal justice programs to incorporate victimology and victims rights courses into their curricula, especially since the students of today are the victim service providers, law enforcement, prosecutors, and judges of tomorrow.
2.  Meg Garvin
 I am not 100 sure what is meant by being a legal advocate for the local courthouse or police department. Perhaps if the questioner could flesh that out I could direct most appropriately. With that said, I would direct folks to OVC's Training and Technical Assistance Center which provides a lot of victim advocacy training opportunities for victim service providers. As I've mentioned in response to another question, newly included in the training offerings is a training on rights enforcement. In addition, the lawyers at NCVLI and the clinics it partners with nationwide conduct trainings nationally on rights enforcement and the ethics of rights enforcement, which all of us are happy to share, and we also work with law students to ensure that victims' rights courses becomes a part of their training so future prosecutors, defense attorneys, and judges know this emerging area of law.
It's good that the accused has their rights explained during the court prosess, how do we ensure that the vitim's rights are also explained thoroughly?
1.  Dan Leveyd
 In Arizona its mandated thru statute that Judges read victims rights out loud in court at the throughout the criminal process. This legislative session our Governor is introducing legislation that it also be posted in each courtroom. When questions come up Judges can then refer the victim to the local victim services office.
2.  John Stein
 The ideal is to have a skilled victim advocate talk to every reporting crime victim at the scene or soon thereafter -- with a review of the rights part of the service. In any case, the law must provide that the responding officer meet provide a card or pamphlet sterring victims to their rights and available services. What's missing in many states are mechanisms to ensure this minimum right to be informed on one's rights is met.
3.  Carol Dorris
 Some states laws provide more guidance and enforcement mechanisms than others. A number of states have law enforcement or prosecutors give victims written notice of their rights. This gives them something tangible to refer to as they proceed through the process. Also, having their rights explained to them multiple times as they come in contact with different criminal justice professionals may help reinforce what rights victims have. Once again, I did a quick search on VictimLaw.info to see what creative approaches were being used in other states. I clicked on the Right to be Informed, then on Victims Rights and Remedies. In Arizona, Connecticut, Florida, and several other states, the judge reads a Statement of Victims Rights at the commencement of court each day. Connecticuts Code 54-85g reads as follows: In order to ensure that any victim coming before the court has been advised of the victim's constitutional rights, any judge of the Superior Court shall, at the daily commencement of the regular criminal docket at which accused persons are arraigned, issue the following advisement: If you are a victim of a crime with a case pending before this court, you are advised that you have the right: (1) To be treated fairly and with respect throughout the criminal justice process; (2) to timely disposition of the case; (3) to be protected from the accused; (4) to be notified of and attend court proceedings; (5) to speak with the prosecutor; (6) to object or support any plea agreement; (7) to make a statement to the court before the court accepts a plea agreement and at sentencing; (8) to restitution; and (9) to information about the arrest, conviction, sentence, imprisonment and release of the accused. Even better, Connecticut Code 54-220 requires victim advocates to notify victims of their rights and request that each victim attest to the fact he or she has been informed of his or her rights on a form developed by the Office of the Chief Court Administrator. The form shall be signed by the victim advocate and the victim and placed in court files. A copy of the form is provided to the victim. This is an approach that could be implemented even if its not enacted into law.
4.  Meg Garvin
 Many jurisdictions have adopted as a best practice that first responders and then prosecutors each provide victims with information about their rights, this is usually in written form and is often distributed pursuant to statute requiring it. Further, many jurisdictions have adopted (e.g. Arizona) or are in the process of adopting (e.g. Oregon) a process by which courts start every critical stage of the criminal justice proceedings with a reading of the rights of victims and then asking whether there are victims present, whether those victims know their rights, and whether they want to exercise any of those rights. This integration of victims rights into the process of court hearings will aid in rights becoming part of the culture of the criminal justice process. What all this moves us toward is some level of victim awareness that rights exist but the question properly raises perhaps the more important question of victim understanding of those rights sufficiently to know how (and if) to exercise them. For this latter piece to happen we need a model similar to what we have for other people with rights in the system such as defendants - we need victims to have access to legal counsel who can explain their rights to them under the umbrella of attorney-client privilege and discuss how the victim might exercise those rights and what the pros & cons of exercise the rights in a particular way are. Only with this type counseling available will victims be able to truly knowingly and voluntarily assert OR waive their rights. This means we all have another job on top of the ones we currently do encouraging attorneys to take cases pro bono to help victims with their rights. NCVLI is happy to work with these lawyers, provide them access to our research and forms and to connect them with other experts nationally who know how to litigate victims rights. But we need your help getting lawyers to help victims and having them join the National Alliance of Victims Rights Attorneys (NAVRA). Also, the lawyers at the clinics NCVLI partners with are among the best lawyers in the country in any area of law and they are eager to share their knowledge - we can put you in touch with them too.
I'd like to know "Best Practices" ideas for communicating with Judicial Officers regarding victims' rights being upheld through the justice system process.
1.  Shamra Coy
 Thank you for your time and research on the topic. I appreciate the delicate nature of talking to our judicial officers, however; several of your ideas might just work in our small county.
2.  Meg Garvin
 Communicating with the courts about victims rights can be challenging. Often advocates know victims rights better than anyone else in the courtroom and yet advocates don't have the authority to step into the well of the court and argue/inform others about these rights. Sadly, most of the victim attorneys around the country that NCVLI works with have told story after story of showing up in court with copies of victims rights laws and having courts and others simply not have known that the law existed or applied in the context. One of the best things that can happen is increased education of everyone in the system (prosecutors, judges, defense counsel) about what victims rights enforcement is all about. Fortunately, OVC has developed a curriculum on this very subject that launched this past fall but will be taught again in spring and hopefully pretty regularly thereafter. It is an important course because rights enforcement (as opposed to compliance) is a critical shift in how the criminal justice system does business and it's going to take some time for that shift to sink in. In addition, the more we can litigate the rights (meaning the more that rights are asserted in the trial court and when denied appellate review sought to secure enforcement) the more case law will develop about what the rights mean. With more case law, courts and others in the system will be being told by the higher courts what they need to do with the right and hopefully then the law will continue to develop. When courts are appealed they listen to the outcome and practice shifts.That said I know education and case-by-case litigation doesn't get us where we need to be today. One thing that numerous advocates have found useful is having copies of the law with them as they talk with prosecutors and other system-players so that they can point to language and ask for explanation of why that language does not mean what they think it does. This is a delicate conversation at times and can require a lot of tact. Not sure how to answer any more than that.
3.  Carol Dorris
 Since my work involves primarily conducting comprehensive legislative analysis relating to victims rights, I'm sure that Meg's hands-on work will enable her to give you more constructive ideas than I can. I think that starting the dialogue before an issue arises is helpful. It's easier to discuss a topic in general instead of when it has become an issue in a specific case. Providing them with easy access to information about victims rights is another way to encourage them to make sure victims rights are upheld. Letting them know about VictimLaw as a research tool they can use may be helpful. The About Victims Rights gives a quick overview of the status of victims rights that might be useful for them in understanding the importance of enforcing victims rights if they're not already aware of it.
In some Homicide cases the Assistant State Attorney might not see the case the same way as the victim’s family, which might cause conflicts. What rights does the victim’s family have if the case is not being prosecuted in a satisfactory manner that benefits both the State and the family?
1.  Carol Dorris
 Victims rights laws attempt to give victims the ability to participate in the criminal justice process, but while that may give them a voice it does not give them the right to direct the prosecution. In a few states like Kansas and Louisiana, victims may be accompanied by an attorney who may confer with the prosecutor on behalf of the family. This can be helpful in providing the family with someone who has the familys best interests at heart who can explain the process and why things are happening the way they are.
2.  Meg Garvin
 A couple of responses to this. First, while victims have a number of very concrete rights most of them are procedural rights (rights to notice, an opportunity to be heard, etc.). These rights are not really rights to control the process - the idea is that victim's have a voice not a veto. This scope of the rights, coupled with the reality of prosecutorial discretion, means that prosecution gets to direct how (and if) prosecution occurs. With that said, a victim has a right to confer with the prosecuting attorney in most states and that right by its very language has to be something more than being told about pre-determined outcomes. It means a give & take of information so that the prosecution can really learn from the victim. If that conferring is not going on a rights violation is likely occurring. In that case, I would encourage the victim to try to secure private counsel through one of pro bono legal clinics around the country or through NAVRA (www.ncvli.org)so that his or her attorney can talk with the prosecutor and perhaps even go into court and seek enforcement of the right to confer.
My question is about the victim's verbal victim impact statement at a sentencing hearing. In some courts in my state, the defense attorney is given an opportunity to "cross examine" a victim regarding comments they make in their victim impact statement. It seems to me that the victim should not be subjected to those questions. A victim impact statement is not evidence. The determination of guilt has already been made and the victim's description of the crime and how it impacted them should not be subjected to review. How is the victim impact statement handled in most courts?
1.  Carol
 Carol: Thank you for your offer to help me research this topic through VictimLaw. I hope to contact you later to do that. The prosecutor in my county wants to go to our Judge about discontinuing this practice and has asked me to find out how victim impact statements are handled in other courts. John Stein and Meg brought up the issue of allegations of fact in a victim statement that might impact the sentencing decision and the potential for the defense to refute those allegations. I would like to know how that issue is handled in other jurisdictions.I hope to contact you later for assistance.
2.  Carol
 Meg: Thank you for your thorough reply. I do plan to research this issue more. I have had several victims become quite upset due to tough questioning after they after given their statement. In one or two of those instances, the victims possibly made allegations of fact that the defense questioned. I am not sure, however, that the allegations of fact were of such a nature that they would have impacted the sentencing outcome. Thanks again.
3.  Carol
 Thank you for your reply. The prosecutor in my county is interested in researching how victim impact statements are handled in other jurisdictions, especially in WV. However, I think it will be helpful to have information from other states as well. I hope to work on this further.
4.  Meg Garvin
 Thanks for chiming in! Hearing from practitioners in each jurisdiction will help others have more fuel for their arguments against poor practices in their jurisdictions!
5.  John Stein
 I'm not sure if Meg's solution is the fairest. I was surprised to be put under oath when I spoke (without a cross-exam) at the sentecing of Robert Lee in 1986, and have always wondered what might have happened if I made assertions of fact -- like saying a relative had committed suicide due to his murder -- which were untrue and malicious? Would the defense have to seek a stay to rebut my surprise testimony, or might it test it right there? Seems unfair, maybe. Incidentally, I was not told I would be put under oath, the only flaw in the fabulous service performed by DA Stan Levco.
6.  Carol Dorris
 I don't have a lot to add to what Meg has already posted. Again, if you are interested in looking at some of the state laws relating to victim impact statements, that topic can be searched specifically through VictimLaws topical search. I am happy to walk you through the search at a later time if you are interested.
7.  Meg Garvin
 Unfortunately, I cannot comment on how most states handle this situation because NCVLI has not undertaken a true 50 state survey on this. We are absolutely happy to do that if you would like us to as this is truly a critical issue. What I can say is that if the victim is exercising his or her statutory or constitutional right to be heard at sentencing that right is akin to the right of allocution that a defendant has (numerous courts are recognizing this). If the victim is allocuting then he or she should not be subject to cross-examination (just as defendant is not subject to cross-examination). The defense does have a right to rebut statements made by the victim but this rebuttal is not cross-examination it is through the defense's own allocution or other witnesses put on in mitigation. One caveat, however, if the victim is being used by the prosecution to aggravate a sentence then Blakely and other U.S. Supreme Court cases may come into play requiring that the sentencing factor that the victim is being used to prove be proven beyond a reasonable doubt and in that instance cross-examination may be necessary. In this type of situation I would strongly encourage the prosecution to figure out another aggravating factor so that victims do not endure the pain and re-victimization of cross-examination.
8.  J. Grieshaber
 In N.Y. the Victim is invited to read an impact statement which becomes a part of the record. In no way is it questioned and is accepted purely as the victim's recitation of how the crime affected them. I also asked a question about this topic referring to a judge who reprimands victims for becoming emotional but the judge, right or wrong, is the ONLY one who may address the victim and I have never heard a statement questioned for veracity.
If a victim of DV is applying for an Order of Protection in a different state from where the abuse occurred does the judge where the victim now resides have jurisdiction to grant the order of protection? This issue has recently arisen as a reason to deny OP's.
1.  Carol Dorris
 I, unfortunately, am not an expert in this area either. The whole protective order process can be very complicated. Many states have multiple laws that may apply. The WomensLaw Web site seems to contain a lot of state specific information pertaining to protective orders. It can be accessed at www.womenslaw.org .
2.  Meg Garvin
 I am going to have to defer answering here because I am not a general expert on protective orders when jurisdictional matters are at issue. I would encourage you to contact Robin Runge at the American Bar Association who may know this off the top of her head. With that said, you can also contact me offline (garvin@lclark.edu) and tell me the state/jursidictions involved and NCVLI will happily do a legal research memorandum on the issue.
Please discuss what steps states can take to make victim rights laws enforcable.
1.  Carol Dorris
 States are using a wide variety of mechanisms in their attempts to make victims rights laws more enforceable. A few states have statutorily created compliance offices like Minnesota's and South Carolina's ombudsmen and Connecticut's Office of the Victim Advocate. Other states build in a system of checks and balances in their laws. Maryland grants victims the right to appeal when some of their rights are violated. The National Centers director of public policy, Susan Howley, has done a lot of work on the issue of victims rights enforcement. You can email her at showley@ncvc.org, and she will be glad to send you an overview of what mechanisms different states are using to enforce their victims rights laws.
2.  Meg Garvin
 This is probably a 2 part question & answer. The first question is an analysis of whether a jurisdiction's laws are in fact enforceable already but simply have not yet been enforced. For instance, if you have a statutory or constitutional right to be present at trial and there is no explicit prohibition on enforcement (e.g. nothing that says you cannot assert it in trial court and nothing that says trial court decisions cannot be undone) then you have an enforceable right and likely what needs to be done to enforce it is to litigate it. If on the other hand you have what Oregon had up until last May, which was great constitutional rights but an explicit prohibition on appellate remedies, then you have rights that can be asserted at the trial court level and may be afforded but because there is no appellate remedy they aren't really enforceable. What has to happen in this situation is what happened in Oregon - a constitutional amendment lifting the prohibition. The key is that rights have to be able to be asserted at the trial court and then appellate review has to be possible (and best practice is mandatory). This is a jurisdiction-by-jurisdiction analysis which I'm happy to walk through with folks. The OVC training on Enforcing Victims' Rights also has a module that teaches some of the tools necessary for this analysis.
I have had a judge reprimand a victim, more than once, for becoming emotional and/or expressing anger during the reading of their Impact Statement. How can I best address this with this judge without seeming adversarial, which won't help anything. I understand the desire to keep a calm courtroom but I also need to help all of them to understand the needs of the victim, who has this one, brief moment to express their feelings. Leaving them feeling both shortchanged and embarrassed or angry is not a positive resolution for anyone.
1.  Carol Dorris
 Well, said Meg!
2.  Meg Garvin
 I know I am preaching to the choir in all likelihood because folks participating in this forum are all advocates, but this is simply outrageous. I have 3 responses - the first and last which I know are not really practical but I feel compelled to say them. First, there is a false operating premise in our criminal justice system that says that reason and rationality cannot co-exist with emotion. That premise gives rise to a number of logical and legal errors that allow judges and others to presume crying and emotion somehow automatically intrude upon the reasoned process that is supposed to underpin our justice system. The answer to this is an educational one in large part - going back to college law school where philosophy and logic should be taught in a different way to recognize that emotion is, in fact, the rational response at times.I realize that does not help in the moment. So second, the general test legally is that something has to unduly prejudice a proceeding - that's the risk. If so much emotion/outburst/etc. comes in that a proceeding is unduly prejudiced the court has to be concerned with reversal. So courts often try to preempt that by setting threshold at zero for emotion. This is an education moment in between hearings I think because you are correct, being combative in the moment won't change the judge's mind, and your victim survive may suffer the consequences. The education in between is a discussion about the scope of the right to allocute, the realities of emotion, what undue prejudice is, and an upfront understanding of what the judge expects. If the judge continues to say no crying then perhaps it is time to ask (through motion practice) for a determination on what is permissible in the courtroom, or even asking for alternative means of providing the impact statement. Perhaps through video, powerpoint, remotely, or some other means which would control the prejudice satisfactorily for the judge. Finally, part of the culture shift we need to achieve through rights enforcement is the re-injection of the person (with all of our wonderfully messy emotions) back into the criminal justice system and remind the system that crime is committed not just against society but against the individual. This is going to take education, engaging popular culture, litigation, and people like you being at least semi-combative with the judge in between hearings.
A somewhat broad question, but what are generally the best practices for advocating for victim’s rights when there are only limited statutory protections under state law?
1.  Carol Dorris
 I have to agree with Meg. Strengthening your state's laws is imperative. There are innovative enforcement mechanisms in place in many states that may be able to be implemented in your state. A number of states have legislatively created compliance offices that operate in a variety of ways. Other states have incorporated systems of checks and balances where either the prosecutor has to certify his or her efforts to afford a victim his or her rights or the court must confirm compliance in some way. Enforcement of rights is another topic available on VictimLaw.
2.  Meg Garvin
 My first reaction is that we need to get into your state and change the law!!! I know that's idealistic and that the fight for law change is an uphill one but I really think we all need to keep that tool in our toolbelt and continue thinking through how to change our laws to expand victims' rights and make them more enforceable. The recent constitutional victories in Iowa and Oregon show that there is still public support for these issues. Barring law change, even statutes can protect victims. Obviously they are lower in the legal hierarchy than constitutional rights but they are still powerful tools. Victims should still be paired with attorneys to go into court to assert the rights and attempts at appellate review should be made if the rights are denied. Sadly, our legislatures are often moved only after they are shown the deficiencies of our system. So we should aggressively try to protect victims with the statutes as they are and if the system rejects that we'll have more fodder for legislative change.
As a Victim Witness Coordinator I have had cases where the victim wants (and deserves) restitution, but the Assistant District Attorney has refused to make it part of the offer and simply tells me that "the victim can sue" the Defendant. I have mainly noticed this with domestic violence cases. How would you handle this? Thank you.
1.  James
 Sounds to me as if this particular DA wanted to make sure that the plea was accepted. This may happen because of a large case load, or because of a weakness in the case. I don't think that the DA was lacking in her due diligence requirement, however she should have taken additional time to make sure that the restitution provision was included. Perpetrators of crimes should be made totally responsible for their actions, and often times the financial punishment will be more of a deterent than incarceration. I have heard a particular criminal say lock me up for a while, just don't mess with my money.
2.  Virginia
 This is exactly why we need to keep in touch with our legislatures and continue to advocate for victims' rights. We cannot become complacent.
3.  Meg Garvin
 Inability to pay is (in most jurisdictions) only a proper consideration when you get to the payment schedule. It is generally not a proper consideration when you are faced with ordering restitution. It is correct, however, that collection does often require going to the civil process.
4.  Dawn
 How does this apply to cases where the defendant uses the inability pay arguement? This still leads a victim to civil process when the judge does not order the restitution.
5.  Meg Garvin
 This is a great question, because sadly we see this too often nationwide! The idea that victims should have to turn to the civil system to become whole is fundamentally flawed. Victims were thrust into the criminal justice system with no choice. We should do everything it can to make them whole in that system and not require them to initiate another process, incur personal expenses, and prolong the victimization. This is the first thing I would tell the prosecutor. Next, I would turn to the black letter of the law - the right to restitution attaches to the victim. This means that the prosecutor cannot bargain it away and if they do they have violated the victim's right and that sentence may be invalid. Admittedly, the scope of restitution varies from jurisdiction to jurisdiction regarding things such as whether it is full or partial restitution or mandatory or discretionary. But if there is a mandatory right to restitution (which most jurisdictions have) then that is a right of the victim and plea bargaining it away violates the right. This issue has been litigated in a number of states with restitution portions of sentences being undone. It is currently pending in Utah in a case litigated by Heidi Nestel at the Utah Legal Clinic involving a plea taken in violation this and other rights of the victim. So more case law should come out soon!
6.  John Stein
 See to it that your state law makes full restitution mandatory, and that violations subject courts and DAs to victim-initiated reversals.
Carol and Meg first of all thank you so much for all you do for our nation’s victims of crime! It is so important to have great legal minds fighting for victims rights and we're lucky to have the both of you. One area that is frustrating in enforcing victims rights is the remedy when victims are not initially given there victims rights at the time of the crime (typically when probable cause is determined that a crime occurred)? I realize victims rights can be given at a later date but sometime victims never new they had rights until it moves further along.
1.  Carol Dorris
 Thanks, Dan. In an ideal world, all victims would be informed of their rights from whomever they first come in contact with after the crime occurs whether that occurs through the criminal justice process, in a health or mental health setting, through a religious institution, etc. I know that in some jurisdictions, victim service providers accompany law enforcement on the initial call in which case more victims may be informed of their rights earlier than others. We have to get a lot more proactive promoting public awareness of victims rights so that they become a household word. That, of course is easier said than done.
2.  Meg Garvin
 Dan - thank you for your kind words. I can't tell you what they mean to me coming from you! I think we all share your frustration. The gap in time between when a crime is reported and then when victims are involved in the prosecution is excruciating and when victims are left without knowledge of what is going on in the case and without knowledge that they have rights to be involved the re-victimization adds to the pain. In many jurisdictions rights attach upon commission of a crime and therefore our criminal justice system has to get better at providing information about those rights, notice of those rights, and the how to enforce those rights to victims immediately. I know that in Oregon the Attorney General's Office, under the leadership of Attorney General Myers and with the work of Carol Schrader and Cynthia Stinson law enforcement statewide is trying to routinely distribute rights information to victims. These efforts are closing the gap a ton. If all jurisdictions could do this it would be great.So to the heart of your question - what happens when victims are not told of their rights and the case goes on. As I mentioned in response to another question, victims' rights are procedural due process rights in large part. So if the case goes on and a proceeding occurs that a victim had rights at stake in the remedy is a re do of that proceeding. For instance, if the victim has the right to be notified of, present at or heard at release hearings but is never told of those rights and a release hearing occurs, the victim him/herself, the victim's attorney, or even the prosecution should move for that proceeding to be re-done taking into consideration and affording all of the victim's rights.
Warm greetings and thank you for this forum. I have just taken a position to implement a crime victims legal clinic through the Colorado Organization for Victim Assistance. I am looking for advice about best practices that have been in place at the other clinics around the country so the transition for this new clinic will be less tumultuous. Also, are there any legal publications/textbooks you would suggest? Thanks,
1.  Meg Garvin
 Welcome to the enforcement movement!!! The best textbook out there (and no I am not just plugging my former boss) is Victims in Criminal Procedure, by Doug Beloof, Paul Cassell, and Steve Twist. This is a legal casebook that trains lawyers and others on the state of the law and how victims' rights can be integrated into criminal procedure without violation of any other participant's conflicting rights.That said, the other thing is to get to know the other amazing expert attorneys operating at the clinics nationwide: Russell Butler and his crew in Maryland, Rich Pompelio in New Jersey, Steve Twist, Keli Luther & Mischa Hepner in Arizona, Carole Wells in Idaho, Jason Buffkin in South Carolina, Sherry Tippett & Melissa Stepehson in New Mexico, and Heidi Nestel and Brandon Simmons in Utah. These folks are amazing lawyers that go into criminal courts every day on behalf of victims as they assert and seek enforcement of their rights. They are the best!
Is there case law that allows an advocate to sit beside or near a victim when the victim is testifying?
1.  Meg Garvin
 Yes. There are a number of cases talking about accommodations that can be made for victims, including at times having an advocate sit beside or near them while testifying. In fact, I know one of our clinic attorneys in Arizona (Keli Luther) has done this with her child-victims. Other accommodations for vulnerable victims (usually child-victims) can include holding comfort items. The test for when this is permissible and what you have to show will vary by jurisdiction and that test is something you probably want to know in advance of even asking for it. The reason being is that in some jurisdictions you may have to show that your victim will suffer if you don't allow the accommodation but making the showing could itself be a challenge.I am happy to send cases after we collect them if you contact me at garvin@lclark.edu. In addition, the upcoming edition of NCVLI's newsletter due out in January (which is free just contact us if you want it) is going to have an article on the law of some of these accommodations.
Separate seating area in the court room for victims of crime. This is needed for my victims, but is not usually available. Is this legislated under victims right in some states, and are Judges compliant with it.
1.  Carol Dorris
 Quite a few states do have laws on the books to encourage separate waiting areas. As Meg said, many of these do so only if it is available and practical. However, some states laws use the terminology minimize contacts which creates an opening for suggesting some innovative ways to protect the safety of victims. Michigan's law states: If a separate waiting area is not available or practical, the court shall provide other safeguards to minimize the victims contact with the defendant. Having that language in the law at least allows for some alternative solution to be argued. You can research more about these laws at www.VictimLaw.info. I would suggest you do a topical search, click on the right to protection, then click on the box for Separate court waiting area, and Search. You should end up with 61 or so results.
2.  Meg Garvin
 Approximately 30 states have laws that either mandate or encourage separate waiting areas for victims/witnesses. Often, however, the text of the laws includes limit the right to subject to available resources or something similar. This limitation essentially swallows the rule in many places because it allows budgets (which we all know are tight) to control. If there is no limitation in the law OR if there is space and it is not being used then this would be a right that should be challenged in court and enforcement sought.With regard to an actual seating area within the courtroom rather than at the courthouse, I am not sure there is any specific legislation on this but I hope other participants in the forum will chime in if they know of some. That said, victims in most jurisdictions have other rights at play, including the right to protection, that should require some level of separation in seating and which could be argued to the court.
3.  John Stein
 One simple fix I heard of -- an advocate got the permission of the judge to tape a sign on the back of two benches at the front of the small courtroom: Victims Only. Problem fixed.
columbia university press just published my book on a model for reforming rape reforms "Addressing Rape Reform in Law and Practice". how can i begin to translate this work into practice, i.e., which organizations and individuals should i contact, how shall i approach implementing a federal [or state] model of statute changes?
1.  Carol Dorris
 We are always in need of new resources to assist our work. The National Centers public policy department sends out a bi-weekly policy alert that includes new federal and state victim-related legislation as well new resources. If you can send me some additional information at cdorris@ncvc.org, I can pass that on to the person in charge of writing those alerts to review.
2.  Meg Garvin
 I have not yet read the book - how exciting for the field to have this resource! Each of the clinics that NCVLI works has contact information on NCVLI's website - www.ncvli.org and those organizations litigate victims' rights within their states. I'm happy to talk with you about how NCVLI can help with proposed legislative changes at statenational levels.
can u identify any groups, entities enforcing id theft victims rights in court? what is their "model"?
1.  Carol Dorris
 More and more states are passing laws to provide more protection for financial crime victims, including identity theft victims, especially with giving the court authority to order restitution. Not to sound like a broken record, but restitution statutes for identity theft victims can be accessed on VictimLaw by choosing the topical search, right to restitution, and selecting Victim of a Financial Crime from the list of special victim populations. Part of the reason for my participation in this Web forum is to inform those who work with victims about the availability of this resource to support your work. The Web site has a detailed tutorial that walks you through what VictimLaw.info has to offer. I am also more than happy to explore other ways of providing some type of training on its use if anyone is interested.
2.  Meg Garvin
 The Maryland Crime Victims Resource Center is one of 3 organizations (forgive me but I am forgetting the names of the others) with specific funding from OVC to work with victims of identity theft and fraud and to help those victims assert and seek enforcement of their rights in courts. They are probably your best resource on this topic!
What is the best way for a victims' advocate, working in the prosecutor's office, inform a prosecutor he just violated a victim's right?
1.  Maria
 I used to work for the State Attorney's Office and I loved it. However, I found myself in a similar situation. I met one on one with the Prosecutor, it did not work so I met with my supervisor...things got better, much better.
2.  Meg Garvin
 This is similar to the question about how to communicate with a judicial officer about victims' rights in that it often takes a lot of tact. It is hard for any of us to hear we have messed up, but I think culturally it is particularly hard for lawyers to hear and to hear it from someone who is not a lawyer but who knows more about this area of law really goes to our egos. That is not an excuse, just a reality that all of us need to understand and sadly deal with. That said, I think there are a couple of approaches. First, I think talking with your attorneys in advance of a situation about how they would like you to communicate about rights both pre-assertion and then post-violation is a good conversation to have. If you develop ground rules in advance that's good. Another thing to do upfront is to talk with your prosecutors about how they feel about referring victims to outside attorneys. The federal law now requires US attorney offices to make victims aware that they can have outside counsel to help them with their rights in the criminal case, and I think that local prosecution offices should consider the same thing. If you talk about this with your attorney in advance then there may be a way to talk about referral post-violation in a more graceful way.When the moment actually happens I think we all have to rely a bit on ethics which require us to know the rights of participants and to work to protect those. That means we have to tell the prosecutor when she was wrong. If it falls on deaf ears the key I think is not to let the moment pass but to figure out a way (without losing your job) of getting someone else to listen and get the victim an attorney.There is no right answer here except that silence from any of us at any time really won't work because the system will continue unchanged. I can't thank you enough for posing this question and getting all to try to grapple with it!
3.  John Stein
 1. Politely.2. Initiate a conversation with your DA (and others perhaps), and perhaps in collaboration with a state network of VW advocates, on establishing a protocol for managing such issues.
I would like to know if an advocate can read a victim's victim impact statement in court if the victim feels he/she cannot?
1.  Maria
 Yes, the victim advocate can read the victim impact statement for the victim. You need to let the court know that you are reading on hisher behalf and you want to make sure you totally understand what's written or what the victim's message clearly is. I've done it and my prosecutor has done it as well, but the judge needs be aware that this is how is going to take place.
2.  Meg Garvin
 This should be permissible everywhere. Victims often have an explicit right to have a representative exercise their rights, but even in the absence of this our system recognizes that lawyers can be voices for the victim, and that sometimes translators have to be voices of people, so advocates can do the same. This is something that our clinics assist with all the time. A best practice here would be to talk with the court in advance and let them know that it may or will happen. Courts do not like surprises so if you just give them a heads-up it should go okay.
How many folks on the call have a Victims Bill of Rights or some other equivalent? Do you also have legislation to enforce those rights? If so, is it successful?
1.  Carol Dorris
 Its great to get a discussion about enforcing victims rights going so that we can learn some best and promising practices from each other. As I mentioned previously, the National Centers director of public policy, Susan Howley, has done a lot of work on the issue of victims rights enforcement. You can email her at showley@ncvc.org, and she will be glad to send you an overview of what mechanisms different states are using to enforce their victims rights laws if you are interested.
2.  Meg Garvin
 If I am reading this question correctly you are actually looking for input from the other participants. I can answer generally but hopefully others will follow-up. 33 states have constitutional amendments and all states and the federal government have statutes and/or rules that afford victims rights. These each vary in scope and enforceability. Clear examples of enforceable law can be found in Arizona, California, Colorado, Idaho, New Jersey, New Mexico, Maryland, South Carolina, & Utah. I say this because these are the states that have solid written law and also have had clinics with attorneys who have entered their appearances in criminal courts, filed motion papers on behalf of victims in those cases, and sought appellate review of a victims' rights issue through the victim's own standing. Amazing work is being done in other jurisdictions also and case law is issuing from those states but these are the places I am most familiar with.
What do you recommend for victims who are litigating cases not directly related to their victimization, but nonetheless feel victimized or fearful throughout the litigation? For instance, a battered spouse or abused child that must now go through the divorce or child custody process with the abusive spouse or parent. What is available to these people and what can the courts do to assist?
1.  Carol Dorris
 The WomensLaw Web site seems to contain a lot of state specific information that might be applicable, primarily pertaining to protective orders but it has recently expanded to include other issues. It can be accessed at www.womenslaw.org . Also, although they don't handle family law issues, the National Crime Victim Bar Association (www.victimbar.org) makes referrals to attorneys who handle civil litigation on behalf of crime victims against the offender or third parties. For family law issues like divorce, custody, and visitation, it might be helpful to check with a local domestic violence shelter or coalition to see if they make referrals to attorneys who handle family law cases, but are also familiar with and sensitive to the needs of victims.
2.  Meg Garvin
 This is a challenging question and one that reveals the limits of victims' rights as currently envisioned. What we have now are statutory and constitutional schemes that wonderfully are starting to provide participation rights to victims in the criminal justice process but we all know that there are collateral civil and administrative matters that present significant hurdles for victims as well. There are victim groups that work with victims through these other processes and I think the key is for us as a field to think holistically about victim services. So those of us that work predominately in the criminal justice system must partner with those that perhaps are representing the victim in the divorce case. That partnership will help ensure closer to seamless services so the victim has support regardless of which system she is in.Specific things to be done might include getting protective orders, using the rights from the criminal matter to affect the civiladministrative (e.g. get protective orders in releases, have the sentence include provisions for treatment/no contact/ankle monitoring/etc., secure restitution, etc. in the criminal case), and ensuring that guardians ad litem or attorneys are appointed for any children involved and have those attorneys/GALS appointed for all matters so we're sure that there is a constant across the spectrum.
Thank you both for your guidance and knowledge. I work as a court advocate and many victims are approached before or during hearings by defense attorneys. Does the victim have to answer questions from the defense attorney outside of a hearing? Many victims feel pressured to answer their questions and often end up being made to feel guilty. Secondly, if the victim requests an advocate be present with them can the attorney refuse to allow this?
1.  Carol Dorris
 Since my area of expertise is in legislative analysis, I again refer you to various states laws. A number of states give victims the right to refuse an interview with the defense attorney. My search on this topic on VictimLaw elicited 15 results. A couple of examples include: Alabama Code 15-23-70 (The victim has the right to refuse a request by the defendant, the attorney of the defendant, or by any other person acting on behalf of the defendant, for an interview or other communication with the victim.) Arizona Code 13-4433 (A. Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter, including any charged criminal offense witnessed by the victim and that occurred on the same occasion as the offense against the victim, or filed in the same indictment or information or consolidated for trial, that is conducted by the defendant, the defendant's attorney or an agent of the defendant. B. The defendant, the defendant's attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor's office. The prosecutor's office shall promptly inform the victim of the defendant's request for an interview and shall advise the victim of the victim's right to refuse the interview. C. The prosecutor shall not be required to forward any correspondence from the defendant, the defendant's attorney or an agent of the defendant to the victim or the victim's representative. D. If the victim consents to an interview, the prosecutor's office shall inform the defendant, the defendant's attorney or an agent of the defendant of the time and place the victim has selected for the interview. If the victim wishes to impose other conditions on the interview, the prosecutor's office shall inform the defendant, the defendant's attorney or an agent of the defendant of the conditions. The victim has the right to terminate the interview at any time or to refuse to answer any question during the interview. The prosecutor has standing at the request of the victim to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order. E. Unless otherwise directed by the victim, the prosecutor may attend all interviews. If a transcript or tape recording of the interview is made and on request of the prosecutor, the prosecutor shall receive a copy of the transcript or tape recording at the prosecutor's expense. F. If the defendant or the defendant's attorney comments at trial on the victim's refusal to be interviewed, the court shall instruct the jury that the victim has the right to refuse an interview under the Arizona Constitution. G. For the purposes of this section, a peace officer shall not be considered a victim if the act that would have made the officer a victim occurs while the peace officer is acting in the scope of the officer's official duties. H. This section applies to the parent or legal guardian of a minor child who exercises victims' rights on behalf of the minor child.) As for the second part of your question, I'm not sure how this is generally handled in most states, but see the following text of Tennessee Code 40-38-115: ((a) Any victim of crime may have a crime victim advocate from a crime assistance program or a victim-witness coordinator as provided for in 8-7-206 present at any defense interviews with the victim. This section applies if practical and if the presence of the crime victim advocate or victim-witness coordinator does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate or victim-witness coordinator is to provide emotional support to the victim. (b) As used in subsection (a), crime assistance program includes, but is not limited to, programs that provide appropriate counseling and support to victims.)
2.  Meg Garvin
 Victims do not have to answer questions of any attorney or person outside of when they are testifying, and in a hallway of the courthouse this is particularly egregious. I know that victims can feel intimidated, which is again why I am a firm believer that victims should have their own attorney with them to protect from this type of tactic. Which again means we need your help finding & training pro bono attorneys! That said if a defense attorney is approaching a victim several very specific victims' rights may be at play and being violated: right to protection, the right to privacy, in some jurisdictions the explicit right to refuse an interview with defense, etc. Each of these should be used to ask the court (through the victim, the victim's attorney, or the prosecutor) to ask the defense attorney to cease & desist. This is also an example of why we absolutely need separate waiting areas for victims of crime! If the victim requests to have an advocate or their attorney with them during questioning that is the victim's right. I know that counsel may make noises about that person then becoming a witness but this can generally be overcome. We respect that defendant should not be interviewed without counsel present and the same has to hold true for the victim. On either of these points, NCVLI is happy to do a review of the specific protections available in your jurisdiction to craft narrower arguments if you would like.
What if anything can you suggest to assist victims that may have to represent themselves during a peace/protective order hearing to convey the seriousness of their safety, when there are no visible bruises, to a judge to ensure the issuance of a ptrotective/peace order?
1.  Carol Dorris
 You are also welcome to have victims call the National Centers helpline. The helpline staff try to direct callers to services and resources closer to home, but also can assist victims with understanding what the protective order process might involve and help them think through their responses to questions that they might be asked. They can't and don't give out legal advice. The helpline number is 1-800-FYI-CALL and is staffed from 8:30 a.m. until 8:30 p.m. (EST) Monday through Friday.
2.  Meg Garvin
 This is an incredible challenge and it is a sad commentary that after years of trying to educate on the realities of domestic and sexual violence that courts are still looking for external bruising as necessary corroboration. That said, they are still looking for it. So the presentation by the victim or the victim's advocate has to be a detailed recitation of the violence, of what they believe they need to do to protect themselves, sometimes affidavits can help. I would also encourage you to talk with folks who are experts with domestic and sexual violence in the civil protective order arena - perhaps Robin Runge at the ABA can provide more detailed answer andor Jessica Mindlin at the Victims Rights Law Center.
This question is for Carol Dorris. In your area of expertise with victims of offenders with mental illess - what positve changes have you seen in the legal system regarding this topic?
1.  Carol Dorris
 The main thing I see is that finally some attention is being focused on the issues and needs of victims of offenders with mental illness. The Council of State Governments recently released its Guide to the Role of Crime Victims in Mental Health Courts which offers information on enforcing victims rights in a specialty court which might be of interest to you. The guide is available for free download at: http://consensusproject.org/downloads/guidetocvinmhc.pdf - I also served on the steering committee on another one of their projects which produced, Responding to People Who Have Been Victimized by Individuals with Mental Illnesses, a bulletin which sets out the steps policymakers, advocates, mental health professionals, and others can take to understand and protect the rights and safety of these crime victims and is available at http://consensusproject.org/issue-areas/victimsvpmi - Hopefully, by creating more public awareness about how rights that may be available to victims in the criminal justice system may not apply when the offender is transferred to a mental health setting, more legislatures will turn their attention to enacting laws that ensure continued protection and participation for victims in that setting as well.
When entering an appearance in court on behalf of the victim, is it typical for an attorney to sit through the whole trial? If so, are they able to object to potential jury members, certain aspects of testimony etc etc.
1.  Meg Garvin
 There are many ways an attorney can represent a victim with regard to that victim's rights in a criminal case - it starts with the representation agreement between the attorney and the victim and manifests in the scope of the entry of appearance the attorney files in the case.For instance, an attorney can enter a limited representation agreement with a victim indicating that the attorney will represent the victim for the limited purpose of asserting a particular right at a particular procedural moment (e.g. the right to be present at trial). The attorney will then enter a notice of appearance in the criminal case indicating this limited scope of representation and seeking resolution through motion/briefs of the right. If that is the scope of your representation then sitting through other proceedings is likely unnecessary legally (although emotionally your victim may need you).Alternatively, you can be engaged to represent the victim on all of their rights through the criminal case. This might require a broader entry of appearance. Note, that many jurisdictions have been hostile to general entries of appearance so a best practice might be to enter an NOA that clearly says you're there to protect victims' rights (list the rights & provide statutory/constitutional authority) and then say which one is currently ripe that you are asking the court's attention on. Entries are key for a number of reasons: they let the parties know who to serve, they let the court know the victim is real and has interests, and it puts everyone on notice that the victim is a represented person which may have ethical implications.If you have entered generally you may want to be at every proceeding although this can be daunting. You could consider careful negotiationstalks with partiescourt regarding upcoming hearings to get a clear understanding of which proceeding will implicate rights and attend those. If they convert a proceeding midstream but you were told that it would not implicate right x, you probably have an argument that there was no actual notice of that proceeding. Notably, victims' rights are predominately at issue pre- and post-trial, with few (other than presence) clearly at play in trial. This means that generally your job during trial will not require legal work. That said, if a victim's right is implicated at trial - for instance a rape shield violation occurs - it is likely that you have standing on behalf of the victim to do something in that moment. The what to do is truly cutting edge. Best practice right now is to do a lot of prophylactic litigation anticipating any trial issues in advance and working on those through the motion in limine process. Then working with the prosecution (assuming you have some sort of good relationship) regarding how to communicate things you see during trial.
I am intrigued by the concept of general “due process rights” for victims that derive from other more specific rights in legislation (or perhaps even case law). I think it would be good for the field to embrace this concept and advocate for these due process rights for victims. Can you summarize this concept for us and perhaps give some case examples of where this has been recognized by the courts and perhaps has been a mechanism to expand victims’ rights?
1.  Meg Garvin
 This is probably something more suited to longer discussion. The concept of due process in law is that a right cannot be taken away without certain processes to ensure the taking away is fair, or at least not arbitrary. This process, at its core, must include notice (meaning notice actually conveyed and intended to indicate what the proceedingloss of right will involve) and an opportunity for the person whose right is at stake to be heard before action is taken. This means that when we envision victims' rights as procedural rights and we think about what process is owed before such rights can be taken away or denied, it means that any victim right requires notice and opportunity to be heard before it is taken away.
Is there a limit a judge can put on the number of victims in a case that make oral impact statements? I always thought each victim was able to make one, but our judge will not allow more than 2 victims per case.
1.  Carol Dorris
 Some states give the court discretion to limit the number of victims who can present an oral statement when there are multiple victims in their laws. For example, Alaskas statute includes this language: If there are numerous victims, the court may reasonably limit the number of victims who may give sworn testimony or make an unsworn oral presentation during the hearing. In Illinois, The court has discretion to determine the number of oral presentations of victim impact statements. And Mississippi law provides: If there are multiple victims and preparation of individual victim impact statements is not feasible, the presentence investigator may submit one or more representative statements. If you let me know what state you are in, I can review your states law and look for any related case law.
2.  Meg Garvin
 If your law is that a victim has the right to give a victim impact statement or the broader right to be heard at a proceeding involving plea or sentencing, then by law each victim has the right to independently be heard. That being said, most jurisdictions, including the federal, allow the crafting of alternative mechanisms for affording victims' rights in multiple victim cases. So for instance, in the federal crime victims' rights act (18 usc 3771) if the court finds the number of victims makes it impracticable to afford the rights alternative means of providing the rights can and must be crafted. This might mean in a mass victimization case that some people attend or are heard by video link rather than being in the courtroom. Notably, the rights still have to be afforded - just through alternative means in a multiple victim case. If you only have 2 victims, however, the argument that there is a need for alternative rings hollow. Perhaps your court is reading your law to mean singular victim when generally in law the singular can mean plural and that is definitely the case in victim law. I am happy to have someone here look specifically at your law but I think your judge is likely incorrect and even the judge's inherent authority to control his/her courtroom would not extend to taking away a right in this situation.
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