Daily Archives: April 23, 2007

Defendant v. State and Victim

Aren’t victims already intricately woven into the fabric of the criminal justice system? Most obviously, without victims, there’d be no defendants. It goes beyond that, too. Victims and the harm done to them often dictate the charges against defendants and the length of sentences to which defendants are exposed. Finally, as all practicing attorneys know, each jurisdiction is different. There are “standard offers” for individual jurisdictions on every type of case. These are made by prosecutors based on several factors, one of which is the victim’s wishes. It is certainly possible that if desires of the victim were given precedence over the state’s experience in prosecuting defendants, the offers would be severe and there would be many more trials. I’m not saying that victims don’t deserve to have input and be apprised of the proceedings, but I’m just unsure of the benefits of greater involvement.

I am also unsure of CT’s proposal to enhance victim’s rights. Here is the summary of the proposed bill (I’m not sure if it made it out of committee as part of another bill)

To authorize the Victim Advocate to pursue appellate relief on behalf of crime victims, issue subpoenas and have access to the records of youthful offenders, to require that a victim receive notice and an opportunity to make a statement regarding a violation of probation or conditional discharge, to allow a victim of any offense involving the use of physical force to obtain a protective order, to require the court to notify a victim regarding a defendant’s application for pretrial accelerated rehabilitation and provide a victim with the victim input portion of a presentence investigation report, to require the establishment of crime victim assistance centers, to clarify certain victims’ rights and provide for a victims’ rights notice form, to require that a victim receive notice and information regarding an appeal in a criminal or juvenile delinquency matter, and to ensure the confidentiality of personal identifying information pertaining to a victim.

Some of those I can get on board with and some I cannot.

Apparently, victim’s rights week started yesterday. Already, the blogosphere has come out on different sides. First, there’s this article in WaPo which cautions against giving victims too much of a role in the legal system.

Victims deserve the recognition that this week provides, and they deserve sympathy and compensation for their losses. But I am increasingly concerned about what I believe they do not deserve, which is the right to serve as de facto prosecutors, a practice that is quietly insinuating itself into the legal system.

Jeralyn picks up on this and agrees, expressing greater concern:

I believed in 1997, as I believe now, bq. “The greatest good we can do for victims of crime is to decrease their numbers. Rather than loading more work and more expectations on courts and prosecutors, we need more education, more drug addiction treatment and more alternatives to imprisonment that enable defendants to work. In short, we need an effective crime prevention policy, not another press opportunity for politicians.”

On the other hand, Prof. Berman takes issue with this reinforcement of “the old trope that there is a zero-sum game between the interests/rights of crime victims and the interests/rights of criminal defendants.” He explains:

The reality of victims’ rights and interests are much too varied and nuanced to assume that giving more rights to victims will be detrimental to the interests of criminal defendants. In fact, there are lots of reasons why those generally concerned about harsh and oppressive criminal justice systems (and especially harsh and oppressive sentencing systems) ought to embrace and extol victims’ rights.

In fact, there are many nuances to victims’ involvement in the criminal system, to the extent that the State’s Attorneys Office in CT testified against a proposed bill. Attorney Kane said:

The two principal parts of the bill, although I think it all is a potential for creating problems with the criminal justice system as we have it in Connecticut now.But with the regard to the authority that the victims’ advocate is seeking to be able to appeal, to have standing to appeal issues or decisions of the trial court and the subpoena power of the victim advocate.

I think both of those cases the appeal thing would [inaudible] third party into a criminal case. All of a sudden, you’d have the State of Connecticut, the defense, and the victim advocate all acting in cross-purposes maybe.

The criminal process and criminal trials have gotten complicated enough over the years to inject a victims’ advocate with the power to appeal without setting forth any limitations even on what it is that he would seek to appeal from or what remedy the appellate court could possibly impose after an appeal, and how that would affect and delay the due process rights of a defendant in a case, or even the rights of the public and the victim to have a case reach finality as soon as reasonably possible.

There’s so much more, but I don’t want to make this post any longer than it already is, so you’ll just have to read the articles and sites linked to.

PS: Yes, I know I engaged in some trickery to get my point across in the title 😛

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Monday morning jumpstart – PM version


I fully intended to start a new feature here – the Monday Morning Jumpstart. It was to be a roundup of the weekend’s most interesting posts (including mine). However, the server was acting sluggish this morning and I was about to be late for work, so I shelved it. In that spirit, though, here are (what I think) the top stories of yesterday.

Now, those who read the blog know that I have started several “features” and abandoned them after the first week – mostly because I’m lazy, but sometimes because I’m forgetful. I’ll try to keep this going, but who knows?

Do passengers have standing to challenge a stop?

That is the question in Brendlin v. California, argued today. Here is the transcript [pdf] of the oral argument. It is very, very interesting. I will have more on it later tonight. Here’s a teaser, though:

JUSTICE SOUTER: Don’t you think that a reasonable passenger at that point would assume that the officer is in control and that, in the absence of some affirmative indication that the passenger can go, that he’s supposed to sit there until this thing gets over with? Isn’t that the reasonable response of a passenger?

MR. ZALL: No, Justice Souter, I don’t think so. I think again, because the, the traffic stop is such a common occurrence and in the overwhelming majority of cases involving a routine traffic stop, it’s an investigatory stop of the driver. And I think it’s reasonable for the passenger and the driver to see it that way, I would submit that if I am a passenger in a car and I’m riding with somebody and hey, and one patrol car signals for the driver to pull over, I think the natural reaction is the driver says, what did I do, and the passenger says, what did you do? I mean, I think that’s the natural reaction.

Yeah…I’d love to see the “Cops” video of him getting out of the passenger seat.

Update: Okay, I’m back and here’s more. Justice Kennedy sums up my view of the state’s argument with this beaut:

JUSTICE KENNEDY: You’re representing the State of California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer — order by the officer. I think that’s a quite surprising proposition. Now, we don’t have empirical studies and so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don’t think passengers, A, are or, B, should feel free to leave when there’s a traffic stop. I just think you have no social or empirical documentation for that position.

I think the Court is in a really tough position here. Either they hold that passengers are not seized, thereby creating public safety issues or they hold that passengers are seized – which they have been reluctant to do. I will await this outcome with glee. Yes, I said glee.