November 11, 2008

Proposition 9: Some Challenges Ahead

Proposition 9, the Victims' Bill of Rights Act of 2008, was just passed by a majority of the electorate. The goals of the proposition are important, and crime victims deserve all of our support and respect. However, the proposition creates dramatic change in the criminal justice system that may undermine the object of the initiative.

The Proposition does three things: it overhauls the parole hearing system by undoing the right of inmates to have parole considered on a yearly basis; it requires that institutions not release inmates early due to overcrowding by directing the Legislature to ensure sufficient funding; and it creates a series of enforceable victims' rights. This article discusses the latter of the Proposition's objectives.

The Proposition lists 17 rights it designates as "personally held and enforceable" by "victims." The term "victim" is defined to include persons harmed by financial as well as violent crimes, and includes family members of direct victims. The Proposition contemplates that victims can be represented by legal counsel during all proceedings.

Among the victims' rights created are the rights: to be protected from the defendant; to have the safety of the victim considered in fixing bail; to refuse to be interviewed by a defendant's attorney; to be notified concerning court appearances, and to discuss the case with the prosecutor; to a "speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings"; and to receive a copy of the probation report.

The three most significant rights created by the Proposition are the rights to refuse to be interviewed, to participate in the legal proceedings, and to prevent disclosure of information and records to defense counsel. I will discuss these rights individually as the represent the most significant change to the justice system.

Right to Refuse Interview. The Proposition states that victims have the right "to refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents."

Existing law provides that victims and witnesses have the right to refuse an interview by a defense investigator, or to set conditions for the interview. The Proposition requires that all "victims" be notified of this and other rights. Presumably a "victim advocate" associated with the prosecutor's office will also inform the victim of the right not to talk to the defense attorney or defense investigator. Simply providing this information will effectively allow the prosecutor to shut down all contact between the "victim" and defense counsel, and crime victims will take it as a suggestion that they should refuse to be interviewed. Persons claiming to be crime victims will be dissuaded from speaking with defense counsel. The victim will be able to get a court order that defense counsel not attempt to contact the victim or the victim's family. The result will be the court sanctioned dissuading of victims and witnesses from speaking with defense counsel.

There is simply no need for this right. Presently, a defense investigator must identify him or herself as a representative of the defendant when speaking with victims or other witnesses. Victims or other witnesses may not be harassed by an investigator and can refuse to speak, should they choose to do so. It would seem that the purpose of making the right enforceable by court order is to block defense counsel from contacting victims and witnesses. Interviewing all witnesses, including victims should they be willing to meet with an investigator, is essential to effective legal representation. Important information is obtained by having an investigator interview a so called "victim" as often the police interviews fail to address relevant facts and biases. This right will protect the lying or exaggerating crime "victim" from legitimate questioning.

Right to Participate in Legal Proceedings. The Proposition provides for a victim's right "to be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue."

This provision allows victims individually, or with the assistance of a representative such as a "victim advocate" or lawyer to actually participate in the legal proceedings. Victims would be able to state their opposition to a plea bargain, and could potentially influence a case to proceed to trial in lieu of plea. This could have a devastating effect on the victim as the case may not be won at trial.

The right of victims to speak at sentencing or provide a victim impact statement pre-existed the Proposition, and the courts handled the victims' input well. The Proposition effects significant change in that victims have been given a right to participate even before an individual is convicted. Potentially, victims would have a right to be heard during trial, and could object to trial rulings by the judge, as trial is arguably a proceeding wherein the right of a victim is at issue. Legal proceedings will potentially have three parties entitled to direct participation: the prosecution, defense counsel, and the victim or victim's counsel. There is a potential for the victim's counsel and the prosecution to disagree about trial strategy, and for victims to disrupt proceedings. As much as we should care about crime victims, a court's rulings and other decisions must not be influenced out of sympathy to a victim. To do so undermines the constitutionally governed trial process, and threatens to undermine the result of the trial. Guilty verdicts could be challenged as unconstitutional as a result of the improper influence of a victim on the proceedings to determine a defendant's guilt. Victims should not risk potentially undermining the legitimacy of proceedings.

The Proposition's "findings and declarations" claim that "an inefficient, overcrowded, and arcane criminal justice system has failed to build adequate jails and prisons, has failed to efficiently conduct court proceedings, and has failed to expeditiously finalize the sentences and punishments of criminal wrongdoers." However, the right of victims to participate in proceedings renders the justice system even more "arcane," threatens to make the proceedings even more complex, and threatens the finality of the result should a defendant be found guilty.

Right to Prevent Disclosure of Information. The Proposition provides that victims have the right "to prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law."

Existing law prohibits defense counsel from giving records to the defendant that reveal a victim's or witnesses' address, telephone number, or other confidential information. Presently, if a defendant requests a copy of the police reports, defense counsel must redact confidential information from the reports. One effect of this right would be that the prosecutor must now redact confidential information from all investigative or other reports. This will create a delay in getting the information needed to prepare for trial and will place a huge strain on underfunded prosecutors offices. This right seems to prohibit the giving of a victim's contact information from defense counsel even if the victim has not requested that defense counsel not attempt to interview him or her. Thus, both the legitimate as well as the lying victim is shielded by this provision.

The second part of this provision prohibits disclosure of "confidential communications made in the course of medical or counseling treatment." Reviewing medical records is an essential part of defending any violent crime. Often the statements in the records, as well as the medical information itself, are exonerating. This provision shields all persons considered "victims," both credible and lying individuals. It is uncertain how this provision will be handled by the courts. If a person's medical condition is at issue, a defendant's attorney must be able to review all relevant records. Also, the medical and other "confidential" information could be deemed Brady material in that it is exonerating. Prosecutor's offices will then have to disclose the information or face having the conviction overturned.

Conclusion
The courts will be challenged in implementing the many victims' rights created by Proposition 9. The Proposition further complicates the criminal justice system. Many of the rights, when applied in individual cases, will conflict with a defendant's constitutional rights. Thus, a victim's enforcement of his or her rights may actually threaten the finality of the result in the event of a conviction. This result totally undermines the purpose of the Proposition. Victims' rights groups only have good intentions. However, poorly drafted laws such as Proposition 9 do nothing to improve the criminal justice system. Victims' rights groups would be better served by challenging and confronting specific elected District Attorneys or judges who fail to give crime victims the fair treatment they deserve.

Posted by Tim Warriner at 09:04 AM