Mimesis Law
17 October 2018

Debate: Victims’ Rights Are Just And Don’t Interfere With Defendants’ Rights

November 22, 2016 (Fault Lines) — Ed. Note: Following Andrew King’s post on the passage of victims’ rights laws, we charged Mario Machado and Chris Seaton with the following question: Should crime victims be given special rights in criminal prosecutions? This is Mario’s argument:

It’s high time that 3 additional states have passed laws that added state constitutional rights for some of the most vulnerable and helpless people in American society: victims of crime. Despite what my fellow Fault Lines contributor Andrew King has said, this is a step in the right and just direction.

Yes, there is the Crime Victims’ Rights Act that affords victims some rights, including the right to be reasonably protected from the accused and the right to proceedings free from unreasonable delay. But the latter serves as a feeble bulwark against one of the most effective weapons in a criminal defense lawyer’s quiver: continuance of trials. Defense lawyers, and their clients – who must have done something because someone’s name doesn’t magically appear in a court’s docket –know that time is on their side because witnesses move, forget, and lose initiative as time marches on.

To correct this and prevent the defense from delaying trial (justice delayed is justice denied), each victim should be notified of every court hearing and should have the right as a party to acquiesce or object to the granting of a defense continuance. The presiding judges can also help the victims by taking offence to repeated requests for defense continuance based on lawyers’ “scheduling conflicts” and help dissuade this practice (those requests tell the judge that other judges’ schedules are more important than their own).

What if the victim is not only feeble but of advanced age? This would also prevent a crafty defense lawyer from simply running out the clock in the hopes of getting a dismissal for his client due to lack of prosecution.

As for being “reasonably protected from the accused,” victims shall have the right to an automatic “stay away order” during the pendency of the criminal proceedings.  Some jurisdictions already provide a parallel avenue for people to get a temporary or permanent restraining order against someone, using a preponderance of the evidence standard, but that is not enough. For starters, consider the following nightmare scenario:

In 1983, Nicholas’ sister, Marsy, was murdered. Not too long after, following a visit to Marsy’s grave, Nicholas and his mother were confronted by the killer at a local grocery store. Arrested the night of the murder, he had been released on bail without anyone informing the Nicholas family.

Talk about real trauma that can cause harm.  Heard of “the right to be left alone?” Well, that applies to witnesses of criminal activity as well, especially when it comes to being protected from those who are charged with hurting them.  If the case involves a sociopathic stubborn defendant, the threat of prosecution for witness tampering or obstruction of justice may seem distant, and a real immediate deterrent is needed to protect the victim while the wheels of justice turn.

This right to an automatic restraining order would not seriously burden the accused’s rights, since he will be free to go anywhere save for where the witness is at a given time. And let’s be frank, it’s not like criminal defendants usually hang out where their purported victims hang out, unless it’s a case involving a narco turf war gone deadly. Crime victims can usually be found at the local Walgreens or gymnasium, while alleged criminals congregate at bars and places of ill repute.

Criminal court can be one of the most horrifying places on earth, as it was recently confirmed by a Judge, no less. An appointed victim’s attorney would help lessen the trauma of being cross examined to drafting and presenting an effective witness statement to the court. Yes, the prosecutor can try to take care of all this, but the prosecutor’s main focus is to win her case do justice, and thus her time and attention for witnesses can be limited to playing Pokemon go with them preparing them for their testimony.

When it comes to economic crimes, the state has the unrivaled resources and access to information to make the victim whole again. Not even the “best” civil litigator out there comes close.  That victim’s attorney can help make sure that at the end of the case, that person gets back what was taken from him.

Besides, the purpose of a witness in a criminal case is, according to the state, is to seek justice. There may be cases in which the state acts as a de facto collection agency for private individuals, but the purpose of a criminal prosecution is not for the person to reclaim his money. It is about getting a conviction, and restitution is not a top priority. The federal code provides for mandatory restitution for victims of certain crimes, but some state jurisdictions don’t even have that. And that is where the right to a victim’s lawyer can make the difference for the victim between a life of penury and a solid middle class existence.

Yes, this would all cost money.  But the fact is that even courthouses that are broke are wasting moneys on things that should take a backseat to victim’s rights. Things like video presentation equipment, which should be provided by the parties instead. So spend away, all in the noble cause of victim’s rights.

Rebuttal:  Chris’s cold-hearted, heartstrings-free approach of negating additional rights to crime victims doesn’t’ really show how a defendant’s rights will be seriously undermined if we just give another inch or two for the victims. The only serious threat would come from denying the accused his right to question the victim under oath, and as far as I know, no one is suggesting that victims be spared the rigors of a good cross.

As for the “victim witness coordinators” and those prosecutors who have finite time to spare for witnesses, it would not affect the defense’s ability to put the state to its proof should a victim’s lawyer be at hand to assist the victim witness through the challenging process of testifying in a criminal trial.  A little hand-holding never hurt anyone, especially when it comes to facing one’s purported assaulter and his mean spirited defense lawyer.

Chris speculates that “some day the victim will be the accused.” Well, yes. There is always the possibility. But we cannot deal in speculation when it comes to denying these victims the rights they need, and I’m almost sure these victims wouldn’t mind their future hypothetical victims being afforded the same rights that they were given when it was their turn to have sweaty palms while sitting in the witness stand and being slut shamed.

His contention that “jailing people should never be a personal matter” fails the “in the trenches” test. Prosecutors and cops make it personal to get a win quite often, that is how we end up with innocent people convicted, victims being jailed while their testimony is pending, and with the litany of abuses that Chris lists (e.g., planting of evidence). Hell, criminal defense lawyers specialize in reality, and they know just how dangerous a super-motivated prosecutor can be.

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