As the victims’ rights movement continues to press forward, making its emotional appeal to the public, lawmakers and judges about how victims have a right to participate in criminal prosecutions, few have taken the time or made the effort to consider how this highly sympathetic group could wreak havoc to the criminal justice system. Duke third year law student, Erin C. Blondel, does an excellent job addressing this problem in her Duke Law Review Note, “Victims’ Rights in an Adversary System.”
After describing the historical and doctrinal bases for vindicating the public interest through the enforcement of law by criminal prosecution, and noting the well-developed ethical duties of a prosecutor in seeking justice rather than trying to help the victim fulfill whatever interest he or she might have at stake in the proceedings, Blondel notes that it has resulted in the development of an adversary system where the parties to the proceeding, the government and the defendant, hash it out using a well-conceived set of rules designed to provide as much justice as our system can muster.
Stick the victim into the middle and the system, a house of cards at best, falls to the ground. Congress tried to skirt the issue by enacting the Crime Victims’ Rights Act of 2004.
Victims’ rights proponents, at least, have enjoyed enormous success persuading Congress and state legislatures to incorporate victims into criminal prosecutions. But pro-victim scholars and legislators have assumed uncritically that the law should remedy the injustice of excluding victims by incorporating them into proceedings. In their concern for victims’ suffering, however, victims’ rights advocates have not addressed the theoretical and practical implications of their solution. In fact, commentators have long recognized a core conflict between the adversary model and third-party interests.
The conflicts created apply to both sides. Prosecutorial discretion and decision-making would be conflicted between public and practical concerns, and those peculiar to the victim such as compensation or personal vengeance. The conflict for the defense is more fundamental, when the “rights” of victims conflict with the “rights” of defendants. Whose rights come first?
The CVRA was passed quickly, with little discussion. It’s language discusses broad, sweeping “rights” without providing much direction in how these rhetorical concerns were to be implemented, no less implemented consistently with existing law and ethical responsibilities.
It grants victims eight substantive and procedural rights: the right to be reasonably protected from the accused, the right to be notified of public proceedings, the right not to be excluded from public proceedings, the right to be heard at designated proceedings, the right to proceedings free from unreasonable delay, the right to confer with the prosecution, the right to restitution as permitted by law, and the right to be treated with fairness and respect for their dignity and privacy. Nowhere does the statute state how these rights should affect courts’ and prosecutors’ decisions during criminal proceedings.
Ultimately, Blondel contends that the “rights” conferred by the CVRA should be construed narrowly, under the basic principle of the prosecution showing victims the respect and courtesy of listening to them, communicating with them and considering them in their decision making. But not letting victims pull their strings.
Rather than conferring broad rights on crime victims, courts and others should simply show courtesy and respect toward crime victims. They should allow victims to attend public proceedings and share their thoughts. They should communicate with victims and remember them when release or restitution law requires it. But courts and prosecutors should not change their decisionmaking for victims. By observing this distinction, they can implement the statute that Congress crafted and the justice system demands.
While Blondel’s analysis and recommendation helps to straddle the gap between a law that satisfies political ends without regard to its interference with centuries of legal development, constitutional rights, ethical prescriptions and insufficient procedural detail to apply it consistently, there is one overarching conclusion to be drawn from this very thorough note. It’s a bad law that, if it were to be applied in the spirit proposed by victims’ rights advocates, would undermine basic precepts of the criminal justice system.
There is nothing wrong with showing crime victims courtesy, respect and consideration. That should be inherent in the job of a prosecutor. But to allow victims to have a right in decisionmaking on any level would, by definition, come at the expense of any one of the multitude of rights already in place. And, as should be no surprise, the party whose rights would be most exposed would be the defendant.
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Fascinating post. I’m curious, would you still think it wrong “to allow victims to have a right in decisionmaking on any level” if the victim wants to “drop the charges”? Is that different somehow? Looking at it the other way, I wonder if advocates of victims’ rights would endorse the right of the victim in a domestic violence complaint to drop all the charges? Or is that not a right worth respecting?
I’m especially curious about your answer since you are clearly an imposter—the real Scott Greenfield would never say anything nice about Law Review!
There’s a simple answer, and a more complicated answer. The former is that I, as a criminal defense lawyer, am in favor of anything that helps my client, regardless of its internal consistency or doctrinal purity. My obligation is to the defendant, not the law.
The latter is that the victim is merely a witness to a crime, through whom the government punishes those who violate its laws. As a mere witness, the victim’s desire to “drop” anything is irrelevant, and potentially societally counterproductive. Should a rapist walk free because a witness decides to drop the charges?
However, on a practical level, when a necessary witness turns uncooperative, it makes prosecution very difficult, if not impossible, and thus becomes a significant factor in the decision to prosecute. For this reason, “dropping charges” can and usually does derail a prosecution. But should it is an entirely different issue.
I didn’t say anything nice about Law Review, just one interesting note. And don’t go around saying bad things about me!
Nicely answered, in both alternatives.
The advocates of these laws don’t really care that the “victim” may not be a victim and the “victimizer” might, in fact, be innocent and badly hurt by the trial. Rape cases are a classic example of that. The accuser’s character is critical to such cases; a woman who has a reputation for being a liar should never have her word be taken seriously in such a case when there is no strong evidence backing it up. Why? You simply couldn’t trust that she wasn’t being vindictive or something like that.
The only rights that a victim should have are to demand forgiveness, demand that a violent crime against person or property be punished and to get restitution from the criminal trial for damage to life, limb and property. They shouldn’t have to wait for a civil trial for the latter.
It’s important to remember that there are a lot of people who are falsely accused of crimes, either out of an honest mistake or as the result of malice on the part of the accuser or the police. Considering the fact that punishing an innocent person is, objectively speaking, a crime itself, a lot more caution needs to go into criminal cases to prevent innocent people from being put away. “Victims’ rights advocates” should not be allowed the excuse of good intentions to whittle away at protections for the falsely accused.
There is an underlying assumption in all victims’ rights arguments that (a) a crime has been committed, and (b) the defendant committed the crime. Without a crime, there would be no victim, and if the defendant was presumed innocent, there would be no legitimate interest on the part of a “victim” in the conviction of an innocent person.
But then, these logical inconsistencies are the least of the concerns of victims’ rights advocates. They are on a mission!
Both of those are, by and large, pretty persuasive (albeit not airtight, yes, I know; it’s too bad The Innocence Project can’t go out of business for lack of innocent clients) conclusions when it comes to the sentencing phase. Yes, I know that you’re talking here about other phases, and that there’s other issues around victims rights.
Like, say, me. Back when she was in day care, some years ago, my oldest (then only) daughter got bit on the face by another kid. This stuff happens in day care; it’s both not a big deal and was incredibly infuriating.
Now, honestly, if I’d been told which toddler had bit my kid, I really wouldn’t have kicked him or her through the nearest goal posts, even if I had a post-dated pardon in my hands — but part of me really, really wanted to. I can only imagine what punishments would be inflicted on people who have done far, far worse things than that toddler did to my kid if the family of the victim could determine it.
(Just as well we don’t have such punishments for toddlers; two weeks later, my own kid chomped another kid on the nose . . . )
That said, there are post-conviction issues where I think there is plenty of room for victims rights. I know of a very nice woman who has a stalker — he’s been convicted of all sorts of naughtinesses, including various violent felonies. When he gets out of prison, again, I see no harm in him being required to stay away from her (and his other victims’; he’s got, well, some issues) place of employment and homes, and I think it’s quite reasonable that she be given notice the next time that he gets out, as there’s some obvious things that she might quite properly wish to do, just in case he still hasn’t gotten the point. (As seems vanishingly unlikely; his history is that when he goes off his meds, he, well, goes off.)
YMMV, of course.
As you well anticipated, the CVRA doesn’t apply only to post conviction, which is why these assumptions are highly problematic and why they present a very serious logical inconsistency. Now if you want to eliminate any claim for victim involvement until post conviction, then we eliminate almost all of the CVRA, at which point we can argue why victim impact statements present problems.
As for the post-conviction issues you raise, which have nothing to do with the CVRA I might add, there are other laws that exist to address those situations, such as permanent orders of protection. As for informing victims of a prisoner’s release, that has nothing to do with the defendant. I suggest you remind your friends on the other side of the fence that some victims might consider that a thoughtful gesture. The defendant has no right at stake about the victim being told of a release date.
Well, thoughtful, competent professional folks in law enforcement will a: be very aware that, in many (most?) cases, the victim will be very interested to learn when a given convict is released, and b: will certainly not be working at my local victim’s advocacy offices, as those are implemented out of the CA’s offices, hereabouts, and their caseloads makes them envious (with some justification, and some, err, nonjustification) of public defenders’ caseloads.
‘Round here, it’s hard enough to get the authorities to do their job when it’s mandated by statute; getting the system to do what’s right just because it’s, well, right would be nice, and I’m sure it’ll happen, right after I have to get a pony.
How do you know? Did you ask both of them?
And there’s the rest of ’em. There’s nothing like a good juxtaposition to start your day.
The issue with your argument is that the victim’s right to be heard does not happen at trial. In most states a jury never hears the Impact Statement. In all states guilt has been determined before the victim has a right to speak. During sentencing friends and family of the offender are allowed to testify without cross examination. To provide true due process in our adversarial system it is only equitable that victims are afforded the same opportunity to provide testimony of the scope of the effect that the crime has had on those that were harmed. Why is the solution for the presumption of innocence’s flaws always create more opportunities to distort the facts?
You’ve made an erroneous assumption in your reasoning:
There is no connection between due process and victims whatsoever. It sounds good, but it makes no sense.
Your reasoning reflects a heavy dose of pure advocacy. The problem is that the U.S. Supreme Court in Payne disagrees. The rights most states have given victims provide only to be informed prior to trial, and only allow victims to be heard post conviction. Obviously you believe the defendant/offender should be able to do and say whatever is necessary to be acquitted, however I sat through a trial silently as a defense attorney painted my brother as a gang member (a truly ridiculous idea). The victim in these cases are simply a representation of the citizens of the jurisdiction. The state is the “injured” party in a criminal case. This will be my last post, as my 1L finals are staring me in the face.
That’s a strong opening sentence, but falls short in support. Your story omits the fact that there was a prosecutor in the courtroom as well. If the prosecuor failed to do his job in correcting any mischaracterization of your brother, then your issue is with the prosecutor, not the defense lawyer. The victim is the victim, not the representative of society, nor should the victim be burdened with having to let go of his feelings in order to reflect the greater interests that society expects of the criminal justice system.
Best of luck with your finals. I bet you’ll do great.