It’s hard to argue against “Marsy’s Law,” both because victims are inherently sympathetic (and in the age of empathy, don’t we all feel just horrible about the poor victims?), and because it’s more an overarching concept than a specific thing, as each jurisdiction that considers or enacts a Victim’s Bill of Rights does so a little differently, each expecting to tweak it to make it workable.
From the perspective of the public, this not only seems just and fair, but obvious. Shouldn’t we be concerned about victims? Shouldn’t victims be treated with respect? Shouldn’t victims deserve to be protected from the retraumatization of their abusers? There’s certainly a strong pull in favor of answering each of these questions with a resounding “yes.”
No. The answer is “no.” There are no victims in criminal court. There are two tables, one for the prosecution and one for the defense. There is no third table for the victim, and there shouldn’t be.
It’s not that there is no place for a victim to go to obtain relief from the harm done them. That’s what civil courts are for, offering declaratory, injunctive and monetary relief. It might not be sufficient, either because you can’t get blood from a stone or because it fails to provide the satisfaction demanded of a victim for life plus cancer, but criminal law isn’t about the victim. You might feel it should be, but it isn’t.
The legitimacy of criminal punishment, imprisonment, death, is about the harm done to society, not to any individual. It serves to protect individuals in society, but it is society that claims to be offended by the conduct. Prosecutors act in the name of the State or the People, not as lawyer for the victim. This isn’t to suggest prosecutors should be callous toward their complaining witnesses. There is no reason why prosecutors shouldn’t treat their putative victims with respect no matter what, but the fact that some fail to do so is a flaw with prosecutors, not a mandate to give victims rights against both the prosecution and defense.
At Real Clear Politics, Walter Olsen argues against the concept of Marsy’s Law.
In short, there are very good reasons why the Framers included in the Constitution and Bill of Rights many protections for criminal defendants, but relatively few for victims. We forget that wisdom at our peril.
It’s unclear what he’s talking about when he says “relatively few for victims,” as there are no rights for victims set forth in the Bill of Rights because victims don’t get convicted or sentenced to prison or death. But then, Wally also concedes away a foundational point.
One generally accepted way to harmonize the legitimate interests on each side is for judges to review requests for potentially sensitive personal information in chambers, and decide what information is needed for the defense and whether a protective order should attach that would prohibit dissemination beyond the lawyers themselves.
The specifics aside, there are no legitimate interests on each side. In the well of a criminal courtroom, there is only one person who stands to lose should the verdict be one word. That person has the right to assist in his own defense, to confront witnesses against him. That cannot be fulfilled if he’s deprived of knowledge of the evidence, of the allegations against him, of the opportunity to know everything that will be thrown against him so he can tell his lawyer what to throw back.
But what of the victim’s concerns about the vicious defendant having information about him that would make him feel unsafe, uncomfortable? That’s the price of a criminal law system that doesn’t presume guilt, and act upon it to deny the accused every opportunity to defend himself against his accuser.
The police can still protect the complaining witness, if there is a sincere belief that a life may be threatened by the lack of “victim’s rights” at the expense of defendant’s rights, but there are no legitimate interests born of sympathy for the victim that trump the rights of an accused to everything possible in his own defense.
This will feel like a terribly harsh position, one that cares nothing for the harm done by a defendant or the risk faced by a victim. It will also come off as unfair, now that the Overton Window of victimhood has shifted from concern for the constitutional rights of the defendant against the overwhelming power of the government to the concern for the fear and sadness of the victims, for whom the government has shown too little concern. And indeed, it is a very harsh position.
But the “rights” of the victim, in far more ways than might appear from think tank or academic distance, come at the expense of the defendant.You remember the defendant, the person for whom the Constitution and Bill of Rights actually enumerates rights because the defendant is the person who will end up imprisoned or dead when his rights are curtailed? It may be a lousy and inadequate system for everyone involved, but impinging on the minimal rights afforded the defendant to fight the government doesn’t make it better, even if it makes people feel that way.
In criminal courts, “victims” are what we have after the jury returns a verdict of guilty. Until they get to that point, there are no victims. But even then, they are collateral to the criminal law, complaining witnesses or accusers, because they neither have, nor should have, any status in the well of a court that serves only societal interests, not those of any individual.
Acquiescing to any legitimacy of the interests of victims before a conviction gives away the most important premise of criminal law: the defendant is presumed innocent. Until the presumption is ended by conviction, there are no victims. There is no wiggle room in the well that allows us to give away the defendant’s right to be innocent so the victim can feel better.