There Are No Victims In Criminal Court

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.

23 thoughts on “There Are No Victims In Criminal Court

  1. Chris Van Wagner

    You have just nominated yourself in ways yet untold and unknown for heaping helpings of abuse at the hands of the Marsy money. As must we all every day. The well is not a therapy room. Thank you for taking this one. These folks are being well-funded in Wisconsin and filing appearances for the “victims”. It is just plain wrong. Just today at 11 am there will be a lawyer for the accuser in the room in my case. That lawyer wasted two weeks blocking disclosure of something critical. The DA took the Marsy lawyer on and prevailed in arm twisting. But had he not, the judge would have been on the chopping block next. Fight on, trench mate.

    1. SHG Post author

      There is some vague notion that the defendant’s rights are available for compromise for the sake of “victims.” These are dangerous, and dangerously foolish, times, as feelings take precedence over everything else. Somebody has to be the mean man who calls bullshit and refuses to concede constitutional rights to the empathetic.

  2. Richard Kopf


    Under the federal law, a crime victim has a right to be reasonably heard at sentencing. See for example Federal Rule of Criminal Procedure 32(i)(4)(B). In at least one case, I substantially varied upward after hearing the victim testify under oath at sentencing while subject to cross examination. I know I shocked the very experienced CDL.

    A CDL must think long and hard about how to deal with the victim’s statement at sentencing. In my experience, CDLs frequently fail in this regard. (By the way, the CDL in the case mentioned above could not be faulted as the testimony was extraordinarily compelling and not subject to weakening or rebutting.)

    While most of the time, in my court at least, the crime victim’s statement makes no difference, sometimes the failure to neutralize or at least weaken the crime victim’s statement can really bite a CDL in the butt. As in all things related to sentencing, advance thought and preparation are the keys.

    All the best.


    * As I have said before, I am not a fan of hearing directly from crime victims. But the law is clear and I follow it. Indeed, if I don’t, a report to Congress must be made.

    1. SHG Post author

      While I’m not a fan of victim impact statements, they call into a somewhat different category than Marsy’s Law, which gives them rights before, and notwithstanding, conviction. After conviction, different concerns are raised.

  3. Nigel Declan

    You forgot about the wrongfully-accused and wrongfully-convicted; they are the victims of criminal court. Ironically, the increased emphasis on “victims’ rights” (gratuitous Paul Cassell reference, anyone?) only serves to further afflict those who are truly victimized by an ever more compromised criminal justice system.

  4. Charles Morrison

    My state of Ohio had a freaking Constitutional Amendment to include a victim’s bill of rights. I’ll confess ignorance as to whether other states enacted legislation or actually amended their constitutions. Perhaps this is a problem nationwide, but in Ohio at least, we are still awaiting the glorious enabling legislation that lets all the players know how to actually deal with the flowery language that’s in our Constitution now.

    Very few, if any, players in the actual system seem pleased as it unnecessarily complicates things for all involved. One such issue I’ve now dealt with multiple times relates to the victim’s right to be present for all proceedings. Can the victim sit through all of the testimony at trial, notwithstanding an order for separation of witnesses? Can she perhaps sit through all testimony and even testify in rebuttal about how the rapist got it all wrong? Can she file an interlocutory appeal? It is just a nightmare.

    It wouldn’t be soooo bad had it been a statutory thing, rather than the supreme law of my state. But, on the flip side, I hope we find the solution in the Supremacy Clause. No state can deprive someone of their constitutional guarantees, even if they pass legislation or amend their constitution. I hope that the 5th, 6th and 7th prevail and make these “rights” meaningless in the end. But when is the end? How many years is this going to take, and how many trials will be disrupted, delayed, and how many unfair trials will have to be a redo. Will victim’s advocates feel better when years down the line a conviction is overturned on federal constitutional grounds, only to find out the State cannot locate neighbor Lilly again to testify?

    1. SHG Post author

      The nuts and bolts problems are going to be a nightmare for everyone involved, but that they made it a constitutional amendment is amazing. How wonderful for the sad victims. Ah, the litigation, appeals and retrials, and then rinse and repeat.

  5. Jennifer

    I’m a murder victim’s family member who cares about every aspect of these issues- I’ve worked hard in violence prevention, helping troubled youth, and in Restorative Justice and sentencing reform. I visit prisons and I advocate for the incarcerated. I helped lead the campaign in Illinois to abolish the death penalty. And I support constitutional and enforceable rights for crime victims just as I do for the accused and offenders. So I’ve heard this argument before and wanted to make sure those who misunderstand some basic structural truths don’t misspeak. Yes the accused is not guilty until proven innocent. But the status of the accused is not relevant to the question of whether or not there was a crime. The crime happened. The victim exists independent and apart from the presumption of innocence of the accused. Victim’s rights to be notified, present, and heard where appropriate have nothing to do with the important rights of the accused. They are parallel rights not on the same spectrum and not in competition. Victim’s and Accused rights must both be constitutional and enforceable to be meaningful, as you well know. They both must exist therefore at the constitutional level. Many incarcerated offenders started off as victim’s whose rights were ignored. Let’s stop this cycle.

    1. SHG Post author

      I’m sorry for your loss, but you haven’t argued a point, but spewed empty platitudes to a blog for lawyers and judges. Saying there are rights doesn’t make it so, no matter how good your intentions.

      1. Jennifer

        These aren’t empty platitudes to those who have lived the pain of their impact as I have. This is an important correction to those in the comment thread who foolishly argue that victim’s rights must wait til conviction. Your token “sorry for your loss” followed by an utter non-attempt to understand what victim’s experience shows a need for some real work on your part to understand what we experience

        1. SHG Post author

          Your experience does not manufacture constitutional rights out of nothing. No one questions your pain, but your pain is irrelevant to what the Constitution requires. While murders are different than other crimes, given that there’s a body which may conclusively prove that a crime occurred, it does not prove that the defendant being prosecuted committed the crime and that you are a “victim” relative to that defendant’s rights.

    2. Ron

      Caring about something and having any clue what you’re talking about are two very different things. You’ve come to the wrong place to be so aggressively ignorant. No one takes pleasure in saying that, and I too am sorry for your loss.

      1. Jennifer

        There is no ignorance here- I have worked professionally on this issue for a decade and with top national leading attorneys including federal judges. Anyone who argues that victims don’t have rights until conviction is the one in the dark

        1. SHG Post author

          Stop digging, Jennifer. Paul Cassell is a goofball to every lawyer outside of the victim’s rights movement. Now you’re done here.

          1. Miles

            Cassell has quite a gig going. Nobody wants to be mean to crime victims and tell them they’re full of shit. The optics are awful, and they are sympathetic. But Cassell has made a cottage industry off his Amy gig since he left the bench.

            I’ll be generous and assume he believe he’s on the side of the angels, but that doesn’t change the fact that this is huge money-maker.

        2. Ron

          You haven’t “worked professionally” with anyone, Jennifer, because you aren’t a lawyer, you have no legal education and those in the movement have used this dumb sad overly-emotional woman for their own purposes. You are a useful idiot to them, Jennifer, who they can manipulate because of your ignorance to play off your sad victim story. They’ve used you and you’re too clueless to realize it.

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