tobolowsky - victim participation in criminal process.pdf

R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOCPrinted On: 3/22/99 8:08:00 PM Victim Participation in the Criminal Justice Process: Fifteen Years After the President’s Task Force on Victims of Crime Peggy M. Tobolowsky* I. INTRODUCTION The earliest criminal prosecutions were largely private proceedings through which a victim sought retribution against and restitution from the perpetrator of the crime.1 As countries became more organized and structured, however, governments began to assume greater responsibility for the initiation and conduct of criminal prosecutions, a change which substantially reduced and often virtually eliminated the crime victim’s previous role in the criminal justice process.2 This evolutionary trend from private to public criminal prosecutions occurred in the United States as this country moved from a collection of colonies to a federated nation of states.3 The maintenance of a public criminal prosecution model and its accompanying marginalization of the crime victim continued until the 1970s when a victim’s movement emerged, which emphasized making the crime victim an integral part of the criminal justice process once again.4 * Associate Professor and Associate Chair, Department of Criminal Justice, University of North Texas; J.D., George Washington University, 1977. 1. See, e.g., A.S. DIAMOND, PRIMITIVE LAW 277-330 (2d ed. 1950); see also infra notes 9-11 and accompanying text. 2. See, e.g., Richard E. Laster, Criminal Restitution: A Survey of Its Past History and An Analysis of Its Present Usefulness, 5 U. R ICH. L. REV. 71, 71-80 (1970); see also infra notes 12-16 and accompanying text. 3. See, e.g., Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARV. J. L. & PUB. P OL’ Y 357, 366-72 (1986); William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 AM . C RIM. L. REV. 649, 651-68 (1976); see also infra notes 17-26 and accompanying text. 4. See, e.g., Frank Carrington & George Nicholson, The Victims’ Movement: 21 R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM 22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21 Throughout the 1970s, the efforts of this grass roots movement began to be translated into state and local legislation focusing on the crime victim and his needs.5 Much of the initial legislation attempted to restore victim entitlement or access to compensation or restitution for losses suffered as a result of the crime, but other means of involving the victim in the criminal justice process began to be identified as well.6 The efforts to reestablish a greater role for crime victims in the criminal justice process received a major boost when President Ronald Reagan established the President’s Task Force on Victims of Crime in 1982.7 In its Final Report issued that year, the Task Force proposed action recommendations addressed to the federal and state executive and legislative branches, criminal justice system agencies, and other professionals involved in crime victim service delivery. These action recommendations, including those for greater victim access to and participation in criminal proceedings, were designed to “restore balance” to the criminal justice system by better integration of the concerns of crime victims into the system.8 In the fifteen years since the issuance of the Task Force Final Report, there has been a literal explosion of federal and state action to increase crime victim access to and participation in the criminal justice process. It has largely centered on establishing and interpreting crime victims’ rights to notice of and presence and hearing at critical stages of the criminal justice proceedings. This constitutional, legislative, and judicial action has been accompanied by a wealth of policy advocacy and analysis and research evaluation. This article examines the federal and state constitutional, legislative, and judicial action, as well as its empirical and policy analyses, to determine what has been accomplished regarding the expanAn Idea Whose Time Has Come, 11 PEPP. L. REV. 1, 1-5 (1984); see generally George Nicholson, Victims’ Rights, Remedies, and Resources: A Maturing Presence in American Jurisprudence, 23 PAC. L.J. 815 (1992); Victims’ Rights Symposium, 11 PEPP. L. REV. 1 (1984). During this period, the first of several national organizations addressing crime victim issues was also established. The National Organization for Victim Assistance (NOVA) was subsequently joined by Mothers Against Drunk Driving (MADD), the Victims’ Assistance Legal Organization (VALOR), the National Victim Center (NVC), and other national groups. See Carrington & Nicholson, supra at 2, 5-6 & n.17; LeRoy L. Lamborn, Victim Participation in the Criminal Justice Process: The Proposals for a Constitutional Amendment, 34 W AYNE L. REV. 125, 131 n.35 (1987). 5. See John R. Anderson & Paul L. Woodard, Victim and Witness Assistance: New State Laws and the System’s Response, 68 JUDICATURE 221, 222-23 (1985). 6. See id. at 221-222. 7. See PRESIDENT’S TASK FORCE ON V ICTIMS OF C RIME, F INAL R EPORT ii-iii (1982) [hereinafter PRESIDENT’ S TASK F ORCE]. 8. See id. at ii-v. R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM Winter, 1999] VICTIM PARTICIPATION 23 sion of victim participation in the criminal justice process in the fifteen years since the President’s Task Force on Victims of Crime. II. THE ROLE OF THE CRIME VICTIM P RIOR TO THE PRESIDENT’S TASK FORCE In ancient times, wrongs done to a person or his property were generally regarded as private matters, subject to remedial action by a victim and his family against an offender and his family. Norms of permissible retaliation and recompense arose among tribal and family-based cultures for what are now regarded as criminal offenses against individual victims.9 The early centrality of the victim’s role in these primitive “criminal” proceedings is evidenced by provisions of the Torah, the Code of Hammurabi, and other ancient codes. These codes require offenders’ repayment in kind or extent to those suffering criminal victimization in addition to or instead of prescribed retributive sanctions.10 The goals of these early legal systems were to make the victim whole and to minimize private revenge.11 This victim-centered system of redress continued in early Western law until approximately the eleventh century.12 After this time, however, monarchs and their governments became increasingly involved in addressing harm inflicted by their subjects on each other.13 Most individual acts committed against a person or his property became offenses against the “king’s peace” or the crown rather than private matters to be resolved by the affected parties.14 Fines paid by the offender to the government and 9. This system applied to acts ranging from theft and destruction of property to sexual assault and homicide. See DIAMOND, supra note 1, at 277-330; Harold J. Berman, The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. CHI. L. REV. 553 (1978); Laster, supra note 2, at 71-75; Marvin E. Wolfgang, Victim Compensation in Crimes of Personal Violence, 50 M INN. L. REV. 223, 223-26 (1965). See generally A.S. DIAMOND, PRIMITIVE LAW PAST AND PRESENT (1971) (describing evolution of early law). Disputed matters were resolved by the community or its elders. See DIAMOND, supra note 1, at 194201. 10. See DIAMOND, supra note 1, at 22-45, 85-133, 277-330. 11. See Berman, supra note 9, at 556-59; Laster, supra note 2, at 71-75; Wolfgang, supra note 9, at 224-25. 12. See Berman, supra note 9, at 557, 575-76. 13. Historians attribute this shift in approach to various factors including the expansion of central authority and kingship, the growth and influence of the Church, the evolution of a structured court system, and evolving notions of punishment. See Berman, supra note 9, at 567-86; Laster, supra note 2, at 74-75. See generally FREDERICK P OLLACK & FREDERIC W ILLIAM M AITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (2d ed. 1959) (describing background of English law). 14. See Berman, supra note 9, at 574-75. A transformation in notions of private or civil as opposed to public or criminal wrongs occurred. In early legal systems, R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM 24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21 capital, corporal, and other forms of offender punishment increasingly accompanied and often replaced the previous requirements of offender restitution to the victim.15 The crime victim’s role was thus substantially reduced in the criminal proceedings which evolved over time generally to involve the government and the offender—not the victim—as parties.16 only a few acts (including witchcraft, bestiality, and incest) were regarded as “criminal” offenses, i.e., wrongs against the community or public as a whole. See DIAMOND, supra note 1, at 290-91. Most acts against individuals (including homicide, personal injuries, rape, adultery, and theft) were treated as private or civil wrongs for which there were prescribed restitutive or retaliatory remedies for the victims. See id. at 277-330. In this process of evolution, however, most of these previously private or civil wrongs became criminal offenses subject to prosecution in the professional court system created, in part, to deal with these offenses. See id.; Berman, supra note 9, at 574-75; Laster, supra note 2, at 79. 15. See DIAMOND, supra note 1, at 277-330; Laster, supra note 2, at 75-80; Wolfgang, supra note 9, at 228-29. 16. See Laster, supra note 2, at 79-80. In Western legal systems, crime victims have retained varying rights of participation in criminal proceedings and varying remedies from them. For example, in England, the legal system on which the American justice system is most closely based, wide authorization of private (i.e., victim) initiation and conduct of criminal prosecution existed until the nineteenth century, as well as public or governmental criminal prosecution. See Cardenas, supra note 3, at 359-66. As a result of a confluence of factors (e.g., the advent of modern police forces which assumed the primary responsibility for investigating crimes and initiating criminal complaints, a change in correctional philosophy inspired by Cesare Beccaria and advocated by Jeremy Bentham, and a concern about abuses in the private prosecution system), Parliament enacted the Prosecution of Offenses Act in 1879 which established the Office of Director of Public Prosecutions and strengthened public control over prosecutions initiated in England. See id. Although private citizens theoretically retain a right to initiate and conduct prosecutions for many crimes, this right is rarely exercised and is generally limited to cases involving commercial or business offenses or very minor crimes. See id.; Matti Joutsen, Victim Participation in Proceedings and Sentencing in Europe, 3 INT’L. REV. VICTIMOLOGY 57, 59-60 (1994); Andrew Sidman, Comment, The Outmoded Concept of Private Prosecution, 25 AM . U. L. REV. 754, 756-62 (1976). In terms of victim remedies, in addition to primary sanctions of imprisonment, probation, and fines, compensation orders are now increasingly used in England. Mike Maguire & Joanna Shapland, Provision for Victims in an International Context, in VICTIMS OF C RIME 211, 220 (Robert C. Davis et al. eds., 2d ed. 1997). These orders are penal sanctions, enforced by the state, and have priority over fines. See id. Recent legislation requires that the court give reasons for not issuing a compensation order if an identifiable victim has suffered a loss. See Joutsen, supra at 62; Maguire & Shapland, supra at 220-21. In most European jurisdictions, the crime victim has retained a legal right to participate to some degree in the criminal prosecution. See Joutsen, supra at 59. Only in Finland does a victim have an independent right to prosecute for most offenses. See id. at 60. In some countries (e.g., Austria, Denmark, Germany, Germany. 19. See Cardenas. See Cardenas. Deborah P. Scotland. Sweden.. See id. victims are allowed to function as “subsidiary” or supporting prosecutors by proposing or submitting evidence. law enforcement and the administration of justice were primarily conducted by individual victims with the assistance of public officials who charged fees for their services. compensatory payments to the victim are authorized either as an independent sanction (e.” Matti Joutsen. at 366-68. 95. and Turkey) or as a condition of probation or a suspended sentence (e. the Netherlands. In colonial America. . in Greece. and the Netherlands also allow a victim to pursue a civil claim against the offender in the same proceeding as the criminal trial.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Germany.DOC Printed On: 3/22/99 8:08:00 PM Winter. See Cardenas. Greece.g. 371. The victim was also responsible. McDonald. Norway. 17. and Sweden also allow a victim a secondary right to prosecute if the public prosecutor declines to initiate a criminal prosecution. the victim could receive damages from offenders who could pay. Norway. and Sweden). Austria. REV. Reflecting a general concern for the victim’s role. supra note 3. See Cardenas.17 The victim was responsible for arresting his offender—either himself or with the aid of the local watchman. at 651-54. a similar evolution from a private to a public prosecution system took place. McDonald.. See id. at 61. victims can initiate and maintain a private criminal prosecution only for minor crimes in which there is no public interest in prosecution. at his own expense. 1999] VICTIM PARTICIPATION 25 In this country. Norway. at 366-68. 69. Although imprisonment. supra note 3. supra at 219-20. supra note 3. France. commenting on submitted evidence. the United Nations General Assembly adopted a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985 which encourages the facilitation of judicial and administrative responsiveness to crime victim needs by “allowing the views and concerns of the victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected. at 61-62.g. at 368. Kelly. justice of the peace. REV. and Yugoslavia). supra note 3. or keep or sell an indigent offender’s services for a period corresponding to the amount of damages owed. Italy. Austria. at 367-68. See id. Poland. without prejudice to the accused and consistent with the relevant national criminal justice system.84 (1987). Victims. and fines have become the most common sanctions in Europe. and Yugoslavia. supra note 3. 34 W AYNE L.18 By the time of the American Revolution. See id. and prosecuting the offender. filing the formal charges. however. supra note 3. at 654. Scotland. Poland. probation. 82-83 (1987). or constable for whose assistance the victim paid. France. supra note 3. Poland. 34 W AYNE L. at 652-53. McDonald. Hungary. McDonald. In return for a successful prosecution. The victim was also responsible for the offender’s pretrial and sometimes postconviction incarceration expenses. supra note 3. for investigating the crime. Ireland. Germany. 119-20 & n. significant changes had begun to occur in the administration of justice. at 653.19 Philosophically. See Maguire & Shapland. 18. in Austria. and being heard on the charges in court. Russia. Norway. In Austria. Denmark. Listening to the Victim: The Victim’s Role in European Criminal Justice Systems. supra note 3. 25:21 these changes were motivated by Enlightenment notions that criminal prosecutions should serve societal interests of deterrence and retribution rather than interests of individual victims in private redress. the Dutch schout. . 125-32 (1984).22 Imprisonment and fines replaced capital and corporal punishments as the primary criminal sanctions. supra note 3. Josephine Gittler. at 654-56.25 By the middle of the nineteenth century. L. This transformation moved the crime victim from occupying the central role to one of looking on from the “sidelines” in the administration of justice in this country. supra note 3. See Cardenas. 21. 22. See Cardenas. at 369-71. at 665-67. 26. See Cardenas. supra note 3. at 369. supra note 16. supra note 3.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. at 653-54. supra note 3. Historians dispute whether the American system of public prosecutors and prosecutions evolved from the English Attorney-General or Justice of the Peace. at 656-59.DOC Printed On: 3/22/99 8:08:00 PM 26 CRIMINAL AND CIVIL CONFINEMENT [Vol. these changes had substantially transformed the American criminal justice system from a private to a public system. 23. McDonald.26 The crime victim remained effectively “sidelined” in the American criminal justice process until the convergence of several factors in the middle of this century. E SSAY ON C RIMES AND PUNISHMENTS (1764) (describing the criminal justice philosophy of the most influential Enlightenment theorist in this regard). at 369-71. professional government-operated police forces began to replace the previous system of volunteer or privately paid law enforcement officers. See Cardenas. at 657. supra note 3. Sidman. supra note 3. the changes were influenced by the increasing urbanization and diversification of American life which rendered the previous private prosecution system ineffective and sometimes corrupt. at 762-65. a public prosecution system evolved in which a public prosecutor—not the victim—initiated and conducted the criminal prosecution on behalf of the government. supra note 3. See Cardenas.20 Practically.27 a new theoretical approach which focused on the crime victim and became known as victimology 20. See id. 27. at 654-56. at 654-68. McDonald. McDonald.24 Finally. See McDonald. informers. at 369. McDonald. supra note 3. Just as Enlightenment philosophical and theoretical thought had shifted the focus of the criminal justice process from the victim to society in the eighteenth century. at 660-61. 11 PEPP. supra note 20 and accompanying text.23 Restitutive damages to the victim were no longer actively pursued through the criminal justice process. at 368-69. 24. or the French prosecutor de roi.21 Consequently. 25. See generally C ESARE BECCARIA. supra note 3. See id. Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems. 117. and bounty hunters. See McDonald. REV. or whether it was a purely American response to the needs of this emerging nation. anxiety. isolation. 3 INT’L R EV. R EV.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. researchers began to explore the psychological impact of victimization on victims.” “radical. The Wrongs of Victim’s Rights. Why Do Victims Fail to Report? The Psychology of Criminal Victimization. 26 (1987) (describing trauma. M AWBY & S. 953-66 (1985) (discussing feelings of fear. helplessness. 34 W AYNE L. at 135-78 (identifying victim interests in restitution and retribution and societal interests in reducing victim alienation from the criminal justice system and responsive limited private prosecution opportunities.30 28. and compensation is more responsive to victim needs of healing. W ALKLATE. VICTIMOLOGY 33. Toward a Victim Policy Aimed at Healing. reconciliation.. at 23.DOC Printed On: 3/22/99 8:08:00 PM Winter. supra note 16. redress. in VICTIMS OF C RIME. ISSUES 39 (1984) (discussing the relationship of fear. V ICTIMOLOGY 4-7 (2d ed. Benjamin Mendelsohn. Fattah. R. helplessness. See generally HANS VON HENTIG.29 Researchers also began to identify proposed changes in the criminal justice system which they felt would be more responsive to victim needs and desires. SCHAFER. Dean G. Crime. and loss of control as victims seek meaning to victimization). Henderson. 9-20. and potential lim- . 29. Subsequent theorists expanded the study of victimology to encompass other aspects of crime victims and victimization generally. SOC. fear. and threat of further victimization). restitution. expanded victim input and participation in criminal prosecutions. 30. Researchers by no means reached unanimous conclusions as to the most appropriate responses of the criminal justice system to crime victim needs. The Victimology. supra note 25. REV. Not Suffering. loss of control.g. 7. CRITICAL VICTIMOLOGY 7-22 (1994) (describing “positivist.g. at 257 (suggesting that a restorative justice system based on mediation. Lynne N. 34-36 (1994) (providing overview of psychological research on victim responses to crime and the criminal justice process). Chayet. Punishment. 937. Ezzat A. mortality. See. Most trace the modern study of victimology to the seminal works of Hans von Hentig and Benjamin Mendelsohn in which they established victim typologies and explored various aspects of the victim-criminal relationship. and prevention of future victimization than increased input and participation in a punishment-based system). vulnerability from victimization in terms of specific explanatory psychological theories). e. recovery. These changes included the restoration of restitutive remedies and greater victim participation and input in the criminal justice process.. See STEPHEN SCHAFER. ETUDES INTERNATIONALES DE PSYCHO-S OCIOLOGIE C RIMINELLE. L. Robert F. See DOERNER & LAB . powerlessness. See. 1999] VICTIM PARTICIPATION 27 emerged in the middle of the twentieth century. as well as the impact of their significant exclusion from the criminal justice process. 40 J. See generally Pamela Tontodonato & Edna Erez. THE C RIMINAL AND HIS V ICTIM: STUDIES IN THE SOCIOBIOLOGY OF C RIME (1948). July 1956. 37 STAN. LAB. Constitutionally Guaranteed Participation in Criminal Justice Proceedings for Victims: Potential Effects on Psychological Functioning. Gittler. supra at 41-97 (describing evolving theoretical approaches and early supporting empirical research).I. DOERNER & STEVEN P. e.” and “critical” victimology concepts). supra at 12-14 (describing “general” victimology). Kilpatrick & Randy K. Kidd & Ellen F. V ICTIMOLOGY: THE V ICTIM AND HIS C RIMINAL 33-41 (1977). W ILLIAM G. Otto. and Victim Distress.28 In addition to exploring theoretical bases for the study of victimology. 1998). R EV. supra note 29. Victims’ Perceptions of Criminal Justice. at 986-1012 (suggesting limited utility to the victim of participation in sentencing process other than to assist in determination of restitution). Others trace the movement’s origins to the first national conference on victim assistance in 1973. in FROM C RIME POLICY TO V ICTIM P OLICY: REORIENTING THE J USTICE SYSTEM . The development of this victim’s movement has not been without its critics. distance victims from their own social networks. result in dissatisfaction and frustration from unmet expectations. Young. Community Control.g. 31. in 1975. which was formed to promote victim advocacy and issues nationwide and provide training opportunities for victim service providers. Robert Elias. at 197. See id. at 194. Some have been concerned that the establishment of professional victim service providers would create dependency. There is no single moment or event marking the coalescing of these efforts into the victim’s movement. create victim stereotypes. of the first state statute providing compensation for victims of violent crime. Some identify California’s enactment. 11 PEPP. 15 (1984) (suggesting increased victim participation and status in the justice system would reduce victim dissatisfaction with the system and loss of control from victimization). as well as alternative arbitration and mediation approaches). supra note 31. Marlene A. supra note 29. See id. 32. See id. See.33 During this decade. it emerged more directly from the evolving women’s movement. See id.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. in VICTIMS OF C RIME. of the National Organization for Victim Assistance. significant victim-centered ited party status. Individual victims and victim service and support providers and advocates had begun to “network” at the local level during this period. Some identify the subsequent establishment. Henderson. See id.32 a victim’s movement arose in the United States by the 1970s. 33. Although the victim’s movement was influenced by the civil rights model. Criminal Justice and Victim Services. supra note 31. at 290 . See Carrington & Nicholson. at 2. at 195-97. at 22-28 (theorizing that guaranteed victim rights of input and participation in criminal proceedings could reduce victim feelings of helplessness and lack of control and increase victim satisfaction with the criminal justice system). at 196..DOC Printed On: 3/22/99 8:08:00 PM 28 CRIMINAL AND CIVIL CONFINEMENT [Vol. Kilpatrick & Otto. supra note 4. See Carrington & Nicholson. 25:21 Theory was translated into action in this country in the 1960s as a result of a renewed American interest in and concern about crime in general and about victims of crime in particular. Many of the early leaders in the victim’s movement were concerned about the criminal justice system treatment of the mostly female victims of sexual assault and domestic violence. Awareness of victimization and victim needs was also increased during this period as a result of the development of national victimization surveys reflecting higher levels of crime and fear of crime than previously reported and of responsive initiatives funded by the federal Law Enforcement Assistance Administration to improve victim services. See Young. and delay the natural healing process from victimization.31 Following the models of predecessor grass roots movements. Kelly. e. 195-96. as the starting point of the movement. See Young. Victim Rights and Services: A Modern Saga. supra note 4. See id. They attributed what they viewed as an inadequate system response to these crimes as symptomatic of women’s lack of status and power. L. in 1965. See id. supra note 16. Deborah P. at 1-6. at 1-5. 1997). supra note 4. 245 (1993). 36.. the Task Force issued a Final Report which included over sixty action recommendations addressed to the federal and state legislative and executive branches. FRANK J. supra note 31. in FROM C RIME POLICY TO V ICTIM P OLICY : R EORIENTING THE J USTICE S YSTEM . supra note 7. mandatory sentencing. Prologue: On Some Visible and Hidden Dangers of Victim Movements. See. . in VICTIMS OF C RIME AND THE VICTIMIZATION PROCESS . e. Ezzat A. President Reagan’s effort to increase the national visibility of crime victim issues is also demonstrated by his proclamation of the first National Victims’ Rights Week in 1981. however.g. 80-83 (Marilyn McShane & Frank P. and the performance of research on a variety of crime victim issues. Comment. supra note 30. Fattah.g. and elimination of parole) have been criticized as a co-option of victim concerns by those with a “crime control” approach to criminal justice. prosecutors. Fattah. supra note 29. See Young. Fattah ed. at 942-53. at ii-iii.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.35 The nine-member Task Force reviewed existing literature on criminal victimization and held hearings around the country to obtain input from professionals responsible for serving the needs of crime victims and from victims of crime themselves. 986-1012. judiciary. supra note 30. when President Ronald Reagan established the President’s Task Force on Victims of Crime in 1982. denial of bail. Victims’ “Rights” or a Fair Trial Wronged?.34 Crime victim issues were truly raised to national prominence. system changes sometimes espoused by those in or associated with the victim’s movement (e. Williams III eds. See Carrington & Nicholson. and other professionals (Ezzat A.36 In December 1982. at 7. As the victim’s movement became more concerned with effecting changes in the criminal justice system to provide victims greater access and participation. From Crime Policy to Victim Policy: The Need for a Fundamental Policy Change. criminal justice system agencies (i. supra note 7. See PRESIDENT’S TASK FORCE. REV. supra note 31. at ii-iii. Young. Fattah. at 195-97. See PRESIDENT’S TASK FORCE. Fattah. 35. V ICTIMS S TILL: THE P OLITICAL M ANIPULATION OF C RIME VICTIMS (1993) (describing various forms of manipulation of victims). supra at 1 (discussing all of the above concerns). 1999] VICTIM PARTICIPATION 29 achievements were accomplished. supra note 31. at 262-70.. Henderson. some critics were concerned that victim activists intentionally or inadvertently were creating a “contest” of rights between victims and offenders or providing inappropriate responses to real victim needs. see Carrington & Nicholson.e.. at 261-63. 1986). Young. See generally R OBERT ELIAS. at 961-66. 34. 41 BUFF. and parole authorities). at 197. C ERTAINTY OF J USTICE: REFORM IN THE C RIME VICTIM M OVEMENT (1995) (examining the movement’s issues and organizations). including the enactment of legislation in a majority of states to provide compensation for victims of violent crimes. Moreover. at 268-69. supra note 30.. 966-86.. e.g.. Christopher R. the establishment of several national organizations focusing on general or specific crime victim issues. Henderson. L. abolition of the exclusionary rule. W EED. at 7. Goddu. the police. See.DOC Printed On: 3/22/99 8:08:00 PM Winter. the creation of victim service and assistance programs in many locations around the country. supra note 4. at 75. supra note 29. Fattah. Ezzat A. at 198. 41. and relevant private sector personnel). Perspectives on Proposals for a Constitutional Amendment Providing Victim Participation in the Criminal Justice System. absent a compelling contrary need. in every criminal prosecution shall have the right to be present and to be heard at all critical stages of judicial proceedings. 39. 80. 395 (1997) (analyzing recent proposals). See id.42 The Task Force recommended that judges allow the victim and a family member to attend trial.38 Such recommendations included those made to the police and prosecutors to inform victims of the status of investigations and prosecutions.” See id..44 At the time of the Task Force Final Report.40 The Task Force also recommended that prosecutors consult with victims and inform the court of the views of victims of violent crime regarding bail. at 60-61. at 114.. See generally PRESIDENT’ S TASK FORCE.39 They included recommendations to the federal and state legislatures to require victim impact statements at sentencing.DOC Printed On: 3/22/99 8:08:00 PM 30 CRIMINAL AND CIVIL CONFINEMENT [Vol. educators. sentencing and restitution. See id. the Task Force recommended that parole authorities notify victims and their families of parole hearings and allow them or their representatives to attend the hearings and tell the authorities of the crimes’ effects on them.” Id. restrictions on judicial sentencing discretion. 64. even if identified as witnesses.37 Several of these action recommendations encouraged greater victim access to and participation in the criminal justice process. 34 WAYNE L. 44. supra note 7. supra note 7. “Constitutionalizing” Crime Victim Rights. health care personnel. 40.e. clergy. at 64. at 76-78. BULL. pleas. The Task Force also proposed that the Sixth Amendment to the United States Constitution be amended to add: “Likewise. 33 C RIM. few states required these means of victim access to and participation 37. The prosecutor’s proposed duty to keep a victim of violent crime informed of the prosecution’s status extended through the parole hearing stage. See id. lawyers. See id.41 It also suggested that prosecutors inform these victims of opportunities to provide input to the court regarding sentencing. establishment of preventive detention of suspects prior to trial. abolition of the exclusionary rule. and restitution. Peggy M. Recommendations also suggested practices to make the criminal justice process and related victim service delivery system more “victim friendly. See PRESIDENT’S TASK FORCE. L. 38. See id. .R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1 (1987) (providing analysis of initial constitutional proposals). 42. and allow and give appropriate weight to input at sentencing from victims of violent crime. and abolition of parole) to encouraged expansion of victim services. 43. at 83-84. Tobolowsky. See generally Symposium. 25:21 involved in crime victim service delivery (i. See id. These recommendations ranged from proposed changes in criminal justice process and procedure (e. See id. the victim. at 33. compensation.g.43 Finally. at 65-66. REV. See id. mental health care providers. in VICTIMS OF C RIME. prior to 1982. Deborah P. In addition. 47.47 The remainder of this article examines the above-described constitutional. at 235-42 (providing overview of some of the court decisions and research studies regarding victim participation in the criminal justice process). researchers have attempted to assess the merits and effectiveness of these rights. only two states required victim notification of crucial developments in the proceedings. 16 NEW ENG. supra note 38. 48-57 (1989).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. David L. 45.45 Authorization for victim participation in the criminal justice process has increased exponentially in the fifteen years since the issuance of the Task Force Final Report. interpreted. U. See generally Kelly & Erez. supra note 46. legislative.S. 46. and research actions which have established. A report on the progress of implementation of the Task Force recommendations reflected that. 35. REV. federal and state courts have been required to construe and interpret these victim rights of participation. FOUR Y EARS LATER : A R EPORT ON THE PRESIDENT ’ S TASK FORCE ON V ICTIMS OF C RIME 4 (1986) [hereinafter OFFICE OF J USTICE PROGRAMS ]. J. and six states allowed victims and other members of the public to attend parole hearings. at 231. supra note 16. Victim Participation in the Criminal Justice System. NATIONAL V ICTIM C ENTER. three states authorized victim allocution at sentencing. U. & C IV. 242-60 (1990). Currently. 1999] VICTIM PARTICIPATION 31 in the criminal justice process. 233-35. DEP ’T OF J USTICE. Roland. e. OFFICE F OR VICTIMS OF C RIME. when implemented. Note. CONFINEMENT 241. The Rights of Crime Victims in the Criminal Justice System: Is Justice Blind to the Victims of Crime?. NEW DIRECTIONS FROM THE F IELD: V ICTIMS’ R IGHTS AND SERVICES FOR THE 21ST C ENTURY (1998) (reviewing progress in implementation of Task Force recommendations and making additional recommendations). to varying degrees. the federal government and the majority of the states have constitutional or legislative provisions (or both) which require victim notification of important events and actions in the criminal justice process and allow. OFFICE OF J USTICE PROGRAMS .” 17 PEPP. judicial. SURVEY OF STATE LAWS AND C ONSTITUTIONAL PROVISIONS R EGARDING C RIME V ICTIMS’ R IGHTS (1997) [hereinafter NATIONAL NETWORK].. Progress in the Victim Reform Movement: No Longer the “Forgotten Victim. crime victim presence and hearing at critical stages of the criminal justice process. L.S. THE 1996 VICTIMS’ RIGHTS SOURCEBOOK : A C OMPILATION AND C OMPARISON OF V ICTIMS’ R IGHTS LAWS (1996) [hereinafter NVC] (containing compilations of laws regarding victim rights of participation and certain other rights). at 397-422. Karyn Ellen Polito.DOC Printed On: 3/22/99 8:08:00 PM Winter. See. See generally NATIONAL NETWORK TO END D OMESTIC V IOLENCE. D EP ’T OF J USTICE . Tobolowsky. ON C RIM. Kelly & Edna Erez. . one state authorized victim input into key prosecutorial decisions.g. and analyzed crime victim rights to notice of and presence and hearing at critical stages of the criminal justice process. eight states required a victim impact statement at sentencing.46 Over the past fifteen years. COMP . § 99-36-5 (1994). 120/4. But see. R EV. Chermside Jr.49 These legislative and constitutional provisions and the 48. L. 145-46 (1989). the federal government and all of the states have enacted legislation that provides at least some victim rights of participation in the criminal justice process. § 46:1844 (West Pamp. Power of Private Citizen to Institute Criminal Proceedings Without Authorization or Approval by Prosecuting Attorney. art.DOC Printed On: 3/22/99 8:08:00 PM 32 CRIMINAL AND CIVIL CONFINEMENT [Vol.20 (West Supp. amend.J. Introduction In the fifteen years since the issuance of the Task Force Final Report.5 (West Supp. such as the rights to be notified of key proceedings and outcomes. Goldstein. 25:21 III. A few states provide additional participatory rights.. Ellen Yaroshevsky. art. 49. STAT . L. 1998) (allowing a “victim counselor” to be present in proceedings with a victim). 120/4.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. I. SURV. VICTIMS’ CURRENT RIGHTS OF P ARTICIPATION IN THE CRIMINAL JUSTICE PROCESS A. II. STAT. Sidman. ALA.5 (West Supp. ALASKA C ONST. to consult with the prosecutor about important decisions in the prosecution. They represent the most frequently provided victim participatory rights. Hall. 984 (1975). § 24. ALA.. CONST. 557.1. tit. 66 A. 28 VAND. e. 3d 732 (1975). STAT. LA. § 5319 (Supp. approaches endorsed by some commentators. § 910A. 1998). CODE § 15-14-53 (1995) (allowing the victim to be seated at counsel table with the prosecutor). ARIZ. Gittler. supra note 3. Balancing Victims Rights and Vigorous Advocacy for the Defendant. COLO. Annotation. 515. L. 52 MISS. See. OHIO R EV. The Role of the Victim in the Prosecution and Disposition of a Criminal Case. § 16a. § 2. § 178. MISS. CONN.48 Twenty-nine states have ratified “victim rights” constitutional amendments which generally include victim rights of participation to some degree. Cardenas. § 28. Donald J. Some states even authorize limited forms of private prosecution or private assistance in public prosecutions. VT. NEV. II. See. supra note 16.L. 547-61 (1982). 1998). art.g. ANN..g. at 372-98. and to be present and heard at significant court or correctional proceedings. ANN. REV. 931. . C OMP . 1998) (authorizing a supporting witness for a testifying victim). ANN. ANN. PENAL C ODE § 868. 725 ILL. IOWA C ODE ANN. CAL. CODE ANN. CONST. As of 1997. C ONST. ANN. 168-71. 13.. CAL. CODE ANN. supra note 25. Abraham S. at 754.571 (Michie 1997) (allowing a victim “attendant” during testimony). 725 ILL. See ALA. art.R. See generally Herbert B. C ODE § 15-23-66 (1995). e. Defining the Role of the Victim in Criminal Prosecution. STAT. CONST. 135. I.g. e. STAT. 1998) (providing an advocate or supporting person for a victim at court proceedings). 1998). at 150-63. 1989 ANN.5 (West Supp.09 (Anderson 1996) (permitting a person to accompany a victim in court and provide support). twenty-nine states have ratified victim-related constitutional amendments. REV. § 2930. AM . The legislative materials addressing victim rights to notice regarding and presence and hearing at critical stages of the proceedings which are referenced in this article are generally current through 1997. Res. § 32. § 10a. S561 (daily ed. NVC. § 21M:8-k (Supp. I.. 486 N. File hj71. WIS.2d 445 (Ind. art. § 30. CONST. denied.gov/pub/thomas/c105/hj71.J.2d 685 (Ariz. REV. C ONST. § 23. CONST. art.J. § 35. 478 U. I. cf. e. see also 143 C ONG. (1997). 1997). Knapp v. Proposals for a federal victim rights constitutional amendment are pending in the United States Senate and House of Representatives. art. § 421.txt> (containing text of H. 1322. § 10607 (West 1995). See. OKLA. Symposium. KAN.g.loc. UTAH C ONST. art. R EV. But see. 912 P. CONST.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Houghton. VA. § 22. § 8. 1996) (finding that person who committed suicide after a sexual assault was not “murdered” and thus parents were not “victims” in the sexual assault prosecution). 1998) <ftp://ftp. § 28. ANN. ALA. supra note 46. N. See S. At the outset. 1992) (en banc) (concluding that mother of children allegedly murdered by their father was still a . 71. §§ 10606. S. art. COLO. IDAHO C ONST . supra note 38. 1322).DOC Printed On: 3/22/99 8:08:00 PM Winter. 1999] VICTIM PARTICIPATION 33 court decisions interpreting them vary widely. Res. art. STAT. MD.A. CODE § 15-23-60 (1995). 1997) (containing text of S. 71). OR . CONST. I. § 24-4. REC.R. Jan. Martone. S163. § 13. H.. CONST. § 16-3-1510 (Law. I. XXIX. I. art. CONST. 1998) <ftp://ftp. XV. STAT. N. art. § 34. See also generally NATIONAL NETWORK. 1996) (finding that cellmate victim of defendant’s assault was “in custody” and thus excluded from prescribed victim rights). or minor victim. Stapleford v. State v.g. supra note 46.C. CONST. art. I. art. 105th Cong. H.500 (Michie Supp. 6). CONST.S. See. § 28. CONST. e. Co-op.C. ANN. art. CONST.R.E. 10607 (West 1995)).ih. art. § 42. at 405-15 (describing constitutional provisions). I. Superior Court of County of Maricopa. (1997) (providing proposed legislation to implement constitutional amendment and to replace existing federal statutory victim rights provisions in 42 U. CONST. 917 P. I. I. CONST. NEB. Ct. e. 1996). art.A. § 24. incompetent. 1996) (en banc) (holding that a policeman was a “victim” under state constitutional victim rights provisions and declaring conflicting statute and procedural rule unconstitutional).J.M.txt> (containing text of H. State v. 105th Cong. (1997). 1997).ih (visited June 24. I.R. IND. § 8. ANN. art. NEV. supra note 46. Tobolowsky. at 233-35. App. 1010 (1986) (concluding that particular victim rights provision applied only to direct victim of crime and not to homicide victim’s mother). § 22. I. REV.J. Res.2d 927 (Ariz. CONST. Res. R.S. Kelly & Erez.S. I.. CONST. II. § 37.51 Most states C ONST. S.ih. The prescribed victim rights are typically extended to the direct crime victim or a family member (or other designated victim representative) in the case of a murdered. 21. 922 P. art. WASH.g. C ONST. MICH.I. C ONST.1-302 (West Supp.loc. I. R EV. KY. art. 6. STAT.2d 703 (Ariz. OHIO C ONST. CONST.C. incapacitated. ARIZ. 42 U. CODE ANN.1. art. 1985). § 9m.gov/pub/thomas/c105/hj1322. State. § 15. 47. I. File h1322. I. although the federal government and every state have either legislation or a constitutional provision (or both) regarding at least some of the victim rights of participation in the criminal justice process. C ONST. N. STAT. ILL. § 24. I. art. I. § 77-38-2 (Supp. N. § 13-4401 (West Supp. UTAH C ODE ANN.C. art. art.H.C. § 8-A.R. 1997). § 16. cert. 105th Cong. FLA.ih (visited June 24. II. 1998). art. Wallace v. § 24. art. MO. Roscoe. CONST.2d 1297 (Ariz. ANN.J. 1997). Some states expressly exclude individuals in custody and the accused from their victim rights provisions. supra note 38. 823 P. art. I. 50. TEX . art. not all of these provisions apply to victims50 of all crimes. I. I. CONST.C. § 22.55 The federal system and several states use a hybrid approach— restricting certain of the designated rights to victims of specific types of crimes and authorizing other rights to apply to broader categories of victims.52 The most frequent limitations are the restriction of these rights to victims of felony cases of any kind. R. KAN. See.01 (Anderson 1996) (including 9 additional specified crimes).. REV. (1997). CONST. I. I. S. See. § 24). I. CONST.9 (West Supp. § 57. 1998). TEX. STAT . 53. § 42. as yet uncharged. §§ 12. 1998). FED.C. 1997) (including violent misdemeanors).g. CAL. II. Although they are not addressed in this article. R. Res. ARIZ. CONST. CONST. 54. FAM .010. In their victim rights constitutional provisions. e. OHIO R EV.54 or to victims of specifically enumerated offenses. § 99-36-3 (1994). art. § 28. WASH. § 13-4401 (West Supp. § 7738-5 (Supp. e. See. IOWA C ODE ANN. art. LAWS ANN. OR . art.A. COMP .g. COLO. ANN. ALA.DOC Printed On: 3/22/99 8:08:00 PM 34 CRIMINAL AND CIVIL CONFINEMENT [Vol. art. REV. . § 31-26-3 (Michie Supp. (1997). P. MICH. 1997). N. 51. See H. § 23).M.01 (West Supp. 1997). STAT. STAT. CODE ANN. art. ANN. §§ 910A. 32. 1998). TEX. STAT. ILL.. COLO.53 to victims of crimes involving physical or sexual violence or injury. art. e.61. IDAHO C ODE § 19-5306 (1997) (including violent misdemeanors).. art. 25:21 limit their victim participatory rights to victims of certain crimes only. 52. the Senate proposal limits the specified rights to victims of violent crimes and other crimes defined by Congress. 105th Cong. CONST. . See. art.g. art. C ONST. PENAL C ODE §§ 679. See. supra note 46 (describing provisions regarding crimes to which victim rights apply). Utah and Washington primarily limit their coverage to victims of felony offenses (see UTAH C ONST. I. § 35). I. Oregon. ARIZ.04 (West 1988 & Supp. and South Carolina extend their provisions to those suffering physical. psychological. In the proposed federal constitutional provisions. § 8. ANN. art. 56. STAT. most states entrust the definition of the crimes to be covered to their legislatures.03. MISS. CONST. New Jersey. supra note 46 (describing definitions of victims in state victim rights statutes). § 16. .J.001 (West 1996 & Supp. and New Mexico enumerates specific offenses covered by the provisions (see N. 55.S.g. CODE § 15-23-60 (1995). § 16a.01. P. 10607 (West 1995). See generally NVC. Of the eight states with constitutional provisions that do not expressly delegate the definitional responsibility to their legislatures. e. art. I. See S. ANN.J. some states have separate rights provisions for victims of juvenile offenders. Res 6. § 8-A. . 1998). e. Florida and Rhode Island provide no limitations on the victims of crime covered (see FLA. 1997). 1997). CODE ANN. CONST. 74-7333 (1995 & Pamp. 56..R. e. C RIM. See generally NVC. §§ 10606. 1997). VA. § 780. CODE ANN. C ONST.. MO. I. ALASKA STAT . 71. role in the offense). REV.1. I. UTAH C ODE ANN.56 Only a few states extend the authorized participatory rights to vic“victim” despite potential but.g. § 32.g. II. The House of Representatives proposal covers victims of felonies and any other violent crime. ANN. See.. § 24). § 24-4.015 (Michie 1996 & Supp.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.1. ANN.J.1-302 (West Supp.781 (West 1998). 105th Cong. § 2930. I.M. §§ 22-3727. 42 U. I. 1998). CONST. art. CODE C RIM. . art. § 8-281 (West Supp. property or financial harm from crime (see N. C. § 52:4B-39 (West Supp. See.g. IOWA C ODE ANN.04 (Anderson 1996) (specifying notification “promptly” after the initial contact with the victim).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. §§ 1. 1997). e.g. § 46:1844 (West Pamp. § 9411 (1995) (specifying notification “promptly” after the commencement of prosecution). 1998) (specifying no time period for notification). § 40-38-107 (1997). 56.Y. 1998).g. 258B. STAT. most of the states which require this rights notification require that victims be provided with the information regarding the availability of their rights in written form.763 (West 1998). CODE ANN. MICH. EXEC.33 (West Supp. 776. § 17-17-6 (Harrison Pamp. art.001 (West Supp. § ..59 Of the approximately twenty states that require prosecutors to notify victims of their rights. CODE ANN. 847 (1996 & Supp. Approximately five states generally do not impose restrictions on the crimes for which victims are entitled to participatory rights. 1992 & Supp. CODE art. §§ 773. The federal system and most states require that victims be given notice of the existence of their participatory rights and expressly entrust the notification responsibility to the investigating law enforcement agency. 1997). 1997). tit. See. 780. 19. § 1-40-204 (Michie 1997) (requiring notification “without undue delay”). ch. § 1621-106 (Michie Supp. § 131. OHIO R EV. R EV. 1998). STAT. tit. COMP . TENN. 3. TEX. 13. 784. the greater the opportunity for the victim to exercise them. ARK. OR .DOC Printed On: 3/22/99 8:08:00 PM Winter. § 960. § 780. OKLA. e. See ARK.A.. ANN. M ICH.60 M D. Co-op. e. But see. . 1998). 1998). STAT . the prosecutor. § 16-21-106 (Michie Supp. VT. e. 1997) (requiring notification “upon initial contact” with the victim). CODE ANN. CODE ANN.. CODE C RIM. 60. CODE ANN. 42 U. they must first be made aware that such rights exist. N. GA. 57.g. See.. 279. CODE ANN. ANN. 27. ANN. STAT . LAW § 646-a (McKinney 1996). the sooner that a victim is notified of the existence of these rights. § 910A. NVC. Obviously.g. e. See. most prescribe either general or no time limits for the notice. LAWS ANN. ANN. STAT. STAT . Whatever entity is entrusted with the notification responsibility. FLA. § 10607 (West 1995) (requiring notification at the “earliest opportunity” after detection of the crime). supra note 46 (describing notification of availability of rights provisions). or victim services personnel. ANN. DEL. But see.J. STAT . 59. e. ANN.g.S. 1999] VICTIM PARTICIPATION 35 tims of virtually all crimes. §§ 780. 1998).02 (West Supp. W YO. MINN. LAWS ANN. § 215.2 (West 1994) (designating no time period for notification). for crime victims—however defined—to exercise their participatory rights. See generally NATIONAL NETWORK . STAT. 58. ANN. 11.. In the federal system and the approximately twenty states which require law enforcement personnel to make the rights availability notification. § 2930. ANN. the federal system and most of the states require that notification be given at the initial contact with the victim or within a specific or more general time period following the initial contact.756 (West 1998). MASS. LAWS ch.58 Again.007 (Pamp. P. 1998). In addition.. COMP .756. § 5301 (Supp. § 4B (Law. LA. IDAHO C ODE § 19-5306 (1997). 1998). ANN. R EV. these notification provisions vary significantly. supra note 46. ANN. many states provide some victim rights which are available only on victim request. tit.57 Yet. N. 56. Arkansas. See id.. I. 1998) (requiring notice within 10 days after return of indictment or information). CONST. ANN. e. §§ 2930. 64. § 31-26-9 (Michie Supp. CONN. CODE C RIM. See id. 1998) (requiring notification within a “reasonable time” after the offender is charged). § 37.C. See NVC. but do not designate any entity to make the notification. supra note 46. tit.04. 67. 62.3. In their constitutional victim rights provisions. 66. 65. § 32. § 24. 1997) (specifying notification within seven working days after filing of the formal charge).68 The hearing was conducted without notice to the victim of the release proceedings. CONST. Oregon. . But see. North Carolina. STAT. 1997).66 The offender was still in custody at the time that these rights provisions became effective. DEL. P. art. ANN. I. TEX. See M O. 829. respectively. See id. 61.06 (Anderson 1996 & Supp. GEN . STAT.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1993).g. 69. 875 P. Alaska.69 When she subsequently learned of the offender’s scheduled release to home arrest.67 The State Board of Pardons and Paroles subsequently held a hearing at which it approved the offender’s release to home arrest.DOC Printed On: 3/22/99 8:08:00 PM 36 CRIMINAL AND CIVIL CONFINEMENT [Vol. Hawaii.02 (West Pamp. 11. such as the right to be informed of and to appear at post-conviction release proceedings as well as to be informed of all releases from custody. Ct. art. CODE ANN. I. § 54-203 (1997). . art.65 These provisions require victim notification of the existence of applicable rights. at 826. e. and South Carolina require that victims be informed of their rights. Missouri. See id..g. I. at 826. at 826 & n. GEN. The offender was convicted in 1974. CONST. §§ 9410. art. 25:21 Some states require notification by both the investigating law enforcement agency and prosecutor. opportunity to appear at the proceedings. LAWS § 12-28-10 (1994). OHIO R EV. 63. at 826.I. or the proceedings’ outcome. 68. art. The constitutional and legislative provisions became effective in 1990 and 1992. See id.62 Approximately ten states either do not expressly assign the responsibility to make this notification to any specific entity or do not expressly require that victims be notified of the existence of their rights. N. e.g. R. Nevada and North Dakota do not have express constitutional or legislative provisions requiring that victims be notified of the existence of their rights in the criminal justice process. § 42. 9411 (1995). the 611A. Nebreska. Hance v.63 The potential significance of a victim’s right to receive notice of the existence of his rights is illustrated by the appellate court’s decision in State ex rel. See id.61 Less than ten states give the notification responsibility to their victim assistance personnel..M. Arizona Board of Pardons and Paroles.08 (West Supp. 64 In this case. C ONST.2d 824 (Ariz. See id. See. N.C. CODE ANN. See. S. OR . a victim was raped more than fifteen years prior to the ratification of the Arizona constitutional victim rights amendment and the enactment of its implementing legislation. App. at 830. See id. At the 1993 parole hearing (of which the victim received no notice). at 827. The parole board last notified the victim of an upcoming parole hearing (pursuant to prior law) in 1984.71 The appellate court concluded that the victim was entitled to the above-described notification rights—including the right to notice of their existence—because the offender was still in custody when the provisions became effective.70 The appellate court granted the victim’s special action petition. The legislation implementing Arizona’s constitutional victim rights provisions required such notification only upon victim request. 1999] VICTIM PARTICIPATION 37 victim sought to have the release order set aside and a reexamination hearing held. when the notification letter was returned as undeliverable. but approved the offender’s release to home arrest. In addition to materials from the victim. In 1974. Hance. the overriding principle is clear: 70. The Victims’ Rights Implementation Act also makes clear that the victim’s right to be informed imposes a corollary duty on the state to provide the information. The constitutional mandate is clear: victims must be informed of their rights. Both unsuccessfully sought to have the parole board conduct a probable cause hearing to determine whether the release should be rescinded. See id. While the statutory provisions do not specifically address how the state is to inform victims of pre-Bill of Rights crimes. at 829-30. The local prosecutor initiated the instant special action shortly before the offender’s scheduled release. 72. the parole board denied parole. See id. See id. at 826. at 832. 71. neither the parole board nor the local prosecutor had attempted to notify the victim of subsequent parole hearings. See State ex rel. See id. . This legislation creates specific obligations on state government to inform victims of their rights at various stages of criminal proceedings. See id. See id. the offender was convicted for the rape and sentenced to incarceration for 25 years to life. See id.2d at 826-27. 875 P.DOC Printed On: 3/22/99 8:08:00 PM Winter. Armed with this knowledge.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Conversely.72 The court rejected the Board’s assertion that it had no duty to notify this victim of the release proceedings because the victim had not requested such notice. remedies available under Arizona law for violation of these notice provisions. See id. or unaware that the right to notice of a release hearing requires that she first file a request for such a notice. Information as to the offender’s impending release apparently reached the victim. After 1984. who contacted the governor and the local prosecutor. an uninformed victim may not exercise her rights because she is unaware of them. victims may choose to exercise these rights. as she was required to do under the statutory provisions. See id. sought on her behalf by the state. The state cannot now use the victim’s failure to request notice as a defense against the victim’s right to appear at the release proceeding because the state failed to first fulfill its constitutional obligation to inform her of that right. materials opposing the offender’s release from his prison counselor and the state corrections department director were submitted. Consequently.75 B. See PRESIDENT’S TASK FORCE. The appellate court also rejected the parole board’s claim that it had made reasonable efforts to locate the victim. the victim can maintain involvement in the process if informed of important actions and outcomes in the prosecution and punishment of the offender. supra note 7. and the state has an affirmative obligation to so inform them. at 830 (citation omitted). As to victims of violent crime. It is this omis73 sion that violated her rights and rendered the release proceedings defective. This victim was never informed of her constitutional right to request notice of and to participate in post-conviction release proceedings. . Prior to the issuance of the Task Force Final Report. § 2. 25:21 the linchpin of Ariz. only two states explicitly required that victims be notified of important developments in the proceedings. Although the federal system and the overwhelming majority of states provide this notification right to eligible victims. at 830-31. at 831-32. its significance is tempered by the fact that few states provide such a remedy for post-conviction notice violations. 75. 74. See infra notes 99. art. the effectiveness of its actual implementation determines whether it is the linchpin of or the barrier to the exercise of the remaining participatory rights. Const. the Task Force recommended that such notice continue through parole determinations. Notice of Important Proceedings and Outcomes in the Criminal Justice Process Just as a crime victim must be made aware of the existence of participatory rights in order to exercise them. notification of the existence of a victim’s rights of participation in the criminal justice process is in many ways the most important victim participatory right because it is the right on which the exercise of all other rights depends.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.74 As the Hance case illustrates. 76.1(A)(12) is the right of victims to be informed of their constitutional rights. See id. See id.DOC Printed On: 3/22/99 8:08:00 PM 38 CRIMINAL AND CIVIL CONFINEMENT [Vol. the victim must be notified of the particular proceedings at which such rights may be exercised in order to use the rights. the appellate court set aside the offender’s release order and ordered a reexamination hearing at which the victim could be present and heard. See id. 258 and accompanying text (describing these provisions). supra note 45. See infra note 231 and accompanying text (describing problems with victim notification). 2.76 Recognizing the importance of 73. Even if a crime victim chooses not to actively participate in relevant proceedings. at 4. The President’s Task Force recommended that prosecutors keep victims informed of the status of their cases commencing with the time of the initial charging decision. Although this decision represents a broad judicial effectuation of enacted victim notification rights. Id. at 64. See OFFICE OF J USTICE PROGRAMS. appellate.77 As to criminal justice proceedings themselves. . They require that the proper authorities make a “reasonable effort” to provide the prescribed notice. NVC. IDAHO C ONST. I. OHIO R EV. § 21-M:8-k (Supp. CODE ANN. COLO. pardon or commutation hearings. 105th Cong. I.. ALA. (1997). 27. 1997). UTAH C ONST. M ICH.001 (West Supp. e. supra note 38 at 410-415. § 780.g. notification is most frequently required regarding bail or pretrial release hearings. Res. 78. e. See. 1322. 1999] VICTIM PARTICIPATION 39 these rights to notice. Tobolowsky. ANN.R. § 33-14-10-5 (Michie 1992) (requiring notice of all scheduled “hearings and proceedings”). some states explicitly require victim notification of some or all of these specific proceedings. LAWS ANN. 1997) (regarding “court proceedings”). NEB. at 83-84. § 22 (specifying right to notice of trial court.A.. C ONST.06 (Anderson Supp. The Senate and House of Representatives versions of the proposed federal constitutional amendment include the rights to notice of “public proceedings relating to the crime” (including public parole proceedings) and non-public parole proceedings to the extent the right to notice is given to the offender. I. ANN. as well as the right to notice of a release or escape from custody. Tobolowsky. 79. (1997). the federal system and the vast majority of states currently provide crime victims with notice of significant proceedings and outcomes in the criminal justice process. S.S. OR . 105th Cong. N.g. amend. post-trial relief and appellate proceedings.756 (West 1998) (regarding notice of “scheduled court proceedings”). H. §§ 24-4. § 770 (Supp.” “crucial. COMP .J. 42 U. § 28 (regarding “important” criminal justice hearings related to the victim).R. 1997) (regarding notice of “all court proceedings” if practicable). § 28. NVC. supra note 46. 10607 (West 1995) (requiring notice of each court proceeding which the victim is required or entitled to attend and of parole hearings). See id. See generally NATIONAL NETWORK .1-302 to -302. N. CONST. art.78 In their constitutional or legislative provisions. supra note 46. STAT. 1998). CONST. § 31-26-4 (Michie Supp. 105th Cong. See.80 Although these undeThe Task Force also recommended that parole authorities notify victims of parole hearings and parole release. 1997) (regarding “all court proceedings”).5 (West Supp. (1997).” or “important” stages of the criminal justice process or proceedings or as to court proceedings or public hearings in the case generally. STAT. and miscellaneous other proceedings. § 960. I. and parole proceedings). IND. M O. and parole hearings. 6. ANN. art. MD. CODE ANN.C.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. §§ 10606. ANN. art. 557 (providing victim right to be informed at all “crucial” stages of the criminal proceedings).DOC Printed On: 3/22/99 8:08:00 PM Winter. REV. STAT. § 42 (regarding “any critical stage” of the proceedings where the defendant is present). art. 77. Some states also require victim notification of canceled or rescheduled hearings. 71. § 32.H. trial. Res. supra note 46 (describing provisions). I. See H.79 The federal system and other states more generally require victim notification as to all “critical. ANN. sentencing. See generally NATIONAL NETWORK . 80. STAT. § 2930.J.M. The implementing legislation proposed in the House of Representatives provides further details regarding the above-described notice and also requires notice of the acceptance of a plea by the offender or the rendering of a verdict after trial and the sentence imposed. supra note 46. FLA. CODE art. supra note 38 (describing notification provisions). REV. CONST. art. 209 (West Supp. CODE C RIM.” as defined by law).g. § 17-17-5 (Harrison Pamp. § 99-36-5 (1994) (regarding “relevant court proceedings”). 1998) (regarding “judicial proceedings”). GEN . See. REV. UTAH C ODE ANN. VA. M ICH. CONST. TENN.500 (Michie Supp. § 8-A (regarding “judicial proceedings”). VA.I. § 28 (regarding sentencing proceedings). MONT. CONST. 1997) (regarding “scheduled court proceedings”). e. CONST. N.DOC Printed On: 3/22/99 8:08:00 PM 40 CRIMINAL AND CIVIL CONFINEMENT [Vol. 1998) (regarding “bail hearings”). S. WASH..01 (Michie Supp. § 24 (regarding “court proceedings”). STAT .83 and parole84 proceedings.82 sentencing. IND. § 163-1525 (Law. 1998) (regarding trial). DEL. art. I. VT. the federal system and over forty states have specific or general provisions requiring victim notification of trial. I. infra notes 81-84 and accompanying text. C ODE ANN. § 5304 (Supp. I. N.g. § 19. § 595.C. CONST. R. § 9411 (1995) . § 24 (regarding “hearings affecting bond or bail”). STAT . art. §§ 77-38-2. 1997) (regarding “court proceeding”). I. tit. 56.81 Moreover. § 35 (regarding trial). 120/4. Pamp. CODE §§ 15-23-60. When the term “general” provision or right is used subsequently. CODE ANN. 82. I. § 421. § 910A. XV.2-11. e.C. 1997) (regarding court proceeding to determine whether to release a defendant). § 13 (providing victim right to be informed of “public hearings”). art. MISS.g. KY. § 8. I. ARIZ.. ANN. e. CODE ANN. 1997) (regarding “bond hearing”). In terms of the notification provisions regarding these proceedings. § 40-38-103 (1997) (regarding “all pertinent stages in the proceedings”). C ONST. IOWA C ODE ANN. 725 ILL. ANN. TEX . CODE ANN. P. it refers to the above-listed types of provisions from which the specifically referenced right may be inferred.1997) (regarding judicial proceeding at which accused’s release will be considered). EXEC. -3 (Supp. CODE ANN. 1998) (regarding “any scheduled court proceedings”). CODE ANN. MO. art. STAT . LAWS § 12-28-3 (1994) (regarding proceeding “before a court empowered to set bail”).Y. I.5 (West Supp. 1996) (regarding judicial proceedings relating to the defendant’s release on bond). S. § 46-24-203 (1997) (regarding “trial date”).g. See. ILL.C. 11. art. Co-op.C. CODE ANN. 25:21 fined provisions have typically not been judicially construed and thus are subject to the interpretation of those officials entrusted with the notification responsibility. REV.. § 37 (regarding “court proceedings”). I. § 13-4409 (West Supp. STAT. C ONST. CONST. 13. KAN. § 15 (identifying victim right to be informed of “public hearings” of the “criminal justice process. ANN. STAT. See.. art. for purposes of this analysis. the federal system and over thirty states have specific or general notification provisions regarding bail or pretrial release hearings. ANN. CONST. STAT . See. ALA. 1997) (regarding sentencing proceeding).1 (specifying right to notice of “court proceedings”).08 (West Supp. NEB. S. CONST.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1998) (regarding any court hearing “the effect of which may be the release of defendant from custody”). § 24 (regarding “criminal proceedings which are dispositive of the charges where the defendant has the right to be present”). tit. art. ANN. GEN. CONST. COMP . § 51-286e (1997) (regarding trial proceedings). -63 (1995) (regarding “criminal proceedings” defined as those before a trial court). art.6 (West Supp. these general provisions are interpreted to include at least the above-listed proceedings. e. art. art. I. art. 83. C ONN . 81. GA. LAW § 646 (McKinney 1996) (regarding judicial proceedings as to “the release of an accused pending judicial proceedings”). ANN. 1997). 1997). N. IDAHO C ODE § 19-5306 (1997) (regarding parole hearings). § 8-A. §§ 10606. WIS. STAT . 42 U. See.C. ALA. CONST. STAT.g.03 (West 1987 & Pamp. CODE C RIM.500 (Michie Supp. ANN.. ANN. 42 U. 1998). 1998).DOC Printed On: 3/22/99 8:08:00 PM Winter. STAT . pardon or commutation. W.D. REV.88 (regarding sentencing hearing). REV.g. WASH. STAT . § 37. 15. W ASH. 10607 (West 1995). CONST. CODE ANN. 71 PA. N.A. FLA. OHIO R EV.C. See. C ONS.02 (West Supp. § 770 (Supp. ANN. I. ARIZ. S. 1998). 1997) (regarding sentencing). 120/4. CODIFIED LAWS § 23A-28C-1 (Michie 1998). CODE ANN.02 (West Supp.030 (West Supp. C ONST. II. § 133A (Law. § 950. CODE § 62-12-23 (1997) (regarding parole hearings). 84. 1998). CODE § 61-11A-6 (1997). ANN. CODE ANN. VA. ANN. ANN. § 16a (providing right to be informed of “all critical stages of the criminal justice process”). art. VT. 13. § 611A. 87. 42 U. CONST. 56. See. § 7. OKLA. 1998). W.C. 1998).. e.69. STAT. ANN.1. LA. 86. art. CAL. 1998) (regarding parole hearings).I.A. GEN. § 1172 (West Supp. Some states also require victim notification of the dismissal of a criminal charge. 1998) (regarding parole hearings). an offender’s escape. § 7. CAL. CODE § 15-23-75 (1995). § 595. See.C. ME. I. § 24. 10607 (West 1995). 1998) (regarding sentencing hearing). 42 U.J.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. I. tit.86 The federal system and over forty states require victim notification regarding an offender’s plea bargain87 and parole.08 (West Supp.A. OKLA. CONST. 1989 & Supp. § 144. § 52:4B-44 (West Supp. COMP . § 16 (regarding “all crucial stages of criminal proceedings”).S. PENAL C ODE § 679. 88. § 180-9. ANN. The federal system and more than thirty states require victim notification of an offender’s pretrial release85 and final disposition or sentence. 1997). 27. IND.16. Co-op. STAT . STAT. § 223436 (1995).g. ANN. STAT. 1998). ANN. § 52:4B-44 (West Supp. § 24. REV.7 (West 1994). § 8. § 5305 (Supp.12 (Anderson 1996). KAN. tit. ANN. art. art. § 46:1844 (West Pamp.S. §§ 10606. § 35-38-1-8. § 34.. §§ 10606. REV. II. § 53. I. CODE art. COLO. LAWS ch. I. 1998). 1998) (regarding sentencing). e. 85. STAT. CONST. 17-A. PENAL C ODE § 679. MO.C. STAT. or final discharge from sentence. art. 10607 (West 1995). CODIFIED LAWS § 24-15-3 (Michie 1988) (regarding parole hearings). REV . § 46:1844 (West Pamp. § 22. ME. 1997). 1998) (regarding parole hearings). art. e. KY.69. I. N. TEX . ANN. REV. CONST. STAT . VA. VA.D. and miscellaneous other outcomes in the criminal justice process. -4423 (West Supp. STAT. §§ 10606. 1997) (regarding parole hearings). ANN. 1996). ANN. art.209 (West Supp. P. CONST. 1997). ANN. 725 ILL. § 9411 (1995). ALASKA C ONST. § 215. STAT . REV. VA. e.J. STAT . LA. § 15A-825 (Supp. art. § 6101 (West Supp. ANN. See gen- .C. STAT. art. STAT. MD. IDAHO C ODE § 19-5306 (1997). GEN.g. § 8. STAT.120 (Pamp. R. ANN.5 (Michie 1998) (regarding sentencing hearing). § 801D-4 (Michie 1994). CODE ANN. § 2930. STAT . tit. 11. CODE ANN. tit. OR . tit.. 1997). 1998). ANN.. REV. CONST.030 (West Supp. N. I. art.1-155 (Michie Supp.5 (West Supp. MICH.g.S. DEL. CODE ANN.3 (West Supp. 10607 (West 1995). See. § 421.33 (West Supp. I. IOWA C ODE ANN.S. S. § 9m. LAWS § 12-28-3 (1994). 19.04 (West 1996). § 33. art. ANN. ILL.A. ANN. art. STAT. 1999] VICTIM PARTICIPATION 41 A similar pattern is reflected in the constitutional and legislative provisions regarding important actions or outcomes in the criminal justice process. e. REV. IDAHO C ONST. § 910A. MINN. MASS. NEV. ALASKA STAT .120 (Michie 1996). 1998). §§ 13-4419. 127. I. REV. WIS. HAW. many states limit their notification requirements to those which are “reasonable” or “practicable” under the circumstances. Hance v.6 (West Supp. 830-31 (Ariz.g. 1998) (specifying notice by certified mail). See generally Susan E. art.001 (West Supp. § 3126-9 (Michie Supp. WASH. CODE ANN. ARIZ. ANN. Finally. CODE ANN. e. § 1172 (West Supp. CODE ANN. I. § 19. e. CONST . REV. GEN. § 7.90 Although the prosecuting or correctional authorities are usually given express responsibility for the applicable notification. § 16-21-106 (Michie Supp. tit.030 (West Supp.098 (Pamp. VA. LEGAL C OMMENT. ANN.g. TEX. REV. 17-A. § 30. 47. art. STAT . § 21-M:8-k (Supp.92 erally NATIONAL NETWORK . 1998). § 6101. ANN. R.M. MO. 1997) (granting rights “[t]o the extent that they can be reasonably guaranteed” by the applicable authorities). ANN. COMP .DOC Printed On: 3/22/99 8:08:00 PM 42 CRIMINAL AND CIVIL CONFINEMENT [Vol.. Victims’ Roles in the Criminal Justice System: A Fallacy of Victim Empowerment?. M E. § 960. N.g.1. 1993) (noting that determination of “reasonable effort” to provide victim notification requires case-by-case analysis and does not always require that actual notice has been given). REV. supra note 46 (describing provisions). See. 875 P. UTAH C ODE ANN. TENN. CODE ANN. 1997) (requiring “advance notification when practicable”). e. 15. § 46:1844 (West Pamp.02 (West Supp. tit. See. STAT. REV. STAT.2d 824. FLA. 1997). ANN. OHIO R EV. § 52:4B-44 (West Supp. ANN.g. WYO. the procedures for notification often are not addressed in the provisions91 and actual notification procedures may or may not provide effective victim notification. STAT. CONST.H. N. 92. 1998). ANN. Gegan & Nicholas Ernesto Rodriguez. REV. STAT . . STAT. § 7. STAT . J OHN’S J. § 811848 (1994) (describing varying notification procedures). STAT.69. CAL. 1997) (allowing oral or written notice “in a timely fashion”). C ODE ANN. e.M. 25:21 Notification provisions as to these proceedings and outcomes appear to be quite extensive. 90. State ex rel. § 1-40-203 (Michie 1997). For example. 1997) (requiring prosecutor to make “good faith effort” to notify victim “when practicable”).03 (Anderson 1996) (authorizing notice “by any means reasonably calculated to provide prompt actual notice”). but many do have explicit or implicit limitations.030 (West Supp.J.. REV. § 178. NEV.01 (Michie Supp. Note. CODE ANN.02 (West Supp.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. § 77-38-3 (Supp. Arizona Board of Pardons and Paroles. 1998). § 595. 120/4. 225. LAWS § 12-28-3 (1994). art. STAT. 1998).2-11. ANN. 1998). CAL. § 2930. STAT.209 (West Supp. 1998). OR. NVC. most states require notification of some or all of these proceedings and outcomes only when the victim requests it. 1998). § 40-38-103 (1997). N. 89. 1998) (describing victim notification card procedure). 1997).5698 (Michie Supp. 725 ILL. § 144. supra note 46. § 2. ANN. REV. IOWA C ODE ANN. 1997) (stating that notices can be given in “any reasonable manner”). ANN. 24447 (1992) (describing problems concerning victim notification procedures). CONST. See.69. 47 (requiring notification rights “if practicable”). 8 ST. App.I. art. STAT. PENAL C ODE § 679.1. 1998). II. LA. STAT. N. PENAL C ODE § 679. 1997).. .89 Some states make the rights contingent on victim cooperation with the prosecution. M D. ANN. § 31-26-5 (Michie Supp.. WASH. §§ 910A. See. NEB. ARK. REV.5 (West Supp. 91. CONST. STAT. Ct. MD. 1998) (requiring “reasonable effort” to ensure rights). (allowing notice “by any reasonable means available”). See Holt. 96. §§ 17-17-15. 725 ILL.97 In its appeal from the court’s action. The state agreed to dismiss related felony charges. See id. He also agreed to make full restitution to the burglary victims for unrecovered property from the burglary. the state contended that the trial court erred in concluding that the victim had no right to notice of the parole proceedings. at 1185. the defendant entered a plea of no contest to misdemeanor theft regarding property stolen in a residential burglary.DOC Printed On: 3/22/99 8:08:00 PM Winter. § 10607 (West 1995).A. 99.94 At the sentencing hearing (which the victim attended and in which she addressed the court). the Kansas Supreme Court noted that the victim rights recognized under Kansas law were “merely directive or permissive” rather than “mandatory” and that the provisions did not include enforcement provisions or sanctions for violations. 42-1-11 (Harrison Supp. COMP . The provisions requiring victim notification also required the opportunity for victim presence at the applicable proceedings.98 At the outset. See id. at a hearing of which the victim received no notice. See id. 120/9 (West Supp.99 The reviewing 93. 1994). 1997). See id. See id. tit. ANN.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1997). See. In a plea agreement. § 1175 (West Supp. To the extent that jurisdictions specifically address notification rights violations. however. ME. 42 U. CODE ANN. the judge stated that he would consider the offender’s request for service of his sentence in the community at a future time. See id. at 1184. GA. 17-A. 1187.2d 1183 (Kan. Arizona. e. 98.S. has a procedural rule requiring the court to inquire whether notice provisions have been satisfied at the commence- . the court stated that victim notification was required under the state victim rights provisions only for hearings required to be open to the public and that no such public hearing was required for the instant action of judicial parole release. REV. STAT. Neither the federal system nor many states provide enforcement mechanisms or sanctions for victim rights violations of any kind.g. 95. In this case. 1997).96 When the prosecutor objected to the hearing being conducted without notice to the victim. ANN. the court sua sponte granted the offender parole release from his partially served sentence of incarceration. STAT..” but that the action was more appropriately considered to be a parole from a partially served jail sentence. See id. See id. 1999] VICTIM PARTICIPATION 43 Neither these extensive notification provisions nor their language nor limitations have received much judicial interpretation. most provide no remedy or liability for the failure to provide victim notice. 874 P. See infra notes 269-80 and accompanying text. The reviewing court noted that the trial court and the parties referred to the trial court’s action as “probation. the trial court sentenced the offender to a one-year term of incarceration on the misdemeanor theft charge of which he was convicted. See id. 874 P. 94.95 Subsequently. at 1184. See id. at 1186. The decision by the Supreme Court of Kansas in State v.2d at 1186. Holt93 is one of the few instances in which victim notification provisions have been construed. at 1184.C. 97. 5 (Michie Supp. the court “should not proceed unless public policy. See id. Co-op. REV. In addition to the notification required regarding “public hearings. § 13-4436 (West Supp. e. TENN.” the legislature also required victim notification of the right to be present at any proceeding “where probation or parole is considered or granted by a judge whether or not a public hearing is conducted or required. § 74-7335 (Supp. South Carolina requires that bond hearings be delayed if necessary to ensure that victims have received notice of them. STAT . C RIM. See id. ANN. 1997).2 (West Supp.”103 ment of proceedings in which a victim has a right to be heard. the Kansas legislature subsequently amended its notification law and extended the notification requirements to proceedings such as those involved in the instant action. See id. See. ANN. STAT . R EV. See HAW.”100 The Kansas Supreme Court determined that Kansas law did not require such a “public” hearing when a trial judge sua sponte grants parole to a convicted misdemeanant. The Kansas Supreme Court decided another case construing the interplay . 100. 39. The legislature expanded the definition of “public hearing” by deleting the limitation that the hearing be one at which the offender has a right to appear and be heard and by expressly including a hearing involving the “granting of probation or parole by a judge” in the statutory list of examples of “public” hearings which are open to the public. at 1187-88. P. Interestingly. KAN.g. ANN. Arizona and a few other states have reexamination or reconsideration hearing remedies for post-conviction release notification violations. § 40-28-505 (1997). it encouraged trial courts to remember the “spirit” of the Kansas victim rights provisions and to consider conducting public hearings with victim notification in similar circumstances when such could be “accomplished without undue burden on the judicial system. such as the probation of a felon. ARIZ. 103. See id. tit. If notice has not been provided. 57. See Holt. Hawaii provides that certain failures to notify victims can be the basis of disciplinary action. R. ANN. See id. OKLA.101 It determined that the granting of parole and the holding of a hearing in this situation were purely discretionary actions and thus did not necessitate victim notification. The court also has the discretion to reconsider rulings made at proceedings for which the victim did not receive requested notice.2d at 1186-87. 102.DOC Printed On: 3/22/99 8:08:00 PM 44 CRIMINAL AND CIVIL CONFINEMENT [Vol.C.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. STAT . or the interests of due process otherwise require. 1998). See S. CODE ANN. § 706-670. ARIZ. STAT.” Id. 874 P. The reviewing court distinguished this situation involving the judicial parole of a convicted misdemeanant from public hearing requirements in other circumstances. 1997).102 Although the Kansas Supreme Court found no abuse of discretion by the trial court and thus denied the state’s appeal. 25:21 court also noted that the constitutional and legislative notification provisions were limited to “public hearings” at which the offender had the “right to be present and be heard” and which were “required to be open to the public. the specific provisions of a statute.” Id. § 16-3-1525 (Law. 1997). at 1187. § 332.. CODE ANN. See id. 101. Supp. 1997). Robinson. at 1341. the state’s retroactive application of a victim notification provision to his parole proceeding violated the ex post facto provision of the United States Constitution. at 1340. 202 Cal.2d 98. reduce the likelihood of his parole. at 586. The appellate court found that the purposes of the state victim rights legislation would be “frustrated if a victim were forced to file suit to learn the status of his case. App. a state prison inmate challenged the denial of his parole request in federal court on the ground that. 1991).105 At a hearing to set aside the probation order the trial court had entered at sentencing. 585 (Cal. It found that no public hearing and thus no victim notification or presence were required under Kansas law. See id. 1994).2d 138. 887 P. Md. at 79. the victim of a battery which took place on a school campus was not notified of the sentencing hearing despite the provision of the right to such notification by California law. See id. Although the victim was not present at the sentencing hearing. Sims. 1987). 521 N. Thompson. the court stated that it had proceeded at sentencing on the assumption that the victim had been notified of the hearing and had chosen not to attend. See id. In a case reflecting the significance that an offender attaches to a victim’s participation in the criminal justice process.2d 72 (Kan.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Contreras. See Myers v. Supp. not a change of the criteria for granting parole.2d 1338 (7th Cir. it rejected the defendant’s claim that the trial court’s failure to hold a hearing on his motion to modify his sentence violated the Kansas victim rights statute. See id. inter alia. however. Ct. Superior Court ex rel. Ct. Cf. 569. The offender claimed that the notification statute would increase the likelihood that victims would provide input into the parole process which would. 104. 1992) (finding no ex post facto violation from provisions allowing notice to and hearing from victims regarding parole release). Ct. See id. 142 (Ariz.E. Mosley v. 105.106 The trial court denied between the public hearing and victim notification requirements prior to this change in the law. See id. 592 (D. . Daley. The contested provision merely required victim notification of the parole hearing.” Id. 104 In this case. See id. App. the appellate court upheld an award of costs to a crime victim who filed suit against the prosecutor after his repeated requests for information regarding the status of the investigation went unanswered. at 1340-41. See id. 100 (Ill. 1984). see also Alston v. The appellate court thus concluded that the offender had failed to establish that the notification provision changed any “substantive” rights in violation of the ex post facto clause. 1994) (finding that victim did not waive right to mandatory restitution by failing to respond to ambiguous notice from probation department requesting valuation of losses from the crime). statements by the victim were included in the probation officer’s report. 885 P.DOC Printed On: 3/22/99 8:08:00 PM Winter. 106. App. 791 F. Rptr. The appellate court noted that the parole authorities had always been able to receive victim input. See id. State v. Klincar. and were also burdened with the costs of that suit. In an Illinois case. 947 F. 1999] VICTIM PARTICIPATION 45 The Kansas Supreme Court’s point about the absence of enforcement mechanisms and sanctions in Kansas law was echoed by a California appellate court in People v. In State v. in turn. 202 Cal. in the absence of victim notice and opportunity for hearing as to recall). Based on surveys conducted at approximately the time of the President’s Task Force. 110. with Melissa J. claiming that the probation order was “unlawful” due to the failure to notify the victim of the sentencing hearing. Williams. these courts have identified the limitations of the provisions when victims have sought to obtain more expansive judicial interpretations of their scope. they have been the subject of only limited empirical research. Ct.109 Thus. 963 F. in the context of restitution. Instead. See id. JOLENE C. 108.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Cf. 1992). at 586.” such as a motion to vacate restitution ruling). Dix v. concluded that the applicable California constitutional and legislative provisions were “directory” rather than “mandatory” in their effect. the failure to notify the victim of the sentencing hearing and the conducting of the hearing in the victim’s absence did not deprive the trial court of jurisdiction to sentence the offender.111 In a study of the results of an 107.DOC Printed On: 3/22/99 8:08:00 PM 46 CRIMINAL AND CIVIL CONFINEMENT [Vol. Superior Court ex rel . Dix v. 111. Just as the extensive notification provisions have received only limited judicial interpretation.” the appellate court had no authority to grant the requested relief. Rptr. 5 (Cal. Superior Court ex rel . 1991) (in bank) (rejecting victim’s attempt to challenge trial court’s “recall” of previously imposed sentence. statutory notice provisions were mandatory and allowed victim to challenge restitution ruling in trial court “by the procedures available to parties. a few researchers concluded that their crime victim respondents sought more information as to developments in their cases. See id. People. . however. researchers found that almost half of the victims indicated that they would have been more satisfied with the legal system if they had been better informed about the progress of their cases.108 The appellate court. County of Shasta. 237 Cal. the few courts which have interpreted victim notification provisions have generally not construed these provisions in a manner which would expand them beyond their clear constitutional or legislative terms. See Thompson. 1987) (finding that termination of restitution without proper notification of crime victim was erroneous and that.2d 1063 (Cal. Respondents also indicated that the provision of such information would increase their satisfaction with the dispositions in their cases and the criminal justice system generally.110 Thus. HERNON & BRIAN FORST. Because neither the constitutional nor legislative provisions included “procedures to enforce the duty of notification or remedies for the failure to do so.107 The state and the victim petitioned for a writ of mandate or prohibition. App. 25:21 the state’s motion to vacate the offender’s judgment and set aside the probation order. v. 109. 807 P. In surveys of 389 victims of felony personal and property crimes in six sites around the country. Id.2d 1296 (9th Cir. at 586-87. Rptr. 45 (1984). Deborah P. See id. at 73-77. researchers found that notification of court proceedings had no significant effect on victims’ feelings of distress soon U. Kelly. C RIM. They further found that knowledge of case outcome only (i. in a study to determine the effect of various forms of victim participation in the criminal justice process—including victim notification—on victims’ distress levels. Another study focused on the effects.e. 73 (1984). L.S. & CRIMINOLOGY 317 (1982). In personal interviews of 100 adult female rape victims in the metropolitan Washington. Interestingly. See John Hagan. Davis et al. See id. the percentage for the VIP court victims was 44% compared to 37% for the control group. almost 300 interviews were conducted with victims whose cases were concluded in these courts during a study period in the late 1970s. Expanding the Victim’s Role in the Criminal Court Dispositional Process: The Results of an Experiment. 64-65. at 319-20. See id. at 327 tbl. 21. 4. at 62 tbl. L. researchers determined that approximately half of the victims felt that they had been denied information about their cases. Among other aspects of the study. THE C RIMINAL J USTICE R ESPONSE TO VICTIM HARM 10 n. Victims Before the Law: A Study of Victim Involvement in the Criminal Justice Process.”112 Similarly. See id. 27% of the VIP court group felt that they had been kept informed of the status of their cases versus 34% of the control group. 21% suggested that victims be given more information on case developments.. at 495.22. at 493. Among their suggestions for improving victim treatment at all stages of the prosecution.VI. See id. This study involved approximately 200 victim interviews conducted after the initial charge had been filed and after the disposition in the case in Toronto suburbs during a study period in the late 1970s.DOC Printed On: 3/22/99 8:08:00 PM Winter. See Robert C. D. inter alia. SYS. See id. of victims’ knowledge of the disposition of their cases and of their court attendance on their perceptions of their defendants and on sentences imposed generally. DEP ’T OF J USTICE. C RIM. 9 J UST. 112. See id. at 497 & n. at 77 & tbl. Delivering Legal Services to Victims: An Evaluation and Prescription. A second Brooklyn court with similar types and dispositions of cases was used for control group purposes. Thirty percent of the surveyed victims also identified this as a means to improve relations between victims and the courts. See id. 1999] VICTIM PARTICIPATION 47 early victim assistance program in which victim liaisons.4. at 324-25. & C RIMINOLOGY 491 (1984).8. 73 J..” See id.C. 62. other researchers found no significant differences between the control and the experimental program groups in the percentage of victims who felt that they “had been treated well in court” or “had been kept informed of the status of their case. 75 J. The researchers found that knowledge of the case outcome increased the victims’ assessment that sentences in general were “too easy. without court attendance) produced the smallest reduction in demand for severity of sentencing of the combinations of court attendance and knowledge of disposition studied. notified victims of court dates.1. area. See id. These researchers concluded that provision of such information was positively related to victim satisfaction with police and prosecution services. . however.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. J. See id. In terms of victims who felt that they had been treated well in court. The researchers studied the effect of a Victim Involvement Project (VIP) in a Brooklyn criminal court. inter alia. at 497-98 & n. See supra notes 91-92 and accompanying text. in part. See Tontodonato & Erez. 114. supra note 7.DOC Printed On: 3/22/99 8:08:00 PM 48 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21 after their victimization or subsequently thereafter. in proceedings in which a victim was expected to testify as a witness. at 140-43. See supra notes 52-57 and accompanying text.116 This entitlement was often subject to restriction. 117. 116. See id.115 Stated affirmatively. that a victim and family member be able to attend trial. i. . See Lamborn.e. See id. at 153-60. a crime victim—as any member of the general public—was entitled to be present at most public court proceedings. the restrictions can render these extensive notification provisions mere limited suggestions rather than universal victim rights. at 80. some criminal justice proceedings were not generally open to 113. supra note 4. The victims were questioned as to various forms of their participation in the prosecution. 115. C. As a result. Stated negatively. however. at 37-38. See id. Prior to the emergence of the victim’s movement. existing victim rights to be present at criminal justice proceedings have merely been extended during this time period. however. even if identified as witnesses. such notification is required by constitutional or legislative provisions (or both) in the federal system and most states.. The President’s Task Force recommendation regarding victim presence was itself for a conditional right. Presence at Criminal Justice Proceedings Although the above-described rights to notice and other victim rights have been newly created or recognized in the years since the President’s Task Force. this notification is generally limited to victims of certain crimes only (as are most victim participatory rights) and is frequently restricted to those victims who affirmatively request such notice. on 125 completed surveys from victims whose felony cases were prosecuted in an Ohio county during a study period in the late 1980s.113 Despite the mixed research results as to its effectiveness. supra note 29. absent a compelling need to the contrary.114 As noted previously. See id. This research was based. the federal system and the vast majority of states have obviously concluded that victims’ notification of important proceedings and outcomes in their cases can meaningfully enhance the criminal justice process. at 40-48. See supra notes 81-88 and accompanying text.117 Moreover. See PRESIDENT’S TASK F ORCE. these restrictions ensure that notification procedures are reserved for victims who are truly interested in participating in the criminal justice process and for victims in the types of cases who are most likely to have been significantly impacted by the crime. Scales and other questions which measured victim distress levels after the crime and at the time of the survey were included.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. These limitations are compounded by the frequent use of vague language and undefined or restrictive terms in the notification provisions. preliminary hearings.119 It has been noted that the public nature of these proceedings “enhances the quality and safeguards the integrity of the factfinding process. Based on a practice recognized at common law. Superior Court. VI. See U. at 155. and sentencings. Lamborn. The rule of exclusion is found at common law. The President’s Task Force recommended that victims or their families or representatives be allowed to attend parole hearings. 121. supra note 45. jury selection proceedings.S. See Lamborn. reducing or eliminating the restrictions on victims’ presence in proceedings in which they will testify as witnesses. I. it has also been asserted that the rule of exclusion of witnesses may be necessary to provide the defendant with the right to effective confrontation of adverse wit- . 596 (1982). See PRESIDENT’S TASK FORCE. pretrial release hearings. In addition to its common law and statutory bases. 1999] VICTIM PARTICIPATION 49 the public or victims. Prior to the President’s Task Force.g.S. Globe Newspaper Co.S. Exceptions to the rule of exclusion were often provided for parties (or their representatives) or others whose presence could be demonstrated to be essential in some way. 464 U. at 140-41. victim rights provisions regarding victim presence have largely focused on reaffirming victim rights of presence shared by the general public. with its implementation left to judicial discretion. however. at 4. CONST. at 141. the public’s right to be present at judicial proceedings is derived from the First Amendment’s guarantee of freedom of speech and of the press. Superior Court. and expanding victim entitlement to presence at certain non-public proceedings. 457 U. See. at 83-84. a crime victim is the beneficiary of the constitutional principles which render most judicial proceedings open to the public. only six states allowed victims and other members of the public to attend parole hearings. 119. such as parole hearings. at 606.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. amends. witnesses—including victims—were subject to exclusion from the courtroom except during their testimony. Globe Newspaper Co. 457 U. v. supra note 4. e. This right has been held to apply to arraignments. trials.S. See id.118 Since the President’s Task Force. See id.DOC Printed On: 3/22/99 8:08:00 PM Winter.121 118. As a member of the general public. with benefits to both the defendant and to society as a whole. Press-Enterprise Co. at 154. and codified in most American jurisdictions prior to the President’s Task Force. See OFFICE OF J USTICE PROGRAMS. 120. upon the request of a party or the court. is the principal reason for the traditional restriction of victim presence at judicial proceedings in which the victim also serves as a witness. supra note 4. such as parole hearings. The victim in a criminal prosecution has several roles which relate to his entitlement to be present at various proceedings in the criminal justice process. at 155-57.”120 Maintenance of the quality and integrity of the fact-finding process. See id.. 501 (1984). supra note 7. v.. at 153-54. hearings on suppression motions. While the Sixth Amendment specifically guarantees the defendant the right to a public trial. The federal government and most states adopted the procedure by evidentiary rule or otherwise—either granting the parties an absolute right to exclude witnesses from the courtroom or allowing exclusion in the discretion of the court. See id. supra note 46. suggest that the rule may not be required in all circumstances to preserve the defendant’s constitutional rights. 94. The rule not only helps to prevent fabrication. art. . or to preserve the due process protections provided by the Fifth and Fourteenth Amendments. Most jurisdictions. First.” Lamborn. R. condition the victim’s presence at testimonial proceedings to some degree when the victim is also a testifying witness regarding the crime. at 159-60. Improper influence may occur when the witnesses are called by the same side.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. approximately forty nesses. Improper influence may also occur when the witnesses are called by opposing sides. but also during opening statements and closing arguments in which testimony is described and after witnesses’ initial testimony in the event of their recall for further testimony. Both the Senate and House of Representatives versions of the proposed federal constitutional victim rights amendment include the right “not to be excluded from . however. at 154. at 248-51. 25:21 This rule of witness exclusion was designed to help assure a fair trial for the accused by preventing or exposing fabricated testimony. Of the 29 states with victim rights constitutional amendments. . as guaranteed by the Sixth Amendment. and therefore subject to these rules of exclusion. . they consequently had fewer rights to be present at certain judicial proceedings than the general public. 260-64. 123. See id. See C AL. Wigmore characterizes the rule as “one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.123 In addition. supra note 4. 27 include a general or conditional victim right to be present at court proceedings or criminal justice proceedings. § 28. Polito. The federal government and virtually all of the states have now explicitly recognized the victim’s right to be present at court proceedings in some way. art. The rule has been applied to exclude witnesses not only during the taking of others’ testimony. The previously recognized exceptions to the rule of exclusion. a witness might have an interest in making a statement that is consistent with that of his predecessor. I. at 417-19. CONST. all public proceedings relating to the crime” as well as public or non-public parole proceedings to the extent that the right to presence is available to the convicted offender. I.122 Because victims were usually also witnesses in the criminal prosecution. 122. the rule helps to ensure that the testimony of one witness is not influenced—deliberately or unconsciously—by that of another. See id. See id. Striking the proper balance between the defendant’s right to a fair trial and the victim’s right to presence at important criminal justice proceedings is the task which has confronted the federal and state governments in the years since the President’s Task Force. but also serves to expose discrepancies in the testimony of witnesses that if truthful would be consistent. C ONST. at 418-19 & n. See id.I. The rule’s purposes are: to prevent fabrication and to expose fabrication that has already occurred. at 153-54 (citations omitted). but that its application be subject to the court’s discretion in circumstances in which the presence of a specific victim or witness threatens those constitutional rights. California and Rhode Island do not include this victim right in their provisions. however. at 157-58. See Tobolowsky. a witness might have an interest in making a statement that rebuts that of his predecessor.DOC Printed On: 3/22/99 8:08:00 PM 50 CRIMINAL AND CIVIL CONFINEMENT [Vol. supra note 38. § 23. See. 18 U. supra note 46. IDAHO C ODE § 19-5306 (1997). 557 (providing a victim right to be present “at all crucial stages of criminal proceedings. ARIZ. Res. P. § 910A.g. STAT . but also allows victims to be seated at counsel table with the prosecutor. EVID. R. amend.J. STAT. 105th Cong. See Tobolowsky. 6. S.g. Res. MO. ALASKA STAT . R. I. 1997).130 (Michie 1996). to the extent that [this right does] not interfere with the constitutional rights of the person accused of committing the crime. CODE ANN. See ALA. 128. CONST. at 418 & n. NVC. art. 1998) (regarding pardon hearings). (1997). W. § 33. e. N. STAT. UTAH R. § 8. 1997). § 595. DEL.129 The most S. §§ 16-3-1515.16. 125. UTAH C ODE ANN.61. Approximately forty states that expressly address victim rights to be present at parole proceedings in their statutes typically couple the appearance right with a right to orally address the parole authorities. -1535 (Law. ANN.209 (West Supp. § 12. See NEV. See id. REV. 615. VA.128 The federal system and approximately thirty states have modified their previous fairly automatic exclusions of victims at testimonial proceedings. CODE ANN. 95. See generally NATIONAL NETWORK . § 40. 71. supra note 46. In their victim rights constitutional provisions. See. supra note 46. § 4361 (1995) (regarding pardon hearings). § 16-3-1560 (Law. See ALASKA STAT .10 (West Supp. CONST. Tobolowsky. See OR .R. at 415-422 (describing provisions regarding victim presence at court and post-conviction proceedings).. § 46:1844 (West Pamp. 124.C. C RIM. S.C. CONST. § 37. Pamp.C.385 (1988). Co-op. ANN. H. 105th Cong. Some states grant this right at other post-conviction proceedings. See ALA.DOC Printed On: 3/22/99 8:08:00 PM Winter. § 62-12-23 (1997). tit. STAT. § 3510 (West Supp. N. N.S. ANN. EVID. REV. supra note 46. See generally NATIONAL NETWORK . REV. CODE §§ 15-14-50 to -57 (1995). 127. CODE ANN. 1997). approximately five states expressly authorize victim presence at parole proceedings. But see ALA. 1998). 616.A. ANN. § 77-38-4 (Supp. ARK.M. 1998). but still condition victims’ right to be present at court proceedings to some degree.3. (1997). Pamp.C.. at 419. cf. CODE ANN.H. I.J. The victim may be excluded from court only for the same causes as a defendant. IOWA C ODE ANN. 1997). art.127 Perhaps the most extensive victim rights of presence are provided by Alabama which not only allows victims to be present at court proceedings regarding the offense and to be exempt from rules of exclusion of witnesses.010 (Michie Supp. STAT. 1999] VICTIM PARTICIPATION 51 states have recognized some victim rights to be present at parole hearings. e. supra note 38. LA.”) 129. supra note 38.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. § 21-M:8-k (Supp. 11. .124 Approximately ten states effectively authorize unrestricted victim presence at court proceedings either by providing victims the right to attend court proceedings generally125 or all court proceedings which the defendant has the right to attend126 or by creating an exception for victims to their rules of exclusion of witnesses. 1998). 126. Co-op. CODE §§ 15-14-50 to -57 (1995). 1997). NVC. § 31-26-4 (Michie Supp. 1998) (providing that a victim should not be excluded from the trial if the victim will only provide information or make a statement regarding sentencing). 9. 130.09 (Anderson 1996). OHIO R EV. CODE ANN. OKLA STAT. REV.6 (West Supp. tit. CODE ANN. ANN. See.. WASH. ANN. LA. 1998) (making victim’s right to be present at proceeding subject to the court’s “approval”). See e. S. ANN. W. § 2930. LAWS ch.5. § 910A. supra note 4.130 Other jurisdictions have established a victim’s right to be present subject to the court’s determination that the victim’s presence would not be prejudicial or contrary to the interests of justice or that the victim’s testimony would not be materially affected or for other good cause the defendant may establish. I. but expressly refer to the victim’s opportunity to be present only at sentencing proceedings.133 Thus.. DEL. VA. See. See. Some states extend the victim’s rights of presence to members of the victim’s family or support persons who are permitted to accompany a victim in court. CODE C RIM. 12.g. 1998). Supp. 11.DOC Printed On: 3/22/99 8:08:00 PM 52 CRIMINAL AND CIVIL CONFINEMENT [Vol. art. Other states allow a designated representative of the victim to be present in instances in which a victim cannot or does not wish to personally exercise his right to be present. CODE ANN. 131. OKLA. §§ 24-4. COLO. M ASS. § 9m. ANN. 9407 (1995) (permitting exclusion if good cause showing by the defendant).03 (West 1987 & Pamp.A.69. -302. § 1-40-206 (Michie 1997).S. STAT . 1998) (permitting exclusion of victim in the “interest of justice”). 42 U. CODE ANN. 1998) (providing a right to be present at trial after testifying and to be scheduled to testify as early in the trial as practical).6 (West Supp. IND. TEX . 1997). art. WYO. e. STAT . WIS.D.C. REV. 1998). REV. ANN. CONST. and the express right of victim presence is greater than prior to the President’s Task Force.030 (West Supp. 1998) (allowing exclusion if victim’s presence would be “prejudicial”). 1998). 133. 12. 1998). tit.g. 134. § 46:1844 (West Pamp.g. e. 1998). See.132 The approximately ten remaining states provide neither a general nor conditional victim right to be present at court proceedings. § 7. -303 (West Supp. e. §§ 10606.g. at 160-72 (describing provisions). ANN. tit. § 2615 (West Supp. e. 11. 258B § 3 (Law. Co-op.131 Still other jurisdictions preclude the victim’s presence at testimonial proceedings until after the victim has testified. the extent of this right varies considerably. .g. § 33-14-10-5 (Michie 1992). STAT. MINN. §§ 3512.5 (West Supp. § 611A.g. see also C AL. although the federal system and virtually all of the states provide an express victim right of presence at court proceedings to some degree. CODE § 61-11A-2 (1997). DEL. § 2615 (West Supp. § 9407 (1995). PENAL C ODE § 1102. STAT . STAT . PENAL C ODE § 1102. e. IOWA C ODE ANN. 132.. CODE ANN. ANN. P.02 (West Supp.134 Lamborn. CODIFIED LAWS § 19-14-29 (Michie 1995) (providing a victim exception to the rule of exclusion of witnesses “following the victim’s testimony”).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1998) (specifying criteria for determining existence of “a substantial probability that overriding interests will be prejudiced” by victim’s presence). See. CAL.1-302. ANN. 1998) (allowing exclusion if court determines that presence would materially affect victim’s testimony). tit... 25:21 common condition is the provision of a victim’s right to be present to the extent that the exercise of the right does not interfere with the defendant’s constitutional rights. 10608 (West 1995 & Supp.. 56. this is such a case. ANN.02(b) should yield to the rule [of exclusion of witnesses]. Annotation.2d 516. But cf. they have genIn those jurisdictions which have expressly addressed a victim’s failure to exercise a granted right of presence. 1997) (stating that the victim’s absence “does not preclude the court from conducting the proceeding”). State law authorized the victim’s presence if approved by the court. 1997) (providing a victim right to a reexamination hearing regarding post-conviction release if there has been a failure to use “reasonable efforts” to provide the victim the right to be present at the release proceeding). the court upheld the presence of an identification witness from one burglarized residence during the . State. 1998). Reviewing courts have typically upheld the degree of victim presence provided by state law. ARIZ. § 13-4436 (West Supp. ANN.1 (Harrison 1994) (specifying no basis to set aside a conviction). 1990). Cf.DOC Printed On: 3/22/99 8:08:00 PM Winter. 4th 229 (1984). CONN.2d 324. UTAH C ODE ANN. Jay M. tit. For example. the court in Jimenez v.W. 523-24 (Tex. In Claiborne v.2 (West Supp. P. 1999] VICTIM PARTICIPATION 53 Court challenges to victims’ presence have generally been limited to instances of victim presence at testimonial proceedings. Emotional Manifestations by Victim or Family of Victim During Criminal Trial as Ground for Reversal. § 24-9-61. App.R. 1986) (rejecting constitutional challenge to state evidentiary rule providing a victim exception to the rule on exclusion of witnesses and noting there was no showing of prejudice to the defendant from the victim’s presence in the courtroom. Reviewing courts have not foreclosed the possibility that a defendant might demonstrate circumstances in which a victim’s authorized presence could jeopardize the defendant’s right to a fair trial. GA. § 77-38-10 (Supp. STAT. OKLA.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. CODE ANN.2d 301. New Trial. concluded that the trial court had abused its discretion by failing to exclude the victim from the pretrial hearing on the defendant’s motion to suppress identification. 56. It was a clear abuse of discretion to overrule the defense objection in this regard and exempt the complainant from the rule. In this case.02 (West Supp. Zitter. 15-23-76 (1995) (providing both). 1998) (describing similar reconsideration hearing remedy regarding parole release). including trial courts’ discretionary rulings implementing such. § 54-85c (1997) (specifying no basis to set aside a conviction). ANN. See TEX. 57. laws generally provide that such failure does not prevent the court from proceeding or provide a basis to set aside a conviction. State. indeed the only contested issue was the reliability and admissibility of the complainant’s ultimate in-court identification. STAT. § 332.W. the critical. 31 A. State. See ALA. 302-03 (Ark. STAT. or Mistrial. 135.135 However. art. REV. 325-326 (Ark. The sole purpose of the suppression hearing at which she was allowed to remain in attendance was to evaluate the legal and factual propriety of the antecedents to her ultimate identification. CODE §§ 15-14-57. at a hearing on the defendant’s motion to suppress identification. however. 1995). Stephens v.W. GEN . but acknowledging the possibility of such a showing). 787 S. 720 S. If ever there were a case in which the literal language of Article 56.L. however. CODE C RIM. 893 S. Id. the appellate court concluded that the right to “presence” intended to counteract that systemic insensitivity [to the impact of crime on victims] does not necessitate the physical presence of the victim/witness in the courtroom during other testimony (and certain legal argument) in such a manner that subsequent evidence may be tainted to the detriment of the jury’s deliberation and verdict. In this case. at 524. Rangel. 1993). See id. See id. at 326. The reviewing court held that a victim of violent crime “must be permitted to remain in the courtroom after testifying even if a sequestration order is in effect and may only be excluded for the same reasons that would result in the exclusion of the defendant. In State v. Despite the critical nature of the identification testimony in both cases and this witness’s previous equivocal identification. Cf. at 88-89. In making its ruling. 596 A. 922 P. 32-35 (Utah Ct. Ct. App.” The court also concluded that these provisions were not unconstitutional as applied in this case in which the victim was present in court throughout the trial and testified as the final prosecution witness. was not unconstitutional as applied in circumstances in which a victim was present throughout the trial and testified as the first prosecution witness and was subsequently recalled during the prosecution’s principal case and on rebuttal. The court further concluded that the defendant had failed to preserve his objection to the victim’s rebuttal testimony. App. 1996). 609-13 (Utah Ct.2d 78. See id.2d 145. People v. at 89. 65 Cal. Finding that the defendant had failed to identify any particularized prejudice from the victim’s remaining in court following her testimony. . 136. at 86-87.” Id. the reviewing court determined that this victim was not a “witness” to her neighbor’s burglary and thus was not subject to exclusion during his testimony and that she was otherwise entitled under state law to be present at the suppression hearing due to her own victim status. found no per se violation of the defendant’s due process rights due to Utah’s constitutional and statutory provisions granting victims the right to be present at “important criminal justice hearings. 196-97 (Cal. The court in State v. 86-89 (Md. The appellate court rejected the defendant’s contention that the victim’s continued presence allowed her to conform her testimony to that of other witnesses or to influ- . See id. Beltran-Felix. at 35. Rptr. Spec. 866 P. The reviewing court found “no suggestion that the critical elements of the case” turned on the victim’s testimony or that her testimony was significantly “revised to conform with” other witnesses and rejected the defendant’s claim that the prosecutor had improperly referred to the victim’s presence.137 or after his testimony has identification testimony of her next door neighbor whose residence had also been burglarized. See id. App. See id.2d 607. 25:21 erally found no prejudice to a defendant’s rights from a trial court’s allowance of a victim’s presence during trial or other testimonial proceedings before his initial136 or subsequent testimony. State.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. the appellate court construed the state’s rules of exclusion (which provide mandatory exclusion before a witness testifies and discretionary exclusion following a witness’s testimony) and its victim rights provisions (which allow exclusion of a victim only after a finding of “good cause”). In Wheeler v.DOC Printed On: 3/22/99 8:08:00 PM 54 CRIMINAL AND CIVIL CONFINEMENT [Vol. the court rejected the defendant’s claim that the trial court had erred by allowing the victim to remain in the courtroom after her testimony and to testify subsequently as a rebuttal witness. as required for exclusion under state law. 137. which exempts victims from its application and permits their testimony even after hearing other testimony. the court concluded that the state’s rule of exclusion. . Bradford. at 88-89. 1991).2d 30. substantial risk” of affecting their testimony. 1997) (finding that defendant failed to demonstrate that presence of homicide victims’ family members during opening statements “posed . the appellate court found no error in the trial court’s allowance of her continued presence. or was prejudicial). at 290-91.2d 288.S. Given the substance and the nature of the daughters’ testimony on this crucial contested issue and the possibility that their testimony could have been influenced by that of preceding witnesses. cf . Hall v. Dist.2d 562. 468 So.. at 290. 1994) (rejecting claim that a state statute which allows victim presence was unconstitutional as applied in a case in which the victim testified first and finding no abuse of discretion by the trial court’s failure to exclude the victim from the courtroom). App. Dist. App.2d 45. Cosey.DOC Printed On: 3/22/99 8:08:00 PM Winter. . 1991). 290 (Ark. 564 (Ga. See id. Ct.g. State.2d 329. cf .W. See. 913 S.2d 337. See Mask v.E.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 406 S. Ct. State.2d 108. the defendant.139 ence their testimony. 454 (Fla. State. 338 (Fla. the defendant’s intent was the critical issue in the case because the defendant claimed that he had accidentally. State. at 612-13. 1999] VICTIM PARTICIPATION 55 been completed. The court rejected the defendant’s assertions that his fair trial rights had been violated and that the trial court had abused its discretion by allowing the victim’s continued presence throughout the trial. 1180-81 (Utah Ct. See id. in two cases in which the trial court had erroneously allowed a victim or victim’s representative not only to be present during trial (which was authorized by law). 946 (1992) (finding that presence of homicide victim’s wife and son in courtroom after their testimony. 1992) (finding no violation of the defendant’s due process rights due to the victim’s presence in court). cert. In Solomon v. App. 139. See id. at 290-91.2d 1177. But see Commonwealth v. See id. The daughters testified after several prosecution witnesses and offered important testimony as to the intent of their father. 579 So. See id. but also to sit at counsel table (which was not authorized by law). shot his wife. State. In this case. 858 S. however. the Arkansas Supreme Court concluded that the defendant had demonstrated sufficient prejudice from the trial court’s erroneous ruling to require reversal of the defendant’s conviction and a remand of the case for retrial. State. App. 503 U. Ct. as authorized by the state’s constitutional victim rights provision. the trial court erroneously ruled that a homicide victim’s daughters were entitled to be present in the courtroom during trial although they were not included in the victim’s exception to the state rule on exclusion of witnesses. reviewing courts found sufficient prejudice to the defendants to reverse their convictions. 1985) (finding reversible error in trial court’s allowing victim’s daughter to sit within the courtroom rail near the prosecutor during trial and engage in open displays of emotion). 330-31 (Fla.2d 450. Bellamy v.138 as authorized by state law and under the circumstances presented. not intentionally. 1991) (finding no error from the victim’s presence in court after testifying). Similarly. denied. Robinson v. State. State v. 443 (Ark. Watts v. 1996).2d 442. 111-12 (Ark. at 613. 594 So. e. 1993) (finding a danger that seating of the victim at counsel table could be perceived as the trial court’s expression of opinion on her credibility as a witness). 138. 52-53 (Miss. App. 1991) (concluding that constitutional victim rights provisions did not “permit victims or their families to actively participate in the conduct of the trial by sitting at counsel table or being introduced to the jury” as trial court had erroneously permitted regarding the victim’s son). Sireci v.W. 1995) (finding no prejudice to the defendant from allowing a uniformed police officer victim to remain in the courtroom in a case in which the officer’s occupation was related to the crime and was made known to the jury during opening statements). Fuselier v. 587 So. Ct. was not improper). 873 P.W. 896 S. State. 788-89 (Ala. 1996). See generally Hagan. App. at 327. See.2d 445 (Pa. App. modified.L. 1990) (finding “nothing inherently prejudicial about the presence of a member of the victim’s family at the prosecutor’s side” and finding no error in victim’s widow.2d 788.2d 954. supra note 112 (describing study model).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.e .141 but had no impact on their perceptions of their offenders.R. See id. researchers found that victims’ court attendance without knowledge of their case disposition produced the greatest reduction in demand for sentence severity. e.2d 258 (Ala. App. 82 A. Pierce v. Crim. Annotation.E. Coral v.8 (Pa. 141. 3d 238 (1978). Johns. Propriety and Prejudicial Effect of Third Party Accompanying or Rendering Support to Witness During Testimony. 1994). 585 A.2d 1197. Rptr. Commonwealth v. Carol A.. 576 So.R. 1990). Crim.2d 236. Ct. On a related issue. But cf. App. 678 So. have consistently rejected defendants’ challenges to the state’s law permitting victims (or their representatives) to sit at counsel table with the prosecutor. 1992). attend .g. do not attend court or know the case outcome) respond very similarly to those who have full exposure to this process (i. 1997) (finding no constitutional violation from use of a support person for a minor victim). whose behavior was “impeccable. 251 (Ala. 287-94 (Cal..g. e. 25:21 Few researchers have attempted to assess the effect or impact of victims’ presence at criminal justice proceedings.e. 1210 (Ala. See. 436-38 (Cal. See generally Goddu.DOC Printed On: 3/22/99 8:08:00 PM 56 CRIMINAL AND CIVIL CONFINEMENT [Vol. App.” sitting at counsel table during voir dire and trial). Patten.2d 434. Rptr. Soehnel.2d 284. 661 So. Propriety and Prejudicial Effect of Permitting Nonparty to be Seated at Counsel Table. Sonja A. 65 Cal. Hammers v. Alabama courts. 628 So. supra note 33 (criticizing provisions allowing victims to sit at counsel table as violations of the defendant’s right to a fair trial and impartial jury). Harris. Ct. 4th 1038 (1991). State. State. 1991) (cautioning about behavior of victim advocates in court endangering defendants’ fair trial rights).2d 899. reviewing courts have generally upheld the application of statutes permitting support persons to accompany a victim in court or during testimony. 1991).142 Carbone. Crocca. . cert. 87 A.). 140. and that victims’ court attendance with knowledge of their case disposition and absence of court attendance and knowledge of case disposition produced about the same degree of reduction in demand for sentence severity. App. 576 So. 905-06 (Mass. Of the possible combinations of court attendance and knowledge of case disposition.2d 584. State. People v. 1992) (rejecting per se and as applied challenges to support person statute and discussing factors to determine whether the use of a support person may be prejudicial in a particular case). 984 (Ala.140 Researchers found that court attendance itself appeared to improve victims’ perceptions of sentencing outcomes generally. 567 N. These researchers interpreted these results as providing support for victim involvement in the criminal justice process: [W]e demonstrate that victims who have almost no exposure to the process (i. supra note 33 (criticizing provisions allowing support persons as violative of a defendant’s rights to a fair trial and impartial jury). that knowledge of case disposition without court attendance produced the least such reduction. denied. See generally Goddu.. See id. Crim. 12 Cal. however. 590 n. One study focused on the effects of victims’ court attendance and knowledge of the dispositions of their cases on their perceptions of their offenders and on sentences imposed generally. State. Grimsley v.L. People v. Annotation. 574 A. R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM Winter, 1999] VICTIM PARTICIPATION 57 Other researchers found that court attendance had a correlation with whether offenders received sentences of incarceration or probation and the length of the incarceration sentences imposed, but had no significant impact on victims’ satisfaction with the sentences imposed or with the criminal justice system generally. These researchers also found that court attendance had a limited positive effect on victims’ distress levels.143 Thus, the results of this limited empirical research regarding the effects of court presence are somewhat inconclusive. Nevertheless, in the years since the President’s Task Force, victim rights of presence at court and post-conviction proceedings have been significantly expanded.144 These rights, however, often remain conditional in court and know the case outcome), at least in terms of changes in their reactions to the types of sentences generally imposed by the courts. This reaction is in approximately a fifth of the victims who are informed and involves reducing their demands for more severe sentencing. Our point is that the full exposure of victims to the criminal justice process involves fewer risks than agents of the system may have misguidedly assumed. In sum, not only do victims have a right to be informed about, and involved in, the criminal justice process, but the consequences of such a policy seem in some important ways to be benign. Id. at 329. The extent to which victims take advantage of their rights of presence, however, has not been fully documented. For example, in a 1985 survey of probation staff and prosecutors in 33 states, it was estimated that only 18-26% of victims attended sentencing hearings. See Maureen McLeod, An Examination of the Victim’s Role at Sentencing: Results of a Survey of Probation Administrators, 71 J UDICATURE 162, 162-65 (1987). About one-third of invited victims in a Florida study attended experimental settlement conferences with the judge and attorneys in their cases. See Anne M. Heinz & Wayne A. Kerstetter, Pretrial Settlement Conference: Evaluation of a Reform in Plea Bargaining, 13 L. & SOC’Y R EV. 349, 356-57 (1979). 142. See Hagan, supra note 112, at 328-29. 143. See Edna Erez & Pamela Tontodonato, Victim Participation in Sentencing and Satisfaction with Justice, 9 JUST. Q. 393, 402-03 (1992) [hereinafter Erez & Tontodonato, Satisfaction with Justice]; Edna Erez & Pamela Tontodonato, The Effect of Victim Participation in Sentencing on Sentence Outcome, 28 C RIMINOLOGY 451, 460-67 (1990) [hereinafter Erez & Tontodonato, Sentence Outcome]; Tontodonato & Erez, supra note 29, at 37, 40, 42-51 (concluding that victim participation variables did “not often seem to influence victim distress level directly,” but theorizing that “victim input may influence distress indirectly”).This research was based on a study of 500 felony cases prosecuted in an Ohio county during a study period in the late 1980s and 125 completed surveys from victims in these cases. Researchers estimated that approximately 20% of the victims were present at trial or sentencing. See Erez & Tontodonato, Satisfaction with Justice, supra at 397-98, 400 & n.3. 144. Victim rights of presence, however, are usually contained with other victim rights provisions which are typically limited to victims of designated crimes only. See supra notes 50-57 and accompanying text. But see, e.g., ALA. CODE § 15-1452 (1995); UTAH R. EVID. 615 (identifying separate provisions allowing victim R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM 58 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21 instances in which the victim’s role as a prosecution witness risks conflict with the defendant’s right to a fair trial.145 Reviewing courts have generally upheld the balance between these interests which have been established through constitutional or legislative provisions and implemented by trial courts. Future movement in this area of victim rights will likely reflect the continuing efforts of legislatures and courts to strike the proper balance between the respective rights of victims and defendants. D. Hearing Regarding and at Criminal Justice Proceedings Although obtaining victim rights to notification of important events and outcomes in the criminal justice process and to presence at criminal justice proceedings have been important goals of the victim’s movement in the years since the President’s Task Force, the ultimate goal (in terms of participatory rights) has been to achieve greater victim input into the central decisions affecting the outcome of the prosecution.146 Prior to the President’s Task Force, there were few requirements that prosecutors, judges, or parole authorities obtain or listen to the views of victims regarding important decisions in their cases.147 In a few areas, such as the prosecutor’s presence which do not contain restrictive definitions of victims covered). 145. See Robert P. Mosteller, Essay, Victims’ Rights and the United States Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 GEO. L.J. 1691, 1698-1702 (1997) (describing potential problems from victims’ unrestricted rights of presence during proceedings). 146. See, e.g., Kelly & Erez, supra note 46, at 231-42. The various mechanisms for victims to provide input into these criminal justice decisions are collectively referred to as the “right to be heard.” See Lamborn, supra note 4, at 187-93 (describing definitional difficulties associated with a victim right to be heard). Jurisdictions may give victims a right to provide input orally, or in writing, or both. See id. Some jurisdictions provide various victim rights to be heard without attempting to define the means by which such a hearing can be achieved or the extent of the right granted. See id. For purposes of this analysis, the right to be heard includes a victim right to provide input orally or in writing or through any other means reasonably designed to transmit such input. 147. Prior to the President’s Task Force, only one state required victim input into key prosecutorial decisions, eight states required a victim impact statement at sentencing, and three states required the opportunity for victim allocution at sentencing. See OFFICE OF J USTICE PROGRAMS , supra note 45, at 4. The President’s Task Force recommended that prosecutors consult with victims of violent crime regarding case dismissals and plea negotiations and communicate victims’ views to the court regarding bail decisions, continuances, plea bargains, dismissals, and sentencing. See PRESIDENT’S TASK F ORCE, supra note 7, at 65-66. The Task Force recommended that “[j]udges should allow for, and give appropriate weight to, input at sentencing from victims of violent crime.” Id. at 76-78. The Task Force also recommended that parole boards allow crime victims or their representatives to make known the effect of an offender’s crime on the victim. See id. at R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM Winter, 1999] VICTIM PARTICIPATION 59 charging decision, there has been little change in the victim’s formal right to be heard. In other areas, such as regarding plea negotiations, there has been a significant expansion of victim rights to be consulted by the prosecutor and heard by the court. In areas regarding sentencing and parole decisions, victims’ rights to be heard have been widely recognized. 1. The Charging Decision Through a victim’s decision to report an alleged crime to the authorities or his choice to decline to make such a report, a crime victim has always had significant input into the decision to charge a suspect with a crime.148 Once a crime has come to the attention of the authorities, however, the decisions to file formal charges against a suspect and as to what charges should be filed have traditionally been entrusted to the prosecutor’s discretion.149 Of course, a prosecutor has always had discretion to and often does consult the victim about the charging decision. Such consultation, however, has rarely been formally required and mechanisms for a victim to challenge the prosecutor’s charging decision have also been extremely rare.150 There has been little expansion of a victim’s right to be heard regarding the charging decision in the years since the President’s Task Force. A few states now specifically provide a victim right of consultation with the prosecutor regarding the charging decision.151 The federal system and a few states provide a general victim right to confer or consult with the 83-84. 148. See C HERYL R INGEL, U.S. DEP ’T OF J USTICE, CRIMINAL V ICTIMIZATION 1996, at 8 (1997). Estimates in the 1996 National Crime Victimization Survey indicate that approximately 37% of that year’s victimizations were reported to the police, including almost 43% of the violent crime victimizations and approximately 35% of the household crime victimizations. See id. A crime victim (or someone acting on his behalf) is not the only, but is obviously the most likely person to initiate a report of crime. 149. This has been the case since the adoption of a public prosecution system in this country after the American Revolution. See supra notes 17-26 and accompanying text. See generally Cardenas, supra note 3; Sarah N. Welling, Victims in the Criminal Process: A Utilitarian Analysis of Victim Participation in the Charging Decision, 30 ARIZ. L. REV. 85 (1988); Chermside, supra note 48 (describing limited formal opportunities for victim involvement in the charging decision). 150. See Welling, supra note 149, at 94-113. 151. See, e.g., ARIZ. REV. STAT. ANN. § 13-4408 (West Supp. 1997) (providing victim right to confer with prosecutor before a decision not to file criminal charges is final); MASS. ANN. LAWS ch. 258B, § 3 (Law. Co-op. Supp. 1998) (providing victim right to confer with prosecutor before any action terminating the prosecution); N.J. STAT. ANN. § 52:4B-44 (West Supp. 1998) (providing victim opportunity to submit a written statement to the prosecutor about the crime’s impact before the prosecutor’s final decision regarding whether to file formal charges). R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.DOC Printed On: 3/22/99 8:08:00 PM 60 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21 prosecutor, which arguably includes the right to confer about the charging decision.152 In their victim rights provisions, most jurisdictions have not included a victim right to be heard in court regarding the prosecutor’s charging decision.153 Jurisdictions’ failure to significantly expand victims’ formal right to be heard regarding charging decisions is consistent with courts’ traditional reluctance to review prosecutors’ charging decisions. Courts most frequently decline such review on separation of powers grounds, refusing review of this executive branch function in circumstances in which the charging decision is not based on illegal or improper considerations.154 In rejecting a defendant’s claim of selective prosecution in Wayte v. United States, 155 the United States Supreme Court acknowledged this basis as well as the pragmatic reasons for judicial reluctance to intervene in prosecutors’ charging decisions: “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to 156 examine the decision whether to prosecute. 152. See, e.g., ALASKA C ONST. art. I, § 24; 42 U.S.C.A. § 10606 (West 1995); KAN. STAT . ANN. § 74-7333 (Pamp. 1997). The proposed federal victim rights constitutional amendment does not include a victim right to consult with the prosecutor. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). 153. A few states have general statutory or judicially recognized mechanisms for citizens to challenge prosecutors’ charging decisions. See, e.g., COLO. REV. STAT. ANN. § 16-5-209 (West 1998); PA. R. C RIM. P. 106; Commonwealth v. Pritchard, 596 A.2d 827 (Pa. Super. Ct. 1991); Cardenas, supra note 3, at 376; Chermside, supra note 48, at 733-39. 154. See Welling, supra note 149, at 95-98. 155. 470 U.S. 598 (1985). The Court found no constitutional violation in the Government’s enforcement policies concerning the draft registration laws. See id. 156. Id. at 607-08 (citations omitted). See id.DOC Printed On: 3/22/99 8:08:00 PM Winter. 84-87 (1981) (rejecting. on standing grounds. found that she had failed to show that her failure to obtain support payments resulted from the non-enforcement of the criminal statute as to the child’s father or that her requested relief of prosecution would result in payment of support by the child’s father. Newton Division of the District Court Department. at 619 (citations omitted). courts have rejected challenges to the prosecutor’s charging decision on standing grounds..2d 261. at 968-72. at 98-102. 157 the United States Supreme Court concluded: The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. at 614-15. Welling. 1999] VICTIM PARTICIPATION 61 In some instances.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See id. Timmerman. 158. at 618.S. 1995) (en banc).159 In Gansz v. cf. Appellant does have an interest in the support of her child. v.S. and its judgment must be af158 firmed. 410 U. in American jurisprudence at least.E. See Taylor v.161 The appellate court noted that the 157. The Court.S. People. supra note 149. supra note 149. The woman. 1993). See id. a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. at 614-16. however. inmate suit alleging a conspiracy by corrections officials to block the issuance of arrest warrants for the prosecution of prison guards who had allegedly beat the inmates and reiterating that the “decision to prosecute is solely within the discretion of the prosecutor”). Welling.2d 256 (Colo. 614 (1973). 454 U. The defendant had initially been charged with assault. 160. supra note 48. they demonstrate that. In rejecting a woman’s attempt to force a prosecutor to initiate criminal non-support charges against the father of her child in Linda R. Leeke v. Richard D. . Although these cases arose in a somewhat different context. The woman had filed a class action suit to enjoin the application of the Texas criminal non-support statute. 83. The District Court was therefore correct in dismissing the action for want of standing. at 257. the parent of a child born out of wedlock. at 102-05. 159. 160 the Supreme Court of Colorado specifically addressed whether any of the state constitutional or statutory victim rights provisions gave an alleged crime victim standing or the right to challenge or appeal a prosecutor’s discretionary dismissal of charges against the alleged perpetrator of the crime. Other courts have rejected efforts to challenge a prosecutor’s charging decision on the merits by simply finding no governmental duty to a citizen to initiate or maintain a prosecution and hence no cause of action in mandamus or otherwise to compel prosecution. we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State’s criminal laws. See Hall. 888 P. Id. sought to enjoin the local prosecutor from refusing to prosecute the father of her child for non-support. See id. 161. 622 N. 262 (Mass. which had been judicially construed to apply only to married parents. Id. But given the special status of criminal prosecutions in our system. the Colorado Supreme Court concluded that Article II. Kelly. the prosecutor determined that the victim was not a credible witness and that the case could not be proven beyond a reasonable doubt.5 (describing Colorado statutory provision allowing a court to compel prosecution in circumstances in which a prosecutor’s refusal to prosecute is “arbitrary or capricious and without reasonable excuse” and noting that the victim would have standing to pursue this remedy).DOC Printed On: 3/22/99 8:08:00 PM 62 CRIMINAL AND CIVIL CONFINEMENT [Vol. The trial court vacated the dismissal and ordered a hearing. supra note 111.2. Id. 163.7.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. where practicable. See. But see id. HERNON & FORST. Perhaps because of the limited nature of the right to be heard regarding the charging decision. at 257. the legislature had limited this right to proceedings involving pretrial release. the acceptance of plea agreements. See id. 162. these surveys and interviews have not focused specifically on victim input regarding the charging decision.3. The appellate court concluded that this consultation right did not provide the victim with a “right to be heard in the context of an appeal of the dismissal of criminal charges.1-. although the state constitutional provision granted victims the right to be heard at all “critical stages of the criminal justice process” as defined by the state legislature. e. section 16a of the Colorado Constitution does not grant an alleged crime victim standing or the right to contest a district attorney’s decision to dismiss criminal charges or the right to appellate review of the order dismissing the charges. at 13 tbl. and sentencing. at 258 n.163 As a result. empirical research concerning this right is virtually non-existent. supra note 111. See id. researchers found that evidence characteristics and the presence of physical injury to the victim predicted prosecutors’ acceptance of cases for prosecution more often than other factors. Although researchers who have conducted previous victim surveys and interviews have concluded that victims desire greater input into the decision making process concerning their cases and that expanded opportunities for such input would increase victim satisfaction with the criminal justice system. however.g. . regarding decisions concerning case dismissal provided that noncompliance with the provision would not invalidate any decision or disposition made. 164.”162 Moreover. 25:21 prosecutor’s statutory obligation to consult with a victim. Section 16a and its enabling legislation do not grant an alleged crime victim the right to be heard on a district attorney’s motion 164 to dismiss a criminal charge.. the trial court ruled that the victim lacked standing to challenge the dismissal and again granted the prosecutor’s dismissal motion. at 258-59. See HERNON & FORST. after receiving a letter from the victim objecting to the dismissal.IV. See id. In a six-site study using hypothetical scenarios with about 100 prosecutors and other criminal justice personnel. Id. at 258 (citations omitted). at 258-59 n. however. 165.165 Thus. The trial court granted the prosecutor’s motion to dismiss the case without a hearing. supra note 111.II. See id. See id. commentators who have debated the merits of a After reviewing the case for trial. 26-32 tbl. At the hearing. .g.166 Regardless of the nature of the debate. Gittler. at 557. supra note 48. supra note 25. KY. I. e.. 114-17 (suggesting that the preferred remedy for a prosecutor’s failure to consult would be disciplinary action). N. but giving victims “party status” in hearings on charge dismissals. but not a right to challenge the prosecutor’s ultimate charging decision. 1996). STAT.A. 97-107 (1984). CONST. VT. § 960.167 166. In a similar vein. ANN. L. 1997). another commentator proposed maintaining only an informal role for victim input to prosecutors regarding the initial charging decision. The federal system and a few other states provide a general right to confer with the prosecutor. Other commentators reject the courts’ current reluctance to review prosecutors’ charging decisions and propose that victims should have the right to seek judicial review of prosecutors’ decisions not to prosecute. 63. Still other commentators advocate a return to various forms of private prosecution in which victims could actually initiate prosecutions when prosecutors failed to do so or join their private actions with the public prosecution. STAT.M. Adopting a middle position. Paul S. The Crime Victim and the Criminal Justice System: Time for a Change. at 392-98. supra note 25. at 982. Richard L. STAT. § 9m. 1999] VICTIM PARTICIPATION 63 potential expanded victim right to be heard regarding the charging decision have done so on policy grounds rather than research results.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. supra note 48. ANN. This victim status would force the prosecutor to justify his decision not to proceed with the prosecution to the court in a manner which could be challenged by the victim. Aynes. L. See . Hudson. R EV. supra note 3.” See Hall.. See.S.g. and the alleged offender. e.g. even among commentators who advocate some expansion of the victim role in the charging decision. at 86-94. . another commentator concluded that a prosecutor’s decision to prosecute should be influenced by the victim’s attitude “only within guidelines promulgated to assure fairness to the victim.DOC Printed On: 3/22/99 8:08:00 PM Winter. e. 2. it has resulted in little change in a victim’s right to be heard regarding the charging decision in the years since the President’s Task Force. Plea Negotiations and Agreements Unlike the general absence of change regarding the victim’s right to be heard concerning the charging decision. at 161. 1998). See Goldstein. § 10606 (West 1995). ANN. WIS. at 150-63. 11 PEPP. § 31-26-4 (Michie Supp.001 (West Supp. there has been a significant expansion of the victim’s right to be heard by the prosecutor and the court regarding plea negotiations and agreements in the past fifteen years. See Welling. ANN. STAT. § 421.C. 42 U. supra note 149. 58-59 (1984). one commentator suggested only a modest expansion of the victim’s role by providing a right to consult with the prosecutor regarding the charging decision. § 5308 (Supp. REV. 1998). e. 13. Approximately 10 states expressly require the prosecutor to consult with the victim regarding the defendant’s pretrial release. REV. 23. Cardenas. See. 167. See id. FLA.g. There is clearly no uniformity of opinion. art. See. 11 PEPP.500 (Michie Supp. tit. society. Gittler. There has been a somewhat more modest expansion of a victim’s right to be heard regarding pretrial release.. After determining that the benefits of such an expanded role only marginally outweigh the drawbacks. Constitutional Considerations: Government Responsibility and the Right Not to be a Victim. I.169 In addition. (1997). . TENN.g. e.. tit. VT. § 31-26-4 (Michie Supp. W. See. § 35-35-3-5 (Michie 1998). approximately ten of these states require prosecutors to disclose to the court the substance or nature of their consultations or attempts to have such consultations prior to the court’s acceptance of a plea agreement. § 16-21-106 (Michie Supp. § 2930. e. LAW § 642 (McKinney 1996) (providing that such failure to confer is also not a cause for delaying proceedings against the defendant). supra note 46 (describing provisions). CODE § 16-21-106 (Michie Supp. which arguably include those regarding pretrial release.C. STAT . MICH.g. supra note 46. Some states have expressly provided. tit. STAT. § 42. 725 ILL. 1997).168 To ensure that such consultations take place.. art. 1998).02 (West Supp. See. e.94A. Other states require only that prosecutors consult or confer with victims regarding their plea negotiations. CODE ANN. ANN. § 77-38-4 (Supp. See. M E. 1998). CONST. 1997). PENAL C ODE § 679. 1997). § 9m. CODE ANN.R. See S. 1998). CODE ANN.06 (Anderson Supp. The federal system and a few states provide only a general victim right to confer with the prosecutor. See generally NATIONAL NETWORK . (1997). In addition to the approximately 40 states that require some form of prosecutor consultation with victims regarding plea negotiations.756 (West 1998). § 9.D. 1998). See. 1997). § 9405 (1995). See ARK. COMP . 1997). This figure includes approximately 12 states which have included such a general or specific right to be heard in their constitutional rights provisions. § 801D-4 (Michie 1994).g. CODE § 61-11A-6 (1997). approximately twenty states provide specific victim rights to be heard in court in connection with plea Over 15 states provide specific victim rights to be heard in court regarding pretrial release decisions or general rights to be heard regarding important criminal justice proceedings. e. § 54-203 (West 1997). Some states use language which requires prosecutors to affirmatively obtain victims’ views or input in their discussions regarding plea negotiations. § 595. CODE ANN. R EV.M. 17-A § 1173 (West Supp.. N. 120/4. DEL. 19. Res. IDAHO C ONST. ARIZ. 168. 25:21 Approximately forty states currently require prosecutors to consult with victims regarding plea negotiations in their cases. Tobolowsky. OHIO R EV. C AL. N. ANN. ALASKA C ONST. § 10606 (West 1995).209 (West Supp. C ODIFIED LAWS § 23A-28C-1 (Michie 1998). ANN. ANN. ANN. § 215. VA. WIS. however. 1997). STAT. LAWS ANN. 105th Cong.J. STAT. See.g. R EV. ANN. that a prosecutor’s failure to confer with a victim regarding the plea negotiation does not affect the validity of the plea agreement or resulting disposition. 1998). STAT. WASH. 13.g. UTAH C ODE ANN. § 780. GEN. ANN. CODE ANN. NVC. e. § 7006 (Supp. C ONST.33 (West Supp. 71. tit. See generally NVC. ALA.090 (West 1998). supra note 46. 105th Cong. I. Res.. REV. IND.5 (West Supp. A specific right to be heard at public proceedings to “determine a release from custody” is included in the proposed federal constitutional victim rights amendment.J. § 13-4422 (West Supp. art. art. supra note 38 (describing provisions). I.Y. CODE ANN. STAT. REV. leaving the content of such consultation undefined.S. tit. S. e. 11. ARK. § 24.DOC Printed On: 3/22/99 8:08:00 PM 64 CRIMINAL AND CIVIL CONFINEMENT [Vol. MO. I. ANN.g. § 22. OKLA. COMP . 169. which arguably includes consultation regarding plea negotiations. e. H.g. See.A. S TAT. HAW. EXEC.. ANN.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. art. 42 U. CODE § 15-23-71 (1995). approximately five states specifically require prosecutors to notify victims regarding plea negotiations. See.. 6. C ONN. OR . STAT. 1997). STAT. § 40-38-103 (1997).. however. See id. the judge rejected the plea agreement. 172. ARIZ. 1997).J. e.DOC Printed On: 3/22/99 8:08:00 PM Winter. art. 1999] VICTIM PARTICIPATION 65 agreements170 or general rights to be heard regarding important criminal justice proceedings... art. N.Y. The few states which have addressed the effect of a victim’s failure to exercise a provided right to be heard at a plea proceeding have indicated that the victim’s absence does not prevent the court from conducting the proceeding (see UTAH C ODE ANN.173 The appellate court construed California’s victim rights provisions to allow a victim or his next of kin (such as the victim’s father in this case) to attack a plea bargain at a sentencing proceeding following the initial acceptance of the plea. I. CONST. See id.. See generally NATIONAL NETWORK . 174. The defendant was convicted of second degree murder and related charges at trial. Stringham172 in which a plea agreement in a homicide prosecution had been conditionally accepted by one judge. 6. After a subsequent hearing. ANN. See. EXEC.D. but subsequently recused himself prior to the sentencing hearing. See id. Res. A California appellate court most directly addressed these rights in People v.1 (Michie 1988)) or both (cf . § 32. S. I.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.171 Few courts have addressed prescribed victim rights to be heard regarding plea agreements. at 488. Res. § 16a. CONST. The plea agreement was subsequently rejected by another judge. Tobolowsky. § 24.R. C OLO. § 2. § 77-38-10 (Supp. § 77-38-4 (Supp. See. 1997). e. at 490.J.H. following the commencement of sentencing proceedings at which the victim’s father appeared and denounced the plea agreement. e. at 487.1. II.1-302. STAT. LAW § 647 (McKinney 1996) (regarding a court’s failure to consider a victim’s views)). ANN. KAN. COLO. NVC. See id. See S. CODIFIED LAWS § 23A-7-8. 173. § 24-4.” See id. STAT . II. 71. art.g. 1997). One judge conditionally accepted the plea agreement. at 486-87. 171. REV. § 74-7333 (Pamp.5 (West Supp. 253 Cal. California law regarding guilty pleas allowed the court to . supra note 46. 484 (Cal. the court concluded. Ct. The prosecutor and defendant agreed that the defendant would enter guilty pleas to voluntary manslaughter and kidnapping in exchange for dismissal of the murder and related charges. See. the victim’s father criticized the plea bargain and the prosecutor and urged that the defendant be charged as a “murderer. App.g. M O. N. H. CONST. would “prevent a victim or 170. CONST. § 21-M:8-k (Supp. 1988). at 485. at 486. supra note 46. A specific victim right to be heard at public proceedings regarding an “acceptance of a negotiated plea” is included in the proposed federal victim rights constitutional amendment. ANN. At the sentencing hearing before the new judge. 1997)) or serve as a basis to set aside the disposition (see S.174 To do otherwise. Included in the approximately 20 states with victim rights to be heard regarding plea agreements are approximately 12 states with constitutional victim rights amendments which include a specific or general victim right to be heard at court proceedings regarding plea agreements. Rptr. 1997).g.C. for which status plea agreements should certainly qualify. STAT. R EV. See id. See id. UTAH C ODE ANN. art. supra note 38 (describing provisions). at 490-92 & nn. See id. supra note 141. One of the few such efforts is a field experiment conducted over twenty years ago to evaluate the use of pretrial settlement conferences to which the judge. See id. in the absence of explicit victim agreement to be bound by the prosecutor’s position on allocution or of collusion by the prosecutor to circumvent the plea agreement through the victim.DOC Printed On: 3/22/99 8:08:00 PM 66 CRIMINAL AND CIVIL CONFINEMENT [Vol. but did not cause significant changes in the proportion of cases litigated or defendants convicted. at 349. App. The fact that all key decision makers were potentially present at the conferences actually seemed to increase case handling efficiency. victims.2d 17 (Ky. See id. Over 1. Researchers attended the settlement conferences and conducted interviews with the judges.S. 1995). Ct.2d 140 (Kan. but did provide the victim the right to attend sentencing proceedings and “reasonably express” his views regarding the crime and the defendant. From a systems standpoint. defendants. prosecutor. with over 350 assigned to the experimental settlement conference group. Ct. A few other appellate courts have rejected a defendant’s attempt to withdraw his plea agreement in circumstances in which the prosecutor had agreed not to allocute as to some or all sentencing issues.2d 752 (Mo. the conferences seemingly shortened the length of time it took to close cases. Florida study. App. 176. 1992) (regarding denial of shock probation following initial incarceration sentencing). 1995). which views were to be considered by the court. and investigating police officer were invited. 839 S. Id. cf. The sessions themselves .177 In withdraw its approval of such at a subsequent hearing on pronouncement of judgment. at 349. denied. 25:21 next of kin from having a meaningful opportunity to protest a plea bargain that will allow a defendant to escape the punishment which the victim or next of kin feels is appropriate to the crime. The appellate court also concluded that the victim’s father’s statements to the court were within the scope of the statutory provisions and that the trial court had not abused its discretion in rejecting the plea agreement. Sharp v. 907 P. at 492-94.”175 Despite the continuing expansion of victims’ rights to be heard regarding plea negotiations and agreements. Johnson. See id. victim. at 364-65. See Heinz & Kerstetter.W. Commonwealth. Wilson v. 353-54. 908 S. State. the victim’s exercise of his rights to be heard regarding the sentencing of the defendant did not violate the prosecutor’s plea agreement or provide a sufficient basis for the defendant to withdraw his guilty plea. at 489 n. at 353-54.8. See id.000 felony cases assigned to test and control group judges were included in the Dade County. cert. defendant. See State v. perhaps by lowering information costs and needs. 518 U. See id.10-11.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See id. These courts determined that. defense attorney. at 365. The California victim rights provisions did not specifically provide a right of hearing at plea proceedings. 1007 (1996). researchers have devoted little attention to assessing the effectiveness of such rights. and police officers in the test and control group cases. but the victim (or a family member) had addressed the court on such sentencing issues.176 The research results provide support for policy advocates on all sides of the issue of the effectiveness of victims’ right to be heard regarding pleas. attorneys.W. 175. at 491. 177. HILLENBRAND & BARBARA E. Victims who attended the conferences were much more likely to indicate that they knew the dispositions in their cases. 180. but they were more satisfied with the pleas negotiated and plea bargaining generally than victims who did not participate.S.179 but victims and other lay participants indicated modest gains in information and satisfaction with their treatment as compared to non-participants. guilty pleas. 179. See id. S. See id. 181. they were dominated by the professionals with lay members mainly providing requested information. Although some of the professionals suggested that victims’ poor attendance reflected their lack of interest. commenaveraged only 10 minutes in length and resulted in final or tentative agreement regarding disposition in three-fourths of the cases. See id. in particular. at 357-60. at 357. at 362-65. DEP ’T OF J USTICE . DEP’T OF J USTICE. PLEA B ARGAINING : C RITICAL I SSUES AND C OMMON PRACTICES 68-70 & tbl. some of the professionals questioned the significance of their participation. Only 25% of victims made more than five comments during the sessions. See id. supra note 141. at 359. See Heinz & Kerstetter. EDWIN V ILLMOARE & VIRGINIA V. inter alia. but they were not significantly more satisfied with the dispositions or processing of their cases than victims who did not attend the conferences. Approximately 50% of eligible victims participated in the conferences. at 360. See id. See id. U. 1999] VICTIM PARTICIPATION 67 terms of the dynamics of the conferences. In subsequent field tests at three locations.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. victims were allowed to participate in plea conferences presided over by judges. See id. See id. EXECUTIVE S UMMARY: V ICTIM R IGHTS LEGISLATION: AN . See generally W ILLIAM F. The judges. See id. victims were usually supportive of the dispositions proposed by the judges and attorneys—rather than demanding the maximum punishment allowed. MC DONALD.2 (1985) (describing previous research reflecting the varying degrees to which prosecutors and judges received and considered victim input regarding plea negotiations as well as burglary case plea simulation in which only 41% of 134 prosecutors identified “victim’s attitude toward bargain” as an item considered in deciding the case). AMERICAN BAR ASSOCIATION. Perhaps because of the limited role victims played at the conferences. See id. by the end of the project. notification problems in the research project were most frequently cited by victims as the reason for nonattendance. at 357-60. typically controlled the conference discussions. with their participation accounting for approximately 10% of the speaking time at the conferences. 178.4. The majority of the victim participants did not believe that their participation affected the outcome of the plea negotiation.180 Subsequent field tests generally confirmed these research results. See SUSAN W. See id. NETO. See id. These findings can be compared to survey results from over 350 victims from five states in the late 1980s in which approximately half indicated that they were not satisfied with their opportunity to provide input regarding. The time to disposition in the test courtrooms was reduced by approximately three weeks by the conference procedure. SMITH.178 The sessions were attended by only one-third of the invited victims.DOC Printed On: 3/22/99 8:08:00 PM Winter.181 Seizing upon various aspects of these studies. Contrary to the expectations of some participants. V ICTIM APPEARANCES AT SENTENCING HEARINGS UNDER THE C ALIFORNIA V ICTIMS’ BILL OF R IGHTS 6 (1987). U. This expansion is particularly meaningful because it has given eligible victims183 input into a disposition decision regarding which victims previously had limited formal access. See id. Still other commentators propose giving victims actual veto power over plea offers before they are negotiated. 77 CAL. at 501-02 (describing role conflict when victim input which victim liaisons had communicated to prosecutors was not disclosed to the court). supra note 112. such advocacy has resulted in a significant expansion of victims’ rights to be heard by the prosecutor and the court concerning plea negotiations and agreements in the years since the President’s Task Force. at 69. Kennard.182 As reflected above. supra note 25. 65 WASH. 417. 437-53 (1989)) or giving victims party status regarding hearings on guilty pleas (see Goldstein. and is sometimes available only on victim request. Polito. 183. 853. at 236-37. Davis et al. The Victim’s Veto: A Way to Increase Victim Impact on Criminal Case Dispositions. 184. They feel that such direct communication with the ultimate decision maker regarding the plea enhances the victim’s sense of participation in the plea process. But see id. Welling. L. Starkweather. The Retributive Theory of “Just Deserts” and Victim Participation in Plea Bargaining. Victim Participation in Plea Bargains. These researchers concluded that victims’ wishes were rarely considered in plea bargain decision making except in cases of violent or nonstranger crimes. 876-77 (1992). Note. cf. 182. See supra notes 50-57 and accompanying text. L. See. this input ASSESSMENT OF ITS IMPACT ON C RIMINAL J USTICE PRACTITIONERS AND VICTIMS 20 (1989).DOC Printed On: 3/22/99 8:08:00 PM 68 CRIMINAL AND CIVIL CONFINEMENT [Vol. Commentators who advocate an expanded victim right to be heard regarding plea agreements generally believe that the right to consult with the prosecutor should be coupled with a victim’s right to communicate his views to the court regarding the proposed plea agreement. 49% of the 43 prosecutors from six states said that they rarely heard from victims concerning their views regarding plea proposals. See id. e. Forty-four percent reported that they gave victims’ views regarding pleas little or no weight with another 28% indicating that the weight given depended on the particular case. 301.g. at 557)).184 Moreover. 67 IND. REV. Gittler. Gegan & Rodriguez. Comment. supra note 48. this victim right to be heard is generally contained with other victim rights and is typically available to victims of designated crimes only. David A. at 251-54. supra note 91. L. at 167.13. in cases in which the victim’s views of the plea agreement differ from those of the prosecutor. at 68-69.J. In a survey conducted at the approximate time of the President’s Task Force. See M C DONALD. at 69 & n. (see Karen L. Percentages of the 50 surveyed judges who said that they sought victims’ opinions of plea agreements ranged from 0 to over 90%. U. Sarah N. See id. at 68-69 (describing Connecticut study in which victim attitudes were considered more signifi- . supra note 46. 345-53 (1987) (suggesting the remedy of a judicial grievance complaint for a court’s denial of a victim’s right to be heard rather than an appeal).. direct victim communication with the court avoids conflict in the prosecutor’s role and ensures that the victim’s views will be communicated to the court. Again. See id. at 69. Moreover.. supra note 178.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 25:21 tators again have advocated various mechanisms through which victims can provide expanded input regarding plea negotiations and agreements.Q. 1997). P. C ODE ANN.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See. R. -74 (1995). 188. ARIZ. TEX.186 The federal system and every state provide eligible victims187 an opportunity to offer input to the court regarding sentencing either in writing.1 (Harrison 1994). STAT.Y. See infra note 188 and accompanying text.g. supra note 25. REV. Sentencing A victim’s right to be heard at sentencing has been one of the most widely adopted victim rights in the last fifteen years.188 cantly).g. 725 ILL. e. § 611A.A. CONST. ANN. Supp. arts. § 46:1844 (West Supp. 1998) (allowing written submissions prior to sentencing and oral allocution after sentence has been imposed). FLA. S. C ONN. § 7-21-102 (Michie 1997). § 99-19-161 (1994). § 3 (Law. Perhaps because this right has been so extensively provided. ANN. 1998). 1998). H. art.. GEN .C.D. MO.038 (West Supp. LAW § 642 (McKinney 1996)). See.. STAT . FED. C ODE §§ 15-23-73. I. Some states impose additional restrictions on crimes for which victims are eligible to make victim impact statements. LA. M ISS. 185. e. 42 U. 56. and the federal system and a few other states generally do so (see. MINN. Twenty-six of the 29 states with constitutional victim rights amendments include a specific or general victim right to be heard at sentencing. ALASKA C ONST.S. CODE ANN.R.03. 1999] VICTIM PARTICIPATION 69 pertains to a dispositional decision making process through which most criminal prosecutions are concluded. art. 186. ANN. ANN.61. I. REV. The federal system and most states authorize a victim to provide input regarding sentencing both orally and in writing. CONST. COMP . e.g. See. art. VA. P. § 16. Co-op. art. ALASKA C ONST.141.2-11. 1997). See S. 42. W ASH.DOC Printed On: 3/22/99 8:08:00 PM Winter. 1998). § 24. and the federal system and a few more states generally. I. GA. EXEC. art. ALA.. 258B.. C RIM. only approximately 10 states specifically require the prosecutor to consult with the victim regarding sentencing (see. § 10606 (West 1995)). e. MASS. e. ANN. § 32.g.g. STAT. § 54-91c (1997). . § 7-21-101 (Michie 1997). only approximately 10 states expressly. Perhaps because so few cases are concluded by trial.S. § 24. the impact of this victim right to be heard can be substantial.g.01 (Michie Supp.g. See supra notes 50-57 and accompanying text. C ODIFIED LAWS § 23A-28C-1 (Michie 1998). § 19. § 12.J.. 105th Cong. The proposed federal constitutional victim rights amendment includes a victim right to be heard at sentencing orally and in writing. CODE C RIM. 3. CONST. Gittler. 6.g. 120/6 (West Supp. See. is typically restricted to victims of designated crimes only and is sometimes available only on victim request. Res. Less than 10 states allow only written victim impact submissions. ANN. CODE ANN. ANN. 187. W YO. provide a victim right of consultation with the prosecutor regarding trial. STAT . 42 U. N. This right has primarily been adopted through provision of a victim’s opportunity to be heard by the court regarding sentencing. ALASKA STAT .J. orally or both. at 164 & n. e. I. It is generally estimated that 85-90% of prosecutions are concluded by negotiated pleas of guilt. §13-4419 (West Supp.03 (West Supp. I. (1997). 32 (providing oral allocution only for victims of violent crime or sexual abuse). See.015 (Michie 1996). § 10606 (West 1995).. § 35. § 17-10-1. cf. 1997). e. ANN. See. The victim’s right to be heard at sentencing. as most victim rights. WYO. STAT.A.185 As a result.C. LAWS ch. STAT .. STAT . e.. Other states also allow input as to the victim’s opinions or beliefs regarding the crime.94A. TENN. 233. GEN. Tobolowsky. See generally NATIONAL NETWORK . supra note 46. 1997). 1998).I. See. 276 Cal. is generally used by probation staff to record information obtained from the victim and other relevant sources. S TAT. ANN. Ct. Hall.S. e. (1997). psychological. ANN. See. LAW § 380. 1990). STAT . App. § 54-91c (1997). 27 § 781 (Supp. § 780. See. C OMP . Tennessee. GEN. C ODE ANN.H. 242-43 (1991). Mockel. STAT. See.3 (West Supp. 825 (1991). CODE art.. at 163.. C ONN. McLeod. at 162-63. supra note 38 (describing provisions). CONS.1 (West Supp. See infra notes 209-10 and accompanying text. N. Despite this broad provision of a victim’s right to be heard. 1997)) or serve as a basis to set aside the disposition (see GA. 13..g. W ASH. 819-22. LAW § 647 (McKinney 1996). UTAH C ODE ANN.190 Perhaps because of the breadth of this victim right to be heard.g. LAWS ANN. states which have specifically addressed violations of or failures to exercise this right have indicated that such violations or failures do not prevent the court from conducting the sentencing proceedings (see ALA.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. or the desired sentence. courts have been more actively engaged in its interpretation than that regarding other victim rights. P. CRIM. the provision of an express victim right to be heard regarding sentencing in some ways simply formalizes a source of sentencing information to which courts previously have had informal access. See id. CODE § 15-23-76 (1995). § 9. supr a note 46.Y. CODE A NN. PENAL C ODE § 1191. 1998). § 17-10-1. supra note 141. People v. C RIM. e. at 165-66 (describing provisions). Of course. 28 AM .191 As the United States Supreme Court noted forty years ago in rejecting a defendant’s contention that a sentencing judge should be reRes.1 (Harrison 1994)) or both (see N.g. 189. tit. 71. ANN.50 (McKinney 1994 & Supp. The most frequently used method for presentation of victim impact information is its submission in written form as an attachment to the presentence investigation report prepared by probation office personnel.DOC Printed On: 3/22/99 8:08:00 PM 70 CRIMINAL AND CIVIL CONFINEMENT [Vol. 1997)). N. 1998). EXEC. See generally NVC..110 (West 1998). psychological. See McLeod. and economic impact of the crime and often the victim’s opinion as to the crime. REV. e. L. e. § 651:4-a (1996). 562-63 (Cal. CODE ANN.189 a victim can generally communicate to the sentencing judge the direct physical. § 40-38-103 (1997). 190. CAL. 191. 25:21 Through submission of a victim impact statement or victim impact testimony. 808. 501 U. Regardless of the specific statutory authorizations. § 77-38-10 (Supp. the offender. REV. Payne v. Rptr. supra note 141.Y. The prescribed content of the victim input regarding sentencing varies considerably. LAWS § 12-28-3 (1994). R. the offender. and the desired sentence. ANN. STAT.763 (West 1998). supra note 46. REV. § 180-9. 559. 71 PA. M D. NVC. A standard victim impact statement form. Still other states give only general guidance as to the content of the input or no guidance at all. VT. . and sometimes social impact. M ICH. Some states expressly authorize victim input only as to the crime’s direct physical. fully or partially openended in format. Victims’ Voices in Criminal Court: The Need for Restraint. § 7006 (Supp.g. 105th Cong. see also Donald J. financial. courts frequently receive additional input from victims regarding sentencing. as well as family members’ opinions and characterizations of the offender and the crime.DOC Printed On: 3/22/99 8:08:00 PM Winter. After the trial court denied this motion. New York.S. Although no challenge to the information was made at the time. 194. In explaining the considerations underlying his sentence. 241. Not surprisingly. See id. 337 U. which was very dramatic and descriptive. In Booth v. and the importance of non-testimonial presentence investigative information to assist the court in individualizing an appropriate sentence for an offender. See id. See id. See id. In rejecting the defendant’s claim. once victim input regarding sentencing began to be required. to information in the presentence report regarding the defendant’s criminal history and tendencies. the United States Supreme Court established and subsequently rejected certain limitations on victim impact information in capital sentencing proceedings. In a trilogy of capital cases decided within a five-year period. at 498500. . the trial court rejected the jury’s recommendation of a sentence of life imprisonment and imposed a death sentence on the defendant for the murder he committed during the course of a burglary. See id. the prosecutor nevertheless agreed to read the impact statement to the jury rather than call the family members as witnesses.194 was “irrelevant to a capital sentencing decision. and that its ad192. The information. it began to receive much more judicial scrutiny. The information. the judge referred. See id. 1999] VICTIM PARTICIPATION 71 stricted to consideration of sentencing information received in open court. at 244.193 a narrow Court majority concluded that information in the victim impact statement which described the victims’ personal characteristics and the crime’s emotional impact on the victims’ family.S. 482 U. the Court noted the distinctions between the evidentiary requirements for the guilt versus the punishment determination. at 245. the closest scrutiny of the appropriateness of victim input came in the context of sentencing proceedings in capital cases. contending that its use in a capital case violated the Eighth Amendment. 246 (1949). the defendant claimed on appeal that the court’s failure to allow him to confront and crossexamine witnesses as to these matters violated his due process rights. was obtained as part of the victim impact statement required under state law as part of the presentence report in felony cases. Maryland. In this case. in an attempt by defense counsel to limit the “inflammatory effect” of the information. Nevertheless. at 498. 496 (1987). See id. See id. rather than permitted. courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed 192 within limits fixed by law. at 242-43. was obtained by probation staff from the victims’ children and other family members. 193. both before and since the American colonies became a nation. inter alia. Defense counsel moved to suppress the statement. Williams v. concerning the brutal murder of an elderly couple in the course of a burglary.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. at 246-52. at 500-01. the wide latitude courts have in the receipt of sentencing information. 80 J. 196. 27 AM . The Court thus rejected “the contention that the presence or absence of emotional distress of the victim’s family. See id.196 Two years later. REV.10.”195 The Court therefore concluded that the introduction of this victim-related information in a capital sentencing proceeding violates the Eighth Amendment. See generally Paul Boudreaux. or the victim’s personal characteristics. at 503. The Relevance of Victim Impact Statements to the Criminal Sentencing Decision. in South Carolina v. See id. The prosecutor commented on the victim’s perceived religious characteristics as well as the implications of his good citizenship.10. the trial judge could determine the relevance of the information to a “legitimate consideration” and weigh its probative versus prejudicial value. at 507 n. at 810.” Id. in the absence of evidence that the defendant was aware of such characteristics or that they played a role in the defendant’s decision to kill. See id. 197. L. L. Similarly. Comment. at 507. Maryland and the Individual Vengeance Rationale for Criminal Punishment. 197 the Court extended this ruling to bar prosecutors’ comments regarding personal characteristics of the victim in a capital sentencing proceeding. 199 (1988) (discussing the nature and utility of victim impact statements in the aftermath of Booth).198 195. Gathers. L. Talbert. C RIM. at 504-07. at 501-02. See id. the Court was concerned that victim-related information regarding which the defendant may have been totally unaware or be unable to challenge or rebut could divert the jury’s attention away from the proper focus of the hearing.S. 810-12. 805 (1989). the prosecutor read from a religious tract and noted a voter registration card. 198.L. See id.A.” Id. Booth v. at 507-08 n. at 509. REV. 509. During his closing argument at sentencing. See id. This information thus . See id. are proper sentencing considerations in a capital case. Id. 391 (1989). The Court concluded that this information regarding the content of these items was not relevant to establish the “circumstances of the crime” or the defendant’s personal characteristics in the absence of evidence establishing their relevance to the commission of the crime. In the “unique” circumstances of a capital sentencing hearing in which the focus is on the defendant’s moral blameworthiness. both of which the victim had in his possession when he was murdered and which had been admitted into evidence. 36 U. the Court concluded that the admission of family members’ opinions and characterizations regarding the crime and the offender served only to “inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. Dina R. Phillip A. at 808-810. The Victim Impact Statement: Reform or Reprisal?.DOC Printed On: 3/22/99 8:08:00 PM 72 CRIMINAL AND CIVIL CONFINEMENT [Vol. at 508. 25:21 mission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. In such circumstances. As to the victim impact evidence (but not the victim opinion evidence regarding the offender or sentence).C. See id. The Court consequently invalidated the Maryland presentence investigation statute to the extent that it required consideration of this type of evidence in a capital sentencing proceeding. See id. the Court acknowledged that similar types of evidence might be admissible because they relate directly to the circumstances of the crime or are relevant to rebut an argument raised by the defendant. however.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. CRIM. Hellerstein. & C RIMINOLOGY 177 (1989). 490 U. 808 (1991).” Id. Id. at 819-27. at 827. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. see also id. and the appropriate sentence” Booth’s holding that the admission of such evidence violates the Eighth Amendment in capital sentencing hearings was left undisturbed by Payne. joined by White and Kennedy. See id. to devise new procedures and new remedies to meet felt needs. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty.S. and in this case. in capital cases. The Court’s holding overruling Booth and Gathers was limited to these cases’ holdings that “evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing. The challenged evidence and information concerned testimony of the victims’ mother and grandmother on the emotional impact that the murders of her daughter and granddaughter had had on her surviving grandson and the prosecutor’s closing argument about this impact.” could be relevant to a capital sentencing decision. See id. however.2. By removing the Eighth Amendment bar to the admission of this victim impact evidence and related prosecutorial argument. evidence of a general type long considered by sentencing authorities. Courts have always taken into consideration the harm done by the defendant in imposing sentence.DOC Printed On: 3/22/99 8:08:00 PM Winter. See id. 203. In the majority of cases. 501 U.200 The Court overruled Booth and Gathers to the extent that they reached contrary conclusions. victim impact evidence serves entirely legitimate purposes. See id. the defendant. at 830 & n. 202. JJ.. at 814-16. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. the Court allowed fell under the exclusion of victim characteristic evidence established in Booth.201 Unlike the Court majorities which had decided these cases. J. in Payne v. Because no evidence was introduced in Payne regarding “family members’ characterizations and opinions about the crime..202 The States remain free. at 833 (O’Connor. at 828-30.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Tennessee. Id. as well as others. . 201. 199 that the Eighth Amendment does not create a per se bar prohibiting capital sentencing juries from considering or prosecutors from commenting on evidence as to a victim’s personal characteristics and the emotional impact of the murder on the victim’s family. at 824-25 (citation omitted). and the evidence adduced in 203 this case was illustrative of the harm caused by Payne’s double murder.. the Court concluded. the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. 200. and that victim impact evidence could help establish the actual harm caused by a particular crime. the Payne majority concluded that evidence as to the extent of the harm caused by a defendant. 199. concurring). See id. in addition to or as part of the evidence as to his “blameworthiness. 1999] VICTIM PARTICIPATION 73 Two years after Gathers and after a change in Court membership. denied.2d 1105. JJ. J. Michael Ira Oberlander. 403 (1994).206 Because even the Booth Court had not precluded the potential use of victim impact information in noncapital sentencing proceedings. see id. 378 (1997) (finding erroneous admission of victim recommendation of death penalty was harmless because judge determined the sentence and is presumed not to consider inadmissible evidence). Amy K. 833 (1994). See generally Valerie Finn-DeLuca. e. Gregory B. J UST. Evans v.g.2d 370. Holmes. L. State. 205. REV.g.2d at 920-21 (finding admission of victim’s family’s graphic description of crime and defendant and early history of victim erroneous because prejudicial outweighed probative value. Victim Participation at Sentencing. Comment. Note. App. five states with conflicting or no definitive law on the subject. Conover. 375 (1996). Conover v. Victim Impact Statement: A Victim’s Steam Valve. 1996). 30 C RIM. REV.204 Most states which have addressed the issue have concluded that victim impact evidence is admissible in capital sentencing proceedings. at 831 (O’Connor. BULL. Gentry. 637 A. The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings. State. C RIM. e. Crim. grief.. 23 AM . Note. supra note 204. Ct.W. denied.. at 825-27. cert. 18 U. 389 (1993). Holmes v. But see.g. Phillips.. See id.205 as long as it is not unduly prejudicial or inflammatory.E. Ashley Paige Dugger. 1141 (Wash. 93 (1997). J. 137 (1997) (finding victim impact evidence inadmissible at capital sentencing unless relevant to aggravating and mitigating circumstances of the crime). 206.DOC Printed On: 3/22/99 8:08:00 PM 74 CRIMINAL AND CIVIL CONFINEMENT [Vol. Retribution’s “Harm” Component and the Victim Impact Statement: Finding a Workable Model.g. 671 N. 118 S. concurring). 933 P. See Phillips. 942 S.) (en banc). 1621 (1992). 1997) (finding that evidence as to a victim’s opinions about the crime and appropriate sentence are also admissible).2d at 1142 (finding no error from admission of victim’s father’s statements regarding the victim and the effect of her murder on the family). State v. Gentry.2d at 848-49 (finding erroneous admission of victim impact evidence unrelated to statutory aggravating and mitigating factors and victim’s sentencing recommendation harmless because judge determined sentence and said she would not consider inadmissible portions). Victim Impact Evidence in Capital Sentencing: a History of Incompatibility. Note.). C RIM. 129-31 (Md.2d at 131-32 (finding no due process violation from victim’s sister’s testimony regarding feelings of guilt. 888 P. Schneider. REV.. 118 S.E. cert. and trauma from murder). . Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing. family members’ recommendation of death penalty admissible and not unduly prejudicial under the circumstances. but such testimony would be reviewed with a heightened degree of scrutiny). cert. 1995). joined by White and Kennedy. 45 VAND. subject to any overriding due process constraints. 35 AM . 378 (Mo. Susan Ann Cornille. 888 P.2d 904.S. e. DAYTON L. 848 (Ind. See. State. 671 N. Ct. Evans. denied. J. 637 A..R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. and only Indiana with a clear ruling of inadmissibility). 25:21 states to determine the relevance of such information to the capital sentencing decision.. L. 407 (1992) (discussing victim impact evidence in light of Payne). Roll. at 100-01 n. 920-21 (Okla. the 204. 933 P. Note.2d 117. But see.56 (identifying 32 states which allow victim impact statements in capital sentencing proceedings. 513 U. State v. See.2d 841. e. L. L. cf. 14 C RIM. 675 N. 482 U. 1116-17 (Wyo.E.208 This has been the case even when the express statutory authorizations as to victim impact evidence have been exceeded. 338-40 (Idaho 1993) (finding the victim’s opinion of the offender and sentence recommendation admissible because no statutory limitation which would exclude such). sister. 1993) (finding no reversible error from the admission of impact information regarding uncharged or past victims). 1983) (regarding victim’s mother). App. Ct. App. State. 860 P. 875 S. Mehring v. e. App.2d 9. People v.g. 13-15 (Cal.W.2d 849. from the victim’s recommendation as to sentence). 1994) (finding victim’s statements regarding the emotional and physical impact of the crime admissible and statements regarding recommended sentence harmless error. State v. See supra note 201 and accompanying text. 14 Cal. State v.12..g. App. See.S. 653 N. Brown v. it is not entirely clear whether the Court’s final statement of “no opinion” extended to the use of this second category of victimrelated information in noncapital cases as well. or alternatively no reversible error. 469 N. 1999] VICTIM PARTICIPATION 75 Payne Court’s ruling as to the general admissibility of such information in capital sentencing did not alter any existing legal precedents in noncapital cases. 39-40 (Tex. Yanez. 1089 (Ind. Oyola. if error). e. Ct. 208. 783 (Ill. Jones. 1992) (finding no error. No reversible error has been found from testimony from additional victims than the number or type authorized by statute. 851 P.2d 38. 454-55 (Minn.207 Reviewing state courts have taken seriously their ongoing responsibility to ensure that the probative value of victim impact evidence exceeds its prejudicial effect. . See. People v.2d 1084. 209. or at least no reversible error. App. 626 N. Ct..W. 1995) (finding no error from statement about impact of homicide on health and job status of victim’s father). Although it is clear that the first of the above acknowledgments applied only to the victim impact evidence and not the evidence regarding the victim’s opinions as to the crime or the offender.). 1991) (finding no error in admission of victim’s statements regarding aspects of the crime and no reversible error from victim’s emotional appeal which there was no reason to believe was considered by the court). 660 N. and friend). State. State. The Booth Court acknowledged that the “full range of foreseeable consequences of a defendant’s actions may be relevant in other criminal and civil contexts” than capital sentencing and that “[f]acts about the victim and family” may be relevant in a noncapital criminal trial. See Booth. but they have generally found no error. See. reviewing 207. Rptr. Div.Y. 507 n. cert. Ct. People v.2d 778.E.2d 452. 1995) (finding evidence of psychological impact of crime on victim was proper factor to be considered by sentencing judge).. Jones v. Rptr. The Court’s ruling implied “no opinion” as to the use of victim impact statements in noncapital cases.g. 850 (N.209 In such instances. from the admission of such evidence. Matteson. 197 Cal. at 504.2d 336. 511-14 (Cal. People v.E.2d 1101.10. 1996) (regarding victim’s mother. at 509 n. See id. denied. Zikorus. 509.2d 1277 (Ill. Reviewing courts have found no reversible error from the admission of victim evidence on additional subjects than those expressly specified in the authorizing legislation.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. App. The Booth Court’s holding as to the inadmissibility of this second category of evidence in capital sentencing proceedings was left undisturbed in Payne.DOC Printed On: 3/22/99 8:08:00 PM Winter.Y.S. e. Pickens. McLeod. 561-62 (Cal. 1995) (holding that a defendant has the right to cross-examine a victim who makes a sworn or unsworn statement at sentencing). at 514-15. The absence of the required formalities given and the nature of the impact testimony here and in conjunction with other errors regarding sentencing constituted reversible error. Blackmon. 908 S. Similarly. at 1048.2d 1046 (Nev. App. 276 Cal. See id. the Nevada Supreme Court established rules regarding when prior notice. See id. at 562 (noting that the defendant’s confrontation rights are not violated from the court’s consideration of written impact information as long as the defendant is given notice of such and an opportunity to respond). Ct. however. In Buschauer v. at 1049. When impact testimony is more limited. 922-23 (Okla. 1990) (regarding the number of victims). 1990). Crim. Mockel. Rptr. testimony under oath. but do not limit the trial court’s traditional ability to receive additional information relevant to sentencing.S. State. defense attorneys can crossexamine the victim as to at least some of the information in the victim impact .E. New York. such as the requirements of victim testimony under oath or subject to crossexamination. at 35 (describing practices of California judges regarding requiring oath and cross-examination of victims at sentencing). Whitten. Ct. at 1048-49. especially when they contained information similar to that introduced at trial which was subject to cross-examination). 197 Cal. App. See VILLMOARE & NETO. Rptr. e. and have not required that victims be placed under oath or be subject to cross-examination when giving victim impact evidence. State v.C. 241 (1949).g. Rptr. but prior notice and cross-examination may not be required. 804 P. Zikorus. State.g. State. supra note 141. Ct. 337 U. 667 A. All are required when impact testimony includes a defendant’s prior “bad acts. 25:21 courts have concluded that these enactments prescribed the types of victim impact evidence that the court is required to receive. at 168 (describing findings that in almost all of the jurisdictions in a 33-state survey. 1997). 276 Cal. however. 1995) (regarding sentence recommendation). on review. Sharp v. 211. defense attorneys can challenge the information in victim impact statements at sentencing and in almost half of the jurisdictions.” as in the instant case. the victim still must be placed under oath. in Conover v.E. Acoff. and cross-examination are required regarding oral victim impact testimony. People v.2d 10.. App.2d 904. See also State v. supra note 181. App. App.DOC Printed On: 3/22/99 8:08:00 PM 76 CRIMINAL AND CIVIL CONFINEMENT [Vol..W. 381 S. 851-52 (Me. 1995) (finding that judge’s consideration of information in submitted letter regarding uncharged offenses violated due process and required vacation of sentence in the absence of any steps to ensure its factual reliability). Phillips. See. State v. 908 P. 933 P. 11-12 (Ariz. 1989) (finding no violation of the defendant’s confrontation rights from consideration of victim impact statements of which the defendant had notice.211 Nevertheless. See. the admissibility of victim imState v. 326-27 (N. 610 N. Other courts. 621 (Ohio Ct. Mockel.210 Reviewing courts have differed. 559. 1992) (regarding victim’s mother and grandmother).2d 752. the Oklahoma Court of Criminal Appeals found reversible error in the trial court’s refusal to allow cross-examination of the victim’s family regarding the victim’s drug involvement or to allow rebuttal evidence regarding such. See id. have followed the general principles established in Williams v. 756 (Mo.2d 619. 210.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.2d 325. e.2d 849. as to whether this expanded victim impact evidence requires greater formalities. App. reviewing courts have also placed limits on the extent of a victim’s right to be heard. prior to the execution or formal entry of the sentence. Lader. See id. Bruce. Wright. App.. App. the prosecutor referred to and the trial court had before it victim impact information in the presentence report. Some reviewing courts have even found no reversible error in the trial court’s receipt of victim impact information outside of normal channels of victim impact statements or oral allocution at sentencing. sentence. See id. 366 (N. at 642. e. Ct. See id.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.Y. After the mistaken failure to notify the victim was detected. Div. See id.2d 365. 1992) (finding no undue influence from a judge’s improper private interview with the victim’s family before sentencing). the court concluded that the victim rights statute provided no general remedial rights to victims for violations which would render the initial sentence invalid and subject to modification under state law.2d 33. The prosecutor at the sentencing made no objection to or request to delay the proceeding. at 643. See id. the victim testified regarding her injuries from the offense and the trial court imposed a “correct. App.E. 523 N. at which the victim’s mother testified. . At a resentencing hearing the next day.Y.Y.212 The appellate court concluded that the prosecutor’s mistaken failure to notify the victim of the initial sentencing hearing (and the victim’s resulting failure to attend and offer allocution) did not render the initial sentence invalid in a manner which would give the trial court authority to modify the sentence as it did following a subsequent sentencing hearing at which the victim’s mother testified. 642 N.S. 1994). People v.2d 12.2d 640 (Mich. however. Despite this seeming judicial support for the admission of victim impact evidence. at 14-15. the trial court resentenced the defendant to an increased term of incarceration. 13-14 (Ohio Ct.S. 1994). Although the appellate court acknowledged the victim’s statutory right to offer oral allocution at sentencing. at 641. See State v. the prosecutor assigned to the case moved for a resentencing on the grounds that the victim’s right to be heard at sentencing had been violated. See id. One reviewing court concluded that the state victim rights provisions did not provide a basis for the trial court to reconsider and modify a validly imposed sentence which the offender had begun serving.213 Supreme Courts in three states have also rejected the notion that victim statement). an appellate court upheld a trial court’s resentencing of a defendant in circumstances in which the trial court had initially imposed an “incorrect” sentence under state law at a sentencing proceeding which the victim mistakenly did not attend. The appellate court concluded that the trial court had the authority to correct the initial incorrect sentence and that the additional information from the victim justified the increased sentence of incarceration imposed in the resentencing proceeding. The appellate court therefore ordered the defendant’s initial sentence reinstated.DOC Printed On: 3/22/99 8:08:00 PM Winter. Div. at 641. See. 1985) (finding no due process violation from a judge’s conversation with victims in which they described the impact of the crime on the record. Pfeiffer. See id.” albeit more severe.g. 213. but outside the presence of counsel). See People v. 494 N. 642-43. 590 N.Y. People v. In another case which did not rely on the state victim rights laws. 35-36 (N. at 644. At the initial sentencing hearing. 212. 1999] VICTIM PARTICIPATION 77 pact evidence regarding sentencing has generally been upheld. At the resulting hearing.W. See id. See id. did not give the victim the right to file an independent petition of review challenging the merits of a trial court’s grant of the defendant’s motion for postconviction relief following an evidentiary hearing at which the victim testified. The reviewing court concluded that there had been no violation of the state statute requiring the court to consider a victim impact statement before granting shock probation and that the trial court had otherwise not exceeded its authority in granting shock probation without a hearing.” did not have standing to seek mandamus to have a trial court’s order granting shock probation to the defendant set aside. But see Goldstein. The Supreme Court of Kentucky concluded that the victim’s widow. although having a “personal interest in the outcome. See id. at 940. Schroering v.”216 214. State v. See id. 906 S. the [constitutional and statutory provisions] give victims the right to participate and be notified of certain criminal proceedings. neither the [constitutional provision nor related legislation] gives victims a right to control the proceedings. the Victim here is not “aggrieved” within the legal meaning of the term because the judgment of the trial court does not operate to deny her some personal or property right. 216. the prosecutor and the victim filed independent petitions for review and stay of the action in the intermediate appellate court and stay requests in the trial court.214 Similarly.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 942 (Ariz. to plead defenses. the appellate court reiterated that the government and the defendant were the only parties in the case and that the government is the “sole entity which has a judicially recognizable interest in the prosecution of criminal cases.2d 349. 215.DOC Printed On: 3/22/99 8:08:00 PM 78 CRIMINAL AND CIVIL CONFINEMENT [Vol.215 Even the state’s provision of a victim right to seek an order or a “special action” to assert or challenge the denial of victim rights did “not give the victim standing to argue before an appellate court that the trial court’s ruling in a criminal proceeding was error or to bring the types of actions against the defendant that the State can bring.W.” Id. this statute does not include the right to participate as a party in a criminal action. See id. This is not the same as making victims “parties. 25:21 rights to be heard regarding sentencing give victims standing as “aggrieved parties” in the prosecution with rights to petition for relief from or review of courts’ sentencing decisions. 899 P. Lamberton. which included rights to be heard at sentencing and post-conviction relief proceedings.2d 939. the Supreme Court of Arizona held that the state’s constitutional and statutory victim rights provisions. Following the trial court’s grant of post-conviction relief. or to examine or cross-examine witnesses. at 557 (suggesting that victims be granted party status after conviction on issues regarding restitution and sentencing). See id. at 942.” Moreover. at 350. 1995) (en banc). While the legislature has granted victims certain rights. at 941. 350-51 (citations omitted). The Arizona Supreme Court concluded that the victim’s constitutional and statutory rights to be heard did not make victims “parties” to the action with standing to seek appellate review of post-conviction relief actions. On the standing issue. Here. McKinney. 1995). See id. The appellate court rejected the victim’s review petition on standing grounds. supra note 48. 350-51 (Ky. nor does it impose a substantial burden upon her. . the court agreed to “recall” the defendant’s original sentence and to delay resentencing pending his testimony in the other case. at 942-43. at 1065. at 941 (citation omitted). even in light of California’s constitutional and legislative victim rights provisions. The Constitution and statutes do accord individual felony victims certain “rights” of a more specific and personal nature. at 1067 (citations omitted). See id. at 1064 & n. 217. These include the “right” to restitution in appropriate circumstances. See id.” challenges based on [the recall provisions] do not implicate them.DOC Printed On: 3/22/99 8:08:00 PM Winter.2d 1063 (Cal. 1991) (in bank). We hold that petitioner has no personal “right” or “interest” which would 218 permit his intervention in the decision to recall [the offender’s] sentence. the victim had no standing to seek mandamus or prohibition to overturn a trial court’s order “recalling” its previously imposed sentencing order and continuing the matter for resentencing. at 1065-66. at 1064-65. however. had objected to the recall to the trial judge when he learned of it and subsequently filed an application for prohibition or mandamus in the intermediate appellate court to require the defendant’s return to prison to serve the remainder of his initial sentence. See Dix v. 1999] VICTIM PARTICIPATION 79 In concluding that. The California Supreme Court reversed this judgment. Superior Court. and to receive notice. at 942. To the contrary. See id. The defendant had initially been sentenced to the maximum term of imprisonment for his aggravated assault on the victim at a sentencing hearing of which the victim received no notice and thus was not present to express his views. Such abstract references do not suggest an intent to alter criminal practice fundamentally by giving individual victims standing to intervene in ongoing criminal cases. he had been incarcerated in the local jail for most of the time prior to the California Supreme Court’s review. appear. and at the request of the local prosecutor and authorities (but without notice to the victim). The reviewing court also rejected the victim’s assertion that the only meaningful way to maintain her constitutional right to be heard at sentencing was by filing her own petition for review. The California Supreme Court concluded .217 the Supreme Court of California stated the victim’s lack of standing even more strongly: [I]t is obvious that many recent legislative declarations about the “rights” of felony victims have been intended primarily as moral and philosophical abstractions supporting reform of the substantive criminal law. rights to both of which were provided by California law. Id. See id. See id. 218. Although he had not yet been resentenced. In connection with the defendant’s agreement to testify in the prosecution of another offender. The appellate court concluded that the trial court had erroneously granted the recall of sentence and that the victim had a “public interest” standing to seek to correct the error.2. the victim’s positions regarding such would be reflected in the trial court records reviewed in connection with the prosecutor’s petition for review and the victim’s views could be communicated to the prosecutor through the prescribed consultation and notification requirements regarding post-conviction and appellate proceedings. Id. See id. The victim. at 1068. See id. and state views in connection with disposition and sentencing. See id.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Whatever special considerations of standing may apply to this limited category of “victims’ rights. 807 P. 7 (noting that California citizen-taxpayers can also file independent actions (i. 220.2d 1296 (9th Cir. 1992). the appellate court concluded that none of the specific state victim rights provisions gave the victim a liberty or property interest enforceable under the Due Process Clause.”220 In addition. Although the appellate court noted that the state had “paid no heed” to the victim’s procedural rights of participation in the defendant’s punishment. County of Shasta. and social scientists as to the merits that the victim’s action was barred by the “general rule that neither a crime victim nor any other citizen has a legally enforceable interest.” Id. in the commencement. at 1068. Because the issue as to the validity of the recall action had been fully briefed. the reviewing court also ruled on the merits that the trial court had not exceeded its authority regarding the recall action. 25:21 This victim found no greater relief when the United States Court of Appeals for the Ninth Circuit upheld the dismissal of his federal civil rights action which claimed that various state entities and officials had violated his due process rights by failing to discharge their duties under the state constitutional victim rights provision.6. See id. tradition or precedent suggesting that the liberty component of the Due Process Clause encompasses such a right. or outcome of criminal proceedings against another. 221. at 1301. See id. such laws must have “substantive predicates” governing an official’s action and employ “explicitly mandatory language” requiring a certain outcome upon the satisfaction of the specified predicates. It has been adopted and implemented in the midst of a lively debate between legal commentators. See id. Id.219 The federal court found “unsupportable” the victim’s claim that states are “constitutionally required to give crime victims the right to become involved in the prosecution and sentencing of a criminal defendant. see also id. See id. the right remains quite extensive. at 1066.DOC Printed On: 3/22/99 8:08:00 PM 80 CRIMINAL AND CIVIL CONFINEMENT [Vol. at 1299. The appellate court noted that there was “no history. the appellate court found “frivolous” the victim’s claim that the state officials violated his First and Sixth Amendment rights by failing to notify him of the sentencing proceedings. Finally. . See id.” Id. See Dix v. at 106768 n. conduct. at 1074. at 1299. at 1068 n. policy advocates. at 1299-1301. Rather than the instant action the victim sought. Neither the victim’s right to notice and appearance at sentencing or to have the court consider the victim’s statements in imposing sentence or any other provision cited satisfied these requirements.. 219.e. not as part of criminal proceedings) raising general criminal justice issues such as general recall procedures). his grievance did not give rise to a federal cause of action. 963 F. Although the appellate court acknowledged that state law can create liberty interests which trigger federally enforceable rights. he would be able to be notified of and express his views at the defendant’s subsequent resentencing. See id. public or private. See id. The Supreme Court also rejected the intermediate appellate court’s recognition of a “public interest” standing which would allow this or any other victim or other citizen to intervene in a criminal prosecution.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.221 Despite these limiting interpretations of the scope of a victim’s right to be heard regarding sentencing. See id. at 1299-1301. at 1298-99. shift the focus away from legitimate sentencing factors and toward inappropriate considerations of victim retaliation and vengeance.224 estimates of the extent to which victims have taken full advantage of their rights to be heard at sentencing have varied considerably..225 Based on a survey of probation staff and prosecu222. 1999] VICTIM PARTICIPATION 81 of such a right. The Effects of Victim Impact Statements on Sentencing Decisions: A Test in an Urban Setting. Victim Participation in Sentencing Proceedings. HILLENBRAND & SMITH. At the outset. Rubel. it is possible that utilization or effectiveness . supra note 25. supra notes 195. Henderson. recognize the victim’s status as the injured party in the prosecution. disparate. 225. 60. 84. Kelly. 224. e. and other sentencing goals. at 73-78. most of the empirical research regarding utilization and effectiveness of victim opportunities for input regarding sentencing (and most victim rights of participation) was conducted during the 1980s. increase victim satisfaction and cooperation with the criminal justice system. See generally Robert C. Gittler. 204 (discussing benefits and disadvantages of victim input regarding sentencing).. 223. 453. e. the results have neither matched the highest expectations of its advocates nor realized the worst fears of its critics. 454-55 (1994). be administratively cumbersome and time consuming. 28 C RIM. Edna Erez. Kelly & Erez. Howard C. Although analysis of data has continued in the 1990s. or harsher sentencing. supra note 181. supra note 111.g. supra note 29. Davis & Barbara E. 3 INT’L R EV. 226. Opponents of the grant of a victim’s right to be heard regarding sentencing have argued that including the victim’s input in sentencing would reduce the objectivity of the process. assist the victim’s healing and regaining of control following the victimization.g. at 986-1006. L. at 175-76. Q. 11 JUST. at 236-37. have contended that such victim input would promote more informed. at 16.223 As the victim’s right to be heard at sentencing has been implemented over the last fifteen years. supra note 46. See. 18-21 (1994). at 50-52. Smith. erode the prosecutor’s function and control over the prosecution. and especially the sentencing process.. HERNON & FORST. VICTIMOLOGY 17. or further traumatize victims either by creating unmet expectations as to the effect of their input or by forcing them to participate in the sentencing process against their wishes. supra note 111. Victim Participation in Sentencing: And the Debate Goes On. 237-42 (1985). Kelly. supra note 17.. See.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS.222 Advocates of a victim’s right to be heard regarding sentencing. and promote the sentencing goals of rehabilitation by confronting the offender with the reality of the impact of his crime and of retribution by identifying the degree of harm done. accurate. and democratic sentencing decisions.. despite advocates’ and analysts’ portrayal of victims’ desire for greater participation in the criminal justice process.Q.DOC Printed On: 3/22/99 8:08:00 PM Winter. result in inequitable. at 72. As opportunities for the exercise of this victim right to be heard have become more institutionalized. however. and six percent exercised their oral allocution right at sentencing.228 Researchers conducting a local study found that fifty-five percent of the felony case victims submitted a victim impact statement.g. although 90% of the victims who believed that they had completed a victim impact statement had done so. See infra notes 226-54 and accompanying text. Sentence Outcome. supra note 143. Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases. supra note 143. supra note 91. supra note 141. cf.DOC Printed On: 3/22/99 8:08:00 PM 82 CRIMINAL AND CIVIL CONFINEMENT [Vol. supra note 181..229 This final figure is comparable to a state-based study concluding that oral or written allocution at sentencing was exercised in less than three percent of felony cases studied. only twenty-seven percent reported actually making a victim impact statement. supra note 141. at 164. involving more than 350 victims). Heinz & Kerstetter. at 164-65. supra note 141. approximately fifteen percent submitted authorized written statements independently of the victim impact statement included in the presentence report. other researchers found that while almost fifty percent of victims reported having been consulted about the sentences in their cases.227 In a survey of victims in five states. supra note 181. at 42 (describing three-site California study involving approximately 170 victims). at 357. See Erez & Tontodonato. See VILLMOARE & NETO . Davis & Barbara E. A related difficulty is victims’ misperception or misunderstanding of these rights. & CRIMINOLOGY 1126. . See VILLMOARE & NETO. at 242 (describing HILLENBRAND & SMITH study. eighteen percent were present during trial or sentencing. 50% of those who thought that they had not done a victim impact statement had in fact completed one.230 Hypothesizing the reasons for the less than anticipated exercise of these victim rights to be heard. on average.231 discouragement or the absence of has increased. 227. and nine to thirteen percent made oral allocution statements at sentencing. Difficulties with and lack of notification of participatory rights have often been mentioned as impediments to their exercise. at 455 (describing Ohio county study of 500 felony victims). 226. See Erez & Tontodonato. C RIM. Smith. 229.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. in over three-fourths of felony cases. Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise?. e. Anthony Walsh. supra note 190. See McLeod. however. at 400. L. In the Ohio county study. at 42. 77 J. See id. at 165. 228. See. McLeod. Robert C. See Hall. In the California study of victim allocution. only 44% of 171 interviewed victims indicated awareness of their right to appear at sentencing. Gegan & Rodriguez. at 244-47. Satisfaction with Justice. 1129-30 (1986) (finding that sentence recommendations were made by approximately 60% of over 400 sexual assault victims in their victim impact statements in study based in a metropolitan Ohio county). one researcher concluded that victim impact statements were prepared. 25:21 tors in thirty-three states. one researcher suggested as explanations: victim unawareness of the rights due to lack of notification.226 Only eighteen to twenty-six percent of victims. 231. were present at sentencing. 230. supra note 181. supra note 46. supra note 181. Initial concerns about the impact of this right on criminal justice system administration and efficiency have largely not been realized. supra note 141. fearful of retaliation. In a survey of 77 probation officials from 36 states. at 163-64. See generally Erez. 8-9 (1994) (finding only 56% of victims in study who had done a victim impact statement remembered doing so). J UST. and actual victim choice of nonparticipation. Problems mentioned by other respondents included difficulties in obtaining victim cooperation and personnel problems. 1999] VICTIM PARTICIPATION 83 active encouragement by criminal justice personnel of their exercise. 232. researchers found that few officials 22 J. at 240-41 (describing notification and related problems). sentence outcome. supra note 166. supra note 223. the introduction of the victim impact statement increased the workload of probation personnel who are generally responsible for its preparation as part of the presentence investigation report for the court. See VILLMOARE & NETO. at 43. at 26-28. and the remaining 17% sought various other objectives. 32% wanted to perform their “duty. 12% sought restitution. C RIM. or discouraged to appear. 234.233 One survey of states with victim impact laws found that the “fiscal impact and administrative burdens [from the implementation of the laws] were uniformly reported as minimal or nonexistent. See id. at 11. The varied estimates regarding the actual utilization of the different forms of the victim’s right to be heard at sentencing have been mirrored by the varied research results as to the impact of this right on criminal justice system administration and efficiency. The extent of this increased workload has been mitigated.” and 26% wanted to achieve a sense of justice or influence the sentence. at 42-43.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See McLeod.232 The explanation of victims’ failure to take full advantage of their right to be heard at sentencing most likely includes all of these factors. by the fact that some information regarding victim loss or impact from the crime was often incorporated in these reports prior to the victim rights requirements. See Hudson. 28% were either too upset. at 52. supra note 181. confused. Of course. 15% sought emotional relief. 233. As to the results they sought through allocution: 56% wanted a long or maximum sentence. Researchers also asked for the reasons for the exercise of their allocution rights by the three percent of the victims who had done so: 34% wanted to express their feelings to the judge. 1. and victim satisfaction—again confirming neither all of the expectations nor all of the concerns regarding this victim right. The researchers in the California allocution study asked victims who were aware of their rights but chose not to exercise them for their reasons: 37% were satisfied with the criminal justice system response (without their allocution). See id. . 30% thought that their appearance would make no difference.DOC Printed On: 3/22/99 8:08:00 PM Winter. HILLENBRAND & SMITH. and 5% said that the appearance would have been too costly due to lost wages or expenses required to arrange their appearance. 167. Kelly & Erez. however.”234 In another survey. See id. researchers found that almost half said that their victim impact statement responsibilities “posed no problems” to them. Kelly & Erez. 76% for non-parent relatives. at 455-56 (describing Ohio county study). See Erez & Tontodonato. See id. Sentence Outcome. The Reactions of Prosecutors and Judges to Victim Impact Statements. supra note 46.”236 Thus. Another area of interest has been the degree to which criminal justice personnel. Victim recommendations of incarceration for other offenders varied depending on their relationship to the victim (i.238 In another study. Both of these issues relate directly to the expectations and concerns as to whether sentencing outcomes would change as a result of victim input into the sentencing process. and especially whether victims would use this right to seek vengeance or retaliation against offenders. Heinz & Kerstetter. For example.e.DOC Printed On: 3/22/99 8:08:00 PM 84 CRIMINAL AND CIVIL CONFINEMENT [Vol. researchers in a state utilizing such found that its effects on criminal justice system workload were “minimal. 3 INT’L R EV. Research results have not conclusively confirmed either these expectations or concerns. however. and 23% for parents). Included in this area have been concerns regarding the types of information victims would convey. supra note 229. 25:21 believed that victim impact statements “created or exacerbated problems. supra note 141. One of the areas of greatest expectation and concern regarding this victim right has been its potential impact on sentencing outcome. at 360 (finding that time spent in experimental pretrial settlement conferences was minimal and that disposition time in experimental cases was faster than in control group cases). would listen to victims’ input regarding sentencing. at 1132. supra note 223.”235 Perhaps because relatively few victims have taken advantage of allocution rights at sentencing. Because only 55% of victims in the study had submitted a victim impact statement. the number requesting an incarceration sentence represented 33% of the total sample of victims. See VILLMOARE & NETO . 85 (1994) (describing HILLENBRAND & SMITH 36-state study. especially prosecutors and judges. at 1132-33 & tbl. See id. it appears. 1139 (describing Ohio county study). are quite mixed. . supra note 181. supra note 181). cf.. VICTIMOLOGY 83. See Walsh. See Madeline Henley et al.237 Researchers in another study reported that sixty percent of felony victims who submitted a victim impact statement requested a sentence of incarceration. 238. Research results in this area. 237. 236.. researchers found that 235. in a study of sexual assault victims. at least at this stage of documented utilization of victim rights to be heard at sentencing.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 83% for acquaintance offenders.2. at 22. supra note 143. See generally Erez. One of the most frequently voiced concerns regarding victim input in sentencing decisions has been the concern that victims would seek vengeance or retaliation or be extremely punitive in their sentencing input. there has been no significant impairment of criminal justice system administration and efficiency. at 237 (describing research regarding effects on criminal justice administration). at 57. researchers found that approximately ninety percent of victims assaulted by non-relatives recommended imprisonment sentences. Of course. But see HERNON & FORST supra note 111. 240. supra note 235. see also Davis & Smith. A second question related to the impact of victim input on sentence outcomes is whether judges and prosecutors “listen” to the victim input.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Heinz & Kerstetter. 242. Henley et al. HILLENBRAND & SMITH. at 359 (describing victims’ general willingness to support dispositional recommendations of the judge and attorneys in experimental settlement conferences rather than demanding the maximum authorized punishment). research confirms that victims are not uniformly punitive in their approach to sentencing issues. See Davis et al. BULL .. these researchers also concluded that victims were more willing to consider sentencing alternatives as more time elapsed from the occurrence of the crime. supra note 223. supra note 112. at 244-45 (describing research regarding whether victims are unduly punitive). at 52 (describing survey of criminal justice officials in states with victim impact statement requirements). their recommendations of incarceration sentences for their offenders should not necessarily be viewed as being “punitive.. See VILLMOARE & NETO . Thomas Gitchoff. for the use of victim impact statements. at 44 (describing three-site California study). 1999] VICTIM PARTICIPATION 85 almost half of the victims of felony crimes felt that the offender should be incarcerated. Survey research has fairly consistently indicated judicial support. cf. 226. supra note 181. See HILLENBRAND & SMITH. 243. supra note 181. at 10 (finding that .243 In a thirty-six state sur239. at 9-10 (describing survey of 74 judges and 84 prosecutors in 36 states). at 20-21 (indicating that only a slight majority of judges felt that victim impact statements would be useful in an eight-site study conducted before the widespread implementation of victim impact statements). supra note 166. supra note 141. 241. but that their recommendations regarding punishment vary in individual cases from requests for incarceration to other alternative forms of punishment. See Joel Henderson & G. at 493 n. protection. supra note 223. they frequently are willing to revise these recommendations to those involving less severe forms of restraint or alternative community sentences with restitution or treatment when presented with additional sentencing alternatives. Hall.g.. Compare.240 Finally. 17 C RIM. at 466.8 (describing Brooklyn study).DOC Printed On: 3/22/99 8:08:00 PM Winter. in principle. with the rest seeking restitution.” See generally Erez. still other researchers suggested that although victims generally express an initial desire for an incarceration sentence for an offender. L. In their qualitative study based on presentence interviews with victims for defense attorneys over a number of years. Hudson. or a lesser form of punishment. e. at 21.242 although there is less consensus as to the usefulness (as opposed to the symbolic value) of victim allocution at the sentencing proceeding itself. supra note 190. given the fact that individuals in these studies frequently have been the victims of felony and often violent felony crimes.239 Other researchers found that less than half of the studied victims sought incarceration sentences.241 Not surprisingly. supra note 181. 22930 (1981). Using Experts and Victims in the Sentencing Process. at 90 (describing general support by interviewed Bronx and Brooklyn judges for victim impact information). over eighty percent of responding judges indicated that victim impact statements had either “some” or a “substantial” impact on the type and length of sentences they generally imposed. supra note 143. most research as to specific sentence decision making since the President’s Task Force has continued to show that the nature of the charge and the defendant’s prior criminal record are the most consistently significant predictors of sentence most judges in national survey found all forms of victim input. 20. but a majority of the judges indicated that victim opinions or recommendations as to the sentence were not useful in the sentencing decision. “effective means of obtaining useful information”) with. at 469 (commenting on limited impact of oral allocution on sentence outcomes in study conducted). See HILLENBRAND & SMITH.247 Despite these general views regarding victim impact on sentencing outcomes. supra note 190.246 It thus appears that. including victim narratives and oral allocution.g.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. In a thirty-six state survey conducted after the adoption of victim impact statements and other means of victim input at sentencing.. 25:21 vey. Henley et al. Erez & Tontodonato. supra note 181). supra note 223. at 9 (describing 36-state survey). supra note 235. in principle. Assuming the receptiveness of judges and prosecutors to the use of victim impact information.DOC Printed On: 3/22/99 8:08:00 PM 86 CRIMINAL AND CIVIL CONFINEMENT [Vol. at 466 (describing interviews with Bronx prosecutors in which the majority did not think victim impact statements added substantially to their knowledge of the crime’s impact on the victim). e. judges and prosecutors believe that there is utility in victim impact information—although there may be differences of opinion as to the most effective means for victims to transmit this information to them. See id. See Hall.245 they sometimes view victim impact statements and other formal means of transmission of this information as less useful to them because they duplicate information prosecutors learn through their contact with the victim during the prosecution. 246. 247.. 245. at 87-89 (describing experiment in the Bronx and Brooklyn in which checks of prosecutors’ case files showed significant numbers of victim impact statements either unopened or not present and interviews with prosecutors indicated lack of not already known information in victim impact statements. Sentence Outcome. then the question remains as to its impact on sentencing outcomes. physical. Hudson. as well as problems in their preparation). at 52 (describing survey of criminal justice officials in states with victim impact statements). at 10.244 Although prosecutors generally have expressed their belief in the usefulness of victim impact information. at 246 (describing HILLENBRAND & SMITH study. . supra note 181. See Davis & Smith. supra note 166. supra note 181. VILLMOARE & NETO. at 37 (finding “[t]wo-thirds of the judges saw no need for the allocution [right]” and that the “presentence report provides all the [necessary] information”). 244. judges indicated that they found victim information regarding the financial. and psychological impact of crimes to be the victim information most useful to the sentencing decision. but not the presence of a victim impact statement or an overall victim harm measure. to incorporate additional victim information in their decision making or to convey it to the court. or no statements were taken. In an Ohio county study of 500 felony cases conducted in the late 1980s which compared cases in which victims had an impact statement. See HERNON & FORST. at 33. There were no significant differences between the experimental and control groups in incarceration sanctions. or made oral allocution to those in which victims did not. See id. 1999] VICTIM PARTICIPATION 87 outcome rather than additional factors of victim input and impact. at 495-96. They further found that the type and severity of the charge and the defendant’s prior convictions were significant influences on the decision to incarcerate. See id. nonsexual assault. Although there was some greater increase in orders of restitution (and warnings to stay away from victims) in the experimental group. physical. at 43. In a study of an early Brooklyn victim liaison program in the late 1970s which. There was no indication that victim impact statements increased the use of special conditions. however.2. 33-38. See Erez & Tontodonato. researchers presented 48 judges and 101 prosecutors with hypothetical scenarios in various types of cases to determine the impact of various variables on the estimated length of the resulting incarceration sentence. Court officials and program staff felt that the program had only a “slight effect” on case outcome.. See id. See id. supra note 111. II. 498. supra note 143. but found no such correlation regarding oral allocution. In a six-site study conducted at the approximate time of the President’s Task Force. statements were prepared but not disseminated. to the limited discretion that prosecutors sometimes had in disposition recommendations and their unwillingness. at 458-60. researchers found that information regarding outcomes desired by victims had a limited effect on case disposition when compared with dispositions in a control group. at 13 & tbl. These researchers concluded that defendant-related factors were more consistently significant predictors of the length of sentences of incarceration than additional factors of victim harm not already contemplated by the nature of the charge. See id.248 Ex248. Victim harm variables included the financial. supra note 223. See id. supra note 112. requested a sentence of incarceration. only the presence of a victim impact statement remained even mod- . solicited victim input regarding desired sentence outcomes. at 464. and psychological impact of the crime. at 464. See Davis et al.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. at 499-500. researchers found a correlation between victim impact statements and a request for incarceration with the likelihood of a sentence of incarceration (versus probation) and with the length of incarceration sentence given. at 498-99. See Davis & Smith. at 465. See id. most of its victims who experienced financial loss did not receive restitution. at 462-63. Researchers found that there were no statistically significant differences between the three groups in the types of sentences imposed. After charge and criminal history were taken into account. almost 300 felony robbery. In a multivariate analysis. overall victim harm and victim impact statements and individual measures of harm played little role in the sentencing decision. In a Bronx study conducted in the late 1980s.DOC Printed On: 3/22/99 8:08:00 PM Winter. See id. 504-05. in some instances. while offense severity and prior convictions remained significantly related to sentences of incarceration and their length. at 454-67. Sentence Outcome. See id. at 500-01. inter alia. at 500. See id. and burglary victims were assigned to one of three experimental groups in which victim impact statements were prepared and given to criminal justice officials. however. This was due in part. such as restitution. Walsh. at 1129-34 (finding. however. that victim recommendations regarding sentence did not have a significant impact on sentencing outcome independently of factors of crime seriousness and prior record). 466-68. See. VILLMOARE & NETO . . but 66% of prosecutors. supra note 112.. but 70% of prosecutors. Kelly & Erez. Davis & Smith. 25:21 planations given for the absence of greater impact of victim input on sentencing outcomes include the fact that victim impact has often already been reflected in the severity of the conviction offense. at 247. see also Walsh. thought it increased the amount of restitution ordered). Erez. cf . at 457. See id. at 463-65. supra note 223. cf . at 467-68 (raising concerns regarding the effectiveness of victim impact statements based on their research regarding its limited effect on sentence outcome). supra note 229. 250.. at 503-05. reached a more positive conclusion after reviewing the relevant literature: The conclusion that emerges from these combined findings is that judges use their discretion and judgment in considering victims’ input and requests. in Ohio study of approximately 400 sexual assault victims. in California study thought that a victim’s allocution sometimes or often increased sentence severity and 40% of judges.DOC Printed On: 3/22/99 8:08:00 PM 88 CRIMINAL AND CIVIL CONFINEMENT [Vol. at 56 (finding that 19% of judges. estly related to the incarceration (versus probation) decision.. 251.g. one researcher suggested that requiring victim impact statements and recommendations was a “mere genuflection to ritualistic legalism” which had only a “placebo value” by creating the “impression that ‘something is being done.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Once again. and the general resistance to change in established norms of criminal justice sentencing decision making. supra note 223. supra note 235. e.249 Given the limited effect that victim input has had on sentence outcome. supra note 190. And the [victim impact statement] by no means results in substituting the “subjective” approach of the victim for the “objective” one required by the law and practised [sic] by the court. at 1139. the [victim impact statement] may at times provide additional and relevant information that may in turn be used by the judge in meting out a sentence. nor is it 251 redundant or useless information. Although often the [victim impact statement] and the information it contains are reflected in the charge. Hall. one of the factors which is highly predictive of sentence outcome.’”250 Another researcher. Davis & Smith. 1141 (concluding that victim sentence recommendations have some symbolic and possibly some substantive value in cases in which judges are uncertain regarding a sentencing outcome). Henley et al. Davis et al. at 24. supra note 46. the increasing presence of guideline or determinate sentencing structures which restrict variances allowed for victim impact or other factors. 249. supra note 223. in terms of the effect of victim input on sentence outcomes. See generally Erez. supra note 229. supra note 181. at 238-39 (describing research regarding the effect of victim input on sentencing outcome). supra note 223. at 22-24. at 91-92. See HILLENBRAND & SMITH.. at 20 (describing survey of over 350 victims). there were no significant differences between the groups regarding their perceptions of the court process. at 498 & n. at 498 & n.DOC Printed On: 3/22/99 8:08:00 PM Winter. survey results have varied as to whether victims even believe that their input has affected sentence outcome. In a fivestate survey of victims. at 10. described supra note 248. See id. or the case outcome. at 44. at 11. VILLMOARE & NETO . described supra note 248.254 252.253 In specific studies. Erez & Tontodonato. 254. the provision of victim input has not been found to result in any significant increase in victims’ satisfaction with the specific sentence imposed or with the criminal justice system generally. See. They suggested additional research to determine the proportion and specific types of victims who want to participate in the process more fully and the means through which they want to do so. Finally. supra note 181. Researchers in the Ohio county study. supra note 190. In interviews following case disposition. supra note 143.g. Satisfaction with Justice. See id. their treatment by criminal justice officials. the experimental victim impact statement group gave the least positive responses.252 As to victims’ satisfaction with their right to be heard or increased satisfaction with the resultant sentence outcome. research results are inconclusive. at 7-8. at 44. See id. Davis et al. supra note 143. See Erez & Tontodonato. supra note 231. cf. See Davis & Smith. researchers found no significant differences in the experimental and control groups as to their perceptions of various aspects of the prosecution process during interviews taken after the experimental group had completed victim impact statements. They found no significant differences in victim satisfaction with the criminal justice system or the sentence based on the .R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. see also Davis et al.25 (describing Brooklyn victim liaison study). Hall. These researchers therefore noted that their results did not support the argument that victim impact statements are an effective means to increase victim satisfaction with the criminal justice system.. at 401 (describing Ohio county study). half were not satisfied with their opportunity to provide input in the sentencing decision. supra note 181. the impact of the victim’s right to be heard on victim satisfaction must be considered. In fact. supra note 181). VILLMOARE & NETO. at 397-98. 60 (finding mixed feelings of satisfaction and dissatisfaction among victims who exercised oral allocution rights and no significant differences in satisfaction between victims who exercised allocution rights and those who did not). e. at 11-12. at 8. but prior to the dispositions in their cases. Satisfaction with Justice. At the outset. at 247 (describing HILLENBRAND & SMITH five-state study. supra note 112.. 56 (describing California study regarding victim allocution). In the Bronx study. 253. however. supra note 112. See id. especially in light of the limited changes in sentence outcome. supra note 181.25 (finding no differences in victim satisfaction with case outcome in experimental victim liaison and control groups in Brooklyn study). at 8-10. See id. 1999] VICTIM PARTICIPATION 89 neither the highest expectations nor the worst fears have been realized. They hypothesized that part of the reason may be that many victims do not seek greater participation in the criminal justice process. did a companion study of victim satisfaction based on 125 completed surveys from the 500 felony case victims in the general study. R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 25:21 This review of the victim right to be heard at and regarding sentencing thus reveals that there has been virtually universal adoption by the federal system and the states of some means through which victims255 can provide input at sentencing. at 50-51. supra note 223. 255. at 410-13. . both the Bronx and Ohio county studies reflected that the majority of victims studied. See id. 63 (indicating harsher offender treatment as the most frequently mentioned victim suggestion for improving relations between victims and the courts and the importance of case outcomes to victim satisfaction). not universal because not all victims are eligible for it under federal and state law. at 239-40 (describing research regarding victim satisfaction). They did find that victims’ perceptions of unfulfilled expectations from the filing of a victim impact statement resulted in significantly lower satisfaction in these areas. at 404. Satisfaction with Justice. of course. at 403.DOC Printed On: 3/22/99 8:08:00 PM 90 CRIMINAL AND CIVIL CONFINEMENT [Vol. the debate as to the nature and effectiveness of this victim right will likely continue. On a more encouraging note. but that they might have an indirect effect on the type of sentence imposed and thus on victims’ satisfaction. but have clearly defined the limits of the right. See supra notes 50-57 and accompanying text. Erez & Tontodonato. at 402. See generally Erez. 4. supra note 111. Parole Although the parole process has long been a largely “private” process filing of a victim impact statement. See id. supra note 46. Reviewing courts have been generally supportive of this right’s implementation. Although researchers have generally established its acceptable impact on criminal justice administration and efficiency. Because of the centrality of victim satisfaction with sentence outcomes to their overall satisfaction. The victim right to be heard regarding sentencing is. See Davis & Smith. at 24-26. at 45. at 401. supra note 231. Receipt of restitution also increased perceptions of system satisfaction. HERNON & FORST. were at least somewhat satisfied with the outcomes in their cases and the criminal justice system generally. supra note 29. See id. including those who provided victim input at sentencing and those who did not. these researchers suggested that victim satisfaction with the criminal justice system is an “elusive goal” and that even the most caring system treatment of victims will not prevent their dissatisfaction with the system if they perceive the sentence imposed has been too lenient. See id. See id. See Tontodonato & Erez. supra note 143. As a result. Policy analysts and advocates continue to debate its merits. at 407. Victim perception of sentence fairness and severity was correlated with satisfaction with the sentence and the criminal justice system. at 8-10. their research has not established that victims have taken full advantage of their right to be heard regarding sentencing or that this right has had an impact on sentence outcome or victim satisfaction. These researchers also concluded that completing a victim impact statement and oral allocution at sentencing did not directly affect victims’ distress levels soon after the crime or subsequently. Kelly & Erez. ANN. (1997). §§ 4350. I. 257. 11. Res.g.J.J.I. art. victim impact statements which have been prepared prior to sentencing are often transmitted by the court system to parole authorities.258 Provisions regarding this right 256. M ASS. e. adopted various forms of determinate sentencing. NVC. as most victim rights. CODE ANN. or both. IOWA C ODE ANN. 1997). Res. LAWS § 12-28-7 (1994) (providing that the failure to provide a victim the prescribed participatory rights regarding parole does not constitute basis for voiding an otherwise lawful parole determination). without required notice to the victim). 121-23 (1994). See Frances P.g. § 133A (Law. § 40-28-505 (1997) (allowing postponement of parole hearing or new hearing (based on submission of victim impact statement) if hearing scheduled or held. ARK. CONST. In addition. H.1-155 (Michie Supp. Oklahoma also authorizes a victim to request a reconsideration hearing if parole authorities fail to provide requested notice of the parole hearing (at which the victim is allowed to testify) and permits parole authorities to reconsider any previous action taken. ARIZ. The victim’s right to be heard regarding parole. 258. supra note 46. tit. orally. 127. ANN. CODE ANN. See id. e. GEN. By their nature. 1998). § 53. 1997). Coop.256 over forty states now grant eligible victims257 a right to be heard regarding parole decision making—in writing. See. R. NEB. See. 1997).g. See supra notes 50-57 and accompanying text. DEL. 105th Cong. Some states impose additional restrictions on crimes for which victims are eligible to be heard in the parole process. 1998).I. CODE ANN. 6. or abolished parole entirely. supra note 46. § 16-93-206 (Michie Supp. C ODE C RIM. at 121-22. (1997). 3 INT’L R EV. 1997). 9416 (1995). C ENT. is typically available to victims of designated crimes only and is sometimes available only upon victim request. See ARIZ. See S. however. LAWS ch. § 28. § 13-4436 (West Supp. . 1997). CODE ANN.10 (West 1994).1. e.R. ANN. 56. allows a victim to seek a reexamination proceeding regarding post-conviction release if there has been a failure to use “reasonable efforts” to provide the victim’s right to be heard and if the offender has not been discharged from his sentence. 1999] VICTIM PARTICIPATION 91 between criminal justice personnel and an offender. § 2.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Bernat et al. parole decisions generally involve felony offenders which. see also TENN. Arizona. Victim Impact Laws and the Parole Process in the United States: Balancing Victim and Inmate Rights and Interests. C ODE § 12.. STAT. the federal system and many states have instituted parole decision making guidelines or criteria. Most states do not specifically address the effect of a failure to provide a victim’s right to be heard regarding parole. 71. further narrows the categories of eligible victims. e.g. II. See generally NATIONAL NETWORK . See OKLA. respectively. The proposed federal victim rights constitutional amendment includes a victim right to be heard at public parole proceedings and non-public parole proceedings to the extent that this right is given to the offender.. P. TEX. tit. 105th Cong..2 (West Supp.1-34-02 (Supp.D. STAT . VA. in some instances. VICTIMOLOGY 121..03 (West Supp. REV. ANN. See. N. LAWS § 12-28-6 (1994). 1989 & Supp. § 332. In response to criticism of the indeterminate sentencing system and discretionary parole decision making. § 910A. See. GEN. 57. Approximately seventeen states with constitutional victim rights amendments include a specific or general right to be heard regarding parole. art. art. But see R.DOC Printed On: 3/22/99 8:08:00 PM Winter. C ONST. . 875 P. See supra notes 6474. Those arguing the relevance of victim input regarding parole note its use- . 1992).262 Bernat et al. 1991). at *1. 259. Getting Free: Victim Participation in Parole Board Decisions. 569 (D. 875 P. they were unable to exercise their rights to be heard. 1998 Tenn. Those policy advocates and analysts who have addressed this right have raised many of the same issues as have been raised regarding the victim right to be heard at sentencing. supra note 256. supra note 258. See generally Bernat et al. See Hance. at *3. LEXIS 315. Board of Pardons and Paroles.DOC Printed On: 3/22/99 8:08:00 PM 92 CRIMINAL AND CIVIL CONFINEMENT [Vol. and confidentiality and disclosure requirements). victims were able to obtain reconsideration hearings regarding post-conviction release decisions which had been made without the prescribed notice to them.261 Their arguments have balanced expectations of victim well-being and satisfaction and more informed parole decision making against concerns about system efficiency and interjection of inappropriate factors into parole decision making. Prisoners have generally been unsuccessful in challenging the formal addition of victim input into parole decision making. Md. and Alston v. Daniels. App. App. In State ex rel. 262. App. Hance v. 25:21 vary widely in terms of the nature and extent of authorized victim input or whether the nature of such input is specified at all. 1998). Ct. App. *7. 1998 Tenn. supra note 103 (discussing Mosley v. LEXIS 315 (Tenn. supra note 258 (describing details of format and content provisions. 99. J UST. Robinson. it has been the subject of limited judicial interpretation260 and empirical research. App. No. supra note 38 (describing provisions). supra note 256. LEXIS 315. See generally McLeod. procedural requirements (e.g.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Some of the policy arguments have had unique aspects when applied to a victim’s right to be heard regarding parole. at *3. May 6. 947 F. In the absence of such notice. and Daniels v. They also vary according to the procedural prerequisites for the exercise of the right and confidentiality and disclosure requirements concerning its use and content.2d 1338 (7th Cir. McLeod. victim request and maintenance of current address information). Supp. parole following subsequent hearing in which victim input received). (finding no due process violation from rescission of previously granted. 260. Ct.259 Despite the extensive adoption of this victim right to be heard regarding parole release decisions. App. 258 and accompanying text (describing cases and statutes). 875 P. 261. See Hance. Cf. at 43 (noting general judicial nonintervention in correctional administration). See supra note 223 and accompanying text. 1993). 4 C RIM. Traughber. See Daniels. Arizona and Tennessee are among the few states providing such a reconsideration hearing remedy. Klincar. but not yet implemented. 1998 Tenn. 01A01-9707-CH-00297. 791 F. Tobolowsky.2d at 831. Daniels. 12 (1989).. See supra note 223 and accompanying text..2d at 831. Maureen McLeod. 1998 Tenn.2d 824 (Ariz. which found no ex post facto violation from victim notification provisions regarding victim input in parole decisions because victim input had always been permissible and its more formal allowance did not change parole criteria). LEXIS 315. 62 n. at 68. See id. and in 336 cases in 1991. supra note 256. POL ’Y R EV . 15 J. Young. given individuals’ mobility and the possibility of change in address information after the conclusion of the prosecution. See William H.. at 41. at 69. Finally. See VILLMOARE & NETO. PROBATION 50.. in 350 such cases in 1989.DOC Printed On: 3/22/99 8:08:00 PM Winter. In the 1989 study year. 263. at 15.g. Ranish & David Shichor.g. Opponents contend that such information is irrelevant to the paramount question of whether the offender’s current behavior makes him an appropriate parole risk and is simply designed to intimidate parole board members into denying parole.. See. Some analysts have noted the increased challenges of victim notification of this right in the context of parole.. Victim Impact Testimony and Pennsylvania’s Parole Decision Making Process: A Pilot Study. researchers in one state found that victims offered oral or written testimony in only ten percent of initial parole consideration cases. supra note 256. See id. A Constitutional Amendment for Victims of Crime: The Victims’ Perspective. supra note 181. The Victim’s Role in the Penal Process: Recent Developments in California. In response to these conflicting positions. 77-79 (identifying additional issues concerning victim input regarding parole). Parsonage et al. J UST. Researchers conducting a Pennsylvania study found that in the initial five years after the requirement to allow victim testimony at parole hearings was adopted. 193 (1992).25 (1987). see also Marlene A. See. See id. As a result. some analysts have urged legislators to better clarify the content. REV . C ONTEMP. e. only offenders serving sentences of life imprisonment received such hearings. See id. at 134-35.g. See id. 54-55 (1985). May. supra note 258. e. 34 W AYNE L. some commentators have raised concerns about the greater tendency in parole proceedings than sentencing proceedings to allow victim input to be offered confidentially or outside the presence of the offender and the due process concerns presented. at 136-37. Gegan & Rodriguez. Researchers also conducted a study of the exercise of a California right of allocution at parole hearings in the initial year following its implementation. See id. most were serving sentences for murder without a significant likelihood of parole.. L. e. at 242-43. supra note 91. e. Although often victim impact statements prepared in the trial court are routinely transmitted to correctional authorities. 187. purpose.g.. Bernat et al. and the contribution that information regarding the crime’s continuing impact may have on the assessment of an inmate’s readiness for parole or parole risk. Victims’ Rights and the Parole Hearing. states often give victims the responsibility to maintain current address information with parole authorities to preserve their right to provide parole input. 51. and consideration of victim input regarding parole to avoid its misuse. 3 C RIM.. Mark W. 71.. Due to the application of the state determinate sentencing laws. 1999] VICTIM PARTICIPATION 93 The expectations and concerns regarding this victim right have largely gone unrealized thus far because of the apparent failure of victims to take full advantage of their right to be heard regarding parole. Donald R.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. During the 1983 study period. 49 FED. Bernat et al. See. McLeod. these 350 cases represented approximately 10% of the initial parole consideration cases the parole board heard. victim testimony was offered in 71 initial parole consideration cases in 1987. See. 41-42. At that time. victims in less than two percent of parole eligible cases ex- .263 Had more victims exercised their rights to be fulness in providing the parole board information regarding the crime that may not be reflected in the inmate’s file. Comment. cf.. at 43. supra note 91. supra note 263. See id. Commentators have noted that some victims are unlikely to exercise their rights to address parole boards because they fear reprisal from the offenders or simply due to the time and distance usually required to attend parole hearings. cf.. 264. at 194. The difference in parole refusal rates persisted after researchers took into account the nature of the crime.266 In further analypressed an interest in their allocution rights. at 69 (describing conditions under which victims appear at parole hearings). supra note 181. 25:21 heard. Most interviewees agreed that personal appearances by victims have a greater effect than written statements. . See generally Parsonage et al.. See id. Seventy-three percent strongly objected to the offender’s parole release. however. supra note 258. See id. In their victim testimony. A third of the victims indicated dissatisfaction with the criminal justice system’s handling of their cases. and psychological impact and their continuing fear of the offender.. Although the parole refusal rate in the control group was consistent with the state parole guidelines’ recommendations. the recommended refusal rate was only 10%). See Bernat et al. at 190. the refusal rate exceeded the policy guidelines’ recommendations by 33% in the victim testimony group (i. See id. at 54. financial. at 14. See id. In interviews with parole authorities in 34 states. the offender’s potential for recidivism. See McLeod. at 69 (finding California parole authorities generally supportive of victim allocution rights at parole). A national survey of parole authorities reflected that parole officials in almost every state considered the use of victim impact statements in parole decisions to be important. VILLMOARE & NETO.e. most interviewees indicated that victim statements were either given the same amount of weight as other factors or were given a “great deal” of weight.” that it was “somewhat important” in six states. at 193. See id. at 242. supra note 263. sometimes expressing anger at their exclusion from earlier stages of the case’s processing. See id. and other parole release variables.265 Parole was refused in forty-three percent of cases in which the victim presented oral or written testimony as opposed to seven percent of the control group cases.. at 200. 43. at 125. See Parsonage et al. One interviewee noted that parole denial rises from 40-50% in the absence of victim statements to 80% when statements are submitted. See id. significant proportions of victims described the crime’s continuing physical. supra note 181. See Gegan & Rodriguez. at 69. and that it was “important” in 19 states. supra note 256. supra note 262. the limited research which has been conducted suggests that their input could have had a significant effect on the parole decision outcome.264 These general comments are confirmed by a state study which compared the outcomes of initial parole consideration cases in which the victim testified with a control group of cases.DOC Printed On: 3/22/99 8:08:00 PM 94 CRIMINAL AND CIVIL CONFINEMENT [Vol. at 195-200. 265. Ranish & Shichor. These researchers compared 100 randomly selected Pennsylvania parole cases in which oral or written testimony had been offered with another 100 cases in which no such testimony was offered. 266.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. Parole authorities in 24 states indicated that victim input in their parole decisions was “very important. VILLMOARE & NETO. See id. the researchers urged the authorities to clarify the purposes for which victim input could be considered (e.268 Although the empirical research regarding the impact of victim input concerning parole is quite limited. See VILLMOARE & NETO. however. Remedies for Victim Rights Violations As reflected above. the federal system and all of the states have ratified or enacted constitutional or statutory provisions (or both) granting victims at least some rights of participation in the criminal justice process. at 70. See id.g. See id. more than half felt that the sentence was “too easy.267 In addition to impact on parole outcome demonstrated by the above-described study. the federal system and over forty states have also expressly limited the potential 267. See id. at 195-98. they found that the presence of victim testimony was the most significant variable associated with parole refusal decisions. it indicates a much more significant potential impact from the exercise of this right to be heard than has been established regarding sentencing. researchers studying another group of victims who provided oral or written input to the parole board found that they were generally satisfied with their contacts with the criminal justice system. and the enforcement mechanisms for violations of victim rights are often quite limited. As the examination of these provisions and the judicial interpretations of them has reflected. . and the fact that the victim suffered physical injury. Although their reported satisfaction with the criminal justice system might result from the simple fact of the offenders’ conviction and significant sentence.” See id. even more significant than the inmate’s unfavorable institutional performance. within the victim testimony group.. See id. supra note 181. See id.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1999] VICTIM PARTICIPATION 95 sis. at 70. 268. Because of the significant effect that victim testimony had on these parole decisions. at 200-02. Researchers interviewed 41 people who had provided or were in the process of providing oral or written input in parole hearings considering California offenders serving life imprisonment sentences. at 69. the number of prior convictions. at 198-99. to help assess parole risk and recidivism or to “enhance” the offender’s sentence due to the crime’s continuing impact on the victim or the victim’s opposition to parole) and to incorporate them objectively into the parole guideline structure and provide safeguards to assure the reliability of the information conveyed. Following the exercise of their allocution right. some victims expressed a sense of emotional release or satisfaction at fulfilling a perceived duty to the decedent (in murder cases). See id.DOC Printed On: 3/22/99 8:08:00 PM Winter. E. Although the federal system and all of the states have granted some type of victim participatory rights in the criminal justice process. the victim rights which have been created are not limitless. Not surprisingly. especially when they risk conflict with pre-existing offender rights. a victim’s expressed opposition to parole was significantly related to parole refusal. Most were providing input to try to keep the offender in prison by emphasizing the nature and impact of the crime. art. § 46:1844 (West Pamp. CODE C RIM. 120/9 (West Supp. 134 (regarding presence at proceedings). 105th Cong. ANN. Res. § 801D-5 (Michie 1994) (specifying no liability in any civil action). See. 6. 271. e. (1997). TENN. 105th Cong. C ONST. e. (1997). STAT. § 28 (authorizing no dismissal of criminal charge or relief from criminal judgment). 105th Cong. 105th Cong.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See S. ANN.g. IDAHO C ONST. See. some reviewing courts have characterized victim rights as merely permissive or directory and therefore not judicially enforceable. H. STAT. § 40-38-108 (1997) (providing no cause of action or claim for damages). CONS. amend. TEX .11 (West Supp.. see also H. HAW.272 In addition. 190 (regarding sentencing).J.A. Approximately 20 states have such provisions..C. 272. and Wisconsin). LA. A few states are silent in their constitutional and statutory provisions regarding the presence or absence of remedies for victim rights violations (e.. Thompson. I. (1997). art. art. 105th Cong. Res. CODE ANN. 1998) (prohibiting invalidation of sentence and providing no right of appeal). CONST. I. 42 U. New Jersey. See supra notes 99 (regarding notice). CONST. (1997).. § 54-223 (1997) (providing no grounds to vacate conviction or void sentence or parole determination). CODE A NN. I. 725 ILL.R.R. Arkansas. 6. STAT. (1997). § 1175 (West Supp..g. See. CONST. UTAH C ONST. including approximately 14 states which have included this limitation in their constitutional victim rights provisions. 71. S TAT. e. ALA. 1998) (providing no standing to victim to contest disposition of any charge). § 8-A. The limitations of remedies described in these provisions generally pertain to violations of any of the prescribed victim rights—not only victim participatory rights. 202 Cal. 11. 1998). § 180-9. 1322. 56. Res. 1997) (specifying no liability in a civil action). art. Res. tit. e. (providing no grounds to challenge a charging decision or conviction. The federal system and almost forty states have such provisions. art. OR .271 In the absence of mandatory rights or clear constitutional or statutory enforcement or sanction provisions.R. ANN. See. XV. KAN. 25:21 remedies for violations of these rights. (1997) (providing no cause of action or defense in proposed implementing legislation). CONST. STAT . GEN.g. STAT.DOC Printed On: 3/22/99 8:08:00 PM 96 CRIMINAL AND CIVIL CONFINEMENT [Vol.g. § 15.g. 17-A. or compel a new trial). I.J. obtain a stay of trial. 169 (regarding plea negotiations). 1998) (providing no cause of action or defense). 105th Cong. P.C. H. H. Rptr. Superior Court ex rel. 270. I. 1322. M E.R.J. See S. § 9402 (1995) (providing specifically no defendant right to challenge proceedings or outcome based on victim rights violations). Several states also limit remedies for violations of specific victim participatory rights. N. REV. § 10606 (West 1995) (providing no cause of action or defense). Cf. § 42 (specifying no new civil liabilities created). or for relief from any criminal judgment). REV. C OMP . A similar limitation is included in the proposed federal constitutional victim rights amendment.S.03 (West Supp. ANN. § 22 (providing no authorization for a court to dismiss a case or set aside a finding of guilt or plea acceptance.J. 585. the highest 269. including approximately 13 states which have included this limitation in their constitutional victim rights provisions. People v. art. art. Such constitutional or statutory provisions expressly prohibit either any cause of action arising from rights violations269 or any challenge to or alteration of the results in the criminal proceeding270 or both.. .. 71 P A. The proposed federal constitutional victim rights amendment expressly excludes claims for damages arising from rights violations. § 37. tit. VA. e. ANN. R EV. C ONN. 557 (providing no cause of action). 71.g. ANN. DEL. grants a victim standing to seek an order or to bring a “special action” requiring that the victim be provided a prescribed right or to challenge an order denying such a right. ANN. 1999] VICTIM PARTICIPATION 97 appellate courts in at least four states have held that state constitutional or statutory victim rights provisions do not alter the general principle that citizens (including victims) do not have party status to challenge prosecutors’ charging decisions or the outcomes of the criminal cases of others. in addition to limiting certain victim remedies. Ct. at § 13-4436. art. I. But cf. supra notes 155-64. App. Lamberton. supra notes 93-110. however. e.2d 640. parole). Gansz v.. Dix v. 1984). State v. that the failure to use “reasonable efforts” to provide a prescribed right is not a cause to seek to set aside a conviction or sentence. at § 13-4437. 5.2d 1063. 874 P. Williams. Holt. See id.W. App. 1186 (Kan. C ONST. 257-58 (Colo. Pfeiffer. 1298-1301 (9th Cir. ANN. A few states also have express constitutional or statutory provisions reflecting that their victim rights provisions do not confer “party” status on a victim.. 274. 1987) (finding notice provisions regarding restitution mandatory and allowing challenge by victim to restitution ruling entered without victim notice). ALA. 807 P.273 Thus. See Linda R.2d 939. § 13-4437 (West Supp. 1994). 899 P.2d 256. 614. v.W. supra notes 219-21 and accompanying text (describing case).g. People. cf . Rptr. 888 P. 523 N. CODE § 15-23-66 (1995) (providing that victim rights do not give the victim authority to direct the prosecution). 410 U.DOC Printed On: 3/22/99 8:08:00 PM Winter. 6-7 (Cal. cf.S. MISS. 1995).g. App. Superior Court. the state with the most extensive remedies provisions. Still. 213 and accompanying text (describing cases). tit. have provided other remedies or sanctions for violations of prescribed victim rights. State v. Arizona. 906 S. the federal system and most states have taken express action to limit or eliminate victim remedies for any failure to provide such rights. 619 (1973). See.. Ct. People v.g. 1994). 1991) (in bank). but also provides that this authorization does not alter or abrogate existing immunity provisions. 899 P. CODE A NN. Schroering v.274 Over ten states have provisions which allow victims di586 (Cal. County of Shasta. See id. in the case of a post-conviction release decision (e. Some states. The interplay between these provisions is illustrated in Lamberton. 350-51 (Ky. Dix v. 642 (Mich. 963 F. For example. 237 Cal. See id. STAT. VT. ARIZ. 273. § 5319 (Supp. the state authorizes the victim to seek a reexamination hearing as a remedy for a related rights violation. § 99-36-5 (1994). 214-18 and accompanying text (describing cases). The state also provides. in which the Arizona Supreme Court held that the victim did not have standing to file an independent petition for review of the trial court’s post- . NEB. McKinney. e. Arizona also authorizes a victim to recover damages from a governmental entity for the “intentional. 1064 (Cal. however. § 28.2d 1296.2d 1183. STAT . 940-43 (Ariz.. v. These states authorize certain remedies for victim rights violations and limit other remedies. 1997). despite granting often extensive victim rights of participation in the criminal justice process. Richard D. Melissa J. 13. 1997). unless the offender has been discharged from his sentence.2d at 940. Superior Court ex rel .R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1995) (en banc). REV. 1992) (finding state victim rights provisions not enforceable through federal due process provisions).2d 349.S. knowing or grossly negligent” violation of prescribed victim rights. Ct. 1995) (en banc).. as well as his governmental employer.2d 291 (Md.. See also State ex rel. 1997) (providing review procedure for reports of noncompliance with victim rights provisions. Hance v. described infra notes 282-90 and accompanying text).D.275 In addition. CODE ANN. Cianos v. Ct. § 8 (authorizing a “person” to maintain action to compel public officers to carry out prescribed duties regarding victim rights). two states expressly authorize certain victims to pursue appellate review of orders denying specified victim rights276 or from actions seeking to enforce compliance with them.C. The reviewing court noted that the above-described “special action” provision would have allowed the victim to file such an action with the appellate court to assert her right to be heard if the trial court had refused to hear from the victim at the post-conviction relief hearing. C OLO.. provided that no appeal shall be grounds for delaying any criminal proceeding. with a right to appeal adverse rulings. however. in its discretion. art. Utah authorizes an action for injunctive relief against a government official who “willfully or wantonly” fails to perform prescribed duties regarding victim rights. I. supra notes 99. 277.g. See id. or through the state or local prosecuting authorities or courts. Board of Pardons and Paroles.277 A few states authorize reexamination conviction relief order. e. § 24 (providing rights may be subject to writ of mandamus to require compliance and punishable as contempt for willful failure to comply with writ). Utah also author- .19 (Anderson 1996) (providing that prosecutor shall seek compliance with rights provisions on behalf of victim). See id. supra notes 64-74 and accompanying text (discussing case). I.DOC Printed On: 3/22/99 8:08:00 PM 98 CRIMINAL AND CIVIL CONFINEMENT [Vol. C ODIFIED LAWS § 23A-28C-3 (Michie 1998) (authorizing victim to file a written allegation of rights violation with the court with jurisdiction over the criminal matter and court to determine. App. 25:21 rectly. § 24-4. I § 30 (giving victim standing to enforce rights and prosecutor the right to enforce victim rights). 1997). See. 875 P. CODE art.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. whether additional hearings or orders are required to ensure compliance with rights provisions). State. C ODE § 15-23-83 (1995) (authorizing state or local prosecutor to assert any victim right). Maryland gives a victim of violent crime the right to file an application for leave to appeal from an interlocutory or final order denying or failing to consider a victim’s right to be present at trial or certain rights to be heard (i. CONST. CONST. REV. see also ALA. ANN. at 942. C ONST. cf.e. did not authorize the victim to file an appellate action to challenge the outcome of the proceeding in which she had been granted the opportunity to be heard. 276. The state also authorizes the victim to bring an action for declaratory relief or for a writ of mandamus to define or enforce the victim’s rights. NEV. 169 (describing remedies for notice violations regarding court proceedings and plea consultation compliance provisions). to take action to enforce compliance with the victim rights provisions. OHIO R EV. 659 A. including ultimate report of unresolved noncompliance to the governor and referral by governor to attorney general to file suit to enforce compliance). TEX . See M D. S. supra note 216 and accompanying text (discussing case). 1993) (authorizing reexamination hearing remedy for victim who was not given notice of participatory rights regarding correctional proceedings). STAT .. 27 § 780 (Supp. 275. § 2930.1-303 (West Supp. S. 1995) (discussing interplay between remedies and limitations provisions. art.2d 824 (Ariz. The special action remedy. to address the court before the imposition of sentence or other disposition (if practicable) and to have the court consider the victim’s written impact statement in determining the appropriate sentence or disposition). art. 1999] VICTIM PARTICIPATION 99 or reconsideration proceedings as to parole or other post-conviction release proceedings in which there have been violations of a victim’s participatory rights. that the family’s acceding to the trial court’s request that they not address the izes a victim to petition to file an amicus brief in any court in any case affecting crime victims. State. 279. § 801D-5 (Michie 1994). 1997).DOC Printed On: 3/22/99 8:08:00 PM Winter. In this case. TENN. OKLA. Ct. ANN. or attorney’s fees based on rights violations. See id.279 Finally. however. See HAW. 1998).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. See UTAH C ODE ANN. denied a victim’s family members’ application for leave to appeal from a denial of their allocution rights at sentencing. 659 A. 281 In Cianos v.2d 291.278 One state permits potential disciplinary action for the failure to provide prescribed victim rights. § 40-28-505 (1997). at 292-93. dismissal of criminal charges. costs.284 On further appeal to the Court of Appeals. 284. 283. 281. See ARIZ. ANN. 293-94 (Md. 278. See id. see supra notes 64-74 and accompanying text (discussing case). STAT . As discussed previously. the trial court had considered the manslaughter victim’s family members’ written victim impact information. See ARIZ.285 The reviewing court assumed. at 292. appellate relief from judgments. 282 however. § 332. See id. R EV. 875 P. Board of Pardons and Paroles. arguendo. STAT . due to time constraints on the court’s docket and the judge’s expressed belief that the oral comments could provide no additional information beyond the written materials he had already considered. App. STAT. tit. 280. -12 (Supp.283 After the sentencing. 1997). . § 13-4437 (West Supp. vacations of convictions or guilty pleas. The state precludes. a victim was able to obtain the authorized reexamination hearing regarding the postconviction release proceeding as to which she was not notified of her participatory rights in State ex rel. however.280 Even the existence of a remedial provision. ANN. §§ 77-38.2 (West Supp.11. the state’s “supreme” court. Hance v. REV. 57. such application filed under the procedure prescribed by state law for victims of violent crimes. the victim’s family asserted that the trial court had abused its discretion in denying their right to oral allocution and sought a vacation of the offender’s sentence and a remand for resentencing. one state authorizes victims to recover damages from governmental entities for “intentional. REV. the Court of Appeals of Maryland. subject to governmental immunity limitations. 282. STAT . CODE ANN. or causes of action for monetary damages. knowing or grossly negligent” violations of prescribed rights. but had asked that they not exercise their requested oral allocution rights. 1993). does not always guarantee the desired outcome. 285. § 13-4436 (West Supp. 1997). ANN. the family members filed the instant application for leave to appeal which the intermediate appellate court denied as moot. 1995).2d 824 (Ariz. 1994) (finding court could correct unexecuted incorrect sentence previously imposed and increase it based on additional information offered by the victim). at 293-94.287 The appellate rights provided under Maryland law for violations of the right to be heard did not include the right to challenge the final judgment of conviction and sentence of an offender. the family members could not appeal the only judgment in the case. the reviewing court affirmed the judgment denying the family’s application for leave to appeal.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 1995)). an outcome which the reviewing court found unlikely. 659 A. see also People v. 1256-57 (Md. 490 A. at 293.290 Thus. 25:21 court constituted a waiver of their oral allocution rights. 290. 288. See id.291 In the area of victim rights of presence at testimonial 286. Such is the circumstance confronting the reviewing court in the family’s instant appeal from the trial court’s order of final judgment of conviction and sentence.2d 640 (Mich. the Court of Appeals noted that the legislature had intentionally deleted proposed provisions which would have allowed victims to invalidate sentences when their allocution rights had been violated. supra note 213 and accompanying text (discussing cases). Ct.5. App. See id. Pfeiffer.”’289 Although the Court of Appeals encouraged trial judges to provide the full rights of victim input authorized by statute.2d 12 (Ohio Ct. such as the rights to notice and to presence . an attempted appeal prior to final judgment (which the family members did not pursue) would not have stayed the trial court proceedings. See id. any appeal by the victim would be collateral to the criminal case and could not result in a reversal of the judgment and a reopening of the case. Bruce.288 In reviewing the legislative history of the victim rights provisions. But see also State v. from which only a party could appeal. See id.2d at 293.E. Because victims are not parties to criminal proceedings under Maryland law. at 294 (quoting Lodowski v. Some victim participatory rights. 287. 659 A. See Cianos. 291. even the provision of a remedy for a rights violation does not ensure that the desired outcome can be achieved through it. See id. recognizing that the ‘“statute would have no teeth after such a deletion but it would provide the personal input toward which the statute is aimed. App. agreed with the lower appellate court and concluded that the family’s appeal was moot because a decision on the merits would be without practical effect on the sentence. State. at 293-94. See id. unless all parties agreed to the stay. 523 N.286 The reviewing court. Moreover. at 293 & n. 1994) (finding victim rights provisions did not provide basis to invalidate otherwise lawfully imposed sentence).W. See id. Although the statutory provision authorized the victim to seek leave to appeal from an interlocutory or final order denying certain participatory rights. at 293. however.2d at 294-95. See Cianos.DOC Printed On: 3/22/99 8:08:00 PM 100 CRIMINAL AND CIVIL CONFINEMENT [Vol.2d 1228. 289. 642 N. An issue related to this discussion of victim rights and remedies is the balance that legislatures and courts have sought to achieve when victim rights and remedies pose potential conflicts with existing defendant rights and remedies. for example. 1205 (Ariz. The appellate court also concluded that the state due process rights were congruent . See supra notes 116-39. Ct. See id. have been one of the primary reasons for the often express disallowance of rights or remedies which would allow victims to seek to overturn defendants’ pleas. App. 836 P. although it now seems well-established that victim input regarding sentencing is constitutionally permissible. the appellate court noted that “[d]ue process of law is the primary and indispensable foundation of individual freedom in our legal system. the appellate court in Romley addressed the conflict between the victim’s state constitutional rights and the defendant’s state constitutional right to due process. in finding the prosecutor’s references to a homicide victim’s rights improper.DOC Printed On: 3/22/99 8:08:00 PM Winter.293 Thus. however. In reaching its holding on this issue. not the jury. 293. See supra notes 193-211 and accompanying text (discussing victims’ right to be heard regarding sentencing). 292. Romley v. the state with arguably the most extensive victim rights provisions. See id.2d 1228. conflict with a defendant’s right to a fair trial.”294 at non-testimonial proceedings do not generally present conflicts with defendant rights. 1046 (1994) (citations omitted). In resolving the discovery request issue. was responsible for balancing conflicting rights between the victim and the defendant. Bible. at 448-50.2d 445 (Ariz. at 1205-06. 1256-57 (Md. trial courts have retained their ability to limit or exclude it if it poses undue prejudice to the defendant’s due process rights. in principle. then due process is the superior right. The appellate court therefore held that “when the defendant’s constitutional right to due process conflicts with the Victim’s Bill of Rights in a direct manner. See Cianos. such as the facts of this case present. It is equally clear. Although the court found error. or sentences. 1999] VICTIM PARTICIPATION 101 proceedings. the federal system and most states have made this victim right conditional to allow a trial court the discretion to exclude a victim from the courtroom in circumstances in which the victim’s presence poses undue prejudice to the defendant’s rights of confrontation and to a fair trial. State. at 449. however. the Arizona Supreme Court cited a previous state appellate court ruling in which a defendant’s request for a crime victim’s medical records was being resisted pursuant to a state constitutional victim rights provision giving a victim the right to refuse discovery requests from the defendant.292 In addition. at 1206 (citing State ex rel.” Id. have certain rights.2d at 294 (citing Lodowski v. State v. In balancing these constitutional rights. convictions. and their families. Concerns about defendants’ double jeopardy rights. 144-45 and accompanying text (discussing victims’ rights of presence at criminal justice proceedings). denied. 858 P. but no fundamental error. and cannot. See id.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. 294. 490 A. that these rights do not. 511 U. Superior Court. 659 A. 1985)). “It cannot be doubted that victims of crime. cert. 1992)). 1993). in the prosecutor’s improper remarks suggesting that the jury should consider the victim’s rights as well as the defendant’s rights. the Supreme Court of Arizona.” Id.S.2d 1152. it cautioned that the court. 135 (discussing cases addressing defendants’ claims of error regarding prejudice from victim notification provisions and victims’ presence at identification suppression motion hearings). noted. But see supra notes 103. . But see. and hearing regarding the criminal justice process.209 (West Supp.g. supra note 145. when the state constitutional rights of victims and defendants conflict.DOC Printed On: 3/22/99 8:08:00 PM 102 CRIMINAL AND CIVIL CONFINEMENT [Vol. See. 71. it ruled that the records should be disclosed to the extent necessary to assist in the presentation of the defendant’s defense and to effectively cross-examine the victim. 182-83 (analyzing earlier version of proposed federal constitutional victim rights amendment and suggesting compromise between conflicting constitutional rights of the defendant and any such rights granted to the victim). In this connection. See id. (1997). They contend. Mosteller. 105th Cong... supra note 4.J. presence. certainly does not provide the unrestricted victim rights and remedies sought by some. Dolliver. 25:21 In light of the rapid expansion of victim rights of participation in the criminal justice process in the fifteen years since the President’s Task Force. however. although broader than many of the state constitutional provisions (see Tobolowsky. therefore. it is restricted to only certain eligible victims. that a federal constitutional victim rights amendment is required to achieve a “balance” between the rights of victims and defendants. James M.295 with federal constitutional due process rights and that federal due process rights prevail over conflicting state constitutional rights. See. Victims of Crime/Victims of Justice.. Moreover. legislatures and courts have attempted to strike an appropriate balance between the prescribed rights of the victim and the defendant. supra note 38). 6. Their efforts to do so will no doubt be ongoing. See S. (1997) (providing sanctions of disciplinary proceedings and contempt for violations in proposed implementing legislation). although the currently proposed federal constitutional victim rights amendment includes the major participatory rights to notice.” Finally. STAT . obtain a new trial. 105th Cong. supra note 262. it also contains many of the limitations of the state provisions. and gives victims standing to assert the granted rights and Congress and the states power to enforce them. Some advocates of the proposed federal constitutional victim rights amendment have argued that the statutory victim rights provisions in the federal system and every state and even the constitutional provisions in now 29 states are inadequate to secure victim rights because they remain “subservient” to defendants’ federal constitutional rights. Res. § 595. But see M O. at 1691. ANN. obtain a stay of trial. 1998) (providing that the prescribed victim rights “are paramount to the defendant’s rights”). 1322. 29 (1987). (1997). See id. Young. See Lamborn. courts continue to seek a balance between them and can be expected to do so as between defendants’ federal constitutional rights and any federal constitutional victim rights. at 445. 295. at 6468. Thus. as seen at the state level.R.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. H. supra note 38 (discussing proposed federal constitutional victim rights amendment).g. or seek damages against a governmental entity or official. 87 (1987). e. 34 W AYNE L. REV. e. see also H. at 125. The notice rights are limited to “reasonable efforts.. 34 W AYNE L. Although the court remanded the matter for further proceedings.R. Res. 105th Cong.J. Ken Eikenberry. as currently proposed. id. At the outset. this victim rights amendment. See generally Symposium. REV. Victims’ Rights Constitutional Amendment: A Bad Idea Whose Time Should Not Come. it expressly does not authorize a victim to challenge a charging decision or conviction.g. e. Those seeking a return to a private prosecution system or even a limited grant of party status for crime victims are clearly currently in the minority. See Kelly & Erez.298 In our well-established public prosecution system. See supra notes 48. The incredibly rapid adoption of constitutional and legislative victim rights provisions over the last fifteen years ensures that victims will have a participatory role in the criminal justice process.297 the relevant inquiry is no longer whether victims should have participatory rights in the criminal justice process. 167-71. and hearing in the criminal justice process in the years since the President’s Task Force has reflected. The existing participatory rights provisions have clearly been drafted to provide crime victims the means to have access to and provide input into the criminal justice process—not to control it. Few states have even provided significant remedies or sanctions for violations of victim participatory rights. presence.299 After fifteen years of experience with the implementation of these rights. 297. most of the Task Force recommendations regarding victim participatory rights have been implemented to a significant degree.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. but more likely leaving them “ignorant of their rights”). 1999] VICTIM PARTICIPATION IV. as was the Task Force recommendation.. supra notes 269-95 and accompanying text (describing remedies for violations of victim participatory rights).DOC Printed On: 3/22/99 8:08:00 PM Winter.296 Unlike the situation existing prior to the Task Force work. See supra notes 58-63. 257-59 and accompanying text (discussing provisions regarding victim rights to notice. legislators. however. victim allocution at sentencing). and hearing in the criminal justice process). 166 and accompanying text. drafters of the participatory rights provisions should now assess the scope of the rights granted and modify or 296. See supra notes 39-44 and accompanying text (describing Task Force recommendations regarding participatory rights). 77-92. and prosecutors to shatter” and thus leaving victims dependent on sympathetic criminal justice staff to help them implement their rights. 151-53. at 242 (noting that “[c]reating rights with remedies would cause the fragile alliance of victims’ advocates. Similarly. . leaving their implementation largely dependent on the good faith of the criminal justice personnel entrusted with this responsibility. presence. 298. See supra note 45 and accompanying text (describing the status of victim participatory rights prior to the President’s Task Force). some of the Task Force recommendations were limited to victims of violent crimes only (e. most jurisdictions have made their victim rights of presence at testimonial proceedings conditional. 124-34. 299. The relevant current focus therefore must be to ensure that these victim participatory rights are appropriate and meaningful in the context of the varied individual and societal interests involved in criminal prosecutions.g. Although most jurisdictions have limited their victim participatory rights to victims of certain crimes only. 186-90. this appears to be the most likely role for victim participation. CONCLUSION 103 As this examination of the development of crime victim rights to notice. supra note 46. 302 Although this limited impact is perhaps comforting to those with concerns of a significant alteration of the criminal justice “status 300. often the scope of the notification rights provisions is vague. But see supra notes 263-68 and accompanying text (describing the significant effect of victim impact information on parole refusal). 172-75. the experience of some jurisdictions may cause a reassessment regarding whether victim input to the court. jurisdictions can examine their victim rights of presence to determine if they are too broad or too restrictive. Based on jurisdictions’ experience with varying degrees of victim presence during testimonial proceedings. 193-221. 157-64. 223-54 and accompanying text (describing empirical research regarding victim rights to notice. the prosecuting authority.DOC Printed On: 3/22/99 8:08:00 PM 104 CRIMINAL AND CIVIL CONFINEMENT [Vol. A clear identification as to which criminal justice proceedings and outcomes victims are entitled to notice would assist those entrusted with notification rights implementation and establish reasonable expectations for victims. Existing empirical research has been generally inconclusive. including the defendant. jurisdictions may want to examine the definitions of victim eligibility for participatory rights in light of the experience of implementation and reassess their appropriateness. as well as to the prosecutor. although jeopardy issues likely preclude expansion of victim remedies for rights violations which would seek to alter the outcome of dispositions or sentences and jurisdictions are unlikely to voluntarily adopt civil liability remedies for rights violations.301 Moreover. 176-82. See supra notes 111-13. both of which have been largely unrealized. and society as a whole. on most measures of dispositional outcomes and victim satisfaction. 25:21 clarify the provisions as necessary to achieve their intended purposes. presence. 140-43. 301. For example. 260. as well as the judges and parole authorities receiving this input. 93-110. 28190 and accompanying text (describing cases which have interpreted victim participatory rights).R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. in light of fifteen years of experience with their own participatory rights and those of jurisdictions across the country. regarding plea negotiations is desirable. some jurisdictions may want to reassess the scope of their provisions. if any at all. Similarly. Some victim rights provisions need refinement and clarification.300 Trial and reviewing courts have and will continue to be responsible for ensuring the fairness of individual criminal proceedings for all of those with an interest in them. these victim participatory rights have been adopted against a backdrop of great expectations and concerns about their impact on the criminal justice process. See supra notes 64-74. confirming only a modest impact as a result of victims’ exercise of participatory rights. In addition. 302. Finally. 165. a clearer definition of the nature and scope of victim input regarding sentencing and parole in many jurisdictions would give greater guidance to victims. . 135-39. the victim. The presence of so many interests axiomatically requires their judicious balancing to achieve the universally sought goal of justice in criminal proceedings. Similarly. the experience of jurisdictions which have other types of remedies for rights violations could inform the remaining jurisdictions as to their usefulness. and hearing in the criminal justice process). For example. supra note 223. See Davis & Smith. it should give pause to participatory rights advocates who predicted a much more significant impact from the rights granted. Although these participatory rights are not broad enough for some advocates and are too extensive for some of their harshest critics. 303.303 Thus. As indicated previously. additional empirical research should be conducted to establish the impact that these rights are currently having. whether their implementation has been sufficiently effective to achieve the desired goals. at 11-12 (suggesting needed research to determine what participatory rights victims truly seek. most empirical research regarding victim participatory rights was conducted in the 1980s. in the midst of the initial implementation of these rights. in the fifteen years since the issuance of the Final Report of the President’s Task Force on Victims of Crime. Now that many of these rights have been in existence for 1015 years and have become more institutionalized. following research study finding no significant increases in victim satisfaction based on completion of victim impact statements regarding sentencing). if any.DOC Printed On: 3/22/99 8:08:00 PM Winter. This reintroduction has been accomplished by extensive legislation in the federal system and every state and by constitutional amendment in over half of the states. . 1999] VICTIM PARTICIPATION 105 quo” from the introduction of victim input. The results of this empirical research should also be included in the legislative assessment as to whether the existing rights respond to actual victim desires for participation and if so.R:\INTERNET\WEBPAGES\JOURNAL\VOL25\TOBOLOWS. their effective implementation should provide crime victims a meaningful return to the process of administering justice in this country. the crime victim has been “reintroduced” in a participatory role in the criminal justice process—a process the crime victim once dominated.