Transcript
Victims’ Rights 101
Steven J. KellySANFORD HEISLER SHARP, LLP
Road Map
Understanding the basic context of Maryland
victims’ rights law
Finding sources of information about Maryland
victims’ rights law
Understanding Maryland victims’ rights
Understanding what victims can do to enforce
their rights
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Historically
Victim vs. Offender—Historically, victims ran the show.
Early history involves “private prosecutions” by victims for wrongs committed against them
Victims hired attorneys and paid constable
Had to be a white, Anglo-Saxon, protestant, landowning male
Advantages of Victim-Centered Prosecution
Victim has full control over case
Restorative and community-based
More flexibility for a judge to fit punishment to the crime
Comports with historical, cultural, and religious notions of fairness
Major Disadvantages
Only available to white, Anglo-Saxon, protestant,landowning males
Needed money to pay prosecutors and police
Prosecutor’s integrity questioned
Framers Throw Out Victim-Centered Prosecution
State becomes the party as offenses are against the “state” in system of “public prosecution” State is the legal “victim” Harm is to society, not to victim Victim is no longer a party—State vs. Defendant
Hence: Prosecutor is NOT the Victim’s Lawyer
The prosecutor works for the State, not the victim
Prosecutor’s duty is to the State and to the impartial administration of justice
Common clashes between the State and Victim:Plea Terms or Plea vs. Trial
Restitution
Victim Privacy
Views on Sentencing
Testimonial Accommodations for Victims
Victim’s Schedule
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Modern System of Assembly-Line Justice
Insiders (i.e., prosecutors, judges, and defense attorneys) share goal of moving cases Pleas, nolle prosequi, and dismissals are common tools Victims are seen as an impediment
Focus shifts away from victims, and victims’ rights become discretionary
Excluding Victims Leads to This:
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VS.
1970s Research Shows Harm to Society Based on Unmet Victim Needs
Safety
Support
Information
Access
Continuity
Voice
Justice
National Call for Rights and Services
In the 1980s, there is widespread, national consensus for more victim participation in criminal justice process
1982—President Regan convenes task force with law and
order conservatives and feminists who recognize
need for crime victims’ rights and calls for broad
reforms
The task force leads to the establishment VOCA,
which allocates federal fines and forfeitures to crime
victim compensation and to fund crime victim
services
Law Reform at the State Level Follows
34 states have amended their constitutions to provide for victims’ rights and Congress has enacted strong legal protections for victims
Basic rights are now afforded to victims in most states, including Maryland: Informed
Present
Heard
Restitution
Protection
Privacy & Confidentiality
Reforms are Limited Because They Lack “Teeth”
Ubi jus ibi remedium—no right without remedy: Rhode Island and Michigan pass laws in 1986 and 1987
30 additional states between 1988 and 1997
Maryland’s amendment passed in 1994
These amendments lack any mechanism for enforcement:
Victim cannot get a “do-over”
Victim cannot stay a trial or proceeding while their rights’ violation is considered
No penalty for violations of victims’ rights
Truck-sized loopholes
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What Should an Amendment Have?
Crime Victims’ Rights Act, 18 U.S.C.§3771 (CVRA) and model for Marcy’s law for all:
Be reasonably protected from the accused
Reasonable, accurate, and timely notice
Not be excluded
Be reasonably heard at any public proceeding
Confer with the attorney for the government
Full and timely restitution (if part of a PTA)
Proceedings free from unreasonable delay
Fairness, dignity, and privacy
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What Do We Have? Maryland’s Constitutional Amendment
Crime Victims’ Rights
Article 47. Crime Victims' Rights
(a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity
during all phases of the criminal justice process.
(b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall
have the right to be informed of the rights established in this Article and, upon request and if
practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these
rights are implemented and the terms "crime", "criminal justice proceeding", and "victim" are specified
by law.
(c) Nothing in this Article permits any civil cause of action for monetary damages for violation of any
of its provisions or authorizes a victim of crime to take any action to stay a criminal justice
proceeding.
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Key Points on Victims’ Rights under Maryland Law
It is opt-in—i.e., victims have the obligation to ask
for their rights
The “if practicable” wording makes it very
difficult to establish a rights violation
Victims’ appeal rights are very limited
Bottom Line: Victims must be very proactive in
asserting their rights
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What Legal Rights Do Maryland Victims Have and How Do Victims Enforce Them?
Where to Find Information About Victims’ Rights in Maryland
Maryland Criminal Procedure Article
Maryland Rules
Both available for free online
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Other Sources on Maryland Victims’ Rights Laws
• www.victimlaw.org
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Other Resources
National Crime Victim Law Institute (www.ncvli.org)
Technical assistance and amicus support
National Center for Victims of Crime (www.ncvc.org)
Network of civil lawyers representing child-victims
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Now for the Law on Victims’ Rights
Starts with who is a victim?
Substantive rights:
To be informed or notified
To be present
To be heard
Privacy
Restitution
Remedies for violations of victims’ rights
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Victim Defined
Person who suffers actual or threatened physical,
emotional or financial harm as a direct result of a
crime or delinquent act. A victim’s representative
is a family member or legal guardian who
represents a victim who has died, is disabled or is
a child. CP Sect. 11-104(a), 11-103(d).
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Maryland Victims Have the Right to be Represented by an Independent Lawyer
Rule 1-326(a)
“[A]n attorney may enter an appearance on behalf of a victim or victim’s representative under Title 4 [criminal trial], Title 8 [appeals] or Title 11 [juvenile cases] of these rules.”
No right to “free lawyer” but—
No-cost and low-cost lawyers available through Turnaround, SALI, Maryland Crime Victim Resource Center, and Mid-Shore Council, among others.
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Right to be Informed
Victims’ right to notification is driven by a couple
of forms:
LE & Dist. Ct. Comm., or Juv. Intake officer required to notify victims of rights—Brochure 1. CP Sect. 11-914(9)(i), 11-104(b).
SAO in Circuit Court must send victim notification request form and Brochure 2 within 10 days of indictment or information. CP Sect. 11-914(9)(ii).
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Right to be Informed—Brochure 1
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Right to be Informed—Brochure 1
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Right to be Informed—Brochure 2
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Right to be Informed—Brochure 2
Right to be Informed—Victim Notification Request Form
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Right to be Informed—Effect of Filing Notification Form
Filing the notification request form in juvenile or
circuit court triggers SAO’s obligation to notify
victims (in advance “if practicable”) of:
Changes in a defendant’s status
Any court decision or proceeding that could impact victim
Plea no right to confer (CP Sect. 11-104(f))
Appeals
CP Sect. 11-104, 11-503, 11-505
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Right to be Informed—District Court Victims
No mandatory notice requirement for
District Court Victims
Victims should file a Demand for Rights Form
to a district court
Victims should register for VINE
Use Maryland Judiciary Case Search!
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Demand for Rights Form
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Right to be Present
Two problems leading to victim exclusion in the past:
First, victims did not know about key events
Second, victims were excluded under sequestration rules because defense attorneys put them on the witness list
Now: Victims cannot be excluded from trial or other proceedings
after testifying unless the judge, after receiving clear and
convincing evidence, determines that testimony by the victim
would be materially altered if the victim heard other testimony at
that hearing or proceeding. MD Rule 5-615; CP Sect. 11-302(c) & (d).
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Right to be Present—Key Points
Victims and representatives must comport with
court rules of decorum and not identify
themselves or cause “undue prejudice” to
defendant.
Victims cannot be fired from job for attending
trial or other proceeding. CP Sect. 11-102.
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Right to be Heard
If a presentence investigation is ordered, it must
contain a victim impact statement—CP 11-402(a).
In every other case, the victim can submit an oral
and/or written statement. CP 11-402(b).
The court shall consider the impact statement in
deciding sentence. CP 11-402(d).
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Right to be Heard—Content of Victim Impact Statement
Sentencing is post-conviction, so a victim’s right
is much stronger
Section 11-402(e) suggests that the impact
statement contain:
Identity of victim, itemization of financial losses, physical injuries, emotional injuries, including impact on relationships, any request for counseling, any other information on the impact of the crime
In all but death penalty cases, the victim CAN give a sentencing recommendation
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Right to be Heard
Victim impact and restitution are post-trial rights No more “presumed innocent”
Sentencing is ALL ABOUT EMOTION
Victim impact statements Therapeutic vs. persuasive
Raging or preaching is not helpful
Use of video, photography, or a concrete example is helpful
Guide available at www.ncvc.org
Restitution requests can be powerful way of showing
impact on victims
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Right to be Heard—Other Proceedings
Victims have the right to be heard at pretrial
release hearings as well as bail or sentence review
hearings. CP Sect. 5-201, 8-106(b)(2).
Victims also have the right to notice, presence,
and comment at parole hearings. CP Sect. 11-
505(b). and certain proceedings at Patuxent
Institution. CP Sect. 11-504.
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Right to Privacy/Protection
Right to privacy and protection are not in the
Maryland Constitution
Number of statutory and common law protections
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Right to Privacy/Protection—Shielding Identifying Information
Victims can shield their identity:
Police reports, Maryland Judiciary Case Search
In court documents (CP Sect. 11-205, 11-301)
https://mdcourts.gov/district/selfhelp/accesstojudicialrecords
Using Pseudonym, Redaction, Initials, and/or Sealing documents revealing
a victim’s identity and/or location
• Fed. R. Crim. P. 49.1 and Fed. R. App. P. 25(a)(5)
• 44 U.S.C. § 3501
• Watch out for supporting documents
• Failure to seek to protect identity may waive subsequent rights—Sandusky
Sealing courtroom-compelling interest standard
• 18 U.S.C. § 3509(e)
• 18 U.S.C. § 3771
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Right to Privacy/Protection—Resisting Defense Discovery
Victims can resist discovery by defense attorney, including subpoenas
and depositions
Victims may NOT be notified of subpoena
Common third-party discovery sources include: schools, cellular
providers, internet service providers, social media, therapists, and
medical providers
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Right to Privacy/Protection—Materials Exempt from Discovery
Common Law/Statutory Privileges
Attorney-Client; Psychotherapist-Patient (MRE 513); Advocate (MRE 514); Rape shield (MRE 412); Spousal; exclude statements made by child outside presence of parents
Federal Educational Rights and Privacy Act (FERPA)
20 U.S.C. § 1232g (FERPA)—no release without parent permission (but limited remedies)
The Health Insurance Portability and Accountability Act, 42 U.S.C. §
201 (HIPAA)—victims must receive notice and opportunity to object
45 C.F.R. § 164.512(e)—qualified protective order
VAWA, 42 U.S.C. §13925(b)—imposes obligations regarding privacy
on recipients of VAWA funds
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Right to Privacy/Protection—Other Grounds for Resisting Discovery
Subpoena rules generally require notice and
opportunity to object
Fed. R. Crim. P. 17(c)(3): Subpoena for “personal or confidential information about a victim may be served on a third party only by a court order”; the victim must have notice and the opportunity to object.
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Defendant has no constitutional right to pretrial
discovery Weatherford v. Bursey, 429 U.S. 545, 559 (1977)
Criminal discovery is limited—defendant must have good faith belief (not speculation) that exculpatory evidence will be revealed
Victim has constitutional right to privacy. Roe v. Wade (NCVLI publication).
Characterize the requests as what they are—harassment/intimidation—tons of support. FRCP 45.
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Right to Privacy/Protection—Other Grounds for Resisting Discovery
Right to Privacy/Protection—Testimonial Accommodations
Maryland permits testimony of child-victim by
closed-circuit television. CP Sect. 11-303.
Any victim can testify by closed-circuit television if they are genuinely afraid that facing the defendant will cause significant emotional distress
Judge must make following findings: (a) necessary to protect welfare of the child; (b) child witness would
suffer emotional distress; (c) emotional distress is more than de minimis
Judge may question child or child representative in a comfortable setting or chambers
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Federal law on testimonial accommodations
Maryland v. Craig, 497 U.S. 835 (1990)
18 U.S.C. §3509 (codifies Craig)
Split in authority over whether expert testimony is
required
Easy way around this is to submit an affidavit from treating therapist that tracks the language of the rule (emotional distress due to seeing D)
Also, state and federal authority for array of other
accommodations
Pet, sitting on supportive person’s lap, screens, etc.
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Right to Privacy/Protection—Testimonial Accommodations
Right to Privacy/Protection—Victims’ Safety Must Be Considered
Get the Court to impose strict “no contact” conditions on any releaseInclude broad language on indirect contact through social media,
Internet, texting, etc.
Renew these conditions at sentencingContact with the victim is a violation of probation/parole
Better if it is connected to suspended sentence
Ask the Court to impose other conditions to release that address safety such as visitation, custody, etc.
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Right to Restitution—What is Restitution?
A judgment imposed on offender at time of sentencing
that requires offender to compensate the victim for
losses directly resulting from the victimization.
Criminal Procedure Article § 11-601(g) Judgment of restitution—"Judgment of restitution" means a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order of probation.
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Right to Restitution—Who Can Ask for Restitution?
The State or the victim may ask for restitution under
11-603(b)MD Rule 1-326 allows a victim’s attorney to request restitution
Third-party payers, like insurance companies and
CICB, can also seek restitution
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Right to Restitution—What Losses are Covered?
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Actual medical, dental, hospital, counseling, funeral, or burial expenses;
Loss of earnings “Direct out-of-pocket” losses Rehabilitation expenses
Future losses may be allowed: Counseling/Medical Prospective lost wages
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Right to Restitution—What do Victims Have to Prove?
Victim is “presumed” to have the right to restitution if
she or he presents “competent evidence” of losses Much more relaxed standard than general rules of evidence in civil case
Written statement of loss is prima facie evidence at a restitution hearing under section 11-615 of the Criminal Procedure Article
Bills or statements of loss are legally sufficient for victims
Party challenging the authenticity or fairness and reasonableness of the loss has the burden
Tell victims to keep their receipts!
Right to Restitution—Victim Can Submit Affidavits But Not
Live Witnesses to Prove Losses
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COURT
_________________
*
______________________
*
Plaintiff,
*
v. Case No. ______________
*
______________________
______________________ *
Defendants. *
* * * * * * * * * * * *
AFFIDAVIT OF
1. My name is ___________. I am over 18 years of age, have personal knowledge
of the facts set forth herein, and am otherwise competent to testify.
2.
3.
I SOLEMNLY AFFIRM UNDER THE PENALTIES OF PERJURY AND UPON
PERSONAL KNOWLEDGE THAT THE CONTENTS OF THE FOREGOING PAPER ARE
TRUE.
__________________ ________________________________
Date
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Right to Restitution—How is Restitution Collected?
Method I: The System
Restitution becomes a condition of parole/probation and DPP has the responsibility to collect—DPP/DJJ victim services have helpful hints http://www1.dpscs.state.md.us/victimservs/vs dpp.shtml
DPP Agent or prosecutor can ask the court for an earnings withholding order—the same as child support (a very effective tool)
Offender (theoretically) can be in violation for failure to pay
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Right to Restitution—Collecting Restitution, Method II: The Victim
Restitution becomes a super judgment.
Gives victim to all the benefits of an ordinary civil judgment, but it is not dischargeable in bankruptcy.
Victims have priority over payment of restitution to any other person or government unit. CP 11-606(b).
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Right to Restitution—Recording and Indexing the Restitution Judgment
This is important because it converts the restitution judgment into a lien on any land in which the offender has an interest in the county where indexed. MD Rule 2-621.
Recording and indexing should be automatic in many jurisdictions, although the victim may need to file a (free) form to record and index the judgment in any jurisdiction where the offender might have property.
There are special ways of recording and indexing the judgment in Baltimore City and the other District Courts under 11-610(a)(3)—this is done by the clerk when there is a termination of probation with unpaid rest. Under 11-612.
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Right to Restitution—Enforcing the Judgment
Victims can enforce the judgment like any other creditorWage garnishments
The victim may be entitled to use the earnings withholding order
Levy on property (homes, cars, boats, bank accounts)
Forms available at: http://www.courts.state.md.us/district/dctcivforms.html
Guide is available at: http://www.courts.state.md.us/district/forms/civil/dccv060br.pdf
Credit reporting agencies are notified of judgment
The judgment is good for 12 years and can be renewed for free
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Right to Restitution—Post-Judgment Collection
The rules allow the victim to use discovery to determine the offender’s assetsOffender can be compelled to appear before a judge to answer questions
about assets, banks, etc. under Maryland Rule 2-633
These mechanisms allow victims to get the necessary information to garnish bank accounts and other property
Third parties to whom assets may have been fraudulently transferred may be compelled to do the same
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The Victim Can Ask for Restitution AND Bring a Civil Claim
A judgment of restitution does not prevent the victim from suing the offender or any third party.
The civil court will be required to reduce the civil judgment against the offender by the amount of restitution that has been paid. CP 11-603(c).
CICB, insurers, and other third-party payers can assert a lien against recovery to get monies paid on behalf of the victim back out of the proceeds of any settlement.
Restitution forces the offender to pay something while leaving open the victim’s option to pursue insurance or other claims.
What Happens If a Victim’s Right is Violated?
The first and most important thing to do is to PRESERVE THE ISSUE FOR APPEAL! Victims need to (1) demand their rights proactively; (2)
contact an attorney as soon as there is a HINT of a violation; and, (3) ask the court for relief.
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Court can only modify sentence if victim files a motion
or otherwise requests relief within 30 days of the rights’
violation. CP 11-103.
Any remedy can be provided that does not violate a
constitutional right of a defendant.
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What Happens If a Victim’s Right is Violated?
Appeal from trial court’s denial of a victim’s right is governed by CP Sect. 11-103 Limits appeal rights to victims of death or serious
bodily injury Does not include drunk driving or boating offenses
that are not punishable by imprisonment
Victims can appeal to COSA from final orders Need to file application for leave to appeal for
interlocutory ordersCP 11-103
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What Happens If a Victim’s Right is Violated?
Victims can also submit complaints for a violation of a
victim’s rights to GOCCP:
http://goccp.maryland.gov/victims/rights-resources/compliance-initiative/
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What Happens If a Victim’s Right is Violated?
Feel Free to Reach Out to Me with Questions
Steven J. Kelly, Chair of the Criminal/Sexual Violence Practice GroupSanford Heisler Sharp, LLP400 East Pratt Street, 8th Fl.Baltimore, MD 21202410.834.7416 (direct)skelly@sanfordheisler.com
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