Two years ago, I wrote about training prosecutors, forensic experts, and investigative police in Mexico. I’ve been back a couple of times since, including last week. Each time I learn something that makes me reflect on the workings of our own justice system. On my most recent trip, I learned more about the role of the victim in Mexico, and it got me thinking about the role of the victim in our criminal courts. Continue reading
Tag Archives: victims
Comparing the Role Victims Play in Criminal Court: Mexico vs. North Carolina
Victim Impact Evidence at Sentencing
The recent sentencing hearings for U.S.A. Gymnastics doctor Larry Nassar showed the power of victim impact testimony. Victim after victim testified about Nassar’s abuse and the harm it has caused. Today’s post covers the appropriateness of that type of testimony in North Carolina. Continue reading →
Victim Rights in Juvenile Court
[Editor’s note: We’re excited to welcome our new colleague LaToya Powell to the blog. LaToya’s work at the School of Government focuses on juvenile justice, especially the law of juvenile delinquency. Because of the close relationship between juvenile law and criminal law, we hope she will write for the blog from time to time.]
Recently, I was asked by a prosecutor whether the Crime Victims’ Rights Act (CVRA) – Article 46 of Chapter 15A – applies to juvenile delinquency cases. The answer is: probably not, but flip the page to Article 45.
The CVRA provides victims of certain felonies and serious misdemeanors the right to participate in all critical stages of a criminal trial, including post-trial proceedings. It also requires court officials (i.e., prosecutors, probation officers, etc.) to make several post-trial notifications to victims, including the final disposition of the case, the terms of the defendant’s incarceration or probation period, and the date and location of any probation violation hearings. See G.S. 15A-835, -836, and -837. However, the CVRA defines a victim as “a person against whom . . . one of the [listed] crimes was committed.” G.S. 15A-830(a)(7). It also defines an accused as “a person who has been arrested and charged with committing a crime covered by this Article.” G.S. 15A-830(a)(1).
In NC, juveniles are not arrested, and they commit delinquent acts, not crimes. See G.S. 7B-2412 (“[a]n adjudication that a juvenile is delinquent . . . shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights.”). Due to this statutory distinction between delinquent acts and crimes, it is unlikely that the CVRA applies to juvenile delinquency proceedings. See In re D.L.H., 364 N.C. 214, 222 (2010) (cautioning lower courts against applying criminal procedure statutes to juvenile proceedings when the law does not explicitly require it).
It’s also instructive that the statutory definitions applicable to the CVRA do not specifically mention delinquent acts; whereas, its predecessor, Article 45 of Chapter 15A, explicitly includes them. Article 45, entitled “Fair Treatment for Certain Victims and Witnesses,” defines a crime as “a felony or serious misdemeanor . . . or any act committed by a juvenile that, if committed by a competent adult, would constitute a felony or serious misdemeanor.” G.S. 15A-824(1). This language clearly reflects the legislature’s awareness of the difference between crimes and delinquent acts by juveniles. Thus, the absence of such language in the CVRA, enacted several years later, suggests the legislature did not intend for the CVRA to apply to victims of juvenile delinquency.
Why does it matter? While Article 45 generally recognizes the rights of victims “to be present throughout the entire trial” and “during the final disposition of the case,” see G.S. 15A-825, it is much more limited in scope than the CVRA. There are no post-trial notification provisions, unless the defendant either escapes or is released from custody, see G.S. 15A-825(11)-(12), and compliance with Article 45 is not mandatory. Instead, court officials are simply directed to comply “[t]o the extent reasonably possible and subject to available resources[.]” Id. As a result, the CVRA provides more meaningful protections to victims that extend well beyond the offender’s conviction.
It’s unclear why Article 45 includes delinquent acts, and the CVRA does not. Yet, the CVRA’s exclusion of juveniles seems consistent with the Juvenile Code’s emphasis on confidentiality in juvenile proceedings. See G.S. 7B-3000, 7B-3001, and 7B-3100(b). Although juvenile delinquency hearings are open, see G.S. 7B-2402, the Code strictly prohibits the disclosure of information about juveniles to the public. Ignoring the inherent conflict of interest here, most victim notifications required by the CVRA would violate the confidentiality provisions of the Code. In fact, the Code authorizes victim notification in only one instance – notification of the juvenile’s release from a youth development center for an offense that would have been a Class A or B1 felony, if committed by an adult. See G.S. 7B-2513(j), and G.S. 7B-2514(d). However, these notifications rarely occur because only 2% of all delinquency complaints involve alleged A-E felonies, according to the most recent Annual Report of the Division of Juvenile Justice.
Prosecutors and other juvenile justice officials who are unsure about their obligations to victims should look to Article 45 for guidance rather than the CVRA. Its recognition of a victim’s right to participate in the process, while limiting access to information about offenders, is more consistent with the Juvenile Code.
Laws Named After Victims
Over at the Volokh Conspiracy, Ilya Somin has this post about Caylee’s Law. Briefly, legislation has been introduced in many states that would make it a crime to fail to report a child’s death within one hour, or a child’s disappearance within 24 hours. Some organizations are even calling for a federal law. This activity was sparked by the Casey Anthony case, in which the defendant failed to notify authorities of her daughter Caylee’s death or disappearance for a month.
Somin thinks that Caylee’s law is a bad idea, because it will sometimes be hard to know when the clock starts on a parent — for example, if an infant dies of SIDS during the night, and is discovered in the morning, has the hour already passed? Further, he suggests that the law may result in overcompliance, with parents reporting children missing almost immediately out of fear of being charged, even though most “missing” children quickly crop up.
More generally, he argues that what he describes as “knee-jerk” “overreaction[s]” like this are the result of a combination of a desire to right perceived wrongs and a lack of information about the frequency of the perceived wrongs and the costs of the proposed solutions. He suggests using something he calls “Ted Frank’s Law” as a heuristic: “My rule of thumb is a strong presumption that any law named after a victim is poor public policy enacted by legislators who confuse voting against a law with voting against an innocent person.”
Somin links to this article at Time, which likewise argues that Caylee’s law is ill-conceived, and which points to California’s three strikes law, passed after the murder of Polly Klass, and Megan’s law as historical examples of bad legislation enacted in quick response to highly publicized incidents.
I’m not sure that I agree with Somin generally, or specifically about the merits of Caylee’s Law. In any event, we at the School of Government try to remain neutral on policy issues. So I won’t comment further on the merits of Caylee’s law, but I thought that it would be interesting to look at recent laws named after victims in North Carolina. In the last three legislative sessions, I found three bills named after victims that were enacted. (I just looked at the short titles of the session laws listed on the General Assembly’s website, so I may have missed some. If you know of others, please post a comment.) Here they are:
- S.L. 2011-60, the Unborn Victims of Violence Act/Ethen’s Law, which according to this report was named “after the unborn son of Jenna Nielsen, who was eight months pregnant when she was stabbed to death outside a Raleigh convenience store in June 2007.” The law, codified at G.S. 14-23.1 et seq., creates the offense of murder of an unborn child and various lesser crimes.
- S.L. 2011-191, Laura’s Law, which according to this story was named “for Laura Fortenberry, a Gaston County teen who was killed by a drunk driver.” The law creates a new “aggravated level one” punishment for DWIs where three or more grossly aggravating factors apply and makes other changes to the DWI laws.
- S.L. 2010-16, Susie’s Law, which WRAL reports was named after “Susie . . . a . . . pit bull-shepherd mix[, who, as] a puppy . . . was beaten, set on fire and left to die,” but survived. The law increases the punishment for certain animal cruelty offenses.
Any thoughts about the merits of these initiatives specifically, or of laws named after victims generally?
Calling the Complainant a “Victim”
Defendants sometimes argue, usually in sexual assault cases, that the complaining witness should not be called a “victim” during court proceedings. The basis of the argument is that using that term assumes the very fact to be proved, namely, the the defendant committed a crime against the complainant.
Several courts around the country have accepted versions of this argument:
- State v. Devey, 138 P.3d 90 (Utah Ct. App. 2006) (“We agree with Devey that in cases such as this – where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony – the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” However, isolated reference to the “victim” by a single witness was harmless error.)
- Jackson v. State, 600 A.2d 21 (Del. 1991) (“The term ‘victim’ is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue. We agree with defendant that the word “victim” should not be used in a case where the commission of a crime is in dispute.” However, use of the term by the prosecutor did not rise to the level of plain error.)
- Talkington v. State, 682 S.W.2d 674 (Tex. Ct. App. 11 Dist. 1984) (conviction reversed because trial court referred to the complainant as the “victim” in a rape case where the defense was consent)
As the above cases suggest, the argument has the greatest force when the defense is that no crime took place, for example because the sexual activity was consensual, or because the complainant fabricated the allegations. It is less powerful when the defense is mistaken identity, for in such a case, there is no question that the complainant is a victim — the only issue is who is responsible for that.
Notwithstanding the above cases, the law in North Carolina appears to be that the complainant may be called a “victim” even in cases where the defendant claims that no crime took place. The court of appeals’ recent decision in State v. Jackson is instructive. The defendant in Jackson impregnated his fourteen-year-old niece and was charged with statutory rape. His defense was that she drugged him and had sex with him. (In other words, he claimed that no crime had taken place.) The prosecutor and some of the state’s witnesses referred to the niece as the “victim,” as did the trial judge while instructing the jury. After he was convicted, the defendant appealed.
The court of appeals found that the state’s use of the term “victim” was, if error at all, not prejudicial, and that the court’s use of “victim” while reading the pattern jury instruction was not an expression of opinion and so was not error. (The court cited State v. McCarroll, 336 N.C. 559 (1994), which rejected the argument that the trial judge committed plain error when he referred to the complainant as the “victim” in jury instructions, and found that the instructions overall placed the burden of proof on the state.)
Because the court’s ruling on the state’s use of the term “victim” was only that any error was not prejudicial, Jackson falls short of being a complete green light to the use of that term. But the case holds that the court’s use of the term “victim” was not error at all, and it seems to me that there is less reason to worry about the state’s use of the term than to worry about the court’s use of it. Unlike the court, the state is not supposed to be neutral between the parties. And in any event, the very act of prosecuting the defendant signals the state’s belief that the complainant is a victim. So I tend to think that after Jackson, both the state and the court may refer to the complainant in a sexual assault case as a “victim,” though always with the understanding that the burden of proof is with the state.
Madoff and Victims’ Rights
There’s lots of news these days about the Bernie Madoff case. Apparently, he’s going to plead guilty today, without a plea agreement, exposing himself to a virtually certain life sentence. I wonder why he’s doing that. An interesting article, available here, tries to figure out the angle, but comes up empty. Could he have suddenly developed a conscience? Does he just want to go on his own terms, and make one final splash?
Even more interesting to me is the attitude of some of his victims. Remember, he’s pleading guilty as charged, to all counts, with no deal, with no concessions, with no promises of any kind from the government. He’s likely to have his bail revoked, and he’ll die in prison. But some of his victims, and some members of the news media, seem to think that he’s getting off easy. For example, an attorney representing several victims said that his “clients are outraged by [Madoff’s] being able to escape with a guilty plea.” (News article here.) Logically, that’s nuts: a trial couldn’t come out any worse for Madoff than the plea he’s planning to enter, and it could come out better. But it seems like the victims want to be heard, want to play a vital role in Madoff’s demise, and they seem to think that he’s depriving them of that.
He isn’t, though. Under federal law, victims have “[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding,” 18 U.S.C. s. 3771(a)(4), as well as a number of other procedural rights. There’s some dispute about whether Madoff’s victims are entitled to be heard at the guilty plea proceeding — since he’s pleading guilty to all charges, they can hardly object to the terms of the plea — but they can, and surely will, be heard at sentencing. When I was defending federal criminal cases, “the victim wants to be heard at sentencing” was about the most ominous sentence I could hear, because the presence of a victim can move and motivate a judge in ways that even a capable prosecutor often cannot.
But this is a North Carolina blog, so let’s bring the discussion back to state law. Our statutes also guarantee certain rights to crime victims. See generally G.S. 15A-824 et seq. These rights include the right to be notified of court proceedings and the right, at sentencing, to “offer admissible evidence of the impact of the crime.” G.S. 15A-833(a). However, victims do not have the right to be heard at guilty plea hearings. Instead, they are entitled to consult with the prosecutor about the disposition of the defendant’s case, including disposition by plea agreement. See G.S. 15A-832(f). That’s not quite the same thing, and I wonder if victims’ rights groups would like victims to have the opportunity to address the court before the court decides whether to accept a plea agreement. Since Bernie Madoff’s victims want to be heard even when there is no plea agreement, I suspect I know the answer.