ACLU Letter to the House Judiciary Committee Urging Consideration of Provisions in S. 2329, the Crime Victims Act

The Honorable F. James Sensenbrenner, Jr.
Chair, House of Representatives'
Committee on the Judiciary

The Honorable John Conyers, Jr.
Ranking Member, House of Representatives'
Committee on the Judiciary

S.2329 CRIME VICTIMS' RIGHTS ACT

Dear Mr. Sensenbrenner and Mr. Conyers:

On behalf of the American Civil Liberties Union (ACLU), we write to urge the House Judiciary Committee to give thoughtful consideration to S.2329, the Crime Victims Rights Act and improve the measure by adopting reasonable changes before the bill goes to a vote. This hastily drafted legislation comes to the House after an unsuccessful attempt in the Senate to enact a Victims Rights' Constitutional Amendment (VRA). We are concerned that the Crime Victims Rights Act would change some of the basic tenets of the federal criminal justice system by allowing victims to prejudice the early stages of the process when a person is presumed innocent, rushing people accused of crimes to judgment at the behest of victims and influencing victims' testimony by allowing them to hear other witnesses testimony during the course of the trial.

The VRA failed in the Senate because of the concerns voiced by a broad spectrum of interests ranging from domestic violence victims to prosecutors and judges. Victims and law enforcement alike were disturbed by how the proposed constitutional amendment would infringe upon a defendant's rights as well as a prosecutor's ability to successfully try cases and negotiate plea bargains. S.2329 was the result of a compromise agreed to by supporters and opponents of the VRA in an effort to avoid certain defeat on the Senate floor. Unfortunately, the bill was quickly drafted and passed without a hearing or mark-up and with limited debate in the one-day from introduction to passage. We do not oppose all of the legal "rights" that the legislation would afford, however, we do oppose those provisions where the legal "rights" of the victims could undermine the constitutional rights of the accused.

The Crime Victims' Rights Act Could Prejudice The Early Stages Of The Process By Admitting Unreliable And Irrelevant Evidence Into Proceedings.

The Crime Victims' Rights statute interjects crime victims into the early stages of the criminal justice process before a person is convicted without providing adequate safeguards. Traditionally, victims who are witnesses only testify during pre-trial hearings to the extent that their testimony is relevant. This legislation would give victims "[t]he right to be reasonably heard at any public proceeding involving release, plea, or sentencing." It is not clear from the bill whether a victim who speaks during a bail hearing would be under oath or subject to cross-examination. For example, problems could arise if a victim is a witness during a bail hearing and makes prejudicial statements, but the accused is not able to cross-examine the victim to verify the credibility and relevance of his statements. As a result these statements would be relied upon when a judge determines whether to detain a person for months or years prior to trial, while the accused is still presumed innocent. If the charges are dropped or the accused is later found to be innocent, he cannot regain those months or years spent in jail before the trial. While judges will determine when delays are unreasonable, this bill should make it clear that any legal ""right"" of a victim would not infringe on an accused person's right to prepare a defense in a case. To ensure fairness in proceedings and the accuracy and relevance of the statements made that influence decisions at those proceedings, the bill should require that a victim who is a witness be placed under oath and subject to cross- examination when heard in public proceedings.

Witness Testimony Would Be Unreliable If Victims Who Are Also Witnesses Have The ""Right"" To Sit Through A Trial.

If victims who are witnesses were able to attend the whole trial their testimony would be biased after hearing other witness testimony during the case. Generally, witnesses at a trial are excluded for the proceedings so that hearing the testimony of other witness will not influence their own testimony[1]. S. 2329 would give victims "[t]he right not to be excluded from any such public proceeding." The bill repeals language in current law that permits the court to exclude victims who are witnesses from public court proceedings if their testimony would be affected by attending the trial[2]. This concern would be addressed by adding language that creates an exception to the ""right"" to be present during trial, when the victim is a witness and his or her presence could bias or taint their testimony.

People Accused Of Crimes Could Be Rushed To Judgment If Victims Are Able To Assert a ""Right"" To Avoid Delays In The Criminal Justice Process.

S. 2329 would force prosecutors and defense attorneys to try cases before they are ready for trial. This may result in innocent people being convicted of crimes as well as people guilty of crimes being set free. Victims would be given "[t]he right to proceedings free from unreasonable delay" under the bill. If a victim asserts this right and the accused is not ready for trial, it could compromise the accused's Sixth Amendment right to adequate assistance of counsel. For instance, in complicated felonies with multiple charges, attorneys frequently seek necessary delays in order to be adequately prepared for trial. Prosecutors could also be required to proceed with a case before they have evidence to prove the charges. The provision should be amended to include language that will ensure this ""right"" is consistent with the rights of the accused to adequate assistance of counsel.

Victims May Have A ""Right"" To Counsel In Criminal Proceedings.

It is not clear whether the Crime Victims Rights Act creates a ""right"" to counsel for victims. The bill provides that when any material conflict of interest occurs between the prosecutor and the crime victim, ""the prosecutor shall advise the crime victim of the conflict and take reasonable steps to direct the crime victim to the appropriate legal referral, legal assistance, or legal aid agency."" This language does not clearly distinguish between advising a victim that they should seek advise of a lawyer and conferring an actual ""right"" to counsel. Legal aid and assistance agencies usually are funded by the federal or state governments to provide legal assistance to low-income clients who cannot afford to hire private attorneys. A prosecutor making a legal referral to a legal assistance or aid agency could be construed as giving the person a ""right"" to counsel. Indigent victims who could qualify for legal aid under appropriate circumstances could take a legal referral to mean a ""right"" to counsel. This could create an extraordinary burden on the government to fund legal representation for victims if this provision is not clarified. This provision of the bill should be amended to require the prosecutor to advise a victim that they should seek the advise of a lawyer. However, omit the reference to legal assistance and legal aid agencies to clarify that the government would not be obligated to provide or find counsel for victims.

Victims Would Re-Litigate Aspects Of A Criminal Case Under This Legislation.

Victims would have the right to re-open bail, plea agreements and sentencing hearings under section 3771(d)(3), which gives them the ability to seek writ of mandamus if victims believe a federal court has violated any of their rights. The bill specifies that the victim cannot compel the accused to undergo a new trial to remedy a violation of rights. However, the legislation fails to specify the same thing with respect to non-trial proceedings, it appears that the victim could compel re-examination of other important proceedings like plea agreements, bail proceedings and sentencing hearings with a writ of mandamus. Under this provision the appellate court is mandated to ""order such relief as may be necessary"" to protect the crime victim's rights. In most cases the only remedy that will rectify the denial of a victims rights is to re-open the proceeding that was affected by the denial. As a result, cases could drag on for years at a time while the victim re-litigates each stage of the process and neither the victim nor the accused will have any sense of closure in the case.

The ability to seek a writ of mandamus confers a third party status on the victims in federal criminal cases by granting them the right to interject themselves in the process whenever they think their ""rights"" had been denied. In addition to the writ of mandamus,

S. 2329 provides the government with the ability to assert, as an error in an appeal, the denial of a victim's ""rights"" under this bill. Unlike the writ of mandamus, the error provision provides victims with a means to address perceived violations of their ""rights"" without creating a three-party system and changing the criminal justice process as we know it. When victims claim their ""rights"" associated with bail, plea agreements or sentencing hearings have been violated they should seek redress during the appeal process and not by re-litigating those proceedings. In addition to protecting the finality of the trials against re-opening, as the bill already does, it should be amended to protect the re-opening of bail, plea and sentencing decisions.

Department Of Justice Employees Could Be Unfairly Disciplined Under A Vague Standard For Not Affording Victims Rights Under This Bill.

The legislation includes a very broad standard under which Department of Justice (DOJ) employees would be sanctioned for not complying with the bill. This provision provides disciplinary sanctions including suspension or termination of DOJ employees who "willfully" or "wantonly" fail to comply with the law. These are broad and vague terms that could be unfairly used to sanction DOJ employees. The bill specifies that the Attorney General will be the final arbiter of any complaint brought against the employee and the employee has no right to seek judicial review of the Attorney General's decision. DOJ employees should be able to seek judicial review of the Attorney General's decision to discipline or suspend them. We suggest consultation with DOJ regarding an appropriate standard and how this right would affect other federal civil service rights.

We look forward to working with you to improve the Crime Victims Act to ensure that long-standing concepts of criminal law and procedure are adhered to when victims participate in the criminal justice process.

Sincerely,

Laura W. Murphy
Director

Jesselyn McCurdy
Legislative Counsel

cc: House Judiciary Committee
House Majority Leader Tom DeLay
House Minority Leader Nancy Pelosi

ENDNOTES

[1] See U.S v. DeSantis, 134 F.3d 760 reh'g denied, (Mar. 3, 1998);

[2] Victims' Rights and Restitution Act o 1990 42 U.S.C. 10606.