In 1994, crime victims thought that they would finally be guaranteed fair treatment in Utah courts with the overwhelming approval of the Utah Victims' Rights Amendment. A decision last week from the Utah Court of Appeals makes clear that the fight for victim justice must still continue.
The court's decision in State vs. Felix is the first concerning the amendment. Defendant Felix raped a woman in front of numerous witnesses during an armed robbery. She asked to be present throughout his trial, as was her right under the amendment. The trial court agreed to her request. It overruled an objection from Felix's attorney, who claimed that somehow the federal Constitution required that the victim be kept out of the courtroom until after she testified.The prosecution presented an overwhelming case, while the defendant claimed that his heretofore unknown "twin brother" was the real perpetrator. The jury found Felix guilty.
On appeal, Felix renewed his claim that the U.S. Constitution allowed him to exclude the victim. Retire-judge Scott Daniels and I filed a "friend of the court" response on behalf of the victim, the Utah Council on Victims and several of the nation's largest crime victims' organizations.
Our brief explained that crime victims have compelling reasons for observing the entire trial, even when they will testify as a witness. We urged the Court of Appeals to unequivocally uphold the provisions of the Utah amendment giving victims the right to attend trials.
Last Friday, the Court of Appeals agreed that the victim properly attended the trial in the Felix case. At the same time, however, the court pointedly refused to hold clearly that victims always have such rights. Instead, the court suggested that if a victim attends the trial and testifies as a witness, the defendant can argue that his federal constitutional rights have been violated because the victim could conceivably "conform" her testimony to that of other witnesses.
The Utah Court of Appeals is composed of distinguished jurists with a well-deserved reputation for rendering thoughtful opinions. But the court's dictum concerning the possibility of a defendant challenging a victim's presence is plainly wrong and, if left uncorrected, will cause victims considerable hardship.
As a result of the court's admonition, crime victims will now have to decide whether to exercise their right to attend a trial at the expense of giving the defendant an issue to raise on appeal and to possibly even overturn his conviction. While the court's opinion suggested that successful challenges to a victim's presence would be unusual, it gave little guidance to courts and victims about when such circumstances would arise.
Crime victims should not have to ponder such dilemmas. The voters of Utah overwhelmingly gave them a state constitutional right to attend trials and other public proceedings.
Fortunately, crime victims can appeal to a higher authority. The victims' movement has asked Congress to pass an amendment to the Constitution protecting the rights of crime victims. The amendment would give victims a federal constitutional right "to be present" at trials and other court proceedings.
While it is difficult to gain the two-thirds vote in Congress needed to send an amendment to the states, supporters of the federal Victims Rights Amendment are likely to succeed. Both Bob Dole and President Clinton have endorsed the amendment. It is backed in Congress by a strong bipartisan coalition, including the chairs of both the Senate and House Judiciary Committees, Orrin Hatch and Henry Hyde.
In addition to protecting the right to be present, the proposed amendment also guarantees victims such rights as information about court proceedings and the right to speak at sentencing and bail hearings. It would also give victims the rights to full restitution from convicted defendants, to notice if a defendant escapes or is released and to a prompt conclusion of the case, free from unnecessary delay. All of these ideas have overwhelming public support. Along with Utah, 20 states have already passed amendments to their state constitutions that contain some form of protection for crime victims.
This Thursday, the House Judiciary Committee will hold hearings on the proposed amendment. Naysayers can be expected to argue that it is unnecessary "tinkering" with the Constitution. But the victims movement will certainly point to the recent Court of Appeals decision here as an example of the confusion and uncertainty that attend victims' rights in the absence of federal constitutional protection.