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Victim Participation in the Criminal Justice Process: Fifteen Years After the Presidents 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 victims 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 victims 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:

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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 Presidents 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 Systems Response, 68 JUDICATURE 221, 222-23 (1985). 6. See id. at 221-222. 7. See PRESIDENTS 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.

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sion of victim participation in the criminal justice process in the fifteen years since the Presidents Task Force on Victims of Crime. II. THE ROLE OF THE CRIME VICTIM P RIOR TO THE PRESIDENTS 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 victims 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 kings 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,

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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 victims role was thus substantially reduced in the criminal proceedings which evolved over time generally to involve the government and the offendernot the victimas 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 INTL. 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,

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In this country, a similar evolution from a private to a public prosecution system took place. In colonial America, 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.17 The victim was responsible for arresting his offendereither himself or with the aid of the local watchman, justice of the peace, or constable for whose assistance the victim paid. The victim was also responsible, at his own expense, for investigating the crime, filing the formal charges, and prosecuting the offender. In return for a successful prosecution, the victim could receive damages from offenders who could pay, or keep or sell an indigent offenders services for a period corresponding to the amount of damages owed.18 By the time of the American Revolution, however, significant changes had begun to occur in the administration of justice.19 Philosophically,
Hungary, Norway, Poland, Russia, Scotland, and Yugoslavia), victims can initiate and maintain a private criminal prosecution only for minor crimes in which there is no public interest in prosecution. See id. Austria, Norway, and Sweden also allow a victim a secondary right to prosecute if the public prosecutor declines to initiate a criminal prosecution. See id. In Austria, Germany, Norway, Poland, Sweden, and Yugoslavia, victims are allowed to function as subsidiary or supporting prosecutors by proposing or submitting evidence, commenting on submitted evidence, and being heard on the charges in court. See id. at 61. Although imprisonment, probation, and fines have become the most common sanctions in Europe, compensatory payments to the victim are authorized either as an independent sanction (e.g., in Greece, Ireland, Scotland, and Turkey) or as a condition of probation or a suspended sentence (e.g., in Austria, Denmark, Germany, France, Greece, Italy, the Netherlands, Norway, Poland, and Sweden). See id. at 61-62. Austria, France, Germany, and the Netherlands also allow a victim to pursue a civil claim against the offender in the same proceeding as the criminal trial. See Maguire & Shapland, supra at 219-20. Reflecting a general concern for the victims role, 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, without prejudice to the accused and consistent with the relevant national criminal justice system. Matti Joutsen, Listening to the Victim: The Victims Role in European Criminal Justice Systems, 34 W AYNE L. REV. 95, 119-20 & n.84 (1987). 17. See Cardenas, supra note 3, at 366-68; Deborah P. Kelly, Victims, 34 W AYNE L. REV. 69, 82-83 (1987); McDonald, supra note 3, at 651-54. 18. See Cardenas, supra note 3, at 366-68; McDonald, supra note 3, at 652-53. The victim was also responsible for the offenders pretrial and sometimes postconviction incarceration expenses. See Cardenas, supra note 3, at 367-68; McDonald, supra note 3, at 653. 19. See Cardenas, supra note 3, at 368, 371; McDonald, supra note 3, at 654.

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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.20 Practically, the changes were influenced by the increasing urbanization and diversification of American life which rendered the previous private prosecution system ineffective and sometimes corrupt.21 Consequently, professional government-operated police forces began to replace the previous system of volunteer or privately paid law enforcement officers, informers, and bounty hunters.22 Imprisonment and fines replaced capital and corporal punishments as the primary criminal sanctions.23 Restitutive damages to the victim were no longer actively pursued through the criminal justice process.24 Finally, a public prosecution system evolved in which a public prosecutornot the victiminitiated and conducted the criminal prosecution on behalf of the government.25 By the middle of the nineteenth century, these changes had substantially transformed the American criminal justice system from a private to a public system. 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.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. 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,27 a new theoretical approach which focused on the crime victim and became known as victimology

20. See Cardenas, supra note 3, at 369; McDonald, supra note 3, at 654-56. See generally C ESARE BECCARIA, E SSAY ON C RIMES AND PUNISHMENTS (1764) (describing the criminal justice philosophy of the most influential Enlightenment theorist in this regard). 21. See Cardenas, supra note 3, at 368-69; McDonald, supra note 3, at 653-54. 22. See McDonald, supra note 3, at 665-67. 23. See id. at 657. 24. See id. at 656-59. 25. See Cardenas, supra note 3, at 369-71; McDonald, supra note 3, at 660-61. Historians dispute whether the American system of public prosecutors and prosecutions evolved from the English Attorney-General or Justice of the Peace, the Dutch schout, or the French prosecutor de roi, or whether it was a purely American response to the needs of this emerging nation. See Cardenas, supra note 3, at 369-71; Josephine Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 PEPP. L. REV. 117, 125-32 (1984); Sidman, supra note 16, at 762-65. 26. See McDonald, supra note 3, at 654-68. 27. See Cardenas, supra note 3, at 369; McDonald, supra note 3, at 654-56; supra note 20 and accompanying text.

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emerged in the middle of the twentieth century.28 In addition to exploring theoretical bases for the study of victimology, researchers began to explore the psychological impact of victimization on victims, as well as the impact of their significant exclusion from the criminal justice process.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. These changes included the restoration of restitutive remedies and greater victim participation and input in the criminal justice process.30
28. 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. See STEPHEN SCHAFER, V ICTIMOLOGY: THE V ICTIM AND HIS C RIMINAL 33-41 (1977); W ILLIAM G. DOERNER & STEVEN P. LAB, V ICTIMOLOGY 4-7 (2d ed. 1998). See generally HANS VON HENTIG, THE C RIMINAL AND HIS V ICTIM: STUDIES IN THE SOCIOBIOLOGY OF C RIME (1948); Benjamin Mendelsohn, The Victimology, ETUDES INTERNATIONALES DE PSYCHO-S OCIOLOGIE C RIMINELLE, July 1956, at 23. Subsequent theorists expanded the study of victimology to encompass other aspects of crime victims and victimization generally. See DOERNER & LAB , supra at 12-14 (describing general victimology); R.I. M AWBY & S. W ALKLATE, CRITICAL VICTIMOLOGY 7-22 (1994) (describing positivist, radical, and critical victimology concepts); SCHAFER, supra at 41-97 (describing evolving theoretical approaches and early supporting empirical research). 29. See, e.g., Lynne N. Henderson, The Wrongs of Victims Rights, 37 STAN. L. R EV. 937, 953-66 (1985) (discussing feelings of fear, isolation, mortality, and loss of control as victims seek meaning to victimization); Robert F. Kidd & Ellen F. Chayet, Why Do Victims Fail to Report? The Psychology of Criminal Victimization, 40 J. SOC. ISSUES 39 (1984) (discussing the relationship of fear, helplessness, powerlessness, and threat of further victimization); Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminal Justice Proceedings for Victims: Potential Effects on Psychological Functioning, 34 W AYNE L. REV. 7, 9-20, 26 (1987) (describing trauma, anxiety, fear, loss of control, helplessness, vulnerability from victimization in terms of specific explanatory psychological theories). See generally Pamela Tontodonato & Edna Erez, Crime, Punishment, and Victim Distress, 3 INTL R EV. VICTIMOLOGY 33, 34-36 (1994) (providing overview of psychological research on victim responses to crime and the criminal justice process). 30. Researchers by no means reached unanimous conclusions as to the most appropriate responses of the criminal justice system to crime victim needs. See, e.g., Ezzat A. Fattah, Toward a Victim Policy Aimed at Healing, Not Suffering, in VICTIMS OF C RIME, supra note 16, at 257 (suggesting that a restorative justice system based on mediation, reconciliation, restitution, and compensation is more responsive to victim needs of healing, recovery, redress, and prevention of future victimization than increased input and participation in a punishment-based system); Gittler, supra note 25, 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, expanded victim input and participation in criminal prosecutions, and potential lim-

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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.31 Following the models of predecessor grass roots movements,32 a victims movement arose in the United States by the 1970s.33 During this decade, significant victim-centered
ited party status, as well as alternative arbitration and mediation approaches); Henderson, supra note 29, at 986-1012 (suggesting limited utility to the victim of participation in sentencing process other than to assist in determination of restitution); Deborah P. Kelly, Victims Perceptions of Criminal Justice, 11 PEPP. L. R EV. 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); Kilpatrick & Otto, supra note 29, 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). 31. See Carrington & Nicholson, supra note 4, at 1-5; Marlene A. Young, Victim Rights and Services: A Modern Saga, in VICTIMS OF C RIME, supra note 16, at 194, 195-96. 32. See Young, supra note 31, at 196. Although the victims movement was influenced by the civil rights model, it emerged more directly from the evolving womens movement. See id. Many of the early leaders in the victims movement were concerned about the criminal justice system treatment of the mostly female victims of sexual assault and domestic violence. See id. They attributed what they viewed as an inadequate system response to these crimes as symptomatic of womens lack of status and power. See id. 33. See Carrington & Nicholson, supra note 4, at 1-6. Individual victims and victim service and support providers and advocates had begun to network at the local level during this period. See id. at 2. There is no single moment or event marking the coalescing of these efforts into the victims movement. Some identify Californias enactment, in 1965, of the first state statute providing compensation for victims of violent crime, as the starting point of the movement. See id. Others trace the movements origins to the first national conference on victim assistance in 1973. See Young, supra note 31, at 197. Some identify the subsequent establishment, in 1975, of the National Organization for Victim Assistance, which was formed to promote victim advocacy and issues nationwide and provide training opportunities for victim service providers. See id. 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 id. at 195-97. The development of this victims movement has not been without its critics. Some have been concerned that the establishment of professional victim service providers would create dependency, distance victims from their own social networks, result in dissatisfaction and frustration from unmet expectations, create victim stereotypes, and delay the natural healing process from victimization. See, e.g., Robert Elias, Community Control, Criminal Justice and Victim Services, in FROM C RIME POLICY TO V ICTIM P OLICY: REORIENTING THE J USTICE SYSTEM , at 290

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achievements were accomplished, including the enactment of legislation in a majority of states to provide compensation for victims of violent crimes, the creation of victim service and assistance programs in many locations around the country, the establishment of several national organizations focusing on general or specific crime victim issues, and the performance of research on a variety of crime victim issues.34 Crime victim issues were truly raised to national prominence, however, when President Ronald Reagan established the Presidents Task Force on Victims of Crime in 1982.35 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.36 In December 1982, the Task Force issued a Final Report which included over sixty action recommendations addressed to the federal and state legislative and executive branches, criminal justice system agencies (i.e., the police, prosecutors, judiciary, and parole authorities), and other professionals
(Ezzat A. Fattah ed., 1986); Ezzat A. Fattah, From Crime Policy to Victim Policy: The Need for a Fundamental Policy Change, in VICTIMS OF C RIME AND THE VICTIMIZATION PROCESS , at 75, 80-83 (Marilyn McShane & Frank P. Williams III eds., 1997); Fattah, supra note 30, at 268-69. As the victims movement became more concerned with effecting changes in the criminal justice system to provide victims greater access and participation, 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, e.g., Fattah, supra note 30, at 262-70; Henderson, supra note 29, at 961-66, 986-1012; Christopher R. Goddu, Comment, Victims Rights or a Fair Trial Wronged?, 41 BUFF. L. REV. 245 (1993). Moreover, system changes sometimes espoused by those in or associated with the victims movement (e.g., denial of bail, abolition of the exclusionary rule, mandatory sentencing, and elimination of parole) have been criticized as a co-option of victim concerns by those with a crime control approach to criminal justice. See, e.g., Fattah, supra note 30, at 261-63; Henderson, supra note 29, at 942-53, 966-86. See generally R OBERT ELIAS, V ICTIMS S TILL: THE P OLITICAL M ANIPULATION OF C RIME VICTIMS (1993) (describing various forms of manipulation of victims); FRANK J. W EED, C ERTAINTY OF J USTICE: REFORM IN THE C RIME VICTIM M OVEMENT (1995) (examining the movements issues and organizations); Ezzat A. Fattah, Prologue: On Some Visible and Hidden Dangers of Victim Movements, in FROM C RIME POLICY TO V ICTIM P OLICY : R EORIENTING THE J USTICE S YSTEM , supra at 1 (discussing all of the above concerns). 34. See Young, supra note 31, at 195-97. 35. See PRESIDENTS TASK FORCE, supra note 7, at ii-iii; see Carrington & Nicholson, supra note 4, at 7; Young, supra note 31, at 198. President Reagans 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. See Carrington & Nicholson, supra note 4, at 7; Young, supra note 31, at 197. 36. See PRESIDENTS TASK FORCE, supra note 7, at ii-iii.

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involved in crime victim service delivery (i.e., health care personnel, clergy, lawyers, educators, mental health care providers, and relevant private sector personnel).37 Several of these action recommendations encouraged greater victim access to and participation in the criminal justice process.38 Such recommendations included those made to the police and prosecutors to inform victims of the status of investigations and prosecutions.39 They included recommendations to the federal and state legislatures to require victim impact statements at sentencing.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, pleas, sentencing and restitution.41 It also suggested that prosecutors inform these victims of opportunities to provide input to the court regarding sentencing.42 The Task Force recommended that judges allow the victim and a family member to attend trial, even if identified as witnesses, absent a compelling contrary need, and allow and give appropriate weight to input at sentencing from victims of violent crime.43 Finally, 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.44 At the time of the Task Force Final Report, few states required these means of victim access to and participation
37. See generally PRESIDENT S TASK FORCE, supra note 7. These recommendations ranged from proposed changes in criminal justice process and procedure (e.g., abolition of the exclusionary rule, establishment of preventive detention of suspects prior to trial, restrictions on judicial sentencing discretion, and abolition of parole) to encouraged expansion of victim services, compensation, and restitution. See id. Recommendations also suggested practices to make the criminal justice process and related victim service delivery system more victim friendly. See id. 38. See id. at 114. The Task Force also proposed that the Sixth Amendment to the United States Constitution be amended to add: Likewise, the victim, in every criminal prosecution shall have the right to be present and to be heard at all critical stages of judicial proceedings. Id. See generally Symposium, Perspectives on Proposals for a Constitutional Amendment Providing Victim Participation in the Criminal Justice System, 34 WAYNE L. REV. 1 (1987) (providing analysis of initial constitutional proposals); Peggy M. Tobolowsky, Constitutionalizing Crime Victim Rights, 33 C RIM. L. BULL. 395 (1997) (analyzing recent proposals). 39. See PRESIDENTS TASK FORCE, supra note 7, at 60-61, 64. The prosecutors proposed duty to keep a victim of violent crime informed of the prosecutions status extended through the parole hearing stage. See id. at 64. 40. See id. at 33. 41. See id. at 65-66. 42. See id. 43. See id. at 76-78, 80. 44. See id. at 83-84.

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in the criminal justice process.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. Currently, 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, to varying degrees, crime victim presence and hearing at critical stages of the criminal justice process.46 Over the past fifteen years, federal and state courts have been required to construe and interpret these victim rights of participation. In addition, researchers have attempted to assess the merits and effectiveness of these rights, when implemented.47 The remainder of this article examines the above-described constitutional, legislative, judicial, and research actions which have established, interpreted, and analyzed crime victim rights to notice of and presence and hearing at critical stages of the criminal justice process.

45. A report on the progress of implementation of the Task Force recommendations reflected that, prior to 1982, only two states required victim notification of crucial developments in the proceedings, one state authorized victim input into key prosecutorial decisions, eight states required a victim impact statement at sentencing, three states authorized victim allocution at sentencing, and six states allowed victims and other members of the public to attend parole hearings. OFFICE OF J USTICE PROGRAMS , U.S. D EP T OF J USTICE , 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 ]. 46. See, e.g., Deborah P. Kelly & Edna Erez, Victim Participation in the Criminal Justice System, in VICTIMS OF C RIME, supra note 16, at 231, 233-35; David L. Roland, Progress in the Victim Reform Movement: No Longer the Forgotten Victim, 17 PEPP. L. REV. 35, 48-57 (1989); Tobolowsky, supra note 38, at 397-422; Karyn Ellen Polito, Note, The Rights of Crime Victims in the Criminal Justice System: Is Justice Blind to the Victims of Crime?, 16 NEW ENG. J. ON C RIM. & C IV. CONFINEMENT 241, 242-60 (1990). See generally NATIONAL NETWORK TO END D OMESTIC V IOLENCE, SURVEY OF STATE LAWS AND C ONSTITUTIONAL PROVISIONS R EGARDING C RIME V ICTIMS R IGHTS (1997) [hereinafter NATIONAL NETWORK]; NATIONAL V ICTIM C ENTER, 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); OFFICE F OR VICTIMS OF C RIME, U.S. DEP T OF J USTICE, 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). 47. See generally Kelly & Erez, supra note 46, at 235-42 (providing overview of some of the court decisions and research studies regarding victim participation in the criminal justice process).

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III. VICTIMS CURRENT RIGHTS OF P ARTICIPATION IN THE CRIMINAL JUSTICE PROCESS A. Introduction In the fifteen years since the issuance of the Task Force Final Report, 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, such as the rights to be notified of key proceedings and outcomes, to consult with the prosecutor about important decisions in the prosecution, and to be present and heard at significant court or correctional proceedings.48 Twenty-nine states have ratified victim rights constitutional amendments which generally include victim rights of participation to some degree.49 These legislative and constitutional provisions and the
48. 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. They represent the most frequently provided victim participatory rights. A few states provide additional participatory rights. See, e.g., ALA. CODE 15-14-53 (1995) (allowing the victim to be seated at counsel table with the prosecutor); CAL. PENAL C ODE 868.5 (West Supp. 1998) (authorizing a supporting witness for a testifying victim); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp. 1998) (providing an advocate or supporting person for a victim at court proceedings); IOWA C ODE ANN. 910A.20 (West Supp. 1998) (allowing a victim counselor to be present in proceedings with a victim); NEV. R EV. STAT. ANN. 178.571 (Michie 1997) (allowing a victim attendant during testimony); OHIO R EV. CODE ANN. 2930.09 (Anderson 1996) (permitting a person to accompany a victim in court and provide support). Some states even authorize limited forms of private prosecution or private assistance in public prosecutions, approaches endorsed by some commentators. See, e.g., 725 ILL. C OMP . STAT. ANN. 120/4.5 (West Supp. 1998); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998); Cardenas, supra note 3, at 372-98; Gittler, supra note 25, at 150-63, 168-71; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 MISS. L.J. 515, 547-61 (1982); Ellen Yaroshevsky, Balancing Victims Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM . L. 135, 145-46 (1989). But see, e.g., ALA. C ODE 15-23-66 (1995); MISS. CODE ANN. 99-36-5 (1994); VT. STAT. ANN. tit. 13, 5319 (Supp. 1998); Donald J. Hall, The Role of the Victim in the Prosecution and Disposition of a Criminal Case, 28 VAND. L. REV. 931, 984 (1975); Sidman, supra note 16, at 754. See generally Herbert B. Chermside Jr., Annotation, Power of Private Citizen to Institute Criminal Proceedings Without Authorization or Approval by Prosecuting Attorney, 66 A.L.R. 3d 732 (1975). 49. As of 1997, twenty-nine states have ratified victim-related constitutional amendments. See ALA. CONST. amend. 557; ALASKA C ONST. art. I, 24; ARIZ. C ONST. art. II, 2.1; CAL. CONST. art. I, 28; COLO. CONST. art. II, 16a; CONN.

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court decisions interpreting them vary widely. At the outset, 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, not all of these provisions apply to victims50 of all crimes.51 Most states
C ONST. art. XXIX; FLA. CONST. art. I, 16; IDAHO C ONST . art. I, 22; ILL. CONST. art. I, 8.1; IND. CONST. art. I, 13; KAN. CONST. art. XV, 15; MD. CONST. art. 47; MICH. CONST. art. I, 24; MO. CONST. art. I, 32; NEB. CONST. art. I, 28; NEV. CONST. art. I, 8; N.J. C ONST. art. I, 22; N.M. CONST. art. II, 24; N.C. C ONST. art. I, 37; OHIO C ONST. art. I, 10a; OKLA. CONST. art. II, 34; OR . C ONST. art. I, 42; R.I. C ONST. art. I, 23; S.C. CONST. art. I, 24; TEX . CONST. art. I, 30; UTAH C ONST. art. I, 28; VA. CONST. art. I, 8-A; WASH. CONST. art. I, 35; WIS. CONST. art. I, 9m. Proposals for a federal victim rights constitutional amendment are pending in the United States Senate and House of Representatives. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997); see also 143 C ONG. REC. S163, S561 (daily ed. Jan. 21, 1997) (containing text of S.J. Res. 6); File hj71.ih (visited June 24, 1998) <ftp://ftp.loc.gov/pub/thomas/c105/hj71.ih.txt> (containing text of H.R.J. Res. 71); cf. H.R. 1322, 105th Cong. (1997) (providing proposed legislation to implement constitutional amendment and to replace existing federal statutory victim rights provisions in 42 U.S.C.A. 10606, 10607 (West 1995)); File h1322.ih (visited June 24, 1998) <ftp://ftp.loc.gov/pub/thomas/c105/hj1322.ih.txt> (containing text of H.R. 1322). See also generally NATIONAL NETWORK, supra note 46; NVC, supra note 46; Kelly & Erez, supra note 46, at 233-35; Symposium, supra note 38; Tobolowsky, supra note 38, at 405-15 (describing constitutional provisions). 50. 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, incapacitated, incompetent, or minor victim. See, e.g., 42 U.S.C.A. 10607 (West 1995); COLO. REV. STAT. ANN. 24-4.1-302 (West Supp. 1998); KY. R EV. STAT. ANN. 421.500 (Michie Supp. 1996); N.H. REV. STAT. ANN. 21M:8-k (Supp. 1997); S.C. CODE ANN. 16-3-1510 (Law. Co-op. 1997); State v. Roscoe, 912 P.2d 1297 (Ariz. 1996) (en banc) (holding that a policeman was a victim under state constitutional victim rights provisions and declaring conflicting statute and procedural rule unconstitutional). But see, e.g., State v. Superior Court of County of Maricopa, 922 P.2d 927 (Ariz. Ct. App. 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); Wallace v. State, 486 N.E.2d 445 (Ind. 1985), cert. denied, 478 U.S. 1010 (1986) (concluding that particular victim rights provision applied only to direct victim of crime and not to homicide victims mother). Some states expressly exclude individuals in custody and the accused from their victim rights provisions. See, e.g., ALA. CODE 15-23-60 (1995); ARIZ. R EV. STAT. ANN. 13-4401 (West Supp. 1997); UTAH C ODE ANN. 77-38-2 (Supp. 1997); Stapleford v. Houghton, 917 P.2d 703 (Ariz. 1996) (finding that cellmate victim of defendants assault was in custody and thus excluded from prescribed victim rights); Knapp v. Martone, 823 P.2d 685 (Ariz. 1992) (en banc) (concluding that mother of children allegedly murdered by their father was still a

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limit their victim participatory rights to victims of certain crimes only.52 The most frequent limitations are the restriction of these rights to victims of felony cases of any kind,53 to victims of crimes involving physical or sexual violence or injury,54 or to victims of specifically enumerated offenses.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.56 Only a few states extend the authorized participatory rights to vicvictim despite potential but, as yet uncharged, role in the offense). Although they are not addressed in this article, some states have separate rights provisions for victims of juvenile offenders. See, e.g., ARIZ. REV. STAT. ANN. 8-281 (West Supp. 1997); MICH. COMP . LAWS ANN. 780.781 (West 1998); TEX. FAM . CODE ANN. 57.001 (West 1996 & Supp. 1998). See generally NVC, supra note 46 (describing definitions of victims in state victim rights statutes). 51. In their victim rights constitutional provisions, most states entrust the definition of the crimes to be covered to their legislatures. See, e.g., COLO. CONST. art. II, 16a; ILL. CONST. art. I, 8.1; MO. CONST. art. I, 32; VA. CONST. art. I, 8-A. Of the eight states with constitutional provisions that do not expressly delegate the definitional responsibility to their legislatures, Florida and Rhode Island provide no limitations on the victims of crime covered (see FLA. CONST. art. I, 16; R.I. C ONST. art. I, 23); New Jersey, Oregon, and South Carolina extend their provisions to those suffering physical, psychological, property or financial harm from crime (see N.J. CONST. art. I, 22; OR . C ONST. art. I, 42; S.C. CONST. art. I, 24); Utah and Washington primarily limit their coverage to victims of felony offenses (see UTAH C ONST. art. I, 28; WASH. CONST. art. I, 35); and New Mexico enumerates specific offenses covered by the provisions (see N.M. CONST. art. II, 24). In the proposed federal constitutional provisions, the Senate proposal limits the specified rights to victims of violent crimes and other crimes defined by Congress. See S.J. Res 6, 105th Cong. (1997). The House of Representatives proposal covers victims of felonies and any other violent crime. See H.R.J. Res. 71, 105th Cong. (1997). 52. See generally NVC, supra note 46 (describing provisions regarding crimes to which victim rights apply). 53. See, e.g., ARIZ. REV. STAT. ANN. 13-4401 (West Supp. 1997) (including violent misdemeanors); IDAHO C ODE 19-5306 (1997) (including violent misdemeanors); MISS. CODE ANN. 99-36-3 (1994); OHIO R EV. CODE ANN. 2930.01 (Anderson 1996) (including 9 additional specified crimes); UTAH C ODE ANN. 7738-5 (Supp. 1997). 54. See, e.g., ALA. CODE 15-23-60 (1995); TEX. CODE C RIM. P. ANN. art. 56.01 (West Supp. 1998). 55. See, e.g., COLO. REV. STAT. ANN. 24-4.1-302 (West Supp. 1997); N.M. STAT. ANN. 31-26-3 (Michie Supp. 1998). 56. See, e.g., 42 U.S.C.A. 10606, 10607 (West 1995); FED. R. C RIM. P. 32; ALASKA STAT . 12.61.010, .015 (Michie 1996 & Supp. 1997); CAL. PENAL C ODE 679.01, .03, .04 (West 1988 & Supp. 1998); IOWA C ODE ANN. 910A.1, .9 (West Supp. 1998); KAN. STAT . ANN. 22-3727, 74-7333 (1995 & Pamp. 1997);

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tims of virtually all crimes.57 Yet, for crime victimshowever definedto exercise their participatory rights, they must first be made aware that such rights exist. Obviously, the sooner that a victim is notified of the existence of these rights, the greater the opportunity for the victim to exercise them. 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, the prosecutor, or victim services personnel.58 Again, these notification provisions vary significantly. In the federal system and the approximately twenty states which require law enforcement personnel to make the rights availability notification, 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.59 Of the approximately twenty states that require prosecutors to notify victims of their rights, most prescribe either general or no time limits for the notice.60
M D. ANN. CODE art. 27, 773, 776, 780, 784, 847 (1996 & Supp. 1998); MASS. ANN. LAWS ch. 258B, 1, 3; ch. 279, 4B (Law. Co-op. 1992 & Supp. 1997). In addition, many states provide some victim rights which are available only on victim request. See, e.g., ARK. CODE ANN. 16-21-106 (Michie Supp. 1997); M ICH. COMP . LAWS ANN. 780.756, .763 (West 1998); TEX. CODE C RIM. P. ANN. art. 56.02 (West Supp. 1998). 57. Approximately five states generally do not impose restrictions on the crimes for which victims are entitled to participatory rights. See ARK. CODE ANN. 1621-106 (Michie Supp. 1997); N.J. STAT. ANN. 52:4B-39 (West Supp. 1998); OKLA. STAT . ANN. tit. 19, 215.33 (West Supp. 1998); OR . R EV. STAT. 131.007 (Pamp. 1998); VT. STAT. ANN. tit. 13, 5301 (Supp. 1998). 58. Whatever entity is entrusted with the notification responsibility, 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. See, e.g., FLA. STAT . ANN. 960.001 (West Supp. 1998); MICH. COMP . LAWS ANN. 780.756 (West 1998); N.Y. EXEC. LAW 646-a (McKinney 1996); TENN. CODE ANN. 40-38-107 (1997). But see, e.g., IDAHO C ODE 19-5306 (1997). See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46 (describing notification of availability of rights provisions). 59. See, e.g., 42 U.S.C.A. 10607 (West 1995) (requiring notification at the earliest opportunity after detection of the crime); GA. CODE ANN. 17-17-6 (Harrison Pamp. 1997) (requiring notification upon initial contact with the victim); OHIO R EV. CODE ANN. 2930.04 (Anderson 1996) (specifying notification promptly after the initial contact with the victim); W YO. STAT . ANN. 1-40-204 (Michie 1997) (requiring notification without undue delay). But see, e.g., LA. R EV. STAT. ANN. 46:1844 (West Pamp. 1998) (specifying no time period for notification). 60. See, e.g., DEL. CODE ANN. tit. 11, 9411 (1995) (specifying notification promptly after the commencement of prosecution); IOWA C ODE ANN. 910A.2 (West 1994) (designating no time period for notification); MINN. STAT . ANN.

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Some states require notification by both the investigating law enforcement agency and prosecutor.61 Less than ten states give the notification responsibility to their victim assistance personnel.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.63 The potential significance of a victims right to receive notice of the existence of his rights is illustrated by the appellate courts decision in State ex rel. Hance v. Arizona Board of Pardons and Paroles. 64 In this case, 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.65 These provisions require victim notification of the existence of applicable rights, 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.66 The offender was still in custody at the time that these rights provisions became effective.67 The State Board of Pardons and Paroles subsequently held a hearing at which it approved the offenders release to home arrest.68 The hearing was conducted without notice to the victim of the release proceedings, opportunity to appear at the proceedings, or the proceedings outcome.69 When she subsequently learned of the offenders scheduled release to home arrest, the
611A.02 (West Pamp. 1998) (requiring notification within a reasonable time after the offender is charged). But see, e.g., N.M. STAT. ANN. 31-26-9 (Michie Supp. 1997) (specifying notification within seven working days after filing of the formal charge); TEX. CODE C RIM. P. ANN. art. 56.08 (West Supp. 1998) (requiring notice within 10 days after return of indictment or information). 61. See, e.g., DEL. CODE ANN. tit. 11, 9410, 9411 (1995); OHIO R EV. CODE ANN. 2930.04, .06 (Anderson 1996 & Supp. 1997). 62. See, e.g., CONN. GEN . STAT. 54-203 (1997); R.I. GEN. LAWS 12-28-10 (1994). 63. In their constitutional victim rights provisions, Missouri, North Carolina, Oregon, and South Carolina require that victims be informed of their rights, but do not designate any entity to make the notification. See M O. CONST. art. I, 32; N.C. CONST. art. I, 37; OR . C ONST. art. I, 42; S.C. CONST. art. I, 24. Alaska, Arkansas, Hawaii, Nebreska, 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. See NVC, supra note 46. 64. 875 P.2d 824 (Ariz. Ct. App. 1993). 65. See id. at 826. The offender was convicted in 1974. See id. The constitutional and legislative provisions became effective in 1990 and 1992, respectively. See id. at 826 & n.3. 66. See id. at 826, 829. 67. See id. at 826. 68. See id. 69. See id.

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victim sought to have the release order set aside and a reexamination hearing held, remedies available under Arizona law for violation of these notice provisions.70 The appellate court granted the victims special action petition, sought on her behalf by the state.71 The appellate court concluded that the victim was entitled to the above-described notification rightsincluding the right to notice of their existencebecause the offender was still in custody when the provisions became effective.72 The court rejected the Boards assertion that it had no duty to notify this victim of the release proceedings because the victim had not requested such notice, as she was required to do under the statutory provisions.
The state cannot now use the victims failure to request notice as a defense against the victims right to appear at the release proceeding because the state failed to first fulfill its constitutional obligation to inform her of that right. The constitutional mandate is clear: victims must be informed of their rights. Armed with this knowledge, victims may choose to exercise these rights. Conversely, an uninformed victim may not exercise her rights because she is unaware of them, or unaware that the right to notice of a release hearing requires that she first file a request for such a notice. The Victims Rights Implementation Act also makes clear that the victims right to be informed imposes a corollary duty on the state to provide the information. This legislation creates specific obligations on state government to inform victims of their rights at various stages of criminal proceedings. While the statutory provisions do not specifically address how the state is to inform victims of pre-Bill of Rights crimes, the overriding principle is clear: 70. See State ex rel. Hance, 875 P.2d at 826-27. In 1974, the offender was convicted for the rape and sentenced to incarceration for 25 years to life. See id. at 826. The parole board last notified the victim of an upcoming parole hearing (pursuant to prior law) in 1984, when the notification letter was returned as undeliverable. See id. After 1984, neither the parole board nor the local prosecutor had attempted to notify the victim of subsequent parole hearings. See id. The legislation implementing Arizonas constitutional victim rights provisions required such notification only upon victim request. See id. at 830. At the 1993 parole hearing (of which the victim received no notice), the parole board denied parole, but approved the offenders release to home arrest. See id. Information as to the offenders impending release apparently reached the victim, who contacted the governor and the local prosecutor. Both unsuccessfully sought to have the parole board conduct a probable cause hearing to determine whether the release should be rescinded. See id. at 827. In addition to materials from the victim, materials opposing the offenders release from his prison counselor and the state corrections department director were submitted. See id. The local prosecutor initiated the instant special action shortly before the offenders scheduled release. See id. 71. See id. at 832. 72. See id. at 829-30.

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the linchpin of Ariz. Const. art. 2, 2.1(A)(12) is the right of victims to be informed of their constitutional rights, and the state has an affirmative obligation to so inform them. This victim was never informed of her constitutional right to request notice of and to participate in post-conviction release proceedings. It is this omis73 sion that violated her rights and rendered the release proceedings defective.

Consequently, the appellate court set aside the offenders release order and ordered a reexamination hearing at which the victim could be present and heard.74 As the Hance case illustrates, notification of the existence of a victims 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. Although the federal system and the overwhelming majority of states provide this notification right to eligible victims, the effectiveness of its actual implementation determines whether it is the linchpin of or the barrier to the exercise of the remaining participatory rights.75 B. 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, the victim must be notified of the particular proceedings at which such rights may be exercised in order to use the rights. Even if a crime victim chooses not to actively participate in relevant proceedings, the victim can maintain involvement in the process if informed of important actions and outcomes in the prosecution and punishment of the offender. Prior to the issuance of the Task Force Final Report, only two states explicitly required that victims be notified of important developments in the proceedings.76 Recognizing the importance of
73. Id. at 830 (citation omitted). The appellate court also rejected the parole boards claim that it had made reasonable efforts to locate the victim. See id. at 830-31. 74. See id. at 831-32. Although this decision represents a broad judicial effectuation of enacted victim notification rights, its significance is tempered by the fact that few states provide such a remedy for post-conviction notice violations. See infra notes 99, 258 and accompanying text (describing these provisions). 75. See infra note 231 and accompanying text (describing problems with victim notification). 76. See OFFICE OF J USTICE PROGRAMS, supra note 45, at 4. The Presidents Task Force recommended that prosecutors keep victims informed of the status of their cases commencing with the time of the initial charging decision. See PRESIDENTS TASK FORCE, supra note 7, at 64. As to victims of violent crime, the Task Force recommended that such notice continue through parole determinations. See id.

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these rights to notice, 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.77 As to criminal justice proceedings themselves, notification is most frequently required regarding bail or pretrial release hearings, trial, sentencing, and parole hearings.78 In their constitutional or legislative provisions, some states explicitly require victim notification of some or all of these specific proceedings.79 The federal system and other states more generally require victim notification as to all critical, crucial, or important stages of the criminal justice process or proceedings or as to court proceedings or public hearings in the case generally.80 Although these undeThe Task Force also recommended that parole authorities notify victims of parole hearings and parole release. See id. at 83-84. 77. See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46; Tobolowsky, supra note 38 (describing notification provisions). 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, as well as the right to notice of a release or escape from custody. They require that the proper authorities make a reasonable effort to provide the prescribed notice. S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). 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. See H.R. 1322, 105th Cong. (1997); Tobolowsky, supra note 38 at 410-415. 78. Some states also require victim notification of canceled or rescheduled hearings, post-trial relief and appellate proceedings, pardon or commutation hearings, and miscellaneous other proceedings. See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46 (describing provisions). 79. See, e.g., M O. CONST. art. I, 32; NEB. CONST. art. I, 28; COLO. REV. STAT. ANN. 24-4.1-302 to -302.5 (West Supp. 1997); FLA. STAT. ANN. 960.001 (West Supp. 1998). 80. See, e.g., ALA. CONST. amend. 557 (providing victim right to be informed at all crucial stages of the criminal proceedings); IDAHO C ONST. art. I, 22 (specifying right to notice of trial court, appellate, and parole proceedings); OR . C ONST. art. I, 42 (regarding any critical stage of the proceedings where the defendant is present); UTAH C ONST. art. I, 28 (regarding important criminal justice hearings related to the victim); 42 U.S.C.A. 10606, 10607 (West 1995) (requiring notice of each court proceeding which the victim is required or entitled to attend and of parole hearings); IND. CODE ANN. 33-14-10-5 (Michie 1992) (requiring notice of all scheduled hearings and proceedings); MD. ANN. CODE art. 27, 770 (Supp. 1997) (regarding notice of all court proceedings if practicable); M ICH. COMP . LAWS ANN. 780.756 (West 1998) (regarding notice of scheduled court proceedings); N.H. REV. STAT. ANN. 21-M:8-k (Supp. 1997) (regarding all court proceedings); N.M. STAT. ANN. 31-26-4 (Michie Supp. 1997) (regarding court proceedings); OHIO R EV. CODE ANN. 2930.06 (Anderson Supp.

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fined provisions have typically not been judicially construed and thus are subject to the interpretation of those officials entrusted with the notification responsibility, for purposes of this analysis, these general provisions are interpreted to include at least the above-listed proceedings. In terms of the notification provisions regarding these proceedings, the federal system and over thirty states have specific or general notification provisions regarding bail or pretrial release hearings.81 Moreover, the federal system and over forty states have specific or general provisions requiring victim notification of trial,82 sentencing,83 and parole84 proceedings.
1997) (regarding scheduled court proceedings); TENN. C ODE ANN. 40-38-103 (1997) (regarding all pertinent stages in the proceedings); TEX . CODE C RIM. P. ANN. art. 56.08 (West Supp. 1998) (regarding any scheduled court proceedings); VA. CODE ANN. 19.2-11.01 (Michie Supp. 1998) (regarding judicial proceedings). When the term general provision or right is used subsequently, it refers to the above-listed types of provisions from which the specifically referenced right may be inferred. See, e.g., infra notes 81-84 and accompanying text. 81. See, e.g., M ICH. CONST. art. I, 24 (regarding court proceedings); S.C. C ONST. art. I, 24 (regarding hearings affecting bond or bail); GA. CODE ANN. 17-17-5 (Harrison Pamp.1997) (regarding judicial proceeding at which accuseds release will be considered); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp. 1998) (regarding any court hearing the effect of which may be the release of defendant from custody); KY. REV. STAT . ANN. 421.500 (Michie Supp. 1996) (regarding judicial proceedings relating to the defendants release on bond); MO. ANN. STAT . 595.209 (West Supp. 1998) (regarding bail hearings); N.Y. EXEC. LAW 646 (McKinney 1996) (regarding judicial proceedings as to the release of an accused pending judicial proceedings); R.I. GEN. LAWS 12-28-3 (1994) (regarding proceeding before a court empowered to set bail); S.C. CODE ANN. 163-1525 (Law. Co-op. Pamp. 1997) (regarding bond hearing); UTAH C ODE ANN. 77-38-2, -3 (Supp. 1997) (regarding court proceeding to determine whether to release a defendant). 82. See, e.g., ILL. CONST. art. I, 8.1 (specifying right to notice of court proceedings); KAN. CONST. art. XV, 15 (identifying victim right to be informed of public hearings of the criminal justice process, as defined by law); S.C. C ONST. art. I, 24 (regarding criminal proceedings which are dispositive of the charges where the defendant has the right to be present); WASH. CONST. art. I, 35 (regarding trial); ALA. CODE 15-23-60, -63 (1995) (regarding criminal proceedings defined as those before a trial court); C ONN . GEN . STAT . 51-286e (1997) (regarding trial proceedings); IOWA C ODE ANN. 910A.6 (West Supp. 1998) (regarding trial); MISS. CODE ANN. 99-36-5 (1994) (regarding relevant court proceedings); MONT. CODE ANN. 46-24-203 (1997) (regarding trial date); VT. STAT. ANN. tit. 13, 5304 (Supp. 1997) (regarding court proceeding). 83. See, e.g., IND. CONST. art. I, 13 (providing victim right to be informed of public hearings); NEB. CONST. art. I, 28 (regarding sentencing proceedings); N.C. CONST. art. I, 37 (regarding court proceedings); VA. CONST. art. I, 8-A (regarding judicial proceedings); ARIZ. REV. STAT . ANN. 13-4409 (West Supp. 1997) (regarding sentencing proceeding); DEL. CODE ANN. tit. 11, 9411 (1995)

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A similar pattern is reflected in the constitutional and legislative provisions regarding important actions or outcomes in the criminal justice process. The federal system and more than thirty states require victim notification of an offenders pretrial release85 and final disposition or sentence.86 The federal system and over forty states require victim notification regarding an offenders plea bargain87 and parole.88
(regarding sentencing hearing); IND. CODE ANN. 35-38-1-8.5 (Michie 1998) (regarding sentencing hearing); ME. REV. STAT. ANN. tit. 17-A, 1172 (West Supp. 1997) (regarding sentencing); N.J. STAT. ANN. 52:4B-44 (West Supp. 1998) (regarding sentencing); W ASH. REV. CODE ANN. 7.69.030 (West Supp. 1998) (regarding sentencing hearing). 84. See, e.g., COLO. CONST. art. II, 16a (providing right to be informed of all critical stages of the criminal justice process); FLA. CONST. art. I, 16 (regarding all crucial stages of criminal proceedings); CAL. PENAL C ODE 679.02 (West Supp. 1998) (regarding parole hearings); IDAHO C ODE 19-5306 (1997) (regarding parole hearings); LA. REV . STAT. ANN. 46:1844 (West Pamp. 1998) (regarding parole hearings); MASS. ANN. LAWS ch. 127, 133A (Law. Co-op. 1989 & Supp. 1997) (regarding parole hearings); OR . REV. STAT. 144.120 (Pamp. 1998) (regarding parole hearings); S.D. CODIFIED LAWS 24-15-3 (Michie 1988) (regarding parole hearings); W. VA. CODE 62-12-23 (1997) (regarding parole hearings). 85. See, e.g., ALASKA C ONST. art. I, 24; IDAHO C ONST. art. I, 22; MICH. C ONST. art. I, 24; 42 U.S.C.A. 10606, 10607 (West 1995); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp. 1998); KY. REV. STAT. ANN. 421.500 (Michie Supp. 1996); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998); MD. ANN. CODE art. 27, 770 (Supp. 1997); R.I. GEN. LAWS 12-28-3 (1994); VT. STAT. ANN. tit. 13, 5305 (Supp. 1997). 86. See, e.g., ILL. CONST. art. I, 8.1; NEV. CONST. art. I, 8; WIS. CONST. art. I, 9m; 42 U.S.C.A. 10606, 10607 (West 1995); ALA. CODE 15-23-75 (1995); DEL. CODE ANN. tit. 11, 9411 (1995); IOWA C ODE ANN. 910A.7 (West 1994); ME. REV. STAT. ANN. tit. 15, 6101 (West Supp. 1997); OHIO R EV. CODE ANN. 2930.12 (Anderson 1996); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998); WIS. STAT . ANN. 950.04 (West 1996). 87. See, e.g., 42 U.S.C.A. 10606, 10607 (West 1995); ARIZ. REV. STAT . ANN. 13-4419, -4423 (West Supp. 1997); CAL. PENAL C ODE 679.02 (West Supp. 1998); HAW. REV. STAT . ANN. 801D-4 (Michie 1994); KAN. STAT . ANN. 223436 (1995); MINN. STAT . ANN. 611A.03 (West 1987 & Pamp. 1998); N.J. STAT. ANN. 52:4B-44 (West Supp. 1998); OKLA. STAT . ANN. tit. 19, 215.33 (West Supp. 1998); S.D. CODIFIED LAWS 23A-28C-1 (Michie 1998); TEX . CODE C RIM. P. ANN. art. 56.08 (West Supp. 1998); W. VA. CODE 61-11A-6 (1997). 88. See, e.g., N.C. CONST. art. I, 37; OKLA. CONST. art. II, 34; VA. CONST. art. I, 8-A; 42 U.S.C.A. 10606, 10607 (West 1995); ALASKA STAT . 33.16.120 (Michie 1996); IDAHO C ODE 19-5306 (1997); MO. STAT. ANN. 595.209 (West Supp. 1998); N.C. GEN. STAT. 15A-825 (Supp. 1997); 71 PA. C ONS. STAT . ANN. 180-9.3 (West Supp. 1998); VA. CODE ANN. 53.1-155 (Michie Supp. 1997). Some states also require victim notification of the dismissal of a criminal charge, an offenders escape, pardon or commutation, or final discharge from sentence, and miscellaneous other outcomes in the criminal justice process. See gen-

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Notification provisions as to these proceedings and outcomes appear to be quite extensive, but many do have explicit or implicit limitations. For example, most states require notification of some or all of these proceedings and outcomes only when the victim requests it.89 Some states make the rights contingent on victim cooperation with the prosecution.90 Although the prosecuting or correctional authorities are usually given express responsibility for the applicable notification, the procedures for notification often are not addressed in the provisions91 and actual notification procedures may or may not provide effective victim notification. Finally, many states limit their notification requirements to those which are reasonable or practicable under the circumstances.92
erally NATIONAL NETWORK , supra note 46; NVC, supra note 46 (describing provisions). 89. See, e.g., ARIZ. CONST. art. II, 2.1; MD. CONST. art. 47; TEX. CONST . art. I, 30; ARK. CODE ANN. 16-21-106 (Michie Supp. 1997); CAL. PENAL C ODE 679.02 (West Supp. 1998); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp. 1998); IOWA C ODE ANN. 910A.1, .6 (West Supp. 1998); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998); NEV. REV. STAT. ANN. 178.5698 (Michie Supp. 1997); N.J. STAT. ANN. 52:4B-44 (West Supp. 1998); OR. REV. STAT. 144.098 (Pamp. 1998); TENN. CODE ANN. 40-38-103 (1997); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998); WYO. STAT. ANN. 1-40-203 (Michie 1997). 90. See, e.g., N.M. STAT. ANN. 31-26-5 (Michie Supp. 1997); R.I. GEN. LAWS 12-28-3 (1994). 91. See, e.g., CAL. PENAL C ODE 679.02 (West Supp. 1998); (allowing notice by any reasonable means available); FLA. STAT . ANN. 960.001 (West Supp. 1998) (describing victim notification card procedure); MO. STAT . ANN. 595.209 (West Supp. 1998) (specifying notice by certified mail); NEB. REV. STAT. 811848 (1994) (describing varying notification procedures); N.M. STAT. ANN. 3126-9 (Michie Supp. 1997) (allowing oral or written notice in a timely fashion); OHIO R EV. CODE ANN. 2930.03 (Anderson 1996) (authorizing notice by any means reasonably calculated to provide prompt actual notice); UTAH C ODE ANN. 77-38-3 (Supp. 1997) (stating that notices can be given in any reasonable manner); State ex rel. Hance v. Arizona Board of Pardons and Paroles, 875 P.2d 824, 830-31 (Ariz. Ct. App. 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). See generally Susan E. Gegan & Nicholas Ernesto Rodriguez, Note, Victims Roles in the Criminal Justice System: A Fallacy of Victim Empowerment?, 8 ST. J OHNS J. LEGAL C OMMENT. 225, 24447 (1992) (describing problems concerning victim notification procedures). 92. See, e.g., M D. CONST. art. 47 (requiring notification rights if practicable); M E. REV. STAT. ANN. tit. 15, 6101; tit. 17-A, 1172 (West Supp. 1997) (requiring prosecutor to make good faith effort to notify victim when practicable); N.H. REV. STAT. ANN. 21-M:8-k (Supp. 1997) (granting rights [t]o the extent that they can be reasonably guaranteed by the applicable authorities); VA. C ODE ANN. 19.2-11.01 (Michie Supp. 1997) (requiring advance notification when practicable); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998) (requiring reasonable effort to ensure rights).

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Neither these extensive notification provisions nor their language nor limitations have received much judicial interpretation. The decision by the Supreme Court of Kansas in State v. Holt93 is one of the few instances in which victim notification provisions have been construed. In this case, the trial court sentenced the offender to a one-year term of incarceration on the misdemeanor theft charge of which he was convicted.94 At the sentencing hearing (which the victim attended and in which she addressed the court), the judge stated that he would consider the offenders request for service of his sentence in the community at a future time.95 Subsequently, at a hearing of which the victim received no notice, the court sua sponte granted the offender parole release from his partially served sentence of incarceration.96 When the prosecutor objected to the hearing being conducted without notice to the victim, 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.97 In its appeal from the courts action, the state contended that the trial court erred in concluding that the victim had no right to notice of the parole proceedings.98 At the outset, 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.99 The reviewing
93. 874 P.2d 1183 (Kan. 1994). 94. See id. at 1184. In a plea agreement, the defendant entered a plea of no contest to misdemeanor theft regarding property stolen in a residential burglary. See id. He also agreed to make full restitution to the burglary victims for unrecovered property from the burglary. See id. The state agreed to dismiss related felony charges. See id. 95. See id. 96. See id. 97. See id. at 1184, 1187. The reviewing court noted that the trial court and the parties referred to the trial courts action as probation, but that the action was more appropriately considered to be a parole from a partially served jail sentence. See id. at 1186. 98. See id. at 1184. The provisions requiring victim notification also required the opportunity for victim presence at the applicable proceedings. See id. at 1185. 99. See Holt, 874 P.2d at 1186. Neither the federal system nor many states provide enforcement mechanisms or sanctions for victim rights violations of any kind. See infra notes 269-80 and accompanying text. To the extent that jurisdictions specifically address notification rights violations, most provide no remedy or liability for the failure to provide victim notice. See, e.g., 42 U.S.C.A. 10607 (West 1995); GA. CODE ANN. 17-17-15, 42-1-11 (Harrison Supp. 1997); 725 ILL. COMP . STAT. ANN. 120/9 (West Supp. 1997); ME. REV. STAT. ANN. tit. 17-A, 1175 (West Supp. 1997). Arizona, however, has a procedural rule requiring the court to inquire whether notice provisions have been satisfied at the commence-

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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.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.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.102 Although the Kansas Supreme Court found no abuse of discretion by the trial court and thus denied the states appeal, 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.103
ment of proceedings in which a victim has a right to be heard. ARIZ. R. C RIM. P. 39. If notice has not been provided, the court should not proceed unless public policy, the specific provisions of a statute, or the interests of due process otherwise require. Id. The court also has the discretion to reconsider rulings made at proceedings for which the victim did not receive requested notice. See id. South Carolina requires that bond hearings be delayed if necessary to ensure that victims have received notice of them. See S.C. CODE ANN. 16-3-1525 (Law. Co-op. Supp. 1997). Hawaii provides that certain failures to notify victims can be the basis of disciplinary action. See HAW. R EV. STAT . ANN. 706-670.5 (Michie Supp. 1997). Arizona and a few other states have reexamination or reconsideration hearing remedies for post-conviction release notification violations. See, e.g., ARIZ. REV. STAT . ANN. 13-4436 (West Supp. 1997); OKLA. STAT. ANN. tit. 57, 332.2 (West Supp. 1998); TENN. CODE ANN. 40-28-505 (1997). 100. See Holt, 874 P.2d at 1186-87. The reviewing court distinguished this situation involving the judicial parole of a convicted misdemeanant from public hearing requirements in other circumstances, such as the probation of a felon. See id. 101. See id. at 1187. 102. See id. 103. See id. at 1187-88. Interestingly, the Kansas legislature subsequently amended its notification law and extended the notification requirements to proceedings such as those involved in the instant action. KAN. STAT . ANN. 74-7335 (Supp. 1997). 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. See id. In addition to the notification required regarding public hearings, 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. Id. The Kansas Supreme Court decided another case construing the interplay

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The Kansas Supreme Courts point about the absence of enforcement mechanisms and sanctions in Kansas law was echoed by a California appellate court in People v. Superior Court ex rel. Thompson. 104 In this case, 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.105 At a hearing to set aside the probation order the trial court had entered at sentencing, 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.106 The trial court denied
between the public hearing and victim notification requirements prior to this change in the law. In State v. Sims, 887 P.2d 72 (Kan. 1994), it rejected the defendants claim that the trial courts failure to hold a hearing on his motion to modify his sentence violated the Kansas victim rights statute. See id. at 79. It found that no public hearing and thus no victim notification or presence were required under Kansas law. See id. In an Illinois case, however, 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. See Myers v. Daley, 521 N.E.2d 98, 100 (Ill. App. Ct. 1987). 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, and were also burdened with the costs of that suit. Id. Cf. State v. Contreras, 885 P.2d 138, 142 (Ariz. Ct. App. 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). In a case reflecting the significance that an offender attaches to a victims participation in the criminal justice process, a state prison inmate challenged the denial of his parole request in federal court on the ground that, inter alia, the states retroactive application of a victim notification provision to his parole proceeding violated the ex post facto provision of the United States Constitution. Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991). The offender claimed that the notification statute would increase the likelihood that victims would provide input into the parole process which would, in turn, reduce the likelihood of his parole. See id. at 1341. The appellate court noted that the parole authorities had always been able to receive victim input. See id. The contested provision merely required victim notification of the parole hearing, not a change of the criteria for granting parole. See id. at 1340. 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. See id. at 1340-41; see also Alston v. Robinson, 791 F. Supp. 569, 592 (D. Md. 1992) (finding no ex post facto violation from provisions allowing notice to and hearing from victims regarding parole release). 104. 202 Cal. Rptr. 585 (Cal. Ct. App. 1984). 105. See id. at 586. Although the victim was not present at the sentencing hearing, statements by the victim were included in the probation officers report. See id. 106. See id.

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the states motion to vacate the offenders judgment and set aside the probation order.107 The state and the victim petitioned for a writ of mandate or prohibition, claiming that the probation order was unlawful due to the failure to notify the victim of the sentencing hearing.108 The appellate court, however, concluded that the applicable California constitutional and legislative provisions were directory rather than mandatory in their effect.109 Thus, the failure to notify the victim of the sentencing hearing and the conducting of the hearing in the victims absence did not deprive the trial court of jurisdiction to sentence the offender. Because neither the constitutional nor legislative provisions included procedures to enforce the duty of notification or remedies for the failure to do so, the appellate court had no authority to grant the requested relief.110 Thus, 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. Instead, these courts have identified the limitations of the provisions when victims have sought to obtain more expansive judicial interpretations of their scope. Just as the extensive notification provisions have received only limited judicial interpretation, they have been the subject of only limited empirical research. Based on surveys conducted at approximately the time of the Presidents Task Force, a few researchers concluded that their crime victim respondents sought more information as to developments in their cases. 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.111 In a study of the results of an
107. See id. 108. See id. 109. See Thompson, 202 Cal. Rptr. at 586. 110. Id. at 586-87. Cf. Dix v. County of Shasta, 963 F.2d 1296 (9th Cir. 1992); Dix v. Superior Court ex rel . People, 807 P.2d 1063 (Cal. 1991) (in bank) (rejecting victims attempt to challenge trial courts recall of previously imposed sentence, in the absence of victim notice and opportunity for hearing as to recall); with Melissa J. v. Superior Court ex rel . Williams, 237 Cal. Rptr. 5 (Cal. Ct. App. 1987) (finding that termination of restitution without proper notification of crime victim was erroneous and that, in the context of restitution, statutory notice provisions were mandatory and allowed victim to challenge restitution ruling in trial court by the procedures available to parties, such as a motion to vacate restitution ruling). 111. In surveys of 389 victims of felony personal and property crimes in six sites around the country, 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. JOLENE C. HERNON & BRIAN FORST,

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early victim assistance program in which victim liaisons, inter alia, notified victims of court dates, however, 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.112 Similarly, in a study to determine the effect of various forms of victim participation in the criminal justice processincluding victim notificationon victims distress levels, researchers found that notification of court proceedings had no significant effect on victims feelings of distress soon

U.S. DEP T OF J USTICE, THE C RIMINAL J USTICE R ESPONSE TO VICTIM HARM 10 n. 4, 45 (1984). Thirty percent of the surveyed victims also identified this as a means to improve relations between victims and the courts. See id. at 62 tbl.VI.1. In personal interviews of 100 adult female rape victims in the metropolitan Washington, D.C. area, researchers determined that approximately half of the victims felt that they had been denied information about their cases. Deborah P. Kelly, Delivering Legal Services to Victims: An Evaluation and Prescription, 9 J UST. SYS. J. 62, 64-65, 73 (1984). Among their suggestions for improving victim treatment at all stages of the prosecution, 21% suggested that victims be given more information on case developments. See id. at 77 & tbl.8. These researchers concluded that provision of such information was positively related to victim satisfaction with police and prosecution services. See id. at 73-77. 112. See Robert C. Davis et al., Expanding the Victims Role in the Criminal Court Dispositional Process: The Results of an Experiment, 75 J. C RIM. L. & C RIMINOLOGY 491 (1984). The researchers studied the effect of a Victim Involvement Project (VIP) in a Brooklyn criminal court. See id. at 493. A second Brooklyn court with similar types and dispositions of cases was used for control group purposes. See id. at 495. Among other aspects of the study, almost 300 interviews were conducted with victims whose cases were concluded in these courts during a study period in the late 1970s. See id. In terms of victims who felt that they had been treated well in court, the percentage for the VIP court victims was 44% compared to 37% for the control group. See id. at 497 & n. 21. Interestingly, 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. See id. at 497-98 & n.22. Another study focused on the effects, inter alia, 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. See John Hagan, Victims Before the Law: A Study of Victim Involvement in the Criminal Justice Process, 73 J. C RIM. L. & CRIMINOLOGY 317 (1982). 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. See id. at 319-20. The researchers found that knowledge of the case outcome increased the victims assessment that sentences in general were too easy. See id. at 324-25. They further found that knowledge of case outcome only (i.e., without court attendance) produced the smallest reduction in demand for severity of sentencing of the combinations of court attendance and knowledge of disposition studied. See id. at 327 tbl.4.

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after their victimization or subsequently thereafter.113 Despite the mixed research results as to its effectiveness, 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. As a result, such notification is required by constitutional or legislative provisions (or both) in the federal system and most states.114 As noted previously, however, 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.115 Stated affirmatively, 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. Stated negatively, the restrictions can render these extensive notification provisions mere limited suggestions rather than universal victim rights. C. 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 Presidents Task Force, existing victim rights to be present at criminal justice proceedings have merely been extended during this time period. Prior to the emergence of the victims movement, a crime victimas any member of the general publicwas entitled to be present at most public court proceedings.116 This entitlement was often subject to restriction, however, in proceedings in which a victim was expected to testify as a witness.117 Moreover, some criminal justice proceedings were not generally open to

113. See Tontodonato & Erez, supra note 29, at 40-48. This research was based, in part, on 125 completed surveys from victims whose felony cases were prosecuted in an Ohio county during a study period in the late 1980s. See id. at 37-38. The victims were questioned as to various forms of their participation in the prosecution. See id. Scales and other questions which measured victim distress levels after the crime and at the time of the survey were included. See id. 114. See supra notes 81-88 and accompanying text. 115. See supra notes 52-57 and accompanying text. These limitations are compounded by the frequent use of vague language and undefined or restrictive terms in the notification provisions. See supra notes 91-92 and accompanying text. 116. See Lamborn, supra note 4, at 140-43. 117. See id. at 153-60. The Presidents Task Force recommendation regarding victim presence was itself for a conditional right, i.e., that a victim and family member be able to attend trial, even if identified as witnesses, absent a compelling need to the contrary. See PRESIDENTS TASK F ORCE, supra note 7, at 80.

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the public or victims, such as parole hearings.118 Since the Presidents Task Force, victim rights provisions regarding victim presence have largely focused on reaffirming victim rights of presence shared by the general public, reducing or eliminating the restrictions on victims presence in proceedings in which they will testify as witnesses, and expanding victim entitlement to presence at certain non-public proceedings, 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. As a member of the general public, a crime victim is the beneficiary of the constitutional principles which render most judicial proceedings open to the public.119 It has been noted that the public nature of these proceedings enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole.120 Maintenance of the quality and integrity of the fact-finding process, however, is the principal reason for the traditional restriction of victim presence at judicial proceedings in which the victim also serves as a witness. Based on a practice recognized at common law, and codified in most American jurisdictions prior to the Presidents Task Force, witnessesincluding victimswere subject to exclusion from the courtroom except during their testimony, upon the request of a party or the court.121
118. Prior to the Presidents Task Force, only six states allowed victims and other members of the public to attend parole hearings. See OFFICE OF J USTICE PROGRAMS, supra note 45, at 4. The Presidents Task Force recommended that victims or their families or representatives be allowed to attend parole hearings. See PRESIDENTS TASK FORCE, supra note 7, at 83-84. 119. See U.S. CONST. amends. I, VI. While the Sixth Amendment specifically guarantees the defendant the right to a public trial, the publics right to be present at judicial proceedings is derived from the First Amendments guarantee of freedom of speech and of the press. See, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Lamborn, supra note 4, at 140-41. This right has been held to apply to arraignments, pretrial release hearings, preliminary hearings, hearings on suppression motions, jury selection proceedings, trials, and sentencings. See id. at 141. 120. Globe Newspaper Co., 457 U.S. at 606. 121. See Lamborn, supra note 4, at 153-54. The rule of exclusion is found at common law, with its implementation left to judicial discretion. See id. at 154. The federal government and most states adopted the procedure by evidentiary rule or otherwiseeither granting the parties an absolute right to exclude witnesses from the courtroom or allowing exclusion in the discretion of the court. See id. at 155. 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. See id. at 155-57. In addition to its common law and statutory bases, 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-

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This rule of witness exclusion was designed to help assure a fair trial for the accused by preventing or exposing fabricated testimony.122 Because victims were usually also witnesses in the criminal prosecution, and therefore subject to these rules of exclusion, they consequently had fewer rights to be present at certain judicial proceedings than the general public. Striking the proper balance between the defendants right to a fair trial and the victims right to presence at important criminal justice proceedings is the task which has confronted the federal and state governments in the years since the Presidents Task Force. The federal government and virtually all of the states have now explicitly recognized the victims right to be present at court proceedings in some way. Most jurisdictions, however, condition the victims presence at testimonial proceedings to some degree when the victim is also a testifying witness regarding the crime.123 In addition, approximately forty
nesses, as guaranteed by the Sixth Amendment, or to preserve the due process protections provided by the Fifth and Fourteenth Amendments. See id. at 157-58. The previously recognized exceptions to the rule of exclusion, however, suggest that the rule may not be required in all circumstances to preserve the defendants constitutional rights, but that its application be subject to the courts discretion in circumstances in which the presence of a specific victim or witness threatens those constitutional rights. See id. at 159-60; Polito, supra note 46, at 248-51, 260-64. 122. The rules purposes are: to prevent fabrication and to expose fabrication that has already occurred. First, the rule helps to ensure that the testimony of one witness is not influenceddeliberately or unconsciouslyby that of another. Improper influence may occur when the witnesses are called by the same side; a witness might have an interest in making a statement that is consistent with that of his predecessor. Improper influence may also occur when the witnesses are called by opposing sides; a witness might have an interest in making a statement that rebuts that of his predecessor. The rule not only helps to prevent fabrication, but also serves to expose discrepancies in the testimony of witnesses that if truthful would be consistent. 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. Lamborn, supra note 4, at 153-54 (citations omitted). The rule has been applied to exclude witnesses not only during the taking of others testimony, 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. See id. at 154. 123. See Tobolowsky, supra note 38, at 418-19 & n. 94. Of the 29 states with victim rights constitutional amendments, 27 include a general or conditional victim right to be present at court proceedings or criminal justice proceedings. See id. at 417-19. California and Rhode Island do not include this victim right in their provisions. See C AL. CONST. art. I, 28; R.I. C ONST. art. I, 23. Both the Senate and House of Representatives versions of the proposed federal constitutional victim rights amendment include the right not to be excluded from . . . 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.

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states have recognized some victim rights to be present at parole hearings.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.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, but also allows victims to be seated at counsel table with the prosecutor.128 The federal system and approximately thirty states have modified their previous fairly automatic exclusions of victims at testimonial proceedings, but still condition victims right to be present at court proceedings to some degree.129 The most
S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46; Tobolowsky, supra note 38, at 415-422 (describing provisions regarding victim presence at court and post-conviction proceedings). 124. See Tobolowsky, supra note 38, at 418 & n. 95. In their victim rights constitutional provisions, approximately five states expressly authorize victim presence at parole proceedings. See id. at 419. 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. See, e.g., ALASKA STAT . 33.16.130 (Michie 1996); IOWA C ODE ANN. 910A.10 (West Supp. 1998); S.C. CODE ANN. 16-3-1560 (Law. Co-op. Pamp. 1997); W. VA. CODE ANN. 62-12-23 (1997). Some states grant this right at other post-conviction proceedings. See, e.g., DEL. CODE ANN. tit. 11, 4361 (1995) (regarding pardon hearings); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998) (regarding pardon hearings). 125. See NEV. CONST. art. I, 8; N.C. CONST. art. I, 37; IDAHO C ODE 19-5306 (1997); S.C. CODE ANN. 16-3-1515, -1535 (Law. Co-op. Pamp. 1997); UTAH C ODE ANN. 77-38-4 (Supp. 1997). 126. See ALASKA STAT . 12.61.010 (Michie Supp. 1998); MO. ANN. STAT. 595.209 (West Supp. 1998); N.H. REV. STAT. ANN. 21-M:8-k (Supp. 1997); N.M. STAT. ANN. 31-26-4 (Michie Supp. 1997). 127. See OR . REV. STAT. 40.385 (1988); ARIZ. R. C RIM. P. 9.3; ARK. R. EVID. 616; UTAH R. EVID. 615; cf. 18 U.S.C.A. 3510 (West 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). 128. See ALA. CODE 15-14-50 to -57 (1995). The victim may be excluded from court only for the same causes as a defendant. See ALA. CODE 15-14-50 to -57 (1995). But see ALA. CONST. amend. 557 (providing a victim right to be present at all crucial stages of criminal proceedings, to the extent that [this right does] not interfere with the constitutional rights of the person accused of committing the crime.) 129. See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46;

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common condition is the provision of a victims right to be present to the extent that the exercise of the right does not interfere with the defendants constitutional rights.130 Other jurisdictions have established a victims right to be present subject to the courts determination that the victims presence would not be prejudicial or contrary to the interests of justice or that the victims testimony would not be materially affected or for other good cause the defendant may establish.131 Still other jurisdictions preclude the victims presence at testimonial proceedings until after the victim has testified.132 The approximately ten remaining states provide neither a general nor conditional victim right to be present at court proceedings, but expressly refer to the victims opportunity to be present only at sentencing proceedings.133 Thus, although the federal system and virtually all of the states provide an express victim right of presence at court proceedings to some degree, and the express right of victim presence is greater than prior to the Presidents Task Force, the extent of this right varies considerably.134
Lamborn, supra note 4, at 160-72 (describing provisions). 130. See, e.g., WIS. CONST. art. I, 9m; COLO. REV. STAT . ANN. 24-4.1-302, -302.5, -303 (West Supp. 1997); IND. CODE ANN. 33-14-10-5 (Michie 1992); OHIO R EV. CODE ANN. 2930.09 (Anderson 1996). 131. See, e.g., 42 U.S.C.A. 10606, 10608 (West 1995 & Supp. 1998) (allowing exclusion if court determines that presence would materially affect victims testimony); DEL. CODE ANN. tit. 11, 3512, 9407 (1995) (permitting exclusion if good cause showing by the defendant); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998) (allowing exclusion if victims presence would be prejudicial); OKLA. STAT . ANN. tit. 12, 2615 (West Supp. 1998) (permitting exclusion of victim in the interest of justice); see also C AL. PENAL C ODE 1102.6 (West Supp. 1998) (specifying criteria for determining existence of a substantial probability that overriding interests will be prejudiced by victims presence); TEX . CODE C RIM. P. ANN. art. 56.02 (West Supp. 1998) (making victims right to be present at proceeding subject to the courts approval). 132. See, e.g., S.D. CODIFIED LAWS 19-14-29 (Michie 1995) (providing a victim exception to the rule of exclusion of witnesses following the victims testimony); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998) (providing a right to be present at trial after testifying and to be scheduled to testify as early in the trial as practical). 133. See, e.g., IOWA C ODE ANN. 910A.5 (West Supp. 1998); MINN. STAT . ANN. 611A.03 (West 1987 & Pamp. 1998); W. VA. CODE 61-11A-2 (1997). 134. Some states extend the victims rights of presence to members of the victims family or support persons who are permitted to accompany a victim in court. See, e.g., CAL. PENAL C ODE 1102.6 (West Supp. 1998); M ASS. ANN. LAWS ch. 258B 3 (Law. Co-op. Supp. 1998); WYO. STAT. ANN. 1-40-206 (Michie 1997). 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. See e.g., DEL. CODE ANN. tit. 11, 9407 (1995); OKLA STAT. ANN. tit. 12, 2615 (West Supp. 1998).

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Court challenges to victims presence have generally been limited to instances of victim presence at testimonial proceedings. Reviewing courts have typically upheld the degree of victim presence provided by state law, including trial courts discretionary rulings implementing such. Reviewing courts have not foreclosed the possibility that a defendant might demonstrate circumstances in which a victims authorized presence could jeopardize the defendants right to a fair trial.135 However, they have genIn those jurisdictions which have expressly addressed a victims failure to exercise a granted right of presence, laws generally provide that such failure does not prevent the court from proceeding or provide a basis to set aside a conviction. See ALA. CODE 15-14-57, 15-23-76 (1995) (providing both); CONN. GEN . STAT. 54-85c (1997) (specifying no basis to set aside a conviction); GA. CODE ANN. 24-9-61.1 (Harrison 1994) (specifying no basis to set aside a conviction); UTAH C ODE ANN. 77-38-10 (Supp. 1997) (stating that the victims absence does not preclude the court from conducting the proceeding). But cf. ARIZ. REV. STAT. ANN. 13-4436 (West Supp. 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); OKLA. STAT. ANN. tit. 57, 332.2 (West Supp. 1998) (describing similar reconsideration hearing remedy regarding parole release). 135. For example, the court in Jimenez v. State, 787 S.W.2d 516, 523-24 (Tex. App. 1990), concluded that the trial court had abused its discretion by failing to exclude the victim from the pretrial hearing on the defendants motion to suppress identification. State law authorized the victims presence if approved by the court. See TEX. CODE C RIM. P. ANN. art. 56.02 (West Supp. 1998). In this case, however, 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 jurys deliberation and verdict. In this case, the critical, indeed the only contested issue was the reliability and admissibility of the complainants ultimate in-court identification. 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. If ever there were a case in which the literal language of Article 56.02(b) should yield to the rule [of exclusion of witnesses], this is such a case. It was a clear abuse of discretion to overrule the defense objection in this regard and exempt the complainant from the rule. Id. at 524. Cf. Stephens v. State, 720 S.W.2d 301, 302-03 (Ark. 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 victims presence in the courtroom, but acknowledging the possibility of such a showing); Jay M. Zitter, Annotation, Emotional Manifestations by Victim or Family of Victim During Criminal Trial as Ground for Reversal, New Trial, or Mistrial, 31 A.L.R. 4th 229 (1984). In Claiborne v. State, 893 S.W.2d 324, 325-326 (Ark. 1995), however, at a hearing on the defendants motion to suppress identification, the court upheld the presence of an identification witness from one burglarized residence during the

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erally found no prejudice to a defendants rights from a trial courts allowance of a victims presence during trial or other testimonial proceedings before his initial136 or subsequent testimony,137 or after his testimony has
identification testimony of her next door neighbor whose residence had also been burglarized. Despite the critical nature of the identification testimony in both cases and this witnesss previous equivocal identification, the reviewing court determined that this victim was not a witness to her neighbors 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. See id. at 326. 136. The court in State v. Beltran-Felix, 922 P.2d 30, 32-35 (Utah Ct. App. 1996), found no per se violation of the defendants due process rights due to Utahs constitutional and statutory provisions granting victims the right to be present at important criminal justice hearings. 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. See id. The reviewing court found no suggestion that the critical elements of the case turned on the victims testimony or that her testimony was significantly revised to conform with other witnesses and rejected the defendants claim that the prosecutor had improperly referred to the victims presence. See id. at 35. Cf. People v. Bradford, 65 Cal. Rptr.2d 145, 196-97 (Cal. 1997) (finding that defendant failed to demonstrate that presence of homicide victims family members during opening statements posed . . . substantial risk of affecting their testimony, as required for exclusion under state law, or was prejudicial). 137. In Wheeler v. State, 596 A.2d 78, 86-89 (Md. Ct. Spec. App. 1991), the court rejected the defendants 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. In making its ruling, the appellate court construed the states rules of exclusion (which provide mandatory exclusion before a witness testifies and discretionary exclusion following a witnesss testimony) and its victim rights provisions (which allow exclusion of a victim only after a finding of good cause). See id. at 86-87. 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. Id. at 88-89. Finding that the defendant had failed to identify any particularized prejudice from the victims remaining in court following her testimony, the appellate court found no error in the trial courts allowance of her continued presence. See id. at 88-89. The court further concluded that the defendant had failed to preserve his objection to the victims rebuttal testimony. See id. at 89. In State v. Rangel, 866 P.2d 607, 609-13 (Utah Ct. App. 1993), the court concluded that the states rule of exclusion, which exempts victims from its application and permits their testimony even after hearing other testimony, 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 prosecutions principal case and on rebuttal. The appellate court rejected the defendants contention that the victims continued presence allowed her to conform her testimony to that of other witnesses or to influ-

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been completed,138 as authorized by state law and under the circumstances presented.139
ence their testimony. See id. at 612-13. The court rejected the defendants assertions that his fair trial rights had been violated and that the trial court had abused its discretion by allowing the victims continued presence throughout the trial. See id. at 613. 138. See, e.g., Sireci v. State, 587 So.2d 450, 454 (Fla. 1991), cert. denied, 503 U.S. 946 (1992) (finding that presence of homicide victims wife and son in courtroom after their testimony, as authorized by the states constitutional victim rights provision, was not improper); Bellamy v. State, 594 So.2d 337, 338 (Fla. Dist. Ct. App. 1992) (finding no violation of the defendants due process rights due to the victims presence in court); Watts v. State, 406 S.E.2d 562, 564 (Ga. Ct. App. 1991) (finding no error from the victims presence in court after testifying); State v. Cosey, 873 P.2d 1177, 1180-81 (Utah Ct. App. 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 courts failure to exclude the victim from the courtroom); cf . Robinson v. State, 896 S.W.2d 442, 443 (Ark. Ct. App. 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 officers occupation was related to the crime and was made known to the jury during opening statements). 139. In Solomon v. State, 913 S.W.2d 288, 290 (Ark. 1996), however, the trial court erroneously ruled that a homicide victims daughters were entitled to be present in the courtroom during trial although they were not included in the victims exception to the state rule on exclusion of witnesses. The daughters testified after several prosecution witnesses and offered important testimony as to the intent of their father, the defendant. See id. at 290-91. In this case, the defendants intent was the critical issue in the case because the defendant claimed that he had accidentally, not intentionally, shot his wife. See id. at 290. 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, the Arkansas Supreme Court concluded that the defendant had demonstrated sufficient prejudice from the trial courts erroneous ruling to require reversal of the defendants conviction and a remand of the case for retrial. See id. at 290-91. Similarly, in two cases in which the trial court had erroneously allowed a victim or victims representative not only to be present during trial (which was authorized by law), but also to sit at counsel table (which was not authorized by law), reviewing courts found sufficient prejudice to the defendants to reverse their convictions. See Mask v. State, 858 S.W.2d 108, 111-12 (Ark. 1993) (finding a danger that seating of the victim at counsel table could be perceived as the trial courts expression of opinion on her credibility as a witness); Hall v. State, 579 So.2d 329, 330-31 (Fla. Dist. Ct. 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 victims son); cf . Fuselier v. State, 468 So.2d 45, 52-53 (Miss. 1985) (finding reversible error in trial courts allowing victims daughter to sit within the courtroom rail near the prosecutor during trial and engage in open displays of emotion). But see Commonwealth v.

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Few researchers have attempted to assess the effect or impact of victims presence at criminal justice proceedings. 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.140 Researchers found that court attendance itself appeared to improve victims perceptions of sentencing outcomes generally,141 but had no impact on their perceptions of their offenders.142
Carbone, 574 A.2d 584, 590 n.8 (Pa.), modified, 585 A.2d 445 (Pa. 1990) (finding nothing inherently prejudicial about the presence of a member of the victims family at the prosecutors side and finding no error in victims widow, whose behavior was impeccable, sitting at counsel table during voir dire and trial). Alabama courts, however, have consistently rejected defendants challenges to the states law permitting victims (or their representatives) to sit at counsel table with the prosecutor. See, e.g., Grimsley v. State, 678 So.2d 1197, 1210 (Ala. Crim. App. 1996); Hammers v. State, 661 So.2d 788, 788-89 (Ala. Crim. App. 1994); Coral v. State, 628 So.2d 954, 984 (Ala. Crim. App. 1992); Pierce v. State, 576 So.2d 236, 251 (Ala. App. 1990), cert. denied, 576 So.2d 258 (Ala. 1991). See generally Goddu, supra note 33 (criticizing provisions allowing victims to sit at counsel table as violations of the defendants right to a fair trial and impartial jury); Sonja A. Soehnel, Annotation, Propriety and Prejudicial Effect of Permitting Nonparty to be Seated at Counsel Table, 87 A.L.R. 3d 238 (1978). On a related issue, reviewing courts have generally upheld the application of statutes permitting support persons to accompany a victim in court or during testimony. See, e.g., People v. Johns, 65 Cal. Rptr.2d 434, 436-38 (Cal. Ct. App. 1997) (finding no constitutional violation from use of a support person for a minor victim); People v. Patten, 12 Cal. Rptr.2d 284, 287-94 (Cal. Ct. App. 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). But cf. Commonwealth v. Harris, 567 N.E.2d 899, 905-06 (Mass. 1991) (cautioning about behavior of victim advocates in court endangering defendants fair trial rights). See generally Goddu, supra note 33 (criticizing provisions allowing support persons as violative of a defendants rights to a fair trial and impartial jury); Carol A. Crocca, Annotation, Propriety and Prejudicial Effect of Third Party Accompanying or Rendering Support to Witness During Testimony, 82 A.L.R. 4th 1038 (1991). 140. See generally Hagan, supra note 112 (describing study model). 141. See id. at 327. Of the possible combinations of court attendance and knowledge of case disposition, researchers found that victims court attendance without knowledge of their case disposition produced the greatest reduction in demand for sentence severity, that knowledge of case disposition without court attendance produced the least such reduction, 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. See id. 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.e ., do not attend court or know the case outcome) respond very similarly to those who have full exposure to this process (i.e. , attend

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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 Presidents 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 Victims 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. & SOCY 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

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instances in which the victims role as a prosecution witness risks conflict with the defendants 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 victims movement in the years since the Presidents 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 Presidents 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 prosecutors
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 Presidents 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 Presidents 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 PRESIDENTS 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 offenders crime on the victim. See id. at

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charging decision, there has been little change in the victims 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 victims 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 prosecutors 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 prosecutors charging decision have also been extremely rare.150 There has been little expansion of a victims right to be heard regarding the charging decision in the years since the Presidents 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 years 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 crimes impact before the prosecutors final decision regarding whether to file formal charges).

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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 prosecutors 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 defendants 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 prosecutions general deterrence value, the Governments enforcement priorities, and the cases relationship to the Governments 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 prosecutors motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Governments 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 Governments enforcement policies concerning the draft registration laws. See id. 156. Id. at 607-08 (citations omitted).

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In some instances, courts have rejected challenges to the prosecutors charging decision on standing grounds. In rejecting a womans attempt to force a prosecutor to initiate criminal non-support charges against the father of her child in Linda R.S. v. Richard D., 157 the United States Supreme Court concluded:
The Courts 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. Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the States criminal laws. The District Court was therefore correct in dismissing the action for want of standing, and its judgment must be af158 firmed.

Other courts have rejected efforts to challenge a prosecutors 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.159 In Gansz v. People, 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 prosecutors discretionary dismissal of charges against the alleged perpetrator of the crime.161 The appellate court noted that the
157. 410 U.S. 614 (1973). The woman had filed a class action suit to enjoin the application of the Texas criminal non-support statute, which had been judicially construed to apply only to married parents. See id. at 614-15. The woman, the parent of a child born out of wedlock, sought to enjoin the local prosecutor from refusing to prosecute the father of her child for non-support. See id. at 614-16. The Court, however, 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 childs father or that her requested relief of prosecution would result in payment of support by the childs father. See id. at 618. 158. Id. at 619 (citations omitted). See Taylor v. Newton Division of the District Court Department, 622 N.E.2d 261, 262 (Mass. 1993); Welling, supra note 149, at 98-102; cf. Leeke v. Timmerman, 454 U.S. 83, 84-87 (1981) (rejecting, on standing grounds, 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). 159. See Hall, supra note 48, at 968-72; Welling, supra note 149, at 102-05. 160. 888 P.2d 256 (Colo. 1995) (en banc). 161. Id. at 257. The defendant had initially been charged with assault. See id.

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prosecutors statutory obligation to consult with a victim, where practicable, regarding decisions concerning case dismissal provided that noncompliance with the provision would not invalidate any decision or disposition made. 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.162 Moreover, 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, the legislature had limited this right to proceedings involving pretrial release, the acceptance of plea agreements, and sentencing.163 As a result, the Colorado Supreme Court concluded that
Article II, section 16a of the Colorado Constitution does not grant an alleged crime victim standing or the right to contest a district attorneys decision to dismiss criminal charges or the right to appellate review of the order dismissing the charges. Section 16a and its enabling legislation do not grant an alleged crime victim the right to be heard on a district attorneys motion 164 to dismiss a criminal charge.

Perhaps because of the limited nature of the right to be heard regarding the charging decision, empirical research concerning this right is virtually non-existent.165 Thus, commentators who have debated the merits of a
After reviewing the case for trial, however, the prosecutor determined that the victim was not a credible witness and that the case could not be proven beyond a reasonable doubt. See id. The trial court granted the prosecutors motion to dismiss the case without a hearing. See id. The trial court vacated the dismissal and ordered a hearing, however, after receiving a letter from the victim objecting to the dismissal. See id. At the hearing, the trial court ruled that the victim lacked standing to challenge the dismissal and again granted the prosecutors dismissal motion. See id. at 257. 162. Id. at 258-59 n.7. 163. See id. at 258 (citations omitted). 164. Id. at 258-59. But see id. at 258 n.5 (describing Colorado statutory provision allowing a court to compel prosecution in circumstances in which a prosecutors refusal to prosecute is arbitrary or capricious and without reasonable excuse and noting that the victim would have standing to pursue this remedy). 165. 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, these surveys and interviews have not focused specifically on victim input regarding the charging decision. See, e.g., HERNON & FORST, supra note 111; Kelly, supra note 111. In a six-site study using hypothetical scenarios with about 100 prosecutors and other criminal justice personnel, 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. See HERNON & FORST, supra note 111, at 13 tbl.II.2; 26-32 tbl.IV.1-.3.

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potential expanded victim right to be heard regarding the charging decision have done so on policy grounds rather than research results.166 Regardless of the nature of the debate, it has resulted in little change in a victims right to be heard regarding the charging decision in the years since the Presidents Task Force. 2. Plea Negotiations and Agreements Unlike the general absence of change regarding the victims right to be heard concerning the charging decision, there has been a significant expansion of the victims right to be heard by the prosecutor and the court regarding plea negotiations and agreements in the past fifteen years.167
166. There is clearly no uniformity of opinion, even among commentators who advocate some expansion of the victim role in the charging decision. After determining that the benefits of such an expanded role only marginally outweigh the drawbacks, one commentator suggested only a modest expansion of the victims role by providing a right to consult with the prosecutor regarding the charging decision, but not a right to challenge the prosecutors ultimate charging decision. See Welling, supra note 149, at 86-94, 114-17 (suggesting that the preferred remedy for a prosecutors failure to consult would be disciplinary action). In a similar vein, another commentator concluded that a prosecutors decision to prosecute should be influenced by the victims attitude only within guidelines promulgated to assure fairness to the victim, society, and the alleged offender. See Hall, supra note 48, at 982. Adopting a middle position, another commentator proposed maintaining only an informal role for victim input to prosecutors regarding the initial charging decision, but giving victims party status in hearings on charge dismissals. See Goldstein, supra note 48, at 557. 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. See id. 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. See, e.g., Richard L. Aynes, Constitutional Considerations: Government Responsibility and the Right Not to be a Victim, 11 PEPP. L. REV. 63, 97-107 (1984); Gittler, supra note 25, at 161; Paul S. Hudson, The Crime Victim and the Criminal Justice System: Time for a Change, 11 PEPP. L. REV. 23, 58-59 (1984). 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. See, e.g., Cardenas, supra note 3, at 392-98; Gittler, supra note 25, at 150-63. 167. There has been a somewhat more modest expansion of a victims right to be heard regarding pretrial release. Approximately 10 states expressly require the prosecutor to consult with the victim regarding the defendants pretrial release. See, e.g., FLA. STAT. ANN. 960.001 (West Supp. 1998); KY. R EV. STAT. ANN. 421.500 (Michie Supp. 1996); VT. STAT. ANN. tit. 13, 5308 (Supp. 1998). The federal system and a few other states provide a general right to confer with the prosecutor. See , e.g., WIS. CONST. art. I, 9m; 42 U.S.C.A. 10606 (West 1995); N.M. STAT. ANN. 31-26-4 (Michie Supp. 1997).

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Approximately forty states currently require prosecutors to consult with victims regarding plea negotiations in their cases.168 To ensure that such consultations take place, 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 courts acceptance of a plea agreement.169 In addition, 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, which arguably include those regarding pretrial release. See, e.g., ARIZ. REV. STAT. ANN. 13-4422 (West Supp. 1997); MO. ANN. STAT. 595.209 (West Supp. 1998); S.D. C ODIFIED LAWS 23A-28C-1 (Michie 1998); UTAH C ODE ANN. 77-38-4 (Supp. 1997). This figure includes approximately 12 states which have included such a general or specific right to be heard in their constitutional rights provisions. See, e.g., ALASKA C ONST. art. I, 24; IDAHO C ONST. art. I, 22; OR . C ONST. art. I, 42. 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. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46; Tobolowsky, supra note 38 (describing provisions). 168. Some states use language which requires prosecutors to affirmatively obtain victims views or input in their discussions regarding plea negotiations. See, e.g., C ONN. GEN. S TAT. ANN. 54-203 (West 1997); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp. 1998); MICH. COMP . LAWS ANN. 780.756 (West 1998); W. VA. CODE 61-11A-6 (1997). Other states require only that prosecutors consult or confer with victims regarding their plea negotiations, leaving the content of such consultation undefined. See, e.g., ARK. CODE ANN. 16-21-106 (Michie Supp. 1997); HAW. R EV. STAT . ANN. 801D-4 (Michie 1994); VT. STAT. ANN. tit. 13, 7006 (Supp. 1998). The federal system and a few states provide only a general victim right to confer with the prosecutor, which arguably includes consultation regarding plea negotiations. See, e.g., WIS. CONST. art. I, 9m; 42 U.S.C.A. 10606 (West 1995); N.M. STAT. ANN. 31-26-4 (Michie Supp. 1997). In addition to the approximately 40 states that require some form of prosecutor consultation with victims regarding plea negotiations, approximately five states specifically require prosecutors to notify victims regarding plea negotiations. See, e.g., C AL. PENAL C ODE 679.02 (West Supp. 1998); OKLA. STAT. ANN. tit. 19, 215.33 (West Supp. 1998); TENN. CODE ANN. 40-38-103 (1997). See generally NVC, supra note 46 (describing provisions). 169. See, e.g., ALA. CODE 15-23-71 (1995); IND. CODE ANN. 35-35-3-5 (Michie 1998); M E. REV. STAT. ANN. tit. 17-A 1173 (West Supp. 1997); WASH. R EV. CODE ANN. 9.94A.090 (West 1998). Some states have expressly provided, however, that a prosecutors failure to confer with a victim regarding the plea negotiation does not affect the validity of the plea agreement or resulting disposition. See ARK. CODE 16-21-106 (Michie Supp. 1997); DEL. CODE ANN. tit. 11, 9405 (1995); N.Y. EXEC. LAW 642 (McKinney 1996) (providing that such failure to confer is also not a cause for delaying proceedings against the defendant); OHIO R EV. CODE ANN. 2930.06 (Anderson Supp. 1997).

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agreements170 or general rights to be heard regarding important criminal justice proceedings, for which status plea agreements should certainly qualify.171 Few courts have addressed prescribed victim rights to be heard regarding plea agreements. A California appellate court most directly addressed these rights in People v. Stringham172 in which a plea agreement in a homicide prosecution had been conditionally accepted by one judge. The plea agreement was subsequently rejected by another judge, however, following the commencement of sentencing proceedings at which the victims father appeared and denounced the plea agreement.173 The appellate court construed Californias victim rights provisions to allow a victim or his next of kin (such as the victims father in this case) to attack a plea bargain at a sentencing proceeding following the initial acceptance of the plea.174 To do otherwise, the court concluded, would prevent a victim or
170. See, e.g., C OLO. REV. STAT. ANN. 24-4.1-302.5 (West Supp. 1997); N.H. R EV. STAT. ANN. 21-M:8-k (Supp. 1997); UTAH C ODE ANN. 77-38-4 (Supp. 1997). 171. See, e.g., KAN. STAT . ANN. 74-7333 (Pamp. 1997). 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. See, e.g., ARIZ. CONST. art. II, 2.1; COLO. CONST. art. II, 16a; M O. CONST. art. I, 32; S.C. CONST. art. I, 24. 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. See S.J. Res. 6; H.R.J. Res. 71. The few states which have addressed the effect of a victims failure to exercise a provided right to be heard at a plea proceeding have indicated that the victims absence does not prevent the court from conducting the proceeding (see UTAH C ODE ANN. 77-38-10 (Supp. 1997)) or serve as a basis to set aside the disposition (see S.D. CODIFIED LAWS 23A-7-8.1 (Michie 1988)) or both (cf . N.Y. EXEC. LAW 647 (McKinney 1996) (regarding a courts failure to consider a victims views)). See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46; Tobolowsky, supra note 38 (describing provisions). 172. 253 Cal. Rptr. 484 (Cal. Ct. App. 1988). 173. See id. at 485. 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 id. One judge conditionally accepted the plea agreement, but subsequently recused himself prior to the sentencing hearing. See id. at 486. At the sentencing hearing before the new judge, the victims father criticized the plea bargain and the prosecutor and urged that the defendant be charged as a murderer. See id. at 486-87. After a subsequent hearing, the judge rejected the plea agreement. See id. at 487. The defendant was convicted of second degree murder and related charges at trial. See id. at 488. 174. See id. at 490. California law regarding guilty pleas allowed the court to

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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.175 Despite the continuing expansion of victims rights to be heard regarding plea negotiations and agreements, researchers have devoted little attention to assessing the effectiveness of such rights. 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, prosecutor, defense attorney, defendant, victim, and investigating police officer were invited.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. From a systems standpoint, the conferences seemingly shortened the length of time it took to close cases, but did not cause significant changes in the proportion of cases litigated or defendants convicted.177 In
withdraw its approval of such at a subsequent hearing on pronouncement of judgment. See id. at 489 n.8. The California victim rights provisions did not specifically provide a right of hearing at plea proceedings, but did provide the victim the right to attend sentencing proceedings and reasonably express his views regarding the crime and the defendant, which views were to be considered by the court. See id. at 490-92 & nn.10-11. 175. Id. at 491. The appellate court also concluded that the victims fathers 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. See id. at 492-94. A few other appellate courts have rejected a defendants attempt to withdraw his plea agreement in circumstances in which the prosecutor had agreed not to allocute as to some or all sentencing issues, but the victim (or a family member) had addressed the court on such sentencing issues. These courts determined that, in the absence of explicit victim agreement to be bound by the prosecutors position on allocution or of collusion by the prosecutor to circumvent the plea agreement through the victim, the victims exercise of his rights to be heard regarding the sentencing of the defendant did not violate the prosecutors plea agreement or provide a sufficient basis for the defendant to withdraw his guilty plea. See State v. Johnson, 907 P.2d 140 (Kan. 1995); Sharp v. State, 908 S.W.2d 752 (Mo. Ct. App. 1995), cert. denied, 518 U.S. 1007 (1996); cf. Wilson v. Commonwealth, 839 S.W.2d 17 (Ky. Ct. App. 1992) (regarding denial of shock probation following initial incarceration sentencing). 176. See Heinz & Kerstetter, supra note 141, at 349, 353-54. Over 1,000 felony cases assigned to test and control group judges were included in the Dade County, Florida study, with over 350 assigned to the experimental settlement conference group. See id. at 349. Researchers attended the settlement conferences and conducted interviews with the judges, attorneys, defendants, victims, and police officers in the test and control group cases. See id. at 353-54. 177. See id. at 365. The fact that all key decision makers were potentially present at the conferences actually seemed to increase case handling efficiency, perhaps by lowering information costs and needs. See id. at 364-65. The sessions themselves

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terms of the dynamics of the conferences, they were dominated by the professionals with lay members mainly providing requested information.178 The sessions were attended by only one-third of the invited victims,179 but victims and other lay participants indicated modest gains in information and satisfaction with their treatment as compared to non-participants.180 Subsequent field tests generally confirmed these research results.181 Seizing upon various aspects of these studies, commenaveraged only 10 minutes in length and resulted in final or tentative agreement regarding disposition in three-fourths of the cases. See id. The time to disposition in the test courtrooms was reduced by approximately three weeks by the conference procedure. See id. at 360. 178. See id. at 357-60. The judges, in particular, typically controlled the conference discussions. See id. at 359. Only 25% of victims made more than five comments during the sessions. See id. Contrary to the expectations of some participants, victims were usually supportive of the dispositions proposed by the judges and attorneysrather than demanding the maximum punishment allowed. See id. Perhaps because of the limited role victims played at the conferences, by the end of the project, some of the professionals questioned the significance of their participation. See id. at 357-60. See generally W ILLIAM F. MC DONALD, U.S. DEP T OF J USTICE , PLEA B ARGAINING : C RITICAL I SSUES AND C OMMON PRACTICES 68-70 & tbl.4.2 (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 victims attitude toward bargain as an item considered in deciding the case). 179. See Heinz & Kerstetter, supra note 141, at 357. Although some of the professionals suggested that victims poor attendance reflected their lack of interest, notification problems in the research project were most frequently cited by victims as the reason for nonattendance. See id. 180. See id. at 362-65. Victims who attended the conferences were much more likely to indicate that they knew the dispositions in their cases, but they were not significantly more satisfied with the dispositions or processing of their cases than victims who did not attend the conferences. See id. 181. In subsequent field tests at three locations, victims were allowed to participate in plea conferences presided over by judges. EDWIN V ILLMOARE & VIRGINIA V. NETO, U. S. DEPT OF J USTICE, V ICTIM APPEARANCES AT SENTENCING HEARINGS UNDER THE C ALIFORNIA V ICTIMS BILL OF R IGHTS 6 (1987). Approximately 50% of eligible victims participated in the conferences, with their participation accounting for approximately 10% of the speaking time at the conferences. See id. The majority of the victim participants did not believe that their participation affected the outcome of the plea negotiation, but they were more satisfied with the pleas negotiated and plea bargaining generally than victims who did not participate. 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, inter alia, guilty pleas. See SUSAN W. HILLENBRAND & BARBARA E. SMITH, AMERICAN BAR ASSOCIATION, EXECUTIVE S UMMARY: V ICTIM R IGHTS LEGISLATION: AN

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tators again have advocated various mechanisms through which victims can provide expanded input regarding plea negotiations and agreements.182 As reflected above, 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 Presidents Task Force. This expansion is particularly meaningful because it has given eligible victims183 input into a disposition decision regarding which victims previously had limited formal access.184 Moreover, this input
ASSESSMENT OF ITS IMPACT ON C RIMINAL J USTICE PRACTITIONERS AND VICTIMS 20 (1989). 182. 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 victims right to communicate his views to the court regarding the proposed plea agreement. They feel that such direct communication with the ultimate decision maker regarding the plea enhances the victims sense of participation in the plea process. Moreover, in cases in which the victims views of the plea agreement differ from those of the prosecutor, direct victim communication with the court avoids conflict in the prosecutors role and ensures that the victims views will be communicated to the court. See, e.g., Gittler, supra note 25, at 167; Sarah N. Welling, Victim Participation in Plea Bargains, 65 WASH. U. L.Q. 301, 345-53 (1987) (suggesting the remedy of a judicial grievance complaint for a courts denial of a victims right to be heard rather than an appeal); Gegan & Rodriguez, supra note 91, at 236-37; Polito, supra note 46, at 251-54; David A. Starkweather, Note, The Retributive Theory of Just Deserts and Victim Participation in Plea Bargaining, 67 IND. L.J. 853, 876-77 (1992); cf. Davis et al., supra note 112, at 501-02 (describing role conflict when victim input which victim liaisons had communicated to prosecutors was not disclosed to the court). Still other commentators propose giving victims actual veto power over plea offers before they are negotiated. (see Karen L. Kennard, Comment, The Victims Veto: A Way to Increase Victim Impact on Criminal Case Dispositions, 77 CAL. L. REV. 417, 437-53 (1989)) or giving victims party status regarding hearings on guilty pleas (see Goldstein, supra note 48, at 557)). 183. Again, this victim right to be heard is generally contained with other victim rights and is typically available to victims of designated crimes only, and is sometimes available only on victim request. See supra notes 50-57 and accompanying text. 184. See M C DONALD, supra note 178, at 68-69. In a survey conducted at the approximate time of the Presidents Task Force, 49% of the 43 prosecutors from six states said that they rarely heard from victims concerning their views regarding plea proposals. See id. at 69. 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. See id. Percentages of the 50 surveyed judges who said that they sought victims opinions of plea agreements ranged from 0 to over 90%. See id. at 69 & n.13. These researchers concluded that victims wishes were rarely considered in plea bargain decision making except in cases of violent or nonstranger crimes. See id. at 69. But see id. at 68-69 (describing Connecticut study in which victim attitudes were considered more signifi-

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pertains to a dispositional decision making process through which most criminal prosecutions are concluded.185 As a result, the impact of this victim right to be heard can be substantial. 3. Sentencing A victims right to be heard at sentencing has been one of the most widely adopted victim rights in the last fifteen years.186 The federal system and every state provide eligible victims187 an opportunity to offer input to the court regarding sentencing either in writing, orally or both.188
cantly). 185. It is generally estimated that 85-90% of prosecutions are concluded by negotiated pleas of guilt. See, e.g., Gittler, supra note 25, at 164 & n.141. Perhaps because so few cases are concluded by trial, only approximately 10 states expressly, and the federal system and a few more states generally, provide a victim right of consultation with the prosecutor regarding trial. See, e.g., 42 U.S.C.A. 10606 (West 1995); ALASKA STAT . 12.61.015 (Michie 1996); MASS. ANN. LAWS ch. 258B, 3 (Law. Co-op. Supp. 1997). 186. This right has primarily been adopted through provision of a victims opportunity to be heard by the court regarding sentencing. See infra note 188 and accompanying text. Perhaps because this right has been so extensively provided, only approximately 10 states specifically require the prosecutor to consult with the victim regarding sentencing (see, e.g., ARIZ. REV. STAT . ANN. 13-4419 (West Supp. 1997); LA. REV. STAT . ANN. 46:1844 (West Supp. 1998); N.Y. EXEC. LAW 642 (McKinney 1996)), and the federal system and a few other states generally do so (see, e.g., ALASKA C ONST. art. I, 24; 42 U.S.C.A. 10606 (West 1995)). 187. The victims right to be heard at sentencing, as most victim rights, is typically restricted to victims of designated crimes only and is sometimes available only on victim request. See supra notes 50-57 and accompanying text. Some states impose additional restrictions on crimes for which victims are eligible to make victim impact statements. See, e.g., C ONN. GEN . STAT . 54-91c (1997); W YO. STAT. ANN. 7-21-101 (Michie 1997). 188. The federal system and most states authorize a victim to provide input regarding sentencing both orally and in writing. See, e.g., FED. R. C RIM. P. 32 (providing oral allocution only for victims of violent crime or sexual abuse); ALA. C ODE 15-23-73, -74 (1995); 725 ILL. COMP . STAT. ANN. 120/6 (West Supp. 1998); MINN. STAT . ANN. 611A.038 (West Supp. 1998); S.D. C ODIFIED LAWS 23A-28C-1 (Michie 1998); WYO. STAT. ANN. 7-21-102 (Michie 1997). Less than 10 states allow only written victim impact submissions. See, e.g., GA. CODE ANN. 17-10-1.1 (Harrison 1994); M ISS. CODE ANN. 99-19-161 (1994); VA. C ODE ANN. 19.2-11.01 (Michie Supp. 1997); cf. TEX. CODE C RIM. P. ANN. arts. 42.03, 56.03 (West Supp. 1998) (allowing written submissions prior to sentencing and oral allocution after sentence has been imposed). Twenty-six of the 29 states with constitutional victim rights amendments include a specific or general victim right to be heard at sentencing. See, e.g., ALASKA C ONST. art. I, 24; FLA. CONST. art. I, 16; MO. CONST. art. I, 32; W ASH. CONST. art. I, 35. The proposed federal constitutional victim rights amendment includes a victim right to be heard at sentencing orally and in writing. See S.J. Res. 6, 105th Cong. (1997); H.R.J.

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Through submission of a victim impact statement or victim impact testimony,189 a victim can generally communicate to the sentencing judge the direct physical, psychological, and economic impact of the crime and often the victims opinion as to the crime, the offender, and the desired sentence.190 Perhaps because of the breadth of this victim right to be heard, courts have been more actively engaged in its interpretation than that regarding other victim rights. Of course, 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.191 As the United States Supreme Court noted forty years ago in rejecting a defendants contention that a sentencing judge should be reRes. 71, 105th Cong. (1997). See generally NATIONAL NETWORK , supr a note 46; NVC, supra note 46; Tobolowsky, supra note 38 (describing provisions). 189. 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. See McLeod, supra note 141, at 163. A standard victim impact statement form, fully or partially openended in format, is generally used by probation staff to record information obtained from the victim and other relevant sources. See id. at 162-63. 190. The prescribed content of the victim input regarding sentencing varies considerably. Some states expressly authorize victim input only as to the crimes direct physical, psychological, financial, and sometimes social impact. See, e.g., C ONN. GEN. S TAT. 54-91c (1997); M D. ANN. CODE art. 27 781 (Supp. 1997); 71 PA. CONS. STAT . ANN. 180-9.3 (West Supp. 1998). Other states also allow input as to the victims opinions or beliefs regarding the crime, the offender, or the desired sentence. See, e.g., CAL. PENAL C ODE 1191.1 (West Supp. 1998); M ICH. C OMP . LAWS ANN. 780.763 (West 1998); N.H. REV. STAT. ANN. 651:4-a (1996); W ASH. REV. CODE A NN. 9.94A.110 (West 1998). Still other states give only general guidance as to the content of the input or no guidance at all. See, e.g., R.I. GEN. LAWS 12-28-3 (1994); TENN. CODE ANN. 40-38-103 (1997). See generally NVC, supra note 46; McLeod, supra note 141, at 165-66 (describing provisions). Regardless of the specific statutory authorizations, courts frequently receive additional input from victims regarding sentencing. See infra notes 209-10 and accompanying text; see also Donald J. Hall, Victims Voices in Criminal Court: The Need for Restraint, 28 AM . CRIM. L. REV. 233, 242-43 (1991). Despite this broad provision of a victims right to be heard, 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. CODE 15-23-76 (1995); UTAH C ODE ANN. 77-38-10 (Supp. 1997)) or serve as a basis to set aside the disposition (see GA. C ODE ANN. 17-10-1.1 (Harrison 1994)) or both (see N.Y. C RIM. P. LAW 380.50 (McKinney 1994 & Supp. 1998); N.Y. EXEC. LAW 647 (McKinney 1996); VT. STAT. ANN. tit. 13, 7006 (Supp. 1997)). 191. See, e.g., Payne v. Tennessee, 501 U.S. 808, 819-22, 825 (1991); People v. Mockel, 276 Cal. Rptr. 559, 562-63 (Cal. Ct. App. 1990).

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stricted to consideration of sentencing information received in open court,


both before and since the American colonies became a nation, 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.

Nevertheless, once victim input regarding sentencing began to be required, rather than permitted, it began to receive much more judicial scrutiny. Not surprisingly, the closest scrutiny of the appropriateness of victim input came in the context of sentencing proceedings in capital cases. In a trilogy of capital cases decided within a five-year period, the United States Supreme Court established and subsequently rejected certain limitations on victim impact information in capital sentencing proceedings. In Booth v. Maryland,193 a narrow Court majority concluded that information in the victim impact statement which described the victims personal characteristics and the crimes emotional impact on the victims family, as well as family members opinions and characterizations of the offender and the crime,194 was irrelevant to a capital sentencing decision, and that its ad192. Williams v. New York, 337 U.S. 241, 246 (1949). In this case, the trial court rejected the jurys 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. at 242-43. In explaining the considerations underlying his sentence, the judge referred, inter alia, to information in the presentence report regarding the defendants criminal history and tendencies. See id. at 244. Although no challenge to the information was made at the time, the defendant claimed on appeal that the courts failure to allow him to confront and crossexamine witnesses as to these matters violated his due process rights. See id. at 245. In rejecting the defendants claim, the Court noted the distinctions between the evidentiary requirements for the guilt versus the punishment determination, the wide latitude courts have in the receipt of sentencing information, and the importance of non-testimonial presentence investigative information to assist the court in individualizing an appropriate sentence for an offender. See id. at 246-52. 193. 482 U.S. 496 (1987). 194. The information, concerning the brutal murder of an elderly couple in the course of a burglary, was obtained as part of the victim impact statement required under state law as part of the presentence report in felony cases. See id. at 498. The information, which was very dramatic and descriptive, was obtained by probation staff from the victims children and other family members. See id. at 498500. Defense counsel moved to suppress the statement, contending that its use in a capital case violated the Eighth Amendment. See id. at 500-01. After the trial court denied this motion, the prosecutor nevertheless agreed to read the impact statement to the jury rather than call the family members as witnesses, in an attempt by defense counsel to limit the inflammatory effect of the information. See id.

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mission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.195 The Court therefore concluded that the introduction of this victim-related information in a capital sentencing proceeding violates the Eighth Amendment.196 Two years later, in South Carolina v. Gathers, 197 the Court extended this ruling to bar prosecutors comments regarding personal characteristics of the victim in a capital sentencing proceeding, in the absence of evidence that the defendant was aware of such characteristics or that they played a role in the defendants decision to kill.198
195. Id. at 503. In the unique circumstances of a capital sentencing hearing in which the focus is on the defendants moral blameworthiness, 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 jurys attention away from the proper focus of the hearing. See id. at 504-07. The Court thus rejected the contention that the presence or absence of emotional distress of the victims family, or the victims personal characteristics, are proper sentencing considerations in a capital case. Id. at 507. Similarly, 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. Id. at 508. 196. See id. at 501-02, 509. 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. at 509. As to the victim impact evidence (but not the victim opinion evidence regarding the offender or sentence), however, 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. See id. at 507 n.10. In such circumstances, the trial judge could determine the relevance of the information to a legitimate consideration and weigh its probative versus prejudicial value. See id. at 507-08 n.10. See generally Paul Boudreaux, Booth v. Maryland and the Individual Vengeance Rationale for Criminal Punishment, 80 J. C RIM. L. & C RIMINOLOGY 177 (1989); Dina R. Hellerstein, The Victim Impact Statement: Reform or Reprisal?, 27 AM . CRIM. L. REV. 391 (1989); Phillip A. Talbert, Comment, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 U.C.L.A. L. REV. 199 (1988) (discussing the nature and utility of victim impact statements in the aftermath of Booth). 197. 490 U.S. 805 (1989). 198. See id. at 810. During his closing argument at sentencing, the prosecutor read from a religious tract and noted a voter registration card, both of which the victim had in his possession when he was murdered and which had been admitted into evidence. See id. at 808-810. The prosecutor commented on the victims perceived religious characteristics as well as the implications of his good citizenship. See id. The Court concluded that this information regarding the content of these items was not relevant to establish the circumstances of the crime or the defendants personal characteristics in the absence of evidence establishing their relevance to the commission of the crime. See id. 810-12. This information thus

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Two years after Gathers and after a change in Court membership, however, the Court concluded, in Payne v. Tennessee, 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 victims personal characteristics and the emotional impact of the murder on the victims family.200 The Court overruled Booth and Gathers to the extent that they reached contrary conclusions.201 Unlike the Court majorities which had decided these cases, the Payne majority concluded that evidence as to the extent of the harm caused by a defendant, in addition to or as part of the evidence as to his blameworthiness, could be relevant to a capital sentencing decision, and that victim impact evidence could help establish the actual harm caused by a particular crime.202
The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. Courts have always taken into consideration the harm done by the defendant in imposing sentence, and the evidence adduced in 203 this case was illustrative of the harm caused by Paynes double murder.

By removing the Eighth Amendment bar to the admission of this victim impact evidence and related prosecutorial argument, the Court allowed
fell under the exclusion of victim characteristic evidence established in Booth. See id. 199. 501 U.S. 808 (1991). 200. See id. at 827. 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 prosecutors closing argument about this impact. See id. at 814-16. 201. See id. at 828-30. The Courts holding overruling Booth and Gathers was limited to these cases holdings that evidence and argument relating to the victim and the impact of the victims death on the victims family are inadmissible at a capital sentencing hearing. Id. at 830 & n.2. Because no evidence was introduced in Payne regarding family members characterizations and opinions about the crime, the defendant, and the appropriate sentence Booths holding that the admission of such evidence violates the Eighth Amendment in capital sentencing hearings was left undisturbed by Payne. Id.; see also id. at 833 (OConnor, J., joined by White and Kennedy, JJ., concurring). 202. See id. at 819-27. 203. Id. at 824-25 (citation omitted).

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states to determine the relevance of such information to the capital sentencing decision, subject to any overriding due process constraints.204 Most states which have addressed the issue have concluded that victim impact evidence is admissible in capital sentencing proceedings,205 as long as it is not unduly prejudicial or inflammatory.206 Because even the Booth Court had not precluded the potential use of victim impact information in noncapital sentencing proceedings, the
204. See id. at 825-27; see id. at 831 (OConnor, J., joined by White and Kennedy, JJ., concurring). See generally Valerie Finn-DeLuca, Victim Participation at Sentencing, 30 C RIM. L. BULL. 403 (1994); Susan Ann Cornille, Comment, Retributions Harm Component and the Victim Impact Statement: Finding a Workable Model, 18 U. DAYTON L. REV. 389 (1993); Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: a History of Incompatibility, 23 AM . J. C RIM. L. 375 (1996); Michael Ira Oberlander, Note, The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings, 45 VAND. L. REV. 1621 (1992); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing, 35 AM . C RIM. L. REV. 93 (1997); Gregory B. Schneider, Note, Victim Impact Statement: A Victims Steam Valve, 14 C RIM. J UST. J. 407 (1992) (discussing victim impact evidence in light of Payne). 205. See, e.g., Evans v. State, 637 A.2d 117, 129-31 (Md.), cert. denied, 513 U.S. 833 (1994); State v. Gentry, 888 P.2d 1105, 1141 (Wash. 1995); cf. Conover v. State, 933 P.2d 904, 920-21 (Okla. Crim. App. 1997) (finding that evidence as to a victims opinions about the crime and appropriate sentence are also admissible). But see, e.g., Holmes v. State, 671 N.E.2d 841, 848 (Ind. 1996), cert. denied, 118 S. Ct. 137 (1997) (finding victim impact evidence inadmissible at capital sentencing unless relevant to aggravating and mitigating circumstances of the crime). See Phillips, supra note 204, at 100-01 n.56 (identifying 32 states which allow victim impact statements in capital sentencing proceedings, five states with conflicting or no definitive law on the subject, and only Indiana with a clear ruling of inadmissibility). 206. See, e.g., Evans, 637 A.2d at 131-32 (finding no due process violation from victims sisters testimony regarding feelings of guilt, grief, and trauma from murder); Gentry, 888 P.2d at 1142 (finding no error from admission of victims fathers statements regarding the victim and the effect of her murder on the family). But see, e.g., Holmes, 671 N.E.2d at 848-49 (finding erroneous admission of victim impact evidence unrelated to statutory aggravating and mitigating factors and victims sentencing recommendation harmless because judge determined sentence and said she would not consider inadmissible portions); State v. Roll, 942 S.W.2d 370, 378 (Mo.) (en banc), cert. denied, 118 S. Ct. 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); Conover, 933 P.2d at 920-21 (finding admission of victims familys graphic description of crime and defendant and early history of victim erroneous because prejudicial outweighed probative value; 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).

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Payne Courts ruling as to the general admissibility of such information in capital sentencing did not alter any existing legal precedents in noncapital cases.207 Reviewing state courts have taken seriously their ongoing responsibility to ensure that the probative value of victim impact evidence exceeds its prejudicial effect, but they have generally found no error, or at least no reversible error, from the admission of such evidence.208 This has been the case even when the express statutory authorizations as to victim impact evidence have been exceeded.209 In such instances, reviewing
207. The Booth Court acknowledged that the full range of foreseeable consequences of a defendants 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, 482 U.S. at 504, 507 n.10. The Courts ruling implied no opinion as to the use of victim impact statements in noncapital cases. See id. at 509 n.12. Although it is clear that the first of the above acknowledgments applied only to the victim impact evidence and not the evidence regarding the victims opinions as to the crime or the offender, it is not entirely clear whether the Courts final statement of no opinion extended to the use of this second category of victimrelated information in noncapital cases as well. The Booth Courts holding as to the inadmissibility of this second category of evidence in capital sentencing proceedings was left undisturbed in Payne. See supra note 201 and accompanying text. 208. See, e.g., People v. Pickens, 653 N.E.2d 778, 783 (Ill. App. Ct.), cert. denied, 660 N.E.2d 1277 (Ill. 1995) (finding no error from statement about impact of homicide on health and job status of victims father); State v. Yanez, 469 N.W.2d 452, 454-55 (Minn. Ct. App. 1991) (finding no error in admission of victims statements regarding aspects of the crime and no reversible error from victims emotional appeal which there was no reason to believe was considered by the court); People v. Oyola, 626 N.Y.S.2d 849, 850 (N.Y. App. Div. 1995) (finding evidence of psychological impact of crime on victim was proper factor to be considered by sentencing judge); Brown v. State, 875 S.W.2d 38, 39-40 (Tex. App. 1994) (finding victims statements regarding the emotional and physical impact of the crime admissible and statements regarding recommended sentence harmless error, if error). 209. Reviewing courts have found no reversible error from the admission of victim evidence on additional subjects than those expressly specified in the authorizing legislation. See, e.g., People v. Jones, 14 Cal. Rptr.2d 9, 13-15 (Cal. Ct. App. 1992) (finding no error, or alternatively no reversible error, from the victims recommendation as to sentence); State v. Matteson, 851 P.2d 336, 338-40 (Idaho 1993) (finding the victims opinion of the offender and sentence recommendation admissible because no statutory limitation which would exclude such); Mehring v. State, 860 P.2d 1101, 1116-17 (Wyo. 1993) (finding no reversible error from the admission of impact information regarding uncharged or past victims). No reversible error has been found from testimony from additional victims than the number or type authorized by statute. See, e.g., People v. Zikorus, 197 Cal. Rptr. 509, 511-14 (Cal. Ct. App. 1983) (regarding victims mother); Jones v. State, 675 N.E.2d 1084, 1089 (Ind. 1996) (regarding victims mother, sister, and friend);

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courts have concluded that these enactments prescribed the types of victim impact evidence that the court is required to receive, but do not limit the trial courts traditional ability to receive additional information relevant to sentencing.210 Reviewing courts have differed, however, as to whether this expanded victim impact evidence requires greater formalities, such as the requirements of victim testimony under oath or subject to crossexamination.211 Nevertheless, on review, the admissibility of victim imState v. Acoff, 610 N.E.2d 619, 621 (Ohio Ct. App. 1992) (regarding victims mother and grandmother). 210. See, e.g., People v. Mockel, 276 Cal. Rptr. 559, 561-62 (Cal. Ct. App. 1990) (regarding the number of victims); Sharp v. State. 908 S.W.2d 752, 756 (Mo. Ct. App. 1995) (regarding sentence recommendation). 211. In Buschauer v. State, 804 P.2d 1046 (Nev. 1990), the Nevada Supreme Court established rules regarding when prior notice, testimony under oath, and cross-examination are required regarding oral victim impact testimony. All are required when impact testimony includes a defendants prior bad acts, as in the instant case. See id. at 1048-49. When impact testimony is more limited, the victim still must be placed under oath, but prior notice and cross-examination may not be required. See id. at 1048. 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. See id. at 1049. Similarly, in Conover v. State, 933 P.2d 904, 922-23 (Okla. Crim. App. 1997), the Oklahoma Court of Criminal Appeals found reversible error in the trial courts refusal to allow cross-examination of the victims family regarding the victims drug involvement or to allow rebuttal evidence regarding such. See also State v. Blackmon, 908 P.2d 10, 11-12 (Ariz. Ct. App. 1995) (holding that a defendant has the right to cross-examine a victim who makes a sworn or unsworn statement at sentencing); State v. Whitten, 667 A.2d 849, 851-52 (Me. 1995) (finding that judges 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). Other courts, however, have followed the general principles established in Williams v. New York, 337 U.S. 241 (1949), and have not required that victims be placed under oath or be subject to cross-examination when giving victim impact evidence. See, e.g., Zikorus, 197 Cal. Rptr. at 514-15; Mockel, 276 Cal. Rptr. at 562 (noting that the defendants confrontation rights are not violated from the courts consideration of written impact information as long as the defendant is given notice of such and an opportunity to respond); State v. Phillips, 381 S.E.2d 325, 326-27 (N.C. 1989) (finding no violation of the defendants confrontation rights from consideration of victim impact statements of which the defendant had notice, especially when they contained information similar to that introduced at trial which was subject to cross-examination). See VILLMOARE & NETO, supra note 181, at 35 (describing practices of California judges regarding requiring oath and cross-examination of victims at sentencing); McLeod, supra note 141, at 168 (describing findings that in almost all of the jurisdictions in a 33-state survey, defense attorneys can challenge the information in victim impact statements at sentencing and in almost half of the jurisdictions, defense attorneys can crossexamine the victim as to at least some of the information in the victim impact

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pact evidence regarding sentencing has generally been upheld. Despite this seeming judicial support for the admission of victim impact evidence, reviewing courts have also placed limits on the extent of a victims right to be heard. 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.212 The appellate court concluded that the prosecutors mistaken failure to notify the victim of the initial sentencing hearing (and the victims 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 victims mother testified.213 Supreme Courts in three states have also rejected the notion that victim
statement). Some reviewing courts have even found no reversible error in the trial courts receipt of victim impact information outside of normal channels of victim impact statements or oral allocution at sentencing. See, e.g., People v. Wright, 590 N.Y.S.2d 365, 366 (N.Y. App. Div. 1992) (finding no undue influence from a judges improper private interview with the victims family before sentencing); People v. Lader, 494 N.Y.S.2d 33, 35-36 (N.Y. App. Div. 1985) (finding no due process violation from a judges conversation with victims in which they described the impact of the crime on the record, but outside the presence of counsel). 212. See People v. Pfeiffer, 523 N.W.2d 640 (Mich. Ct. App. 1994). 213. See id. at 641. At the initial sentencing hearing, the prosecutor referred to and the trial court had before it victim impact information in the presentence report. See id. The prosecutor at the sentencing made no objection to or request to delay the proceeding. See id. at 643. After the mistaken failure to notify the victim was detected, the prosecutor assigned to the case moved for a resentencing on the grounds that the victims right to be heard at sentencing had been violated. See id. at 641. At the resulting hearing, at which the victims mother testified, the trial court resentenced the defendant to an increased term of incarceration. See id. at 642. Although the appellate court acknowledged the victims statutory right to offer oral allocution at 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. See id. 642-43. The appellate court therefore ordered the defendants initial sentence reinstated. See id. at 644. In another case which did not rely on the state victim rights laws, however, an appellate court upheld a trial courts 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. See State v. Bruce, 642 N.E.2d 12, 13-14 (Ohio Ct. App. 1994). At a resentencing hearing the next day, prior to the execution or formal entry of the sentence, the victim testified regarding her injuries from the offense and the trial court imposed a correct, albeit more severe, sentence. See id. 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. See id. at 14-15.

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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. The Supreme Court of Kentucky concluded that the victims widow, although having a personal interest in the outcome, did not have standing to seek mandamus to have a trial courts order granting shock probation to the defendant set aside.214 Similarly, the Supreme Court of Arizona held that the states constitutional and statutory victim rights provisions, which included rights to be heard at sentencing and post-conviction relief proceedings, did not give the victim the right to file an independent petition of review challenging the merits of a trial courts grant of the defendants motion for postconviction relief following an evidentiary hearing at which the victim testified.215 Even the states 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 courts ruling in a criminal proceeding was error or to bring the types of actions against the defendant that the State can bring.216
214. Schroering v. McKinney, 906 S.W.2d 349, 350-51 (Ky. 1995). 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. See id. at 350. On the standing issue, 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. While the legislature has granted victims certain rights, this statute does not include the right to participate as a party in a criminal action. Id. 350-51 (citations omitted). But see Goldstein, supra note 48, at 557 (suggesting that victims be granted party status after conviction on issues regarding restitution and sentencing). 215. State v. Lamberton, 899 P.2d 939, 942 (Ariz. 1995) (en banc). 216. See id. at 942. Following the trial courts grant of post-conviction relief, 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. See id. at 940. The appellate court rejected the victims review petition on standing grounds. See id. The Arizona Supreme Court concluded that the victims 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. See id. at 941. Here, neither the [constitutional provision nor related legislation] gives victims a right to control the proceedings, to plead defenses, or to examine or cross-examine witnesses; the [constitutional and statutory provisions] give victims the right to participate and be notified of certain criminal proceedings. This is not the same as making victims parties. Moreover, 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, nor does it impose a substantial burden upon her.

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In concluding that, even in light of Californias constitutional and legislative victim rights provisions, the victim had no standing to seek mandamus or prohibition to overturn a trial courts order recalling its previously imposed sentencing order and continuing the matter for resentencing,217 the Supreme Court of California stated the victims 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. Such abstract references do not suggest an intent to alter criminal practice fundamentally by giving individual victims standing to intervene in ongoing criminal cases. The Constitution and statutes do accord individual felony victims certain rights of a more specific and personal nature. These include the right to restitution in appropriate circumstances, and to receive notice, appear, and state views in connection with disposition and sentencing. Whatever special considerations of standing may apply to this limited category of victims rights, challenges based on [the recall provisions] do not implicate them. We hold that petitioner has no personal right or interest which would 218 permit his intervention in the decision to recall [the offenders] sentence. Id. at 941 (citation omitted). The reviewing court also rejected the victims assertion that the only meaningful way to maintain her constitutional right to be heard at sentencing was by filing her own petition for review. See id. at 942. To the contrary, the victims positions regarding such would be reflected in the trial court records reviewed in connection with the prosecutors petition for review and the victims views could be communicated to the prosecutor through the prescribed consultation and notification requirements regarding post-conviction and appellate proceedings. See id. at 942-43. 217. See Dix v. Superior Court, 807 P.2d 1063 (Cal. 1991) (in bank). 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, rights to both of which were provided by California law. See id. at 1064 & n.2. In connection with the defendants agreement to testify in the prosecution of another offender, and at the request of the local prosecutor and authorities (but without notice to the victim), the court agreed to recall the defendants original sentence and to delay resentencing pending his testimony in the other case. See id. at 1064-65. Although he had not yet been resentenced, he had been incarcerated in the local jail for most of the time prior to the California Supreme Courts review. See id. at 1065. The victim, 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 defendants return to prison to serve the remainder of his initial sentence. See id. 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. See id. at 1065-66. The California Supreme Court reversed this judgment. See id. at 1068. 218. Id. at 1067 (citations omitted). The California Supreme Court concluded

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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.219 The federal court found unsupportable the victims claim that states are constitutionally required to give crime victims the right to become involved in the prosecution and sentencing of a criminal defendant.220 In addition, 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.221 Despite these limiting interpretations of the scope of a victims right to be heard regarding sentencing, the right remains quite extensive. It has been adopted and implemented in the midst of a lively debate between legal commentators, policy advocates, and social scientists as to the merits
that the victims action was barred by the general rule that neither a crime victim nor any other citizen has a legally enforceable interest, public or private, in the commencement, conduct, or outcome of criminal proceedings against another. Id. at 1066. The Supreme Court also rejected the intermediate appellate courts recognition of a public interest standing which would allow this or any other victim or other citizen to intervene in a criminal prosecution. See id. at 1068. Rather than the instant action the victim sought, he would be able to be notified of and express his views at the defendants subsequent resentencing. See id. at 106768 n.6; see also id. at 1068 n.7 (noting that California citizen-taxpayers can also file independent actions (i.e., not as part of criminal proceedings) raising general criminal justice issues such as general recall procedures). 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. See id. at 1074. 219. See Dix v. County of Shasta, 963 F.2d 1296 (9th Cir. 1992). 220. Id. at 1298-99. The appellate court noted that there was no history, tradition or precedent suggesting that the liberty component of the Due Process Clause encompasses such a right. Id. at 1299. 221. See id. at 1299-1301. Although the appellate court acknowledged that state law can create liberty interests which trigger federally enforceable rights, such laws must have substantive predicates governing an officials action and employ explicitly mandatory language requiring a certain outcome upon the satisfaction of the specified predicates. See id. at 1299. Neither the victims right to notice and appearance at sentencing or to have the court consider the victims statements in imposing sentence or any other provision cited satisfied these requirements. See id. at 1299-1301. Finally, the appellate court found frivolous the victims claim that the state officials violated his First and Sixth Amendment rights by failing to notify him of the sentencing proceedings. See id. at 1301. Although the appellate court noted that the state had paid no heed to the victims procedural rights of participation in the defendants punishment, his grievance did not give rise to a federal cause of action. See id.

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of such a right. Opponents of the grant of a victims right to be heard regarding sentencing have argued that including the victims input in sentencing would reduce the objectivity of the process; shift the focus away from legitimate sentencing factors and toward inappropriate considerations of victim retaliation and vengeance; result in inequitable, disparate, or harsher sentencing; erode the prosecutors function and control over the prosecution; be administratively cumbersome and time consuming; 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.222 Advocates of a victims right to be heard regarding sentencing, however, have contended that such victim input would promote more informed, accurate, and democratic sentencing decisions; recognize the victims status as the injured party in the prosecution; assist the victims healing and regaining of control following the victimization; increase victim satisfaction and cooperation with the criminal justice system; 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, and other sentencing goals.223 As the victims right to be heard at sentencing has been implemented over the last fifteen years, the results have neither matched the highest expectations of its advocates nor realized the worst fears of its critics. At the outset, despite advocates and analysts portrayal of victims desire for greater participation in the criminal justice process, and especially the sentencing process,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. See, e.g., Howard C. Rubel, Victim Participation in Sentencing Proceedings, 28 C RIM. L.Q. 226, 237-42 (1985). 223. See generally Robert C. Davis & Barbara E. Smith, The Effects of Victim Impact Statements on Sentencing Decisions: A Test in an Urban Setting, 11 JUST. Q. 453, 454-55 (1994); Edna Erez, Victim Participation in Sentencing: And the Debate Goes On..., 3 INTL R EV. VICTIMOLOGY 17, 18-21 (1994); Gittler, supra note 25, at 175-76; Henderson, supra note 29, at 986-1006; Kelly & Erez, supra note 46, at 236-37; supra notes 195, 204 (discussing benefits and disadvantages of victim input regarding sentencing). 224. See, e.g., HERNON & FORST, supra note 111, at 50-52, 60; HILLENBRAND & SMITH, supra note 181, at 16; Kelly, supra note 17, at 72; Kelly, supra note 111, at 73-78, 84. 225. Although analysis of data has continued in the 1990s, 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. As opportunities for the exercise of this victim right to be heard have become more institutionalized, it is possible that utilization or effectiveness

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tors in thirty-three states, one researcher concluded that victim impact statements were prepared, on average, in over three-fourths of felony cases.226 Only eighteen to twenty-six percent of victims, however, were present at sentencing; approximately fifteen percent submitted authorized written statements independently of the victim impact statement included in the presentence report; and nine to thirteen percent made oral allocution statements at sentencing.227 In a survey of victims in five states, other researchers found that while almost fifty percent of victims reported having been consulted about the sentences in their cases, only twenty-seven percent reported actually making a victim impact statement.228 Researchers conducting a local study found that fifty-five percent of the felony case victims submitted a victim impact statement, eighteen percent were present during trial or sentencing, and six percent exercised their oral allocution right at sentencing.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.230 Hypothesizing the reasons for the less than anticipated exercise of these victim rights to be heard, one researcher suggested as explanations: victim unawareness of the rights due to lack of notification,231 discouragement or the absence of
has increased. See infra notes 226-54 and accompanying text. 226. McLeod, supra note 141, at 164. 227. See id. at 164-65. 228. See Hall, supra note 190, at 242 (describing HILLENBRAND & SMITH study, supra note 181, involving more than 350 victims). 229. See Erez & Tontodonato, Sentence Outcome, supra note 143, at 455 (describing Ohio county study of 500 felony victims); cf. Anthony Walsh, Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases, 77 J. C RIM. L. & CRIMINOLOGY 1126, 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). 230. See VILLMOARE & NETO , supra note 181, at 42 (describing three-site California study involving approximately 170 victims). 231. See McLeod, supra note 141, at 165. Difficulties with and lack of notification of participatory rights have often been mentioned as impediments to their exercise. See, e.g., Heinz & Kerstetter, supra note 141, at 357; Gegan & Rodriguez, supra note 91, at 244-47. In the California study of victim allocution, only 44% of 171 interviewed victims indicated awareness of their right to appear at sentencing. See VILLMOARE & NETO, supra note 181, at 42. A related difficulty is victims misperception or misunderstanding of these rights. In the Ohio county study, although 90% of the victims who believed that they had completed a victim impact statement had done so, 50% of those who thought that they had not done a victim impact statement had in fact completed one. See Erez & Tontodonato, Satisfaction with Justice, supra note 143, at 400; Robert C. Davis & Barbara E. Smith, Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise?,

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active encouragement by criminal justice personnel of their exercise, and actual victim choice of nonparticipation.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. The varied estimates regarding the actual utilization of the different forms of the victims 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, sentence outcome, and victim satisfactionagain confirming neither all of the expectations nor all of the concerns regarding this victim right. Initial concerns about the impact of this right on criminal justice system administration and efficiency have largely not been realized. Of course, 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. The extent of this increased workload has been mitigated, however, 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.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.234 In another survey, researchers found that few officials
22 J. C RIM. J UST. 1, 8-9 (1994) (finding only 56% of victims in study who had done a victim impact statement remembered doing so). See generally Erez, supra note 223, at 26-28; Kelly & Erez, supra note 46, at 240-41 (describing notification and related problems). 232. 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); 30% thought that their appearance would make no difference; 28% were either too upset, fearful of retaliation, confused, or discouraged to appear; and 5% said that the appearance would have been too costly due to lost wages or expenses required to arrange their appearance. See VILLMOARE & NETO, supra note 181, at 42-43. 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, 32% wanted to perform their duty, and 26% wanted to achieve a sense of justice or influence the sentence. See id. at 43. As to the results they sought through allocution: 56% wanted a long or maximum sentence, 15% sought emotional relief, 12% sought restitution, and the remaining 17% sought various other objectives. See id. 233. See McLeod, supra note 141, at 163-64, 167. In a survey of 77 probation officials from 36 states, researchers found that almost half said that their victim impact statement responsibilities posed no problems to them. HILLENBRAND & SMITH, supra note 181, at 11. Problems mentioned by other respondents included difficulties in obtaining victim cooperation and personnel problems. See id. 234. See Hudson, supra note 166, at 52.

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believed that victim impact statements created or exacerbated problems.235 Perhaps because relatively few victims have taken advantage of allocution rights at sentencing, researchers in a state utilizing such found that its effects on criminal justice system workload were minimal.236 Thus, it appears, at least at this stage of documented utilization of victim rights to be heard at sentencing, there has been no significant impairment of criminal justice system administration and efficiency. One of the areas of greatest expectation and concern regarding this victim right has been its potential impact on sentencing outcome. Included in this area have been concerns regarding the types of information victims would convey, and especially whether victims would use this right to seek vengeance or retaliation against offenders. Another area of interest has been the degree to which criminal justice personnel, especially prosecutors and judges, would listen to victims input regarding sentencing. 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. Research results have not conclusively confirmed either these expectations or concerns. 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. Research results in this area, however, are quite mixed. For example, in a study of sexual assault victims, researchers found that approximately ninety percent of victims assaulted by non-relatives recommended imprisonment sentences.237 Researchers in another study reported that sixty percent of felony victims who submitted a victim impact statement requested a sentence of incarceration.238 In another study, researchers found that
235. See Madeline Henley et al., The Reactions of Prosecutors and Judges to Victim Impact Statements, 3 INTL R EV. VICTIMOLOGY 83, 85 (1994) (describing HILLENBRAND & SMITH 36-state study, supra note 181). See generally Erez, supra note 223, at 22; Kelly & Erez, supra note 46, at 237 (describing research regarding effects on criminal justice administration). 236. See VILLMOARE & NETO , supra note 181, at 57; cf. Heinz & Kerstetter, supra note 141, 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). 237. See Walsh, supra note 229, at 1132-33 & tbl.2, 1139 (describing Ohio county study). Victim recommendations of incarceration for other offenders varied depending on their relationship to the victim (i.e., 83% for acquaintance offenders, 76% for non-parent relatives, and 23% for parents). See id. at 1132. 238. See Erez & Tontodonato, Sentence Outcome, supra note 143, at 455-56 (describing Ohio county study). 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 id.

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almost half of the victims of felony crimes felt that the offender should be incarcerated.239 Other researchers found that less than half of the studied victims sought incarceration sentences, with the rest seeking restitution, protection, or a lesser form of punishment.240 Finally, still other researchers suggested that although victims generally express an initial desire for an incarceration sentence for an offender, 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.241 Not surprisingly, research confirms that victims are not uniformly punitive in their approach to sentencing issues, but that their recommendations regarding punishment vary in individual cases from requests for incarceration to other alternative forms of punishment. A second question related to the impact of victim input on sentence outcomes is whether judges and prosecutors listen to the victim input. Survey research has fairly consistently indicated judicial support, in principle, for the use of victim impact statements,242 although there is less consensus as to the usefulness (as opposed to the symbolic value) of victim allocution at the sentencing proceeding itself.243 In a thirty-six state sur239. See VILLMOARE & NETO , supra note 181, at 44 (describing three-site California study). 240. See Davis et al., supra note 112, at 493 n.8 (describing Brooklyn study). 241. In their qualitative study based on presentence interviews with victims for defense attorneys over a number of years, these researchers also concluded that victims were more willing to consider sentencing alternatives as more time elapsed from the occurrence of the crime. See Joel Henderson & G. Thomas Gitchoff, Using Experts and Victims in the Sentencing Process, 17 C RIM. L. BULL . 226, 22930 (1981); cf. Heinz & Kerstetter, supra note 141, 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). Of course, given the fact that individuals in these studies frequently have been the victims of felony and often violent felony crimes, their recommendations of incarceration sentences for their offenders should not necessarily be viewed as being punitive. See generally Erez, supra note 223, at 21; Hall, supra note 190, at 244-45 (describing research regarding whether victims are unduly punitive). 242. See HILLENBRAND & SMITH, supra note 181, at 9-10 (describing survey of 74 judges and 84 prosecutors in 36 states); Hudson, supra note 166, at 52 (describing survey of criminal justice officials in states with victim impact statement requirements); see also Davis & Smith, supra note 223, at 466; Henley et al., supra note 235, at 90 (describing general support by interviewed Bronx and Brooklyn judges for victim impact information). But see HERNON & FORST supra note 111, 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). 243. Compare, e.g., HILLENBRAND & SMITH, supra note 181, at 10 (finding that

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vey, judges indicated that they found victim information regarding the financial, physical, and psychological impact of crimes to be the victim information most useful to the sentencing decision, but a majority of the judges indicated that victim opinions or recommendations as to the sentence were not useful in the sentencing decision.244 Although prosecutors generally have expressed their belief in the usefulness of victim impact information,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 It thus appears that, in principle, judges and prosecutors believe that there is utility in victim impact informationalthough there may be differences of opinion as to the most effective means for victims to transmit this information to them. Assuming the receptiveness of judges and prosecutors to the use of victim impact information, then the question remains as to its impact on sentencing outcomes. In a thirty-six state survey conducted after the adoption of victim impact statements and other means of victim input at sentencing, 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.247 Despite these general views regarding victim impact on sentencing outcomes, most research as to specific sentence decision making since the Presidents Task Force has continued to show that the nature of the charge and the defendants prior criminal record are the most consistently significant predictors of sentence
most judges in national survey found all forms of victim input, including victim narratives and oral allocution, effective means of obtaining useful information) with, e.g., VILLMOARE & NETO, supra note 181, 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); Erez & Tontodonato, Sentence Outcome, supra note 143, at 469 (commenting on limited impact of oral allocution on sentence outcomes in study conducted). 244. See HILLENBRAND & SMITH, supra note 181, at 10, 20. 245. See id. at 9 (describing 36-state survey); Hudson, supra note 166, at 52 (describing survey of criminal justice officials in states with victim impact statements). 246. See Davis & Smith, supra note 223, at 466 (describing interviews with Bronx prosecutors in which the majority did not think victim impact statements added substantially to their knowledge of the crimes impact on the victim); Henley et al., supra note 235, 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, as well as problems in their preparation). 247. See Hall, supra note 190, at 246 (describing HILLENBRAND & SMITH study, supra note 181).

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outcome rather than additional factors of victim input and impact.248 Ex248. In a six-site study conducted at the approximate time of the Presidents Task Force, 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. See HERNON & FORST, supra note 111, at 13 & tbl. II.2, 33-38. Victim harm variables included the financial, physical, and psychological impact of the crime. See id. at 33. 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. at 43. In a study of an early Brooklyn victim liaison program in the late 1970s which, inter alia, solicited victim input regarding desired sentence outcomes, researchers found that information regarding outcomes desired by victims had a limited effect on case disposition when compared with dispositions in a control group. See Davis et al., supra note 112, at 495-96, 498. Although there was some greater increase in orders of restitution (and warnings to stay away from victims) in the experimental group, most of its victims who experienced financial loss did not receive restitution. See id. at 498-99. There were no significant differences between the experimental and control groups in incarceration sanctions. See id. at 499-500. Court officials and program staff felt that the program had only a slight effect on case outcome. See id. at 500. This was due in part, however, to the limited discretion that prosecutors sometimes had in disposition recommendations and their unwillingness, in some instances, to incorporate additional victim information in their decision making or to convey it to the court. See id. at 500-01, 504-05. In a Bronx study conducted in the late 1980s, almost 300 felony robbery, nonsexual assault, and burglary victims were assigned to one of three experimental groups in which victim impact statements were prepared and given to criminal justice officials, statements were prepared but not disseminated, or no statements were taken. See Davis & Smith, supra note 223, at 458-60. Researchers found that there were no statistically significant differences between the three groups in the types of sentences imposed. See id. at 462-63. They further found that the type and severity of the charge and the defendants prior convictions were significant influences on the decision to incarcerate, but not the presence of a victim impact statement or an overall victim harm measure. See id. at 464. After charge and criminal history were taken into account, overall victim harm and victim impact statements and individual measures of harm played little role in the sentencing decision. See id. at 465. There was no indication that victim impact statements increased the use of special conditions, such as restitution. See id. at 464. In an Ohio county study of 500 felony cases conducted in the late 1980s which compared cases in which victims had an impact statement, requested a sentence of incarceration, or made oral allocution to those in which victims did not, 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, but found no such correlation regarding oral allocution. See Erez & Tontodonato, Sentence Outcome, supra note 143, at 454-67. In a multivariate analysis, however, while offense severity and prior convictions remained significantly related to sentences of incarceration and their length, only the presence of a victim impact statement remained even mod-

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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, one of the factors which is highly predictive of sentence outcome; the increasing presence of guideline or determinate sentencing structures which restrict variances allowed for victim impact or other factors; and the general resistance to change in established norms of criminal justice sentencing decision making.249 Given the limited effect that victim input has had on sentence outcome, 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.250 Another researcher, however, 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. Although often the [victim impact statement] and the information it contains are reflected in the charge, 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. 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; nor is it 251 redundant or useless information.

Once again, in terms of the effect of victim input on sentence outcomes,


estly related to the incarceration (versus probation) decision. See id. at 463-65; see also Walsh, supra note 229, at 1129-34 (finding, in Ohio study of approximately 400 sexual assault victims, that victim recommendations regarding sentence did not have a significant impact on sentencing outcome independently of factors of crime seriousness and prior record); cf . VILLMOARE & NETO , supra note 181, at 56 (finding that 19% of judges, but 70% of prosecutors, in California study thought that a victims allocution sometimes or often increased sentence severity and 40% of judges, but 66% of prosecutors, thought it increased the amount of restitution ordered). See generally Erez, supra note 223, at 22-24; Kelly & Erez, supra note 46, at 238-39 (describing research regarding the effect of victim input on sentencing outcome). 249. See, e.g., Davis et al., supra note 112, at 503-05; Davis & Smith, supra note 223, at 457, 466-68; Hall, supra note 190, at 247; Henley et al., supra note 235, at 91-92. 250. Walsh, supra note 229, at 1139, 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); cf . Davis & Smith, supra note 223, at 467-68 (raising concerns regarding the effectiveness of victim impact statements based on their research regarding its limited effect on sentence outcome). 251. Erez, supra note 223, at 24.

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neither the highest expectations nor the worst fears have been realized. Finally, especially in light of the limited changes in sentence outcome, the impact of the victims right to be heard on victim satisfaction must be considered. At the outset, survey results have varied as to whether victims even believe that their input has affected sentence outcome.252 As to victims satisfaction with their right to be heard or increased satisfaction with the resultant sentence outcome, research results are inconclusive. In a fivestate survey of victims, half were not satisfied with their opportunity to provide input in the sentencing decision.253 In specific studies, however, 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.254
252. See, e.g., VILLMOARE & NETO , supra note 181, at 44, 56 (describing California study regarding victim allocution); Davis et al., supra note 112, at 498 & n.25 (describing Brooklyn victim liaison study); Erez & Tontodonato, Satisfaction with Justice, supra note 143, at 401 (describing Ohio county study); Hall, supra note 190, at 247 (describing HILLENBRAND & SMITH five-state study, supra note 181). 253. See HILLENBRAND & SMITH, supra note 181, at 20 (describing survey of over 350 victims). 254. In the Bronx study, described supra note 248, 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, but prior to the dispositions in their cases. See Davis & Smith, supra note 231, at 7-8. In fact, the experimental victim impact statement group gave the least positive responses. See id. at 8. In interviews following case disposition, there were no significant differences between the groups regarding their perceptions of the court process, their treatment by criminal justice officials, or the case outcome. See id. at 8-10. 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. See id. at 10. They hypothesized that part of the reason may be that many victims do not seek greater participation in the criminal justice process. See id. at 11. 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. See id. at 11-12; see also Davis et al., supra note 112, at 498 & n.25 (finding no differences in victim satisfaction with case outcome in experimental victim liaison and control groups in Brooklyn study); cf. VILLMOARE & NETO, supra note 181, at 44, 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). Researchers in the Ohio county study, described supra note 248, did a companion study of victim satisfaction based on 125 completed surveys from the 500 felony case victims in the general study. See Erez & Tontodonato, Satisfaction with Justice, supra note 143, at 397-98. They found no significant differences in victim satisfaction with the criminal justice system or the sentence based on the

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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. Reviewing courts have been generally supportive of this rights implementation, but have clearly defined the limits of the right. Policy analysts and advocates continue to debate its merits. Although researchers have generally established its acceptable impact on criminal justice administration and efficiency, 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. As a result, the debate as to the nature and effectiveness of this victim right will likely continue. 4. Parole Although the parole process has long been a largely private process
filing of a victim impact statement. See id. at 402. 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. See id. at 403. Victim perception of sentence fairness and severity was correlated with satisfaction with the sentence and the criminal justice system. See id. at 404. Receipt of restitution also increased perceptions of system satisfaction. See id. at 407. Because of the centrality of victim satisfaction with sentence outcomes to their overall satisfaction, 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. at 410-13; HERNON & FORST, supra note 111, at 45, 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). 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, but that they might have an indirect effect on the type of sentence imposed and thus on victims satisfaction. See Tontodonato & Erez, supra note 29, at 50-51. On a more encouraging note, both the Bronx and Ohio county studies reflected that the majority of victims studied, including those who provided victim input at sentencing and those who did not, were at least somewhat satisfied with the outcomes in their cases and the criminal justice system generally. See Davis & Smith, supra note 231, at 8-10; Erez & Tontodonato, Satisfaction with Justice, supra note 143, at 401. See generally Erez, supra note 223, at 24-26; Kelly & Erez, supra note 46, at 239-40 (describing research regarding victim satisfaction). 255. The victim right to be heard regarding sentencing is, of course, not universal because not all victims are eligible for it under federal and state law. See supra notes 50-57 and accompanying text.

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between criminal justice personnel and an offender,256 over forty states now grant eligible victims257 a right to be heard regarding parole decision makingin writing, orally, or both.258 Provisions regarding this right
256. See Frances P. Bernat et al., Victim Impact Laws and the Parole Process in the United States: Balancing Victim and Inmate Rights and Interests, 3 INTL R EV. VICTIMOLOGY 121, 121-23 (1994). In response to criticism of the indeterminate sentencing system and discretionary parole decision making, the federal system and many states have instituted parole decision making guidelines or criteria, adopted various forms of determinate sentencing, or abolished parole entirely. See id. at 121-22. 257. The victims right to be heard regarding parole, as most victim rights, is typically available to victims of designated crimes only and is sometimes available only upon victim request. See supra notes 50-57 and accompanying text. By their nature, parole decisions generally involve felony offenders which, in some instances, further narrows the categories of eligible victims. Some states impose additional restrictions on crimes for which victims are eligible to be heard in the parole process. See, e.g., IOWA C ODE ANN. 910A.10 (West 1994); N.D. C ENT. C ODE 12.1-34-02 (Supp. 1997). 258. See, e.g, ARK. CODE ANN. 16-93-206 (Michie Supp. 1997); DEL. CODE ANN. tit. 11, 4350, 9416 (1995); M ASS. ANN. LAWS ch. 127, 133A (Law. Coop. 1989 & Supp. 1997); R.I. GEN. LAWS 12-28-6 (1994); VA. CODE ANN. 53.1-155 (Michie Supp. 1997). In addition, victim impact statements which have been prepared prior to sentencing are often transmitted by the court system to parole authorities. See, e.g., TEX. C ODE C RIM. P. ANN. art. 56.03 (West Supp. 1998). Approximately seventeen states with constitutional victim rights amendments include a specific or general right to be heard regarding parole. See, e.g., ARIZ. C ONST. art. II, 2.1; NEB. CONST. art. I, 28. 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. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). Most states do not specifically address the effect of a failure to provide a victims right to be heard regarding parole. Arizona, however, 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 victims right to be heard and if the offender has not been discharged from his sentence. See ARIZ. REV. STAT. ANN. 13-4436 (West Supp. 1997). 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. See OKLA. STAT . ANN. tit. 57, 332.2 (West Supp. 1998); see also TENN. CODE ANN. 40-28-505 (1997) (allowing postponement of parole hearing or new hearing (based on submission of victim impact statement) if hearing scheduled or held, respectively, without required notice to the victim). But see R.I. GEN. 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). See generally NATIONAL NETWORK , supra note 46; NVC, supra note 46;

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vary widely in terms of the nature and extent of authorized victim input or whether the nature of such input is specified at all. They also vary according to the procedural prerequisites for the exercise of the right and confidentiality and disclosure requirements concerning its use and content.259 Despite the extensive adoption of this victim right to be heard regarding parole release decisions, it has been the subject of limited judicial interpretation260 and empirical research. 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.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.262
Bernat et al., supra note 256; Maureen McLeod, Getting Free: Victim Participation in Parole Board Decisions, 4 C RIM. J UST. 12 (1989); Tobolowsky, supra note 38 (describing provisions). 259. See generally Bernat et al., supra note 256; McLeod, supra note 258 (describing details of format and content provisions, procedural requirements (e.g., victim request and maintenance of current address information), and confidentiality and disclosure requirements). 260. In State ex rel. Hance v. Board of Pardons and Paroles, 875 P.2d 824 (Ariz. Ct. App. 1993), and Daniels v. Traughber, No. 01A01-9707-CH-00297, 1998 Tenn. App. LEXIS 315 (Tenn. Ct. App. May 6, 1998), victims were able to obtain reconsideration hearings regarding post-conviction release decisions which had been made without the prescribed notice to them. See Hance, 875 P.2d at 831; Daniels, 1998 Tenn. App. LEXIS 315, at *3. In the absence of such notice, they were unable to exercise their rights to be heard. See Hance, 875 P.2d at 831; Daniels, 1998 Tenn. App. LEXIS 315, at *3. Arizona and Tennessee are among the few states providing such a reconsideration hearing remedy. See supra notes 6474, 99, 258 and accompanying text (describing cases and statutes). Prisoners have generally been unsuccessful in challenging the formal addition of victim input into parole decision making. See Daniels, 1998 Tenn. App. LEXIS 315, at *1, *7. (finding no due process violation from rescission of previously granted, but not yet implemented, parole following subsequent hearing in which victim input received). Cf. supra note 103 (discussing Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991), and Alston v. Robinson, 791 F. Supp. 569 (D. Md. 1992), 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). See generally McLeod, supra note 258, at 43 (noting general judicial nonintervention in correctional administration). 261. See supra note 223 and accompanying text. 262. See supra note 223 and accompanying text. Some of the policy arguments have had unique aspects when applied to a victims right to be heard regarding parole. Those arguing the relevance of victim input regarding parole note its use-

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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. Although often victim impact statements prepared in the trial court are routinely transmitted to correctional authorities, researchers in one state found that victims offered oral or written testimony in only ten percent of initial parole consideration cases.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 inmates file, and the contribution that information regarding the crimes continuing impact may have on the assessment of an inmates readiness for parole or parole risk. See, e.g., Bernat et al., supra note 256, at 134-35. Opponents contend that such information is irrelevant to the paramount question of whether the offenders current behavior makes him an appropriate parole risk and is simply designed to intimidate parole board members into denying parole. See, e.g., Donald R. Ranish & David Shichor, The Victims Role in the Penal Process: Recent Developments in California, 49 FED. PROBATION 50, 54-55 (1985). In response to these conflicting positions, some analysts have urged legislators to better clarify the content, purpose, and consideration of victim input regarding parole to avoid its misuse. See, e.g., Bernat et al., supra note 256, at 136-37. Some analysts have noted the increased challenges of victim notification of this right in the context of parole, given individuals mobility and the possibility of change in address information after the conclusion of the prosecution. See, e.g., McLeod, supra note 258, at 15, 41-42. As a result, states often give victims the responsibility to maintain current address information with parole authorities to preserve their right to provide parole input. See id. at 41. Finally, 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. See id.; see also Marlene A. Young, A Constitutional Amendment for Victims of Crime: The Victims Perspective, 34 W AYNE L. REV . 51, 62 n.25 (1987); Gegan & Rodriguez, supra note 91, at 242-43; Mark W. May, Comment, Victims Rights and the Parole Hearing, 15 J. C ONTEMP. L. 71, 77-79 (identifying additional issues concerning victim input regarding parole). 263. See William H. Parsonage et al., Victim Impact Testimony and Pennsylvanias Parole Decision Making Process: A Pilot Study, 3 C RIM. J UST. POL Y R EV . 187, 193 (1992). Researchers conducting a Pennsylvania study found that in the initial five years after the requirement to allow victim testimony at parole hearings was adopted, victim testimony was offered in 71 initial parole consideration cases in 1987, in 350 such cases in 1989, and in 336 cases in 1991. See id. In the 1989 study year, these 350 cases represented approximately 10% of the initial parole consideration cases the parole board heard. See id. 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 VILLMOARE & NETO, supra note 181, at 69. Due to the application of the state determinate sentencing laws, only offenders serving sentences of life imprisonment received such hearings. See id. at 68. At that time, most were serving sentences for murder without a significant likelihood of parole. See id. During the 1983 study period, victims in less than two percent of parole eligible cases ex-

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heard, however, the limited research which has been conducted suggests that their input could have had a significant effect on the parole decision outcome. 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.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.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. The difference in parole refusal rates persisted after researchers took into account the nature of the crime, the offenders potential for recidivism, and other parole release variables.266 In further analypressed an interest in their allocution rights. See id. at 69; Ranish & Shichor, supra note 262, at 54. 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. See Gegan & Rodriguez, supra note 91, at 242; cf. VILLMOARE & NETO, supra note 181, at 69 (describing conditions under which victims appear at parole hearings). 264. See Bernat et al., supra note 256, at 125. Parole authorities in 24 states indicated that victim input in their parole decisions was very important, that it was somewhat important in six states, and that it was important in 19 states. See id. In interviews with parole authorities in 34 states, 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. See McLeod, supra note 258, at 14, 43. One interviewee noted that parole denial rises from 40-50% in the absence of victim statements to 80% when statements are submitted. See id. at 43. Most interviewees agreed that personal appearances by victims have a greater effect than written statements. See id.; cf. VILLMOARE & NETO, supra note 181, at 69 (finding California parole authorities generally supportive of victim allocution rights at parole). 265. See generally Parsonage et al., supra note 263. 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. See id. at 193. In their victim testimony, significant proportions of victims described the crimes continuing physical, financial, and psychological impact and their continuing fear of the offender. See id. at 195-200. Seventy-three percent strongly objected to the offenders parole release. See id. at 190. A third of the victims indicated dissatisfaction with the criminal justice systems handling of their cases, sometimes expressing anger at their exclusion from earlier stages of the cases processing. See id. at 200. 266. See Parsonage et al., supra note 263, at 194. Although the parole refusal rate in the control group was consistent with the state parole guidelines recommendations, the refusal rate exceeded the policy guidelines recommendations by 33% in the victim testimony group (i.e., the recommended refusal rate was only 10%). See id.

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sis, they found that the presence of victim testimony was the most significant variable associated with parole refusal decisions, even more significant than the inmates unfavorable institutional performance, the number of prior convictions, and the fact that the victim suffered physical injury.267 In addition to impact on parole outcome demonstrated by the above-described study, 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.268 Although the empirical research regarding the impact of victim input concerning parole is quite limited, it indicates a much more significant potential impact from the exercise of this right to be heard than has been established regarding sentencing. E. 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. As the examination of these provisions and the judicial interpretations of them has reflected, however, the victim rights which have been created are not limitless, especially when they risk conflict with pre-existing offender rights, and the enforcement mechanisms for violations of victim rights are often quite limited. Although the federal system and all of the states have granted some type of victim participatory rights in the criminal justice process, the federal system and over forty states have also expressly limited the potential
267. See id. at 195-98. Not surprisingly, within the victim testimony group, a victims expressed opposition to parole was significantly related to parole refusal. See id. at 198-99. Because of the significant effect that victim testimony had on these parole decisions, the researchers urged the authorities to clarify the purposes for which victim input could be considered (e.g., to help assess parole risk and recidivism or to enhance the offenders sentence due to the crimes continuing impact on the victim or the victims opposition to parole) and to incorporate them objectively into the parole guideline structure and provide safeguards to assure the reliability of the information conveyed. See id. at 200-02. 268. See VILLMOARE & NETO, supra note 181, at 70. 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. See id. at 69. Although their reported satisfaction with the criminal justice system might result from the simple fact of the offenders conviction and significant sentence, more than half felt that the sentence was too easy. See id. at 70. Most were providing input to try to keep the offender in prison by emphasizing the nature and impact of the crime. See id. 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.

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remedies for violations of these rights. 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.271 In the absence of mandatory rights or clear constitutional or statutory enforcement or sanction provisions, some reviewing courts have characterized victim rights as merely permissive or directory and therefore not judicially enforceable.272 In addition, the highest
269. The federal system and almost forty states have such provisions, including approximately 14 states which have included this limitation in their constitutional victim rights provisions. See, e.g., ALA. CONST. amend. 557 (providing no cause of action); OR . C ONST. art. I, 42 (specifying no new civil liabilities created); 42 U.S.C.A. 10606 (West 1995) (providing no cause of action or defense); HAW. R EV. STAT. ANN. 801D-5 (Michie 1994) (specifying no liability in any civil action); M E. REV. STAT. ANN. tit. 17-A, 1175 (West Supp. 1997) (specifying no liability in a civil action); 71 P A. CONS. STAT. ANN. 180-9.11 (West Supp. 1998) (providing no cause of action or defense); TENN. CODE A NN. 40-38-108 (1997) (providing no cause of action or claim for damages). The proposed federal constitutional victim rights amendment expressly excludes claims for damages arising from rights violations. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997); see also H.R. 1322, 105th Cong. (1997) (providing no cause of action or defense in proposed implementing legislation). 270. Approximately 20 states have such provisions, including approximately 13 states which have included this limitation in their constitutional victim rights provisions. See, e.g., IDAHO C ONST. art. I, 22 (providing no authorization for a court to dismiss a case or set aside a finding of guilt or plea acceptance, or for relief from any criminal judgment); UTAH C ONST. art. I, 28 (authorizing no dismissal of criminal charge or relief from criminal judgment); C ONN. GEN. STAT . 54-223 (1997) (providing no grounds to vacate conviction or void sentence or parole determination); LA. REV. S TAT. ANN. 46:1844 (West Pamp. 1998) (prohibiting invalidation of sentence and providing no right of appeal); TEX . CODE C RIM. P. ANN. art. 56.03 (West Supp. 1998) (providing no standing to victim to contest disposition of any charge). A similar limitation is included in the proposed federal constitutional victim rights amendment. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997); H.R. 1322, 105th Cong. (1997); (providing no grounds to challenge a charging decision or conviction, obtain a stay of trial, or compel a new trial). Cf., e.g., N.C. CONST. art. I, 37; DEL. CODE ANN. tit. 11, 9402 (1995) (providing specifically no defendant right to challenge proceedings or outcome based on victim rights violations). 271. See, e.g., KAN. CONST. art. XV, 15; VA. CONST. art. I, 8-A; 725 ILL. C OMP . STAT. ANN. 120/9 (West Supp. 1998). The limitations of remedies described in these provisions generally pertain to violations of any of the prescribed victim rightsnot only victim participatory rights. Several states also limit remedies for violations of specific victim participatory rights. See supra notes 99 (regarding notice), 134 (regarding presence at proceedings), 169 (regarding plea negotiations), 190 (regarding sentencing). A few states are silent in their constitutional and statutory provisions regarding the presence or absence of remedies for victim rights violations (e.g., Arkansas, New Jersey, and Wisconsin). 272. See, e.g., People v. Superior Court ex rel. Thompson, 202 Cal. Rptr. 585,

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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.273 Thus, despite granting often extensive victim rights of participation in the criminal justice process, the federal system and most states have taken express action to limit or eliminate victim remedies for any failure to provide such rights. Some states, however, in addition to limiting certain victim remedies, have provided other remedies or sanctions for violations of prescribed victim rights.274 Over ten states have provisions which allow victims di586 (Cal. Ct. App. 1984); State v. Holt, 874 P.2d 1183, 1186 (Kan. 1994); People v. Pfeiffer, 523 N.W.2d 640, 642 (Mich. Ct. App. 1994); supra notes 93-110, 213 and accompanying text (describing cases); cf . Dix v. County of Shasta, 963 F.2d 1296, 1298-1301 (9th Cir. 1992) (finding state victim rights provisions not enforceable through federal due process provisions); supra notes 219-21 and accompanying text (describing case). But cf. Melissa J. v. Superior Court ex rel . Williams, 237 Cal. Rptr. 5, 6-7 (Cal. Ct. App. 1987) (finding notice provisions regarding restitution mandatory and allowing challenge by victim to restitution ruling entered without victim notice). 273. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); State v. Lamberton, 899 P.2d 939, 940-43 (Ariz. 1995) (en banc); Dix v. Superior Court, 807 P.2d 1063, 1064 (Cal. 1991) (in bank); Gansz v. People, 888 P.2d 256, 257-58 (Colo. 1995) (en banc); Schroering v. McKinney, 906 S.W.2d 349, 350-51 (Ky. 1995); supra notes 155-64, 214-18 and accompanying text (describing cases). A few states also have express constitutional or statutory provisions reflecting that their victim rights provisions do not confer party status on a victim. See, e.g., NEB. C ONST. art. I, 28; MISS. CODE A NN. 99-36-5 (1994); VT. STAT. ANN. tit. 13, 5319 (Supp. 1997); cf., e.g., ALA. CODE 15-23-66 (1995) (providing that victim rights do not give the victim authority to direct the prosecution). 274. These states authorize certain remedies for victim rights violations and limit other remedies. For example, Arizona, the state with the most extensive remedies provisions, 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. ARIZ. REV. STAT . ANN. 13-4437 (West Supp. 1997). The state also provides, however, 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. See id. at 13-4436. Still, in the case of a post-conviction release decision (e.g., parole), the state authorizes the victim to seek a reexamination hearing as a remedy for a related rights violation, unless the offender has been discharged from his sentence. See id. Arizona also authorizes a victim to recover damages from a governmental entity for the intentional, knowing or grossly negligent violation of prescribed victim rights, but also provides that this authorization does not alter or abrogate existing immunity provisions. See id. at 13-4437. The interplay between these provisions is illustrated in Lamberton, 899 P.2d at 940, in which the Arizona Supreme Court held that the victim did not have standing to file an independent petition for review of the trial courts post-

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rectly, or through the state or local prosecuting authorities or courts, to take action to enforce compliance with the victim rights provisions.275 In addition, 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.277 A few states authorize reexamination
conviction relief order. 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. See id. at 942. The special action remedy, however, 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. See id.; supra note 216 and accompanying text (discussing case). See also State ex rel. Hance v. Board of Pardons and Paroles, 875 P.2d 824 (Ariz. Ct. App. 1993) (authorizing reexamination hearing remedy for victim who was not given notice of participatory rights regarding correctional proceedings); supra notes 64-74 and accompanying text (discussing case); cf. Cianos v. State, 659 A.2d 291 (Md. 1995) (discussing interplay between remedies and limitations provisions, described infra notes 282-90 and accompanying text). 275. See, e.g., NEV. CONST. art. I, 8 (authorizing a person to maintain action to compel public officers to carry out prescribed duties regarding victim rights); S.C. C ONST. art. I, 24 (providing rights may be subject to writ of mandamus to require compliance and punishable as contempt for willful failure to comply with writ); TEX . CONST. art. I 30 (giving victim standing to enforce rights and prosecutor the right to enforce victim rights); C OLO. REV. STAT . ANN. 24-4.1-303 (West Supp. 1997) (providing review procedure for reports of noncompliance with victim rights provisions, including ultimate report of unresolved noncompliance to the governor and referral by governor to attorney general to file suit to enforce compliance); OHIO R EV. CODE ANN. 2930.19 (Anderson 1996) (providing that prosecutor shall seek compliance with rights provisions on behalf of victim); S.D. 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, in its discretion, whether additional hearings or orders are required to ensure compliance with rights provisions); see also ALA. C ODE 15-23-83 (1995) (authorizing state or local prosecutor to assert any victim right); supra notes 99, 169 (describing remedies for notice violations regarding court proceedings and plea consultation compliance provisions). 276. 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 victims right to be present at trial or certain rights to be heard (i.e., to address the court before the imposition of sentence or other disposition (if practicable) and to have the court consider the victims written impact statement in determining the appropriate sentence or disposition). See M D. CODE art. 27 780 (Supp. 1997). 277. Utah authorizes an action for injunctive relief against a government official who willfully or wantonly fails to perform prescribed duties regarding victim rights, as well as his governmental employer. The state also authorizes the victim to bring an action for declaratory relief or for a writ of mandamus to define or enforce the victims rights, with a right to appeal adverse rulings, provided that no appeal shall be grounds for delaying any criminal proceeding. Utah also author-

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or reconsideration proceedings as to parole or other post-conviction release proceedings in which there have been violations of a victims participatory rights.278 One state permits potential disciplinary action for the failure to provide prescribed victim rights.279 Finally, one state authorizes victims to recover damages from governmental entities for intentional, knowing or grossly negligent violations of prescribed rights, subject to governmental immunity limitations.280 Even the existence of a remedial provision, however, does not always guarantee the desired outcome. As discussed previously, 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. Hance v. Board of Pardons and Paroles. 281 In Cianos v. State, 282 however, the Court of Appeals of Maryland, the states supreme court, denied a victims family members application for leave to appeal from a denial of their allocution rights at sentencing, such application filed under the procedure prescribed by state law for victims of violent crimes. In this case, the trial court had considered the manslaughter victims family members written victim impact information, but had asked that they not exercise their requested oral allocution rights, due to time constraints on the courts docket and the judges expressed belief that the oral comments could provide no additional information beyond the written materials he had already considered.283 After the sentencing, the family members filed the instant application for leave to appeal which the intermediate appellate court denied as moot.284 On further appeal to the Court of Appeals, the victims family asserted that the trial court had abused its discretion in denying their right to oral allocution and sought a vacation of the offenders sentence and a remand for resentencing.285 The reviewing court assumed, arguendo, that the familys acceding to the trial courts 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. The state precludes, however, dismissal of criminal charges, vacations of convictions or guilty pleas, appellate relief from judgments, or causes of action for monetary damages, costs, or attorneys fees based on rights violations. See UTAH C ODE ANN. 77-38- 11, -12 (Supp. 1997). 278. See ARIZ. REV. STAT . ANN. 13-4436 (West Supp. 1997); OKLA. STAT. ANN. tit. 57, 332.2 (West Supp. 1998); TENN. CODE ANN. 40-28-505 (1997). 279. See HAW. R EV. STAT . ANN. 801D-5 (Michie 1994). 280. See ARIZ. REV. STAT . ANN. 13-4437 (West Supp. 1997). 281. 875 P.2d 824 (Ariz. Ct. App. 1993); see supra notes 64-74 and accompanying text (discussing case). 282. 659 A.2d 291, 293-94 (Md. 1995). 283. See id. at 292. 284. See id. at 292-93. 285. See id.

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court constituted a waiver of their oral allocution rights.286 The reviewing court, however, agreed with the lower appellate court and concluded that the familys appeal was moot because a decision on the merits would be without practical effect on the sentence.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.288 In reviewing the legislative history of the victim rights provisions, 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, 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.289 Although the Court of Appeals encouraged trial judges to provide the full rights of victim input authorized by statute, the reviewing court affirmed the judgment denying the familys application for leave to appeal.290 Thus, even the provision of a remedy for a rights violation does not ensure that the desired outcome can be achieved through it. 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.291 In the area of victim rights of presence at testimonial
286. See id. at 293. 287. See id. 288. See Cianos, 659 A.2d at 293. 289. See id. at 294 (quoting Lodowski v. State, 490 A.2d 1228, 1256-57 (Md. 1995)). Although the statutory provision authorized the victim to seek leave to appeal from an interlocutory or final order denying certain participatory rights, an attempted appeal prior to final judgment (which the family members did not pursue) would not have stayed the trial court proceedings, unless all parties agreed to the stay, an outcome which the reviewing court found unlikely. See id. at 293 & n.5. Moreover, 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. See id. at 293-94. Such is the circumstance confronting the reviewing court in the familys instant appeal from the trial courts order of final judgment of conviction and sentence, from which only a party could appeal. See id. at 293. Because victims are not parties to criminal proceedings under Maryland law, the family members could not appeal the only judgment in the case. See id. at 293-94; see also People v. Pfeiffer, 523 N.W.2d 640 (Mich. Ct. App. 1994) (finding victim rights provisions did not provide basis to invalidate otherwise lawfully imposed sentence). But see also State v. Bruce, 642 N.E.2d 12 (Ohio Ct. App. 1994) (finding court could correct unexecuted incorrect sentence previously imposed and increase it based on additional information offered by the victim); supra note 213 and accompanying text (discussing cases). 290. See Cianos, 659 A.2d at 294-95. 291. Some victim participatory rights, such as the rights to notice and to presence

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proceedings, for example, 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 victims presence poses undue prejudice to the defendants rights of confrontation and to a fair trial.292 In addition, although it now seems well-established that victim input regarding sentencing is constitutionally permissible, in principle, trial courts have retained their ability to limit or exclude it if it poses undue prejudice to the defendants due process rights.293 Thus, in finding the prosecutors references to a homicide victims rights improper, the Supreme Court of Arizona, the state with arguably the most extensive victim rights provisions, noted, It cannot be doubted that victims of crime, and their families, have certain rights. It is equally clear, however, that these rights do not, and cannot, conflict with a defendants right to a fair trial.294
at non-testimonial proceedings do not generally present conflicts with defendant rights. But see supra notes 103, 135 (discussing cases addressing defendants claims of error regarding prejudice from victim notification provisions and victims presence at identification suppression motion hearings). 292. See supra notes 116-39, 144-45 and accompanying text (discussing victims rights of presence at criminal justice proceedings). 293. See supra notes 193-211 and accompanying text (discussing victims right to be heard regarding sentencing). Concerns about defendants double jeopardy rights, however, 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, convictions, or sentences. See Cianos, 659 A.2d at 294 (citing Lodowski v. State, 490 A.2d 1228, 1256-57 (Md. 1985)). 294. State v. Bible, 858 P.2d 1152, 1205 (Ariz. 1993), cert. denied, 511 U.S. 1046 (1994) (citations omitted). Although the court found error, but no fundamental error, in the prosecutors improper remarks suggesting that the jury should consider the victims rights as well as the defendants rights, it cautioned that the court, not the jury, was responsible for balancing conflicting rights between the victim and the defendant. See id. at 1205-06. In reaching its holding on this issue, the Arizona Supreme Court cited a previous state appellate court ruling in which a defendants request for a crime victims 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. See id. at 1206 (citing State ex rel. Romley v. Superior Court, 836 P.2d 445 (Ariz. Ct. App. 1992)). In resolving the discovery request issue, the appellate court in Romley addressed the conflict between the victims state constitutional rights and the defendants state constitutional right to due process. See id. at 448-50. In balancing these constitutional rights, the appellate court noted that [d]ue process of law is the primary and indispensable foundation of individual freedom in our legal system. Id. at 449. The appellate court therefore held that when the defendants constitutional right to due process conflicts with the Victims Bill of Rights in a direct manner, such as the facts of this case present, then due process is the superior right. Id. The appellate court also concluded that the state due process rights were congruent

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In light of the rapid expansion of victim rights of participation in the criminal justice process in the fifteen years since the Presidents Task Force, legislatures and courts have attempted to strike an appropriate balance between the prescribed rights of the victim and the defendant. Their efforts to do so will no doubt be ongoing.295

with federal constitutional due process rights and that federal due process rights prevail over conflicting state constitutional rights. See id. Although the court remanded the matter for further proceedings, it ruled that the records should be disclosed to the extent necessary to assist in the presentation of the defendants defense and to effectively cross-examine the victim. See id. at 445. But see M O. ANN. STAT . 595.209 (West Supp. 1998) (providing that the prescribed victim rights are paramount to the defendants rights). 295. 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. See, e.g., Ken Eikenberry, Victims of Crime/Victims of Justice, 34 W AYNE L. REV. 29 (1987). They contend, therefore, that a federal constitutional victim rights amendment is required to achieve a balance between the rights of victims and defendants. See, e.g., id.; Young, supra note 262, at 6468. But see, e.g., James M. Dolliver, Victims Rights Constitutional Amendment: A Bad Idea Whose Time Should Not Come, 34 W AYNE L. REV. 87 (1987); Mosteller, supra note 145, at 1691. See generally Symposium, supra note 38 (discussing proposed federal constitutional victim rights amendment). At the outset, however, although the currently proposed federal constitutional victim rights amendment includes the major participatory rights to notice, presence, and hearing regarding the criminal justice process, and gives victims standing to assert the granted rights and Congress and the states power to enforce them, it also contains many of the limitations of the state provisions. In this connection, it is restricted to only certain eligible victims. The notice rights are limited to reasonable efforts. Finally, it expressly does not authorize a victim to challenge a charging decision or conviction, obtain a stay of trial, obtain a new trial, or seek damages against a governmental entity or official. See S.J. Res. 6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997); see also H.R. 1322, 105th Cong. (1997) (providing sanctions of disciplinary proceedings and contempt for violations in proposed implementing legislation). Thus, as currently proposed, this victim rights amendment, although broader than many of the state constitutional provisions (see Tobolowsky, supra note 38), certainly does not provide the unrestricted victim rights and remedies sought by some. Moreover, as seen at the state level, when the state constitutional rights of victims and defendants conflict, 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. See Lamborn, supra note 4, at 125, 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).

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As this examination of the development of crime victim rights to notice, presence, and hearing in the criminal justice process in the years since the Presidents Task Force has reflected, most of the Task Force recommendations regarding victim participatory rights have been implemented to a significant degree.296 Unlike the situation existing prior to the Task Force work,297 the relevant inquiry is no longer whether victims should have participatory rights in the criminal justice process. 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. 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. 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 processnot to control it.298 In our well-established public prosecution system, this appears to be the most likely role for victim participation.299 After fifteen years of experience with the implementation of these rights, however, drafters of the participatory rights provisions should now assess the scope of the rights granted and modify or
296. Although most jurisdictions have limited their victim participatory rights to victims of certain crimes only, some of the Task Force recommendations were limited to victims of violent crimes only (e.g., victim allocution at sentencing). Similarly, most jurisdictions have made their victim rights of presence at testimonial proceedings conditional, as was the Task Force recommendation. See supra notes 39-44 and accompanying text (describing Task Force recommendations regarding participatory rights). 297. See supra note 45 and accompanying text (describing the status of victim participatory rights prior to the Presidents Task Force). 298. See supra notes 58-63, 77-92, 124-34, 151-53, 167-71, 186-90, 257-59 and accompanying text (discussing provisions regarding victim rights to notice, presence, and hearing in the criminal justice process). 299. 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 supra notes 48, 166 and accompanying text. Few states have even provided significant remedies or sanctions for violations of victim participatory rights, leaving their implementation largely dependent on the good faith of the criminal justice personnel entrusted with this responsibility. See Kelly & Erez, supra note 46, at 242 (noting that [c]reating rights with remedies would cause the fragile alliance of victims advocates, legislators, and prosecutors to shatter and thus leaving victims dependent on sympathetic criminal justice staff to help them implement their rights, but more likely leaving them ignorant of their rights); supra notes 269-95 and accompanying text (describing remedies for violations of victim participatory rights).

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clarify the provisions as necessary to achieve their intended purposes.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, including the defendant, the prosecuting authority, the victim, and society as a whole. The presence of so many interests axiomatically requires their judicious balancing to achieve the universally sought goal of justice in criminal proceedings.301 Moreover, these victim participatory rights have been adopted against a backdrop of great expectations and concerns about their impact on the criminal justice process, both of which have been largely unrealized. Existing empirical research has been generally inconclusive, confirming only a modest impact as a result of victims exercise of participatory rights, if any at all, on most measures of dispositional outcomes and victim satisfaction.302 Although this limited impact is perhaps comforting to those with concerns of a significant alteration of the criminal justice status
300. Some victim rights provisions need refinement and clarification. For example, often the scope of the notification rights provisions is vague. 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. Similarly, a clearer definition of the nature and scope of victim input regarding sentencing and parole in many jurisdictions would give greater guidance to victims, as well as the judges and parole authorities receiving this input. In addition, in light of fifteen years of experience with their own participatory rights and those of jurisdictions across the country, some jurisdictions may want to reassess the scope of their provisions. For example, jurisdictions may want to examine the definitions of victim eligibility for participatory rights in light of the experience of implementation and reassess their appropriateness. Similarly, the experience of some jurisdictions may cause a reassessment regarding whether victim input to the court, as well as to the prosecutor, regarding plea negotiations is desirable. Based on jurisdictions experience with varying degrees of victim presence during testimonial proceedings, jurisdictions can examine their victim rights of presence to determine if they are too broad or too restrictive. Finally, 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, the experience of jurisdictions which have other types of remedies for rights violations could inform the remaining jurisdictions as to their usefulness. 301. See supra notes 64-74, 93-110, 135-39, 157-64, 172-75, 193-221, 260, 28190 and accompanying text (describing cases which have interpreted victim participatory rights). 302. See supra notes 111-13, 140-43, 165, 176-82, 223-54 and accompanying text (describing empirical research regarding victim rights to notice, presence, and hearing in the criminal justice process). But see supra notes 263-68 and accompanying text (describing the significant effect of victim impact information on parole refusal).

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quo from the introduction of victim input, it should give pause to participatory rights advocates who predicted a much more significant impact from the rights granted. 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, whether their implementation has been sufficiently effective to achieve the desired goals.303 Thus, in the fifteen years since the issuance of the Final Report of the Presidents Task Force on Victims of Crime, the crime victim has been reintroduced in a participatory role in the criminal justice processa process the crime victim once dominated. 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. Although these participatory rights are not broad enough for some advocates and are too extensive for some of their harshest critics, their effective implementation should provide crime victims a meaningful return to the process of administering justice in this country.

303. As indicated previously, most empirical research regarding victim participatory rights was conducted in the 1980s, in the midst of the initial implementation of these rights. Now that many of these rights have been in existence for 1015 years and have become more institutionalized, additional empirical research should be conducted to establish the impact that these rights are currently having. See Davis & Smith, supra note 223, at 11-12 (suggesting needed research to determine what participatory rights victims truly seek, if any, following research study finding no significant increases in victim satisfaction based on completion of victim impact statements regarding sentencing).