Recent Victims' Rights Case Law Update

Below are summaries of recent cases implicating victims' rights which may be of interest to you:
By state click here.

State v. Famiglietti, 2001 WL 717652 (Fla. App. 3 Dist. June 2001)

Defendant not entitled to have judge perform in camera review of psychiatric records of alleged victim protected by sexual assault counselor-victim privilege. Defendant claimed that alleged victim had long history of psychiatric treatment and that defendant was entitled to explore all information that was likely to lead to material evidence in his case and that alleged victim had history of being beaten by black males, had once lied to psychiatrist, and that counsel for defendant had received information contrary to victim's deposition testimony.

People v. Bakalis, 752 N.E.2d 1107 (IL 2001)

New rule which expressly authorizes circuit judges to allow parties in capital cases to take discovery depositions of any person disclosed as witness authorized trial court in instant case to allow defendant charged with capital murder of her children to take deposition of her husband, who was victims' father.

U.S. v. Whittaker, 201 F.R.D. 363 (ED PA 2001)

Sections of the Victims' Rights and Restitution Act giving crime victim the right to confer with government attorney in the case, and imposing on government attorney the duty to inform victim of any restitution or other relief, does not create a client-attorney relationship or a reasonable expectation of one.

State v. Koskovich, 776 A.2d 144 (NJ 2001

There is no artificial time or page limit on victim-impact testimony in a capital case. Victim-impact evidence in a capital sentencing proceeding should provide only a glimpse of the murder victim's life and background, and the impact that his or her death has had on immediate family members; within those parameters, trial courts retain wide discretion concerning the length of victim-impact testimony. Poetry written by murder victim's mother and included in her victim impact statement given during capital
sentencing proceedings was not so inappropriately emotional as to unfairly prejudice defendant; however, NJ Supreme Court cautioned particular vigilance on the part of trial courts in future cases to ensure that poetry and similar forms of expression in victim impact statements do not breach parameters previously established for admission of such statements.

A prohibition on victim-impact testimony concerning the appropriate penalty applies to testimony either in support of, or in opposition to, the death penalty; just as victim-impact testimony supportive of the death penalty could inflame the jury and distract it from relevant evidence, so too could testimony in opposition to the death penalty. As a guard against the possibility that some jurors in a capital sentencing proceeding will assume that a victim-impact witness prefers the death penalty when otherwise silent on that question, trial courts should instruct the jury that a victim-impact witness is precluded from expressing an opinion on capital punishment and, therefore, jurors must draw no
inference whatsoever by a witness's silence in that regard.

Alabama Board of Pardons and Paroles, v. Brooks, 2001 WL 499327 (Ala.Civ.App. 2001)

The evidence did not support finding that actions by Board of Pardons and Paroles, in
conducting a screening hearing, without requisite notice to prisoner's victim, to
determine if formal parole hearing would be necessary, were capricious or purposeful,
where Board had long-standing policy of conducting such screening hearings, and use
of such hearings to determine preliminarily if there was any possibility of parole was
previously sanctioned by victims' rights advocates.

People of the State of Michigan, v. Thompson, 2001 WL 672403 (Mich.App. 2001)

The state Crime Victim's Rights Act authorizes trial courts to order restitution, directing that when sentencing a defendant convicted of a crime, the court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction or to the victim's estate. In determining the amount of restitution to order, the trial court must "consider the amount of loss sustained by any victim as a result of the offense." The trial court's determination of the
victim's loss must be reasonable and based on the evidence presented.

People v. Richardson, 751 N.E.2d 1104 (IL 2001)

Considering multiple victim impact statements, rather than statement of "a single representative" of victim, during sentencing violated Rights of Crime Victims and Witnesses Act, however, the "Crime Victim's Rights" amendment to state constitution and Crime Victims and Witnesses Act were intended to serve as shield to protect rights of victims, not as sword to be used by criminal defendants seeking appellate relief. Statute that limits definition of crime victim to "a single representative" of deceased was "law enacted under" "Crime Victim's Rights" amendment to state constitution, and thus, such amendment precluded defendant from seeking appellate relief on ground that more than one victim impact statement was presented and considered at his sentencing.

State v. Harrison, 24 P.3d 936 (Utah 2001)

A witness of tender years may be accompanied by an adult to ease the emotional turmoil of testifying in court. This was within broad discretion afforded trial court in managing proceedings and did not prejudice defendant, despite fact that witness was only two weeks short of her eighteenth birthday at time of trial, and despite defendant's contention that advocate's presence served to suggest to jury that witness' testimony was truthful, where defendant alleged no inappropriate behavior by victim's advocate during witness' testimony, and no such behavior appeared in record.

Statute governing role of guardians ad litem in proceedings in juvenile court did not authorize attorney guardian ad litem appointed thereunder on behalf of minor complainant in rape and sexual abuse prosecution of an adult defendant to sit at counsel table, question witnesses, or make objections during trial; statute authorized guardian ad litem to take actions to alleviate conditions resulting in minor's abuse, neglect, or dependency, not to participate in criminal punishment of perpetrator thereof.

People v. Drake, 728 N.Y.S.2d 636 (Supreme Ct. New York County 2001)

A victim struck on head by brick would be allowed to appear in court as spectator at trial of accused assailant, after she gave her testimony; victim had no recollection of incident and could only testify as to prior circumstances and extent of her injuries, precluding any calling of victim for rebuttal testimony, her appearance would not invoke undue sympathy from jury, and witnessing of trial was deemed therapeutic by her physicians.

State v. McKinney, 2001 WL 298636 (Tenn.Crim.App. 2001)

Due process was not offended by the admission of victim impact testimony from a person not from the victim's family. The state made application to the trial court before presenting the disputed evidence. The trial court conducted a jury-out hearing after which it limited the testimony to those details about the victim's life which were solely work-related. The prosecution took appropriate steps to avoid any jury confusion regarding victim impact testimony and aggravating circumstances. The prosecution also
made minimal references to the victim impact evidence in its closing, so as to avoid the jury's misuse of that evidence. Finally, the trial court gave the required jury instruction to guide the jury's proper consideration of the victim impact evidence.

State v. Lunsford, 2001 WL 283436 (Ohio App. 2 Dist. 2001)

Defendant argued that the trial court improperly allowed the victim advocate to read a victim impact statement during the sentencing hearing without making such statement available to him prior to his sentencing. When a victim or her representative makes a statement prior to the defendant's sentencing, "[t]he court may give copies" of such statement to the defendant and his counsel. Thus, the trial court was not required to give copies of the victim advocate's statement to the defendant and his counsel prior to his sentencing.

People v. Harris, 745 N.E.2d 717 (App. Ct. IL 2001).

Trial judge had authority to order homicide defendant to pay restitution including airfare expenses of mother and four others to attend victim's funeral. Legislature intended to make victims whole and to make defendants pay any costs incurred as result of their actions. Defendant waived claim that restitution order should not have included airfare for individuals other than victim's mother to attend victim's funeral, where defendant failed to object to airfare bill at sentencing or in post- sentencing motion.


a. State v. Sansing Supreme Court of Arizona 26 P.3d 1118 (2001)

The victim gave a statement that requested mercy for the offender. The judge considered and rejected the statement. The defendant appealed claiming the judge violated the victim's rights under the Arizona Constitution by not considering the statement as a mitigating circumstance. The court held that victims only have the right to speak and that wasn't violated because she did have the chance to be heard. The court also held that A.R.S. section 13-704.D expressly forbids a judge from considering any recommendation made by the victim regarding the sentencing.

b. In re Kevin A. Court of Appeals of Arizona 32 P.3d 1088 (2001)

The victim was supposed to deliver a victim impact statement to the court in regards to the restitution requested. The victim failed to do so in the time limit given by the court. The court held the deadline must stand and no restitution can be ordered.


a. People v. Moses Court of Appeal, Third District, California 2001 WL 1299319 (not officially published)

It is unclear whether the victim testified in this case; probably not. The defendant wanted to compel her to testify at the sentencing hearing because he claimed her constant nagging was great provocation, which would entitle him to probation. The court held that a victim has the option to testify at a sentencing hearing but the defendant has no constitutional right to cross examine on that statement. The statute concerning victim's rights provides the court must take into consideration the victim's statement in imposing sentence.

District of Columbia

a. In re M.N.T. District of Columbia Court of Appeals 776 A.2d 1201 (2001)

Correctional officers gave victim impact statements in a juvenile criminal proceeding regarding the events that caused their injuries. Defendant claimed these statements were forbidden by implication because there were required by statute in adult trials and there was no mention of juvenile trials. Court held there is no basis for forbidding impact statements in juvenile courts.


a. State v. Stallard Court of Appeals of Ohio 2001 WL 950048

The issue in this case was whether or not the trial court erred when it refused to let the defendant view a written victim impact statement. In Ohio victim impact statements are confidential and not a public record but the court may furnish copies to the defense and the prosecution. The court held this is a decision that is left to the discretion of the trial court and there was no error.

b. State v. Smith Court of Appeals of Ohio 2001 WL 1295400

The defendant claimed error because the trial court failed to bring in the victim and the victim's family at the time of sentencing. The court held that this was not grounds under the statute for declaring a mistrial or for setting aside a conviction or sentence.


a. State v. Blackhurst Court of Criminal Appeals of Tennessee 2001 WL 991966

The state claimed the trial court erred because it failed to properly consider the victim's statement. The victim testified to the circumstances of the accident, her and her child's injuries, and recommended a time of incarceration she felt would enhance public safety. Tennessee has three different avenues for a victim to take part in the sentencing hearings. The trial court relied its decision on the Victim Impact Statement Act, but the appeals court held that only dealt with written statements, not oral ones such as the one in this case. The trial court also erred in limiting it to information from the written statement that was part of a presentence report and by concluding the court can only consider the statement when determining statutory enhancement and mitigating factors.

b. State v. Arnett Supreme Court of Tennessee 49 S.W.3d 250 (2001)

The victim in this case gave a statement that involved a description of her psychological injuries. The trial court used that as evidence to support the "particularly great personal injuries" enhancement factor. The Supreme Court held the statement was evidence to support the application of the enhancement factor.


a. Brown v. State Court of Appeals of Texas 54 S.W.3d 930 (2001)

Defendant claims he was entitled to notice that the victim, the victim's mother, and the victim's psychologist were going to give a victim impact statement at sentencing. The court held that victim impact statements are evidence of the impact the crime has had on the victim, not evidence of an extraneous offense, which would have required specific notice.

b. Duvall v. State Court of Appeals of Texas 2001 WL 1164719

The presentence report contained statements from the victim's mother and stepfather. The defendant claimed consideration of those statements denied him his constitutional right of confrontation. The court held he didn't properly preserve for review his contention that his confrontation rights were violated. The court was unable to answer the issue but in a parenthetical it cited a case where considering such statements in a presentence were not error.


a. Remington v. Commonwealth Supreme Court of Virginia 551 S.E.2d 620

The issue in this case was whether the defendant was entitled to a new sentencing hearing when the post-sentence report was without the victim impact statement. The Virginia Supreme Court held that the statute requiring victim impact statements in a post-sentence report was enacted to "preserve the right of victims of crimes to have the impact of those crimes upon their lives considered as part of the sentencing process, if that is their wish, and to protect their privacy thereafter." The court ruled the statutory requirement does not confer any rights on the defendant and therefore he is not entitled to a new sentencing hearing.


2003 The Federalist Society