MARSY’S LAW Jennifer P. Noble - PowerPoint Presentation

MARSY’S LAW Jennifer P. Noble Chief Deputy District Attorney Washoe County District Attorney

-substance of the amendment-obligations shared by prosecutors, courts, law enforcement and defense counsel-common concerns about personal liability What we’ll cover:

-discussion about the politics surrounding the constitutional amendment.-discussion about whether it was a good or bad idea. What we’ll skip:

Subsection 1: Enumerated victim rightsSubsection 2: Standing to enforce rights Subsections 3 and 4: Enforcing the rights and our liability Subsection 5: Constitutional provisions do not impact other rights possessed by victims Subsection 6: The Legislature’s continuing obligation to pass laws to secure rights enumerated in subsection 1 Subsection 7: Definition of “victim” Article 1, Sec. 8A of the Nevada Constitution

Impact on Ethical, Statutory, or Common Law Obligations or Duties Subsection 2 provides: “This section does not alter the powers, duties or responsibilities of a prosecuting attorney.”

Fairness and respect. 1(a): “To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process.” Protection from Defendant. 1(b): “To be reasonably protected from the defendant and persons acting on behalf of the defendant.” Victim safety must be considered when court sets bail. 1(c): “To have the safety of the victim and the victim’s family considered as a factor in fixing the amount of bail and release conditions for the defendant.” Prevent disclosure of confidential information or records from Defendant. 1(d): “To prevent the disclosure of confidential information or records to the defendant which could be used to locate or harass the victim or the victim’s family.” Rights and Responsibilities

Refuse Interview or Deposition, or control over Interview.1(e): “To refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents.” Confer with DA’s Office. 1(f): “To reasonably confer with the prosecuting agency, upon request, regarding the case.” Notice of all public proceedings, upon request. 1(g): “To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other postconviction release proceedings, and to be present at all such proceedings.” To be reasonably heard, upon request. 1(h): “To be reasonably heard, upon request, at any public proceeding, including any delinquency proceeding, in any court involving release or sentencing, and at any parole proceeding.” Rights and Responsibilities Cont.

Timely disposition of case.1(i): “To the timely disposition of the case following the arrest of the defendant.” Provide information for the PSI. 1(j): “To provide information to any public officer or employee conducting a presentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.” Informed of disposition and release of Defendant. 1(k): “To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant and the release of or the escape by the defendant from custody.” Full and timely restitution. 1(l): “To full and timely restitution.” Rights and Responsibilities Cont.

Prompt return of property.1(m): “To the prompt return of legal property when no longer needed as evidence.” Informed of postconviction proceedings and participate. 1(n): “To be informed of all postconviction proceedings, to participate and provide information to the parole authority to be considered before the parole of the offender and to be notified, upon request, of the parole or other release of the offender.” Victim safety considered before postjudgement release. 1(o): “To have the safety of the victim, the victim’s family and the general public considered before any parole or other postjudgment release decision is made.” Restitution before other monetary fees. 1(p): “To have all monetary payments, money and property collected from any person who has been ordered to make restitution be first applied to pay the amounts ordered as restitution to the victim.” Rights and Responsibilities Cont.

Specifically informed of rights.1(q): “To be specifically informed of the rights enumerated in this section, and to have information concerning those rights be made available to the general public.” Definition of Victim from subsection 7: “any person directly and proximately harmed by the commission of a criminal offense under any law of this State. If the victim is less than 18 years of age, incompetent, incapacitated or deceased, the term includes the legal guardian of the victim or a representative of the victim’s estate, member of the victim’s family or any other person who is appointed by the court to act on the victim’s behalf, except that the court shall not appoint the defendant as such a person.” Rights and Responsibilities Cont.

The term “prosecutor” is only referred to in the constitutional amendment twice.Subsection 1(f): the victim’s right to reasonably confer with the prosecuting agency.Subsection 2: “[t]his section does not alter the powers, duties or responsibilities of a prosecuting attorney.” Responsibility for compliance is shared by all parts of the criminal justice system.

How do we communicate the rights?

Letters, Phone Calls, Email Low-Tech Approach

Notification of Rights

Opt In documentAllows victims to ask for notification of: the outcome; bail hearings; sentencing; and all hearings. Included with Initial Letter and Notification of Rights. “If we do not receive this back from you we will not notify you as case progresses or of its outcome.” Opt-In Document

Opt In Form

Victim Request Form For Paper File

Victim addresses, phone numbers, and other contact information should NOT be included in any document that will be filed with the Court.Victim personal information MUST still be contained in discovery provided to defense counsel, along with defense attorney letter. Victims are entitled to protection of their personal information.

Defense Attorney Letter (can accompany paper or electronic discovery)

Using Technology

Automated calls, texts, emailsSome options interact with Justware . Can be used for updates, bail hearings, reminders, etc. Can provide links to victim services, courts, TPO office. System used by Washoe can send messages in 27 languages. Victims can use system to opt out of certain types of notifications. Many vendors offer automated options.

initial opt in for Marsy’s law notifications should be via written or oral communication.consider using a phone call for preliminary hearings and jury trials. Even using tech…

§3: “no person may maintain an action against this State or any public officer or employee for damages or injunctive, declaratory or other legal or equitable relief on behalf of a victim of crime as a result of a violation of this section or any statute enacted by the Legislature pursuant thereto.” § 4: the only action a victim may maintain is to compel a public officer or employee to carry out a duty required under enumerated rights or in a statute enacted by the Legislature. §2: a victim does not have standing as a party in a criminal proceeding. No cause of action for damages.

Liability Question: Federal Cause of Action Federal claims by victims for violations of their constitutional or statutory rights under 42 USC 1983 have been unsuccessful. Dix v. County of Shasta , 963 F.2d 1296 (9 th Cir. 1992) (overruled on other grounds): rejecting claim that California’s Victim Bill or Rights created a liberty or property interest enforceable under the due process clause. Largely based on rational that the law does not specify outcomes required, it only indicates victims have right to notification, etc. Pusey v. City of Youngstown , 11 F.3d 652 (6 th Cir. 1993): concluding that suit against city prosecutor in her official capacity was a suit against the state and not cognizable under 1983. The prosecutor’s failure to notify the victim of a hearing was closely related to the prosecutor’s role as an advocate, thus, absolute immunity applied to the 1983 claim in prosecutor’s personal capacity.

Montana: Marsy’s Law void because the enactment violated the separate-vote requirement of Montana’s Constitution (by changing two or more parts of the Constitution that were not closely related). Montana Association of Counties v. State by and through Fox, 404 P.3d 733 (Mont. 2017). Florida: Challenged on ballot title and summary requirements. Rejected by Florida Supreme Court and was allowed to appear on the ballot. Dept. of State v. Hollander , -- So.3d --, 43 Fla. L. Weekly S525 (Oct. 25, 2018). Cases Involving Marsy’s Law in Other Jurisdictions

California and 9th Circuit cases focus on the change to extend time between parole hearings and ex post facto issues. In re Vicks , 295 P.3d 863, 309-310 (Cal. 2013): discussing purpose of Marsy’s law to provide victims with due process and crime victims’ right to be treated with respect and dignity (similar to our subsection 1(a)). Court noted in dicta, “[a]s in the context of adjudication of liberty interests, it is not critical that a victim’s participation be relevant to the ultimate decision; rather, what is important is that the victim be acknowledged and respected.” Cases Involving Marsy’s Law in Other Jurisdictions Cont.

Santos v. Brown, 189 Cal.Rptr. 234 (Cal. Ct. App. 3d 2015):Murray, J. concurring opinion confirms that prosecutors' exercise of discretion in charging does not implicate victim’s right to be heard. The term “proceeding” does not “connote a private decisionmaking process in one’s office…the common, everyday meaning of the word held by laypeople relates to public and quasi-public hearings such as bail hearings, sentencing, and sentence modification hearings in court, and hearings before the parole board– the specific ‘proceedings’ expressly referred to in Marsy’s Law.” Cases Involving Marsy’s Law in Other Jurisdictions

Questions?