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National Crime Victim Law Institute

New and Noteworthy

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  • State v. Gutierrez-Medina, 403 P.3d 462 (Or. Ct. App. 2017)

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    Defendant was convicted of driving under the influence of intoxicants and third-degree assault, and was ordered to pay restitution for the victim’s medical treatment.  Defendant appealed, arguing that the trial court erred when it refused to reduce the restitution amount based on the comparative fault of the victim.  The court explained that Oregon’s comparative-fault scheme applies to nonintentional torts.  Under that scheme, when the trier of fact determines that someone other than defendant was negligent, the trier of fact is required to determine the relative fault of those persons and apportion the claimant’s damages among them on that basis.  Defendant argued that the comparative-fault scheme applies to criminal restitution because a trial court is required to determine the amount of economic damages to be ordered as restitution, and therefore the court has to consider the victim’s role in the accident because the victim could have caused a portion of the claimed economic harm.  The court rejected this argument because comparative fault is not considered in civil law as part of the causation analysis—the question of apportioning fault arises only after causation is established.  Further, to the extent defendant was arguing that comparative fault should apply as a consideration separate from causation, the court disagreed, finding that “the plain text of the restitution statute provides that the trial court shall award restitution ‘in a specific amount that equals the full amount of the victim’s economic damages as determined by the court.’”  In addition, another provision in the restitution statute states that the court may award less than the full amount of the victim’s economic damages “only if” the victim consents to the lesser amount.  Accordingly, the court determined that the statute “expressly forecloses the court from engaging in the type of apportionment of damages that comparative fault contemplates.”  Concluding that the trial court did not err in refusing to reduce the amount of the restitution award based on the comparative fault of the victim, the court affirmed.

  • AG ex rel. Neumann v. Hargis, 77 M.J. 501 (A. Ct. Crim. App. 2017)

    The victim reported to Criminal Investigation Command (CID) that another service member had sexually assaulted her.  A military magistrate signed a search authorization for the victim’s phone, which she unwillingly surrendered.  The victim’s special victim counsel (SVC) made a discovery request to the military magistrate requesting the affidavit and any other documents used in issuing the search and seizure authorization.  The magistrate denied the discovery request, and the victim petitioned for a writ of mandamus.  On appeal, the court looked to its jurisdiction to issue the writ, which is limited to the court’s subject matter jurisdiction over the case or controversy.  To establish subject matter jurisdiction, the harm alleged must have the potential to directly affect the findings and sentence.  The court found that the victim failed to establish that a de facto ruling denying discovery or compelling production of documents to an alleged victim at the pre-referral stage (there had not yet been a court martial) had the potential to affect the findings and sentence.  Accordingly, the military judge lacked jurisdiction to issue the order, as did the court.  The court continued that even if it did have jurisdiction, the victim had no established right to relief.  To prevail on a writ of mandamus, the petitioner must show that there is no other adequate means to attain relief; that the right to issuance of the writ is clear and indisputable; and that the issuance is appropriate under the circumstances.  The victim asserted that she was entitled to discovery and the production of documents under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, which establishes a crime victim’s right to be treated with fairness and respect for the victim’s dignity and privacy.  The court found, “[h]owever, [that] a right to be treated with fairness, dignity, and privacy does not give a victim a right to receipt of discovery and documents without an analysis of the case status and pending legal issue.”  The victim also argued that the Standard Operating Procedure for Military Magistrates authorized production, because it provides that “at the request of counsel,” military magistrates will provide a copy of the affidavit and authorization, among other documents.  In response, the court held as follows: “Assuming ‘counsel’ is meant to include SVCs and a mere SOP establishes an alleged victim’s right to the receipt of military magistrate’s documents, an alleged victim’s discovery and production request is not ripe for decision by a military judge in a non-referred case. Even an accused has no right to discovery and production of an affidavit or other documents used by a military magistrate in issuing a search and seizure authorization until the referral stage.”  Accordingly, the court found the writ failed to establish that jurisdiction existed at the pre-referral stage and that the victim failed to establish a per se right to discovery or the production of documents.  The court then dismissed the petition. 

  • Cathcart v. Fairly, 227 So. 3d 1176 (Miss. Ct. App. 2017)

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    A victim who asserted that he had been bullied and physically forced to leave a neighborhood association meeting, filed petitions for writ of certiorari and mandamus, challenging decisions of the justice court finding that there was no probable cause to issue arrest warrants for the assault against him.  The Circuit Court dismissed the matter without prejudice and the victim appealed.  On appeal, the court found that the victim lacked standing to contest the justice court’s disposition of the prosecution.  Even though misdemeanor prosecutions may be initiated by the filing of an affidavit by a victim in Mississippi, “it is axiomatic that the victim is not a party to the prosecution.”  According to the court, under the Mississippi Constitution, all prosecutions must be carried on in the name of and by the authority of the state.  Further, the Mississippi Code explicitly provides that a victim “does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.”  The court also added that the rights of the victim do not include the authority to direct the prosecution of a case.  The court noted that other jurisdictions to consider the issue unanimously came down the same way.  The dismissal was affirmed. 

  • State v. Harris, — P.3d —, 2017 WL 4684024 (Or. Oct. 19, 2017)

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    Defendant appealed his conviction for attempted misdemeanor assault, arguing that his right to confrontation under Article I, section 11 of the Oregon Constitution was violated when the trial court allowed the state to use hearsay evidence in the form of a 911 recording in lieu of the minor-victim’s live testimony.  The state had subpoenaed the minor-victim to testify, but learned the morning of trial that she was not going to appear.  The state tried contacting the minor-victim but could not reach her.  The trial court offered to continue the trial until the next morning to provide the state time to secure the witness, and the state agreed.  Defendant objected to the continuance.  The trial court then found that the witness was unavailable and that the 911 recording was reliable.  The trial court admitted the evidence, and defendant was convicted.  On appeal, defendant argued that the state did not make an adequate showing of witness unavailability.  Defendant argued that the state only satisfies this obligation after exhausting every reasonable means available of securing a witness.  The state argued that it only needed to show a reasonable, good-faith effort to secure the witness’s presence, and that serving a prospective witness with a valid subpoena satisfies that obligation.  The Oregon Supreme Court concluded that to establish unavailability for Article I, section 11 purposes, the state must show that “it was unable to produce a witness after exhausting reasonable means of doing so.”  The court noted that in most cases, this will require more than merely relying on a subpoena.  However, in the present case, because defendant objected to the continuance, he was found to have invited error and could not complain that the state failed to exhaust other means of securing the witness.  The court affirmed defendant’s conviction.