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National Crime Victim Law Institute

New and Noteworthy

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  • People v. Shorter, — N.W.2d —, 2018 WL 2746384 (Mich. Ct. App. June 7, 2018)

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    Defendant appealed his conviction for criminal sexual conduct.  On appeal, he argued that the trial court erred by granting the prosecution’s motion to allow the adult victim to testify while accompanied by a support dog and the dog’s handler.  The court had previously found that a child victim could have a support animal while testifying, but had not reached the question of whether an adult victim could.  The court concluded “that there is a fundamental difference between allowing a support animal to accompany a child witness … and allowing the animal to accompany a fully abled adult witness … .”   In reaching this decision, the court noted that it was unaware of any other jurisdiction that allowed “able-bodied” adults to have a support animal present.  Further, the court noted that although a trial court has inherent authority over its courtroom, allowing an able-bodied adult to testify with a support animal was outside this authority: “we hesitate to conclude that it is simply a matter of a trial judge’s inherent authority. If that were so, one would presumably be able to find prior examples of that authority being exercised somewhere.”  In addition, the court noted that there was no case authority on record allowing a dog handler to accompany the victim on the stand.  The court continued that even if the trial court had the inherent authority to allow a support animal to accompany an adult victim, “we would not approve its use where the basis for it was simply that doing so will allow the witness to be ‘more comfortable’ or because [ ] ‘this is something she wants,’” stating that shows of emotion may be an important consideration for the jury.  The court thus held that allowing the support dog to be present was error.  The court also found that the error was not harmless because a jury would be “far more likely to conclude that the reason for the support animal or support person is because the complainant was traumatized by the actions for which the defendant is charged.”  Reversed and remanded.

  • United States v. Gross, No. 18-50368, 2018 WL 1804691 (E.D. Mich. Apr. 17, 2018) (slip copy)

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    Defendant was charged with committing wire fraud by making false representations to numerous creditors for the benefit of unnamed “Person A” and “Person B.”  Four individuals were named as victims in the case.  Another individual moved to be identified by the court as a victim for purposes of restitution.  The movant argued that, at defendant’s request, he had loaned more than $1.6 million to Person A and Person B via deals brokered by defendant “based upon the misrepresentations and false promises” of defendant.  The government responded that the movant did not qualify as a victim because he was informed by defendant about the actual use or purpose of the funds loaned, and did not actually rely on any misrepresentations made by defendant; in contrast, other investors were never informed about the details of the scheme or the use of funds to clear gambling markers to facilitate other investments.  The court explained that under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, a crime victim is entitled to “full and timely restitution as provided in law.”  A crime victim is defined as a person “directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.”  In this case, the victims identified by the government were harmed not by a common plan, but by different representations to different victims.  The court found that the movant was not harmed by distinct representations made to other victims about transactions in which he was not involved.  If he was a victim, it was not of the crime charged or admitted to by defendant.  Nor did the court find there to be a common scheme because of the particular, specific representations made to each individual victim.  Accordingly, the movant did not offer evidence that he was a victim of the crime for which defendant would be sentenced, or otherwise fall within the protections of the CVRA.  Further, the court noted that a victim’s losses may only be included in a restitution award arising from fraud if the victim actually relied on the perpetrator’s fraudulent conduct or misrepresentations.  Here, there was no evidence of specific false representations made to the movant within the scope of the charged offense of wire fraud, or that he actually relied on these representations in making the loan.  The court concluded: “In the absence of any positive evidentiary support for [the movant’s] position, and in the face of contradictory information in the record, which he apparently does not dispute, the Court has no plausible factual basis for a finding that [the movant] actually relied on any specific representation about the use of the loaned funds. The Court therefore cannot conclude that any specific alleged misrepresentation by defendant was the ‘but for’ cause of financial injuries to [the movant], or that he was an actual ‘victim’ of any fraudulent scheme for the purposes of calculating an award of restitution under the CVRA.”  The motion was denied.

  • Z.W. v. Foster, — P.3d —, No. 1 CA-SA 17-0196, 2018 WL 2355997 (Ariz. Ct. App. May 24, 2018)

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    Defendant was charged with one count of child molestation and two counts of sexual abuse.  The victim challenged the superior court’s ruling denying her request to preclude reference to her as the “alleged victim.”  She argued that allowing defense counsel to refer to her in that manner rather than as the “victim” violated her statutory and constitutional rights under Arizona’s Victims’ Bill of Rights.  The court accepted jurisdiction, finding that the victim had no adequate remedy to appeal to cure an asserted violation of her pretrial rights.  The victim argued that because the Victims’ Bill of Rights uses the term “victim” to refer to the crime victim, there is an implicit right to be referred to as such throughout the proceedings.  However, the court found that the use of the term “victim” simply confers the status of victim and all its attendant rights to those defined as victims, and that the constitutional rights afforded crime victims do not mandate that a specific term be used in referring to victims during court proceedings.  The victim further argued that being referred to as the “alleged victim” violated her right to be treated with fairness, respect and dignity because it calls into question whether a crime was committed and whether someone was a victim.  However, the court stated that the term merely refers to the procedural posture of a case such as this one where the defendant disputes that a crime occurred.  Thus, the characterization as an alleged victim “accurately conveys the procedural posture of the case and does not inherently violate a victim’s right to be treated with fairness, respect and dignity.”  The court concluded that the superior court retains discretion to address, on a case-by-case basis, whether using a particular term to refer to a victim violates the victim’s right to be treated with respect and dignity.  For instance, in some cases—such as if there is no question that the crime occurred and the issue is one of who committed the crime—the use of “alleged” may be inappropriate.  “But in circumstances such as those presented here, where the core issue in dispute is whether any crime occurred, the superior court does not abuse its discretion by accurately conveying the nature of the proceedings, and by weighing the victim’s request to be referred to in a specific way against the defendant’s right to have the court reserve judgment on credibility issues.”  The court further noted that finding no abuse of discretion here “does not obviate the need to consider the victim’s right to be referred to in a respectful manner.”  Thus, if a defendant refers to a victim “with a sarcastic or insulting intonation, the superior court is empowered to prohibit such intonation as disrespectful.  Moreover, if a victim requests that a particular name or part of a name be used or not be used when being referenced in court proceedings, great deference should be accorded to the victim’s wishes.”  One judge dissented from the court’s denial of relief, concluding that “[b]ecause a person against whom a crime has allegedly been committed is afforded several, substantive pre-trial rights pursuant to Arizona law, logic dictates this individual is a ‘victim’ and should be referred to as such.”  That judge further noted that “[t]he superior court’s speculative finding that [defendant’s] constitutional rights are in jeopardy does not supplant Z.W.’s victims’ rights and the concomitant obligation to refer to her as a ‘victim.’” 

  • United States v. Green, — Fed. Appx. —, No. 17-2175, 2018 WL 1733239 (3d Cir. Apr. 10, 2018)

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    Defendant pleaded guilty to indecent exposure and was sentenced to imprisonment.  At the sentencing hearing, the victim gave a victim impact statement on the record.  Defense counsel sought to cross-examine her and the government objected.  The district court sustained the objection.  Defendant appealed the district court’s ruling prohibiting the cross examination of the victim at his sentencing hearing, arguing that it violated his Confrontation Clause and due process rights.  The court began by noting that under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, crime victims have the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding, and that courts may not limit victims to a written statement.  The court explained that because the victim in this case made her statement in the sentencing context, the law is clear that the Confrontation Clause does not apply.  Accordingly, the court found that he did not have the right to confront the victim at sentencing.  The court further held that defendant’s due process rights were not violated by the ruling.  The court explained that the Due Process Clause requires that the victim impact statement must have some “minimal indicum of reliability beyond mere allegation” to be admissible at sentencing hearings.  The court found that here, defendant did not contend that the victim’s testimony was insufficiently reliable to be properly considered by the district court in imposing sentence; instead, he argued that his due process rights entitled him to cross-examine the victim because she testified to the circumstances of the offense.  The court concluded that this assertion is refuted by controlling law and rejected it.  Accordingly, the sentence was affirmed.

  • State v. Tena, 412 P.3d 175 (Or. 2018)

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    Defendant was convicted of felony fourth-degree assault constituting domestic violence.  Defendant appealed his conviction, arguing that the trial court impermissibly admitted character evidence at trial by allowing the state to introduce evidence that he had previously assaulted two other intimate partners.  The state argued that the prior incidents were admissible to prove intent to counter the defendant’s theory of the case that the victim had fallen and accidentally injured herself.  The state asserted that the evidence was admissible under Oregon Evidence Code (OEC) 404(3), which prohibits the use of evidence to prove the character of a person in order to show that the person acted in conformity therewith, but allows the evidence if it is to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  The state argued that the prior assaults were admissible under both theories:  either to prove defendant had a hostile motive toward the victim or to establish defendant’s intent under the doctrine-of-chances theory, which propositions that multiple instances of similar conduct are unlikely to happen by accident.  Alternatively, the state argued that if the evidence was not admissible under OEC 404(3) for nonpropensity purposes, it was admissible under OEC 404(4), which provides that “evidence of other crimes, wrongs or acts by the defendant is admissible if relevant” if otherwise not prohibited by state or federal law.   The trial court agreed with the state and allowed the evidence under OEC 404(3).  The court of appeals affirmed the conviction on the basis that the evidence of the prior assaults provided proof of hostile motive.  The Oregon Supreme Court disagreed.  The court found that the state’s argument assumed that because defendant assaulted two of his prior intimate partners, those assaults were motivated by the fact that they were his intimate partners. The court rejected this assumption in that “one does not necessarily follow from the other[.]”  The court further explained that although, in theory, defendant could have been motivated by the fact that the victims were his intimate partners, the evidence indicated that the prior assaults involved other motives, such as disagreements about child-care and jealousy (defendant had various reasons for being angry at each victim).  The court also rejected the state’s doctrine-of-chances theory.  The court rejected this argument on the basis that defendant did not contend that he injured the victim by accident, but that he did not injure the victim at all, thus making the doctrine inapplicable.   The court did not review whether the evidence was admissible under OEC 404(4) because the state did not raise it at trial and it is not a determination that the court can make as a matter of law.  Instead, the trial court would address the issue on remand.  The court reversed the court of appeal and remanded the case for further proceedings consistent with this decision.