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National Crime Victim Law Institute

New and Noteworthy

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  • D.P. v. State, — P.3d —, No. CC 17CR32482, SC 065868 (Or. May 2, 2018)

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    Appellant, a crime victim, filed a claim in the trial court pursuant to Oregon Revised Statute 147.515 alleging that the trial court violated her right as a crime victim to be heard when it sentenced defendant on various domestic violence crimes committed against the victim. Specifically, the victim claimed that the trial court violated Article I, section 42(1)(a) of the Oregon Constitution—which affords a crime victim the right “to be heard at * * * the sentencing”—when the trial court interrupted her victim impact statement and later terminated the statement without warning or explanation.  The trial court denied the claim, and the victim appealed.  On appeal, the court accepted, for purposes of the case, that a victim’s right to be heard at sentencing is similar to a defendant’s right of allocution.  The court continued, explaining that a trial court may prevent a defendant from making irrelevant or unfairly prejudicial statements in an allocution and may impose reasonable time limits on a defendant’s allocution, even if the defendant’s statements are relevant and not unfairly prejudicial, in order to ensure that the sentencing proceeding is orderly and expeditious.  Under Oregon statute, a crime victim has the right at sentencing to “reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fines.”  The court found that the trial court’s interruptions did not violate the victim’s right to be heard.  The court noted that the first interruption was to direct the victim not to go into detail about an uncharged crime, and the second was to instruct her not to describe any additional online comments made by others about defendant.  The court concluded that the trial court had the authority and responsibility to conduct the hearing as an orderly and expeditious proceeding, and did not abuse its discretion when it limited the victim’s statement in order to focus on the charged crimes and her own experiences with defendant.  The court further concluded that the interruptions did not prejudice the victim because she continued with her statement as prepared after the interruptions.  The victim also argued that the trial court violated her right to be heard when it terminated her victim impact statement.  The court described that at the time the trial court terminated her statement, she was describing facts that were relevant to the sentencing proceeding, in that she was discussing defendant’s family background, and how he does not have, and has not had, the kind of family support that would keep him from committing similar offenses in the future.  The court also noted that the statements were not beyond any limitation the trial court imposed on her earlier—she was not discussing uncharged crimes or relaying others’ comments about defendant.  Because the victim’s statements were relevant to sentencing and not outside the limits the trial court had imposed, and because the trial court provided no other reason for the termination and none were apparent from the record, the court concluded that the trial court violated the victim’s constitutional right to be heard when it terminated her victim impact statement.  The court continued: “Although we hold that appellant’s constitutional right to be heard was violated in this case, we do not hold that a trial court cannot place reasonable limits on the content and length of a victim impact statement. A victim’s right to be heard, like a defendant’s right of allocution, remains subject to the trial court’s authority to ensure that the information presented is relevant and not unfairly prejudicial and that the sentencing is orderly and expeditious.”  The court also concluded that: “To accommodate both the victim’s constitutional right to be heard and the need for orderly and properly focused hearings, a court attempting to limit an overly detailed or long statement should inform the victim of reasonable and appropriate limitations on the content and length of the statement, so the victim has the opportunity to conform the statement to the limits imposed by the court.”  The court further noted that if the victim disregards the instruction, the court has discretion to terminate the statement.  Turning to remedy, the court determined that the victim was entitled to a new sentencing hearing conducted in accordance with her constitutional rights.  Defendant’s sentence was vacated and the case remanded for resentencing.

  • Phx. City Prosecutor v. Lowery, — P.3d —, No. 1 CA-CV 17-0168, 2018 WL 1279554 (Ariz. Ct. App. Mar. 13, 2018)

    Defendant was charged with three counts of driving under the influence of alcohol and one count of criminal damage, a domestic violence offense.  Before the trial, defendant moved to preclude testimony and statements by her husband regarding the three DUI charges based on the anti-marital fact privilege.  She also moved to sever the three DUI charges from the criminal damage charge.  The police did not witness the drunk driving, but the husband did.  The city argued that the exception to the anti-marital fact privilege for crimes committed by a wife against her husband applied to the DUI charges as well as the criminal damage charge.  The municipal court disagreed, severed the criminal damage count from the DUI counts, and precluded defendant’s husband from testifying in the DUI trial.  The city appealed.  The court explained that under Arizona’s anti-marital fact privilege, one spouse can prevent the other spouse from testifying against her regarding any “events occurring during marriage”; however, the privilege does not apply in “a criminal action or proceeding for a crime committed by the husband against the wife, or by a wife against the husband.”  Defendant argued that because the DUI was not a crime against the husband, the exception to the privilege did not apply.  In determining whether a crime is one committed by a spouse against another, the court looks to whether the crime “places a strain on the marriage relationship.”  Here, the court found that there was no allegation that the DUI posed any physical threat to defendant’s husband, and that there was therefore not the necessary strain on the marriage.  The city also argued that if the exception to the anti-marital fact privilege applied to one charge, it must apply to all charges when they arise out of the same course of conduct.  The court concluded that this assertion was not supported by law.  Lastly, the city argued that Arizona’s Victims’ Bill of Rights and its statutory counterpart made defendant’s husband a victim of the DUI charges.  The court described that under these statutes, a victim is a person against whom the criminal offense has been committed, and that the “central purpose of the VBR is to grant rights to crime victims in an effort to promote the ‘respect, protection, participation and healing of their ordeals.’”  The court found that, as such, the purpose of the marital-fact privilege is fundamentally different from the Victims’ Bill of Rights: “the purpose of the privilege is to protect the marital relationship, whereas the purpose of the VBR is to protect the victim.”  The court noted that the city cited no legal authority standing for the proposition that when a spouse is a victim under the Victims’ Bill of Rights, the marital privilege is automatically forfeited pursuant to the exception for crimes committed by one spouse against another.  Indeed, nothing in the Victims’ Bill of Rights suggests that the voters or the legislature intended that it apply to the exception to the anti-marital fact privilege. Accordingly, the court found the district court did not abuse its discretion in finding the anti-marital fact privilege applied to the DUI charge.  Affirmed. 

  • 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.

  • Lopez v. State, — A.3d —, No. 11, Sept. Term, 2017, 2018 WL 1531071 (Md. Mar. 29, 2018)

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    Defendant entered an Alford plea to two counts of first-degree murder, among other charges, for the murder of his wife and her child, and was sentenced to life imprisonment without the possibility of parole.  Defendant appealed from his sentence, arguing that the trial court erred in allowing the brother of the deceased adult victim to play a six-minute video containing photographs of the two victims set to background music in connection with sentencing proceedings, following live victim impact testimony from nine witnesses.  The court reviewed the legislative purpose of Maryland statutes governing written victim impact statements and victim impact testimony, and articulated three guiding principles that govern the admissibility of victim impact evidence: (1) “any victim impact evidence not strictly permitted by statute is within the sentencing judge’s discretion to consider”; (2) “videos can be relevant and probative at a sentencing hearing for purposes such as showing the personal characteristics and unique identity of the victim”; and (3) “there can and should be limitations on victim impact evidence, especially when that evidence is ‘prepared and reviewed’ before the sentencing hearing.”  The court noted with approval trial courts’ “broad discretion” to admit and consider victim impact evidence “in forms outside the bounds of victim impact statements and victim impact testimony” and held that “all prepared victim impact evidence submitted at sentencing, including victim impact videos, needs to meet at least one of the very broad content requirements” imposed by statute.  In the context of the video submitted in connection with this case, no error was found, as the video showed the identity of the victims, one of the statutory categories, and was neither irrelevant nor overly prejudicial.  The court also rejected defendant’s arguments that the trial court’s consideration of the victim impact evidence violated his rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment.  The court examined United States Supreme Court precedent and held, as a matter of first impression, “that there is no legal support for the proposition that the Eighth Amendment’s protection extends to claims that victim impact evidence presented at noncapital sentencing proceedings injected an arbitrary factor into the sentencing decision. We hold that a noncapital defendant’s Eighth Amendment right against cruel and unusual punishment is not violated when victim impact evidence is introduced at sentencing.”  The court further concluded “that the victim impact video did not inflame the passions of the sentencing judge more so than the facts of the crime[,]” and “[a]s such, we hold that showing the video at the sentencing hearing did not violate [defendant’s] rights under the Fourteenth Amendment Due Process Clause.”  Finding no violation of defendant’s constitutional or statutory rights, the judgment was affirmed.