This Issue’s Featured Right: The Right to be Present

The right to be present gives the victim the authority to decide if he/she wants to be in the courtroom during the criminal proceedings.  Without this right, the victim’s interest in observing firsthand what is occurring during the case may be lost because judges can order the victim who is a witness removed if asked to by the parties; the right requires everyone to stop and consider the victim’s interests in being present.  This is important because it allows the victim to have meaningful participation and choice in the criminal case of the offender.

For victims who choose to be present, the right to be present is the right for a victim to sit in a courtroom and hear, without a filter, what others are saying happened in a case.  Whether that means hearing what happened in the last moments of a loved one’s life, or hearing the hard words of defendants, like that defendant believes that the victim “asked for it,” being present is about a victim getting to personally hear the whole tale of the crime and to see the justice system at work.  The right ensures that a victim is able to see the story unfold and that they can judge for themselves that a fair and just disposition is reached. 

This right looks different in across jurisdictions.  For victims whose offender is in federal court, the Crime Victims’ Rights Act (CVRA) sets forth an expansive right to be present at criminal justice proceedings.  The CVRA provides a crime victim with the right “not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.”  Further, the CVRA says that the court “must make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding.”

Many state laws give victims the right to be present, but the right can look different from state to state.  At least sixteen states provide victims with an unqualified right to be present at trial.  Eleven states give victims the right to be present at trial subject to exclusion for interference with the defendant’s constitutional rights, including the rights to due process and a fair trial.  Ten additional states provide victims with the right to be present at trial, subject to other qualifications: five give victims the right to be present unless their testimony is affected; two give victims the right to be present if practicable; two give victims the right to be present subject to the discretion of the court; and one gives victims the right to be present after testifying.

The right to be present is an important right for victims, and one that NCVLI is deeply committed to protecting.  For more information on the right to be present and victims’ rights in general, please contact NCVLI.

© 2011 National Crime Victim Law Institute