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National Crime Victim Law Institute

New and Noteworthy

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  • IAR Systems Software, Inc. v. Super. Ct., 218 Cal. Rptr. 3d 852 (Cal. Ct. App. 2017)

    Defendant was charged with multiple counts of embezzlement for conduct arising out of his employment.  Represented by counsel, the employer-victim initiated a parallel civil proceeding arising from the same facts alleged in the criminal case.  The employer-victim, and the law firm representing it, filed a writ of mandate petitioning the appellate court to vacate the criminal court’s order stating that the law firm was a member of the prosecution’s team and was subject to Brady’s disclosure requirements.  The appellate court explained that pursuant to Brady: “A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work.  The important determinant is whether the person or agency has been ‘acting on the government’s behalf.’”  The trial court primarily relied on three factors in deciding that the victim’s attorney’s firm was a member of the prosecution’s team: (1) email correspondence with case citations regarding defendant’s ratification defense; (2) email correspondence asking for elements of the crimes defendant would be charged with to include in the civil deposition; and (3) the government’s expressed need and inability to pay for a forensic accountant’s audit, which was then procured and financed by the victim.  The court of appeals analyzed the issue in the context of agents and principals: “the issue, in essence, is whether the prosecution has exercised such a degree of control over the nongovernmental actor or witness that the actor or witness’s actions should be deemed to be those of the prosecution for purposes of Brady compliance.”  The court noted that there is no published case holding that a private party that is also a crime victim qualifies as a member of the prosecution team for purposes of Brady.  The court then held that members of the victim’s attorney’s firm were merely acting on behalf of a cooperating witness and their actions were consistent with the general right of crime victims to confer with the prosecution regarding defendant’s charges.  Of importance, the court noted that the law firm did not have an agreement with the prosecutor’s office, the exchange of legal citations was minimal, they did not conduct legal research or investigate solely at the request of the prosecutor, it was the victim (and not the law firm) that hired and paid for the financial audit, and the prosecutor did not solicit the discovery the law firm obtained through the parallel civil lawsuit.  The court then entered a peremptory writ of mandate directing the trial court to set aside and vacate its order, with the instruction to enter a new order finding that the victim’s attorney’s law firm is not part of the prosecution team in this case for purposes of Brady.

  • State v. Bitzas, 164 A.3d 1091 (N.J. Super. Ct. App. Div. 2017)

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    Defendant was convicted of second degree possession of an assault firearm, fourth degree possession of a large capacity magazine, and fourth degree possession of a handgun following conviction for possessing a controlled dangerous substance, and sentenced to an aggregate term of thirteen years.  The trial court had earlier severed additional counts that stemmed from the same incident involving the victim—defendant’s former girlfriend—including counts of third degree terroristic threats and fourth degree aggravated assault by pointing a firearm at or in the direction of another. Defendant appealed his convictions, arguing, inter alia, that he was prejudiced by the trial court’s failure to appropriately address the victim’s behavior while testifying as a witness—behavior that included continuously responding to defense counsel’s questions in a disruptive manner, disregarding the prosecutor’s instructions, deliberately mentioning extraneous information that was prejudicial to defendant, and walking out of the courtroom during her cross-examination on the first day of trial.  The court agreed with defendant, vacated his convictions, and remanded for further proceedings.  The court found that the trial court abused its discretion in failing to declare a mistrial.  The court explained that “[a]lthough the trial judge issued curative instructions to the jury, [the victim’s] obstreperous behavior eventually overwhelmed the proceedings. It soon became clear that the curative instructions could neither counteract the prejudice caused by the witness’s misbehavior nor deter her from continuing to disrupt the trial.”  The court acknowledged that “victims of a crime have a right under our Constitution to be ‘treated with fairness, compassion and respect by the criminal justice system[,]’” however “when victims testify in a criminal trial, they are subject to the authority of the judge presiding over the proceedings and must follow the judge’s instructions. If a witness is unwilling or unable to adhere to a trial judge’s instructions or the witness’s courtroom conduct becomes so obstreperous that it interferes with the orderly administration of the trial, the judge has the authority and responsibility to take reasonable measures to restore order, preserve the decorum and solemnity of the proceedings, and protect the defendant’s right to a fair trial.”

  • State v. Skipwith, 165 A.3d 1211 (Conn. 2017)

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    Defendant pleaded nolo contendere to manslaughter in the second degree with a motor vehicle and operation of a motor vehicle while under the influence of liquor, in connection with an incident in which defendant struck and killed the victim with his car.  The victim’s mother moved to vacate defendant’s sentence and petitioned for writ of error coram nobis after having been erroneously deprived of her right, as a crime victim, to object to the plea agreement and make a statement at the sentencing hearing.  Following a hearing, the superior court dismissed the motion and petition.  The mother filed a writ of error in the Supreme Court of Connecticut.  On transfer, the intermediate appellate court dismissed the writ.  The mother filed a petition for certification to appeal.  On appeal, the mother contended that the sentence was imposed in an illegal manner, and therefore she was entitled to have the sentence vacated.  The state contended that the appellate court properly dismissed the mother’s motion on the merits, and further that the court lacked jurisdiction to entertain a writ of error seeking to enforce the provisions of the victim’s rights amendment.  The supreme court first determined that it did have jurisdiction to hear the writ of error seeking to enforce the victim’s rights amendment.  The court explained that although there was no explicit language in the constitution or statute expressly conferring such authority, the right to appeal by writ of error is a common-law remedy.  Thus, in the absence of any constitutional or statutory provision depriving the court of its common-law jurisdiction over writs of error, the court has jurisdiction if a victim falls within the class of persons who are entitled to file a writ of error.  There being no such provision, the court has jurisdiction.  Turning to the merits, the court then determined that the appellate court was nonetheless correct in dismissing the writ because the victim sought a form of relief—an order requiring the trial court to vacate the defendant’s sentence—that is barred by the prohibition on appellate court relief contained in the victim’s rights amendment: “Although the victim’s rights amendment does not deprive victims of their right file a writ of error to enforce their constitutional rights, it also does not expand their rights to seek a form of appellate relief that previously had been barred by statute.”  Because victims were barred by statute from seeking to vacate a criminal sentence for the violation of their rights when the victim’s rights amendment was adopted, the court concluded that this form of relief is barred, and therefore the appellate court’s decision was affirmed.  Three judges concurred in the opinion, based on the language of the amendment, but stated that because the courts are barred from construing the amendment to create a basis for any form of appellate relief, and the legislature has not enacted any enforcement methods, the promises of the amendment are “largely illusory.”  The concurring judges continued, citing Marbury v. Madison: “This state of affairs undermines the foundational principle, declared more than 200 years ago, that a government of laws ‘will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.’”  The justices urged the legislature to take steps to prevent a similar recurrence, and urged trial courts to be vigilant and protective of victims’ rights.  The justices concluded: “This case provides a stark reminder that a constitutional right, unadorned by a remedy to enforce or vindicate that right, is a hollow one. Indeed, a victim of crime who is denied her constitutional rights by a prosecutor or the court is, in a very real sense, victimized all over again. Without understating the significance of the primary victimization, this second victimization may be in some ways more odious because it is inflicted upon her by the levers and gears of the judicial system itself, the very institutional mechanism she—and all people in civilized society—relies on to have her offender held to account. We as a state must do better than this.”

  • Jane Doe v. State, — S.E.2d —, No. 2015-001726, 2017 WL 3165132 (S.C. July 26, 2017)

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    South Carolina’s domestic violence statutes addressed the protection of “Household member[s][,]” which were defined to include a spouse, a former spouse, persons who have a child in common, or a “male and female who are cohabitating or formerly have cohabited.”  The petitioner, a victim who experienced an incidence of violence involving her former same-sex partner who was denied an Order of Protection under the domestic violence statutes because of the same-sex status of the former cohabitation relationship, challenged the classification, arguing that it unconstitutionally excluded unmarried, cohabitating or formerly cohabitating same-sex couples from the protections of the domestic violence statutes.  The South Carolina Supreme Court agreed, holding that although “the applicable level of scrutiny may be unclear … the statutory subsections cannot survive even the most government-friendly, deferential level of scrutiny—the rational basis standard.”  The court determined that rational basis review of the statutory provision necessitated the conclusion that the definitional provisions excluding unmarried, cohabitating or formerly cohabitating same-sex couples violated the Equal Protection Clause.  Finding that this definitional provision could be severed from the rest of the domestic violence statutes, it was severed and the remainder of the protections continued in effect to provide protection to “Household member[s],” defined as a spouse, former spouse, or persons who have a child in common.