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National Crime Victim Law Institute

New and Noteworthy

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  • State v. Iseli, --- P.3d ---, No. A161740, 2018 WL 3569132 (Or. Ct. App. July 25, 2018)

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    Defendant was charged with domestic violence crimes.  The victim failed to appear for trial and the state moved in limine to admit certain of her out-of-court statements, relying on the forfeiture-by-wrongdoing exception to the hearsay rule.  The trial court concluded that the hearsay exception did not apply because the state had not demonstrated that the victim was “unavailable” as required by Oregon Evidence Code 804(3), and denied the motion.  The state appealed.  The appellate court began by explaining that the forfeiture by wrongdoing doctrine provides that a declarant’s hearsay statements are admissible against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended (at least in part) to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.  The trial court had found that defendant made numerous threats against the victim directed at what he would do to her, or his motorcycle gang would do to her, if she cooperated with police, and noted that this is the sort of wrongful conduct contemplated by the forfeiture by wrongdoing doctrine.  The trial court had also found that the victim did not attend trial because of that fear.  However, the trial court denied the state’s motion on the basis that the victim was not “unavailable.”  Specifically, the trial court found that the state had not made reasonable efforts to secure the victim’s attendance at trial in that it did not secure a material witness warrant against the victim—although the court did note that the state had done “everything it possibly could” short of obtaining that warrant.  The appellate court reviewed the trial court’s decision for legal error.  Under Oregon law, the question for purposes of determining unavailability is whether the state has taken the measures to secure the witness’s attendance that are reasonable under all of the circumstances of the particular case in question.  The appellate court found that in cases in which a defendant, by wrongful conduct, has intentionally procured a witness’s absence from trial, that intentional conduct is an important consideration in determining what the state is reasonably required to do to secure the witness’s attendance.  In this case, the victim was very afraid of defendant, who had threatened her, and the state had gone to great lengths to try to get her to attend the trial.  The state asserted that, “under the circumstances, it was not required to ‘re-victimiz[e] an already traumatized crime victim’ by seeking her arrest as a material witness.”  The appellate court agreed:  “In light of the trial court’s findings, and that, by wrongfully procuring the victim’s absence from trial, defendant largely controlled the circumstance to which he objected, we conclude that reasonableness did not require the state to seek a warrant for the victim’s arrest in this case.  Instead, the state exhausted all reasonable measures for securing the victim’s attendance at trial when it ‘did everything that [it] possibly could’ short of seeking a warrant for her arrest.  Accordingly, we conclude that the trial court erred in denying the state’s motion in limine to admit the victim’s out-of-court statements at trial.”  The court cautioned that its holding did not mean that when a party has established the applicability of the forfeiture-by-wrongdoing exception, it necessarily follows that the party has also established the declarant’s unavailability as a witness.  “Rather, our conclusion that the state’s efforts in this case established the witness’s unavailability is fact dependent and is based largely on the trial court’s finding that the state had done ‘everything’ it could short of obtaining a warrant to secure the victim’s attendance at trial.  The result might be different, depending on circumstances, in a case where the trial court determined that the state reasonably could have taken—but did not take—less-drastic measures, or if the court determined that the state’s efforts to secure a witness’s testimony were not made in good faith.”  The trial court’s decision was reversed and the case remanded.

  • State v. Bray¸ — P.3d —, No. S064846, 2018 WL 3301268 (Or. July 5, 2018)

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    Defendant was convicted of two counts of first-degree rape, two counts of first-degree sodomy, and one count each of strangulation and fourth-degree assault.  Defendant argued at trial that the victim’s injuries resulted from consensual “rough sex[,]” and had sought access to Google search information and other digital data on the victim’s computer that was created after their encounter.  To obtain the victim’s computer information, defendant filed a pretrial motion to compel the state to issue a search warrant to Google and issued a subpoena duces tecum commanding the victim to bring the computer to court at the time of trial.  Defendant also made a motion at trial when the victim did not appear with the computer for an order compelling the victim to comply with the subpoena and produce the computer.  The trial court denied both motions, as well as defendant’s motion to dismiss the criminal charges, and defendant was convicted.  The appellate court later affirmed the trial court’s denial of both the motion to dismiss and defendant’s motion to compel the state to obtain the search warrant necessary for Google’s production of the victim’s “internet information.”  The court of appeals determined, however, that the trial court erred in denying defendant’s motion to enforce the subpoena duces tecum for the victim’s computer.  Defendant’s convictions were vacated and the case remanded to the trial court for further proceedings.  Defendant appealed to the Oregon Supreme Court, challenging the rulings regarding the state’s failure to obtain the Google records sought by defendant.  The state also filed a petition for review, challenging the appellate court’s ruling regarding defendant’s subpoena and the conclusion that defendant’s convictions must be vacated. 

    In reviewing the challenges, the court observed that a nongovernmental entity—including defendant—cannot under federal law compel a remote computing service such as Google to divulge the information sought by defendant.  The court rejected defendant’s contention that information the state could obtain from Google with a search warrant were within the “possession or control” of the state such that the state was required by law to obtain both the search warrant and the information sought and disclose this information to defendant.  The court concluded that the state has “control” over information if the state “has the power to obtain those documents on its own volition and without other outside assistance.”  If, however, the state “cannot obtain documents without judicial assistance, it cannot be said to have power over them[.]”  The court further explained that Oregon law “does not impose a duty on district attorneys to obtain and produce such materials, nor does it require trial courts to order district attorneys to do so.”  The court also rejected defendant’s due process claim, holding that because defendant could prove by other means that the victim had consulted the Internet “to determine whether what happened to her counted as rape” and because the victim’s computer may also contain that information, no due process violation occurred.  The court similarly found no error in the denial of defendant’s motion to dismiss, which was based on alleged prosecutorial misconduct, as defendant failed to establish that the state’s delay in issuing a subpoena to Google resulted in the irretrievable loss of that information.

    The court next held, however, that the trial court erred in denying defendant’s motion to compel the victim to produce the “flattened” hard drive of her computer in compliance with defendant’s trial subpoena.  In reaching this conclusion, the court declined, in a footnote, to address the privacy rights asserted by the victim (or other of the victim’s constitutional rights), as the state did not make or rely on those arguments.  In interpreting Oregon law, the court concluded that “when a party subpoenas a witness to produce material for cross-examination at trial, ORS 136.580 requires a court to order the production of the material unless it is clear that the material has ‘no potential use’ for that purpose.”  Acknowledging that an individual “generally has a privacy interest in the information on his or her personal computer[,]” the court found that the forensic examination must be reasonable and that only the digital information that was identified as potentially relevant is to be disclosed.  In addition, if a privilege or other “statutory grant of confidentiality” is asserted,  additional protections “such as in camera inspection” may be warranted to protect the computer owner’s privacy.  Because defendant in this case met the threshold showing for the enforcement of the trial subpoena, the trial court could not have found that the evidence had “no potential use” at trial and was therefore required to enforce the trial subpoena. Lastly, because the court concluded that this error was not harmless, the court vacated defendant’s convictions and remanded the case to the trial court to order the victim to produce her computer and subject it to forensic examination, subject to the conditions necessary to protect the victim’s privacy.  Following the completion of the forensic examination, defendant must be permitted to review the results and seek a hearing, at which defendant “must inform the court of the evidence that he would have offered at trial and explain its purpose.”  The trial court will then determine whether to (1) order a new trial or (2) make findings that defendant’s inability to use the subpoenaed information would not have affected the verdict and reinstate defendant’s convictions.

  • 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.’”