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National Crime Victim Law Institute

New and Noteworthy

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  • Facebook v. Wint, --- A.3d ---, No. 18-CO 958, 2019 WL 81113 (D.C. Jan. 3, 2019)

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    Facebook sought emergency appeal of the trial court’s order finding it in civil contempt for failing to comply with the criminal defendant’s subpoenas duces tecum for records of communications related to certain Facebook accounts.  Facebook argued that the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-02, prohibits Facebook from disclosing the requested records in response to a criminal defendant’s subpoena.  The District of Columbia Court of Appeals agreed with Facebook.  In reaching its decision, the court found that the plain text of the SCA prohibits Facebook from disclosing the contents of covered communications unless enumerated exceptions applied, and none of the enumerated exceptions applied to this case.  The court rejected defendant’s argument that the title of § 2702, referring to “[v]oluntary disclosure,” and the section’s use of the permissive “may divulge” can be interpreted to allow Facebook to comply with defendant’s subpoena.  The court found neither the section title, which has “limited utility when weighed against plain statutory language,” nor the use of “may divulge” supports defendant’s argument.  The court observed that from a policy standpoint, the SCA channels “such discovery to senders or recipients, rather than providers,” and doing so “increases the chances that affected individuals can assert claims of privilege or other rights of privacy before covered communications are disclosed to criminal defendants in response to subpoenas.”  In this regard, a “plain-language reading of the SCA … advances a significant interest and does not lead to irrational or absurd results.”  The court also rejected defendant’s reliance on the doctrine of constitutional avoidance, whereby defendant argued that the court should not interpret the SCA to preclude providers from complying with criminal defendants’ subpoenas because doing so would impermissibly interfere with a defendant’s constitutional right to present a defense.  The court explained that the doctrine of constitutional avoidance “‘is an interpretive tool” that courts apply when interpreting ambiguous statutory language, and this doctrine does not apply in this case because the SCA is unambiguous on the issue in question.  The court agreed it was possible that the SCA could, in a particular case, impermissibly interfere with a defendant’s right to compulsory process; but it deemed this unlikely given that the SCA has been in effect for over thirty years, and, with the exception of the trial court’s decision, the court has found no decision concluding that the SCA’s prohibition of disclosure “even raised a serious problem for[] a criminal defendant’s right of compulsory process.”  For these reasons, the court reversed the trial court’s order.

  • United States v. Whitley, --- F. Supp. 3d ---, No. 16 CR 719, 2019 WL 177319 (N.D. Ill. Jan. 11, 2019)

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    Defendant, convicted of one count of sex trafficking of children, was ordered to pay $246,286.59 in restitution to the four minor victims.  The court determined that restitution was mandatory under the Victims of Trafficking and Violence Protection Act (VTVPA) and the Mandatory Victims Restitution Act (MVRA).  The court found that the government had failed to satisfy its statutory duty to the victims by requesting no restitution at all before the court reminded it that restitution was mandatory, and by requesting only approximately $15,000 initially for the victims’ future mental health expenses before seeking the $246,286 award after sentencing.  Stating that it has its own duty to determine the appropriate restitution award, the court set forth reasons to justify the restitution order.  First, the court determined that “a victim suffers a compensable loss even if she did not pay for it out of pocket.”  For this reason, regardless of whether the government or other sources has incurred out of pocket losses on behalf of the victims, the court found that defendant owes restitution for the victims’ past mental health treatment, participation in residential programs and any expenses incurred during their participation in the investigation and prosecution of the case.  Second, the court determined that the victims will certainly incur future losses beyond medical and mental health expenses, and those losses include expenses for transportation, housing, education, legal assistance and substance abuse treatment, among others.  Further, the court observed that recent studies estimate the total lifetime financial burden for child sexual abuse victims at over $210,000 per victim.  The court noted that the $246,286.59 award, divided among the four victims, means each victim will receive $61,571.65—which “does its best to help restore the victims to well-being” but “does not come close to the average lifetime costs of child sexual abuse victims.”  For these reasons, the court concluded that the restitution amount was proper.  The court ordered the establishment of a trust in the names of the four minor victims and directed the government to deposit the restitution award into that trust.  The court concluded with dicta warning that “the criminal justice system is failing survivors by forcing them to bear the permanent costs of their own trafficking.”  The court explained that although the law mandates restitution for all trafficking victims, “the government does not routinely request it and courts rarely award it in sex trafficking cases.”  The court further observed that “only 31% of sex-trafficking victims received restitution, compared to 94% of labor-trafficking victims.”  The court stated that “it is time for the executive and judicial branches to step up and do their[] [jobs]” or else the law “will remain mandatory in name only.”

  • J.M. v. Or. Youth Auth., --- P.3d ---, Nos. CC 14C15773, SC S065487, 2019 WL 244466 (Or. Jan. 17, 2019)

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    The victim-plaintiff was sexually abused by an employee of the Oregon Youth Authority (OYA) 16 years prior to bringing an action under 42 U.S.C. § 1983.  At issue on review was the timeliness of the victim-plaintiff’s Section 1983 claim against the former superintendent of the OYA facility where the abuse occurred.  The trial court granted defendant’s motion for summary judgment on plaintiff’s Section 1983 claim on the basis that the claim accrued at the time of the abuse and was therefore untimely.  Applying federal law, the Oregon Supreme Court held that an action under Section 1983 accrues when a plaintiff knows or reasonably should know of the injury and the defendant’s role in causing the injury.  U.S. Supreme Court precedent was not to the contrary—rather, the precedent emphasized that the accrual rule focuses on functionality, and must be construed with flexibility.  Therefore, accrual occurs when the plaintiff can file suit and obtain relief: “A plaintiff can hardly file suit unless the plaintiff has sufficient information to do so.”  The discovery rule mirrors general common-law tort principles and reflects the functionality and flexibility that the Supreme Court envisioned.  Further, the discovery can encompass not just when the injury is discovered, but also when the plaintiff discovers the cause of injury.  The court noted that there is a federal circuit court split on this issue, however, it concluded that based on the court’s reading of Supreme Court precedent, a more expansive discovery rule that encompasses the discovery of the cause of injury better “comports with the practical realities for plaintiffs who are seeking to vindicate constitutional rights through claims under section 1983.”  Thus, the court held that an action under Section 1983 accrues when a plaintiff knows or reasonably should know of the injury and the defendant’s role in causing the injury.  The court concluded that the trial court erred in dismissing the victim-plaintiff’s claim in reliance on the principle that a Section 1983 claim accrues when the plaintiff knows or has reason to know of the injury alone.   The decision of the court of appeals was affirmed, the circuit court’s dismissal reversed, and the case remanded for further proceedings.

  • State v. J.L.G., 190 A.3d 442 (N.J. 2018)

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    Defendant was convicted of sexual assault and related charges.  After several appeals, the issue before New Jersey’s supreme court was whether his motion to exclude testimony of an expert witness on child sexual abuse accommodation syndrome (CSAAS) was properly denied.  New Jersey’s statute on the admission of expert testimony allows a properly-qualified expert to testify if scientific knowledge will assist the trier of fact in understanding the evidence or to determine a fact in issue.  To satisfy this rule, the subject matter of the testimony must be beyond the ken of the average juror, the field of inquiry “must be at a state of the art such that an expert’s testimony could be sufficiently reliable[,]” and the witness must have sufficient expertise to offer the testimony.  In criminal cases, New Jersey continues to rely on the Frye standard to assess reliability, rather than the Daubert standard.  The Frye test requires the trial judge to determine whether the science underlying the proposed expert testimony has gained general acceptance in the particular field in which it belongs.  Under Daubert, general acceptance is not a necessary precondition to admissibility.  The court found that CSAAS failed to meet the general acceptance standard of Frye.  The court found that there was limited scientific support for CSAAS, and that CSAAS does not describe a “syndrome” as CSAAS’s component behaviors are neither precise nor specific to victims of sexual abuse.  Further, the original study, which was based on clinical observations, has not been empirically validated as a whole.  Studies in the record as well as testimony at the hearing confirmed for the court that CSAAS as a whole does not enjoy general acceptance within the scientific community.  As to the five individual features of CSAAS, the court found consistent and long-standing support in the scientific literature and among experts only for the proposition that a significant percentage of victims of child sexual abuse delay disclosure.  However, none of the other features that comprise CSAAS have achieved sufficient acceptance in the scientific community to be considered reliable evidence under Rule 702: those of secrecy, helplessness, accommodation, and retraction.  In particular as to retraction, the court noted that “[t]o satisfy the reliability prong of 702, it is not enough to state that certain behaviors can be observed in some victims some of the time—or that those behaviors are not inconsistent with abuse.  This is not the type of ‘state of the art’ evidence the case law requires.”  The court concluded that because evidence about CSAAS as a whole and the above four categories do not satisfy the Frye standard, experts may not present evidence on those topics at trial.  However, expert testimony can be admitted as to delayed disclosure because both experts in the field and the relevant scientific literature confirm that children often delay reporting sexual abuse.  When expert evidence on delay is introduced, trial courts should provide appropriate limiting instructions to the jury, which should explain that delay is not necessarily inconsistent with abuse, but evidence about delay is not proof of abuse, nor is it proof that the victim testified truthfully.  Accordingly, the court found it was error to introduce CSAAS evidence.  Nonetheless, the court found the error harmless in light of the overwhelming evidence of defendant’s guilt.  The conviction was affirmed. 

  • Hester v. United States, 586 U.S. ---, No. 17-9082, 2019 WL 113622 (Jan. 7, 2019)

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    Defendants, convicted after guilty pleas to conspiracy to launder money and other offenses, appealed the United States Court of Appeals for the Ninth Circuit’s decision affirming the district court’s restitution order. Defendants argued, inter alia, that the restitution order violated United States Supreme Court precedent in Apprendi v. New Jersey and Southern Union Co. v. United States because the restitution allegations were neither charged nor proven to the jury beyond a reasonable doubt. The Supreme Court denied defendants’ petition for a writ of certiorari. In a concurring opinion, Justice Alito addressed defendant’s argument that under Apprendi and its progeny, the Sixth Amendment requires the jury to find the facts that support a restitution order. Justice Alito stated that the Supreme Court precedent is premised upon “a questionable interpretation of the original meaning of the Sixth Amendment” and determined that “fidelity to original meaning counsels against further extension of these suspect precedents.” Justices Gorsuch and Sotomayer wrote a dissenting opinion. First, the dissenting Justices observed the “increasing role” restitution plays in the federal criminal sentencing process since the passage of the Victim and Witness Protection Act of 1982 and the Mandatory Victims Restitution Act of 1996; and they noted the negative consequences, including the suspension of voting rights and reincarceration, that offenders may face for failure to pay restitution. Next, the dissenting Justices examined Supreme Court precedent requiring a jury to find “any fact that triggers an increase in a defendant’s ‘statutory maximum’ sentence.” The Justices explained that the term “statutory maximum” used in case law refers to “the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted”; the “statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss”; and “it would seem to follow that a jury must [also] find any facts necessary to support a (nonzero) restitution order.” The dissenting Justices rejected the government’s argument that the Sixth Amendment did not apply to restitution orders because restitution is a civil remedy rather than a criminal penalty. The dissenting Justices observed that the Sixth Amendment’s right to a jury trial “expressly applies ‘[i]n all criminal prosecutions,’” restitution is imposed as part of a criminal prosecution, and both federal statutes and case law “describe restitution as a ‘penalty’ imposed on the defendant as part of his criminal sentence.” The dissenting Justices stated that if restitution is really outside the scope of “criminal prosecutions,” then they “would have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.” Finally, the dissenting Justices cited examples of common law prosecution of stolen property where restitution was ordered only after the jury found the value of the stolen property, and observed that the purpose of the Sixth Amendment was to “preserv[e] the ‘historical role of the jury at common law.’” For these reasons, Justices Gorsuch and Sotomayer would grant the petition for review.