Featured Right: The Right to be Heard
March 17, 2011
In this issue we feature the right to be heard. The right to be heard refers to the right to make an oral and/or written statement to the court at a criminal justice proceeding. This right weaves victim voice and experience into the criminal justice process by allowing victims to participate and contribute.
In pretrial release proceedings a victim may share information that no other party can know, leading to critical decisions around safety. For example, in a rural domestic violence and sexual assault case, the victim spoke about the fact that if her perpetrator violated his release conditions and attempted to victimize her, the remote location of her home impeded any law enforcement agency from arriving in under an hour – severely impacting her right to reasonable protection and safety from the accused.
In sentencing and post-conviction hearings, the right of the victim to provide an impact statement is often a crucial moment for both the courts and the victim. For many victims, the chance to speak about the impact of the crime in front of a court of law and in front of the offender is a necessary step in the healing process. Being heard is part of the process of creating a narrative – the creation of a story that gives meaning to one’s sense of self and life events. Often, crime disrupts a person’s life narrative and victims need to be given the opportunity to craft a meaningful narrative of the crime and the aftermath to restore a sense of power and positive meaning.
Victim voice in the sentencing process and post conviction decisions may also provide necessary information to courts – information that no other party may have. For example, in a fraud case, the victim had knowledge, but the court did not, that one of his offenders had been a personal friend for years before the crime happened. When the defendant committed the crime, the impact on the victim of the loss of trust in friendships had a major impact on the victim’s life. Without gaining this knowledge from the victim, the court would have lacked information about the severity of the impact of the crime on the victim. In post-conviction hearings, victims also may have information for the parole board that otherwise does not follow the offender’s case.
On the federal level, subsection (a)(4) of the CVRA provides a crime victim with “[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”[i] During passage of the CVRA, Senator Kyl stated:
“This provision is intended to allow victims to directly address the court in person. It is not necessary for the victim to obtain the permission of either party to do so. The right is a right independent of the government or the defendant that allows the victim to address the court. To the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings.” [ii]
The Ninth Circuit Court of Appeals interpreted the right be heard under the CVRA as a victim’s “indefeasible right to speak, similar to that of the defendant, and for good reason …” [iii]
[i] 18 U.S.C. § 3771(a)(4).