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National Crime Victim Law Institute

Arizona Clinic Litigates Victims’ Right to be Present

May 18, 2011

In Morehart v. Barton, NCVLI’s partner clinic, Arizona Voice for Crime Victims, represented the victims in a capital murder case in which the trial court granted defendant’s motion for an ex parte hearing (which excluded the prosecution and victim).  Defendant’s motion was filed under a state procedural rule that authorizes ex parte proceedings for certain matters concerning indigent capital defendants’ pretrial investigation of mitigation evidence upon a showing of a need for confidentiality.  Fighting for the victim’s right to be present, the Arizona Clinic successfully challenged the trial court decision before an Arizona Court of Appeals.  

Defendant sought further review, however, and the Arizona Supreme Court vacated the court of appeals’ decision.  The Arizona Supreme Court held that defendant does not have a constitutional right to be present at this particular hearing, and therefore the victims do not have a right to be present.  The court recognized broadly that victims in Arizona have “various rights to participate in court proceedings that are independent of the defendant’s right to be present,” and it cautioned that trial courts “must consider” if victims’ other rights are implicated in any ex parte proceeding.  The Arizona Clinic did a superb job in fighting this uphill battle. While the decision is not one that says a crime victim can be present at these specific hearings, the Clinic secured the narrowest possible exclusion.  NCVLI, with the assistance of pro bono local counsel Charles Van Cott, filed an amicus curiae brief in support of the victims’ right to be present in this case.