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National Crime Victim Law Institute

Johnson v. Dep’t of Pub. Safety Standards and Training, — P.3d —, No. A147361, 2012 WL 5429461 (Or. Ct. App. Nov. 7, 2012).

November 13, 2012

Petitioner, a private investigator whose license was revoked by the Department of Public Safety Standards and Training (DPSST), sought judicial review of the revocation order, which was based in part on the determination that petitioner—while working for private criminal defense attorneys—interviewed crime victims without disclosing his true identity and role and without informing the victims of their right to refuse defense interviews.  The Oregon Constitution grants crime victims the right to refuse an interview request by a criminal defendant or anyone acting on the behalf of the criminal defendant, and statutory provisions mandate that, inter alia, if the crime victim is contacted by the defense, the crime victim must be clearly informed in person or in writing of the identity and capacity of the individual contacting the victim.  Petitioner was accused of misrepresenting his identity and position as a private investigator for defense counsel, instead telling victims that he was a police officer, someone working for the City of Dallas, or someone working for the State of Oregon.  Petitioner appealed the revocation of his license, arguing, inter alia, that Oregon’s constitutional and statutory victims’ rights provisions imposed obligations on defense counsel, but did not impose legal obligations on agents of defense counsel, including private investigators.  The court of appeals agreed with petitioner that crime victims’ constitutional right to refuse a defense interview “does not incorporate or imply that a person requesting the interview has a duty to inform the victim of that right.”  The court of appeals also agreed with petitioner that the statute providing for crime victims’ right to be informed by defense counsel of, among other things, the identity and capacity of persons contacting the victim, imposes obligations solely on defendant’s attorney, and not on private investigators or other agents of defendant.  Because the DPSST’s conclusion that Oregon’s statutory and constitutional victims’ rights imposed obligations on private defense investigators was in error and may have contributed to the sanction imposed by the agency for petitioner’s conduct, the court reversed and remanded for reconsideration.