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National Crime Victim Law Institute

State v. Lee, — P.3d —, No. 2 CA-SA 2010-0068, 2011 WL 115465 (Az. Ct. App. Jan. 13, 2011).

January 21, 2011

Defendants in a civil forfeiture action and a parallel criminal action that stem from the same set of alleged fraudulent acts sought to depose the crime victims in the civil case while the criminal case was pending.  The state filed a special action to challenge the trial court’s denial of its motions for a protective order to prevent the depositions, arguing that the crime victims have the right to refuse defendant’s request for a deposition under Arizona’s Victim Bill of Rights.  Defendants opposed the motion on two grounds:  (1) the state lacked standing to bring the special action because no victim had specifically requested the state’s representation or filing of the special action; and (2) Arizona’s constitutional right of a victim to refuse to be deposed applied in criminal cases and did not extend to civil cases.   The court of appeals rejected defendants’ standing argument, holding that the state has standing to bring the special action and assert the victims’ rights under Arizona law so long as the victims had notified the state that they wished to assert their right to refuse the depositions.  The court also rejected defendants’ argument regarding the scope of the constitutional right, holding that the victims may exercise their constitutional right to refuse to be deposed in a civil action where the subject matter of the proposed deposition is the criminal offense committed against those victims and the criminal action is pending.  The court concluded that this holding is necessary to protect the crime victims’ privacy and minimize the victims’ contact with defendants prior to trial, which serves the underlying purposes of the constitutional right at issue.  The court further concluded that allowing defendants to compel the victims to submit to depositions in a civil case while a parallel criminal case was pending would immediately defeat the victims’ right to refuse to be deposed in the related criminal action.   For these reasons, the court granted the state’s request for special action relief and vacated the trial court’s order denying the request for a protective order preventing defendants from deposing the victims.