Criminal Law and Justice

Criminal Law News & Resources

• Commonwealth v. McGonagle, 88 N.E.3d 1128 (Mass. 2018).
  Defendant appealed from his conviction for assault and battery.  At sentencing, the victim provided a victim impact statement as part of which, inter alia, he stated that he would like defendant to get the maximum sentence.  On appeal, defendant challenged the portion of the Massachusetts statute that provides that victims may—as part of their victim impact statement—provide their opinion “as to a recommended sentence.”  Defendant relied on United States Supreme Court precedent, including Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed.2d 440 (1987); Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed.2d 720 (1991); and Bosse v. Oklahoma, — U.S. —, 137 S. Ct. 1, 196 L. Ed.2d 1 (2016) (per curiam), to support his claim that a victim’s recommendation as to a particular sentence violates the proscription against cruel and unusual punishments under the Eighth Amendment, and its “cruel or unusual punishments” counterpart under art. 26.  Defendant further argued that allowing a victim to recommend a particular sentence violates due process.  The court held that consideration of the impact statement is constitutional because the concerns underpinning the Supreme Court’s treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue in a non-death penalty case. 
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  Student Profile - Kaylee Dickerboom
  Student Profile - Kaylee Dickerboom
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  Student Profile - Sarah Fine
  Student Profile - Sarah Fine
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  Sponsor Spotlight - Oregon Department of Justice
  The Crime Victim and Survivor Services Division is a long-time support of NCVLI.
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  Preparing the Next Wave of Victims’ Rights Attorneys
  Crime Victim Litigation Clinic Students receive education and practice skills to represent crime victims.
• State v. Davis, 907 N.W.2d 220 (Minn. Ct. App. 2018)
  Defendant was convicted of second-degree murder and ordered to pay restitution to the murder victim’s spouse for funeral expenses and lost wages.  Defendant objected to the restitution order, claiming that he would not have the resources to pay restitution while incarcerated.  After the hearing, the district court revoked its previous restitution order in full, finding that although the expenses sought were all appropriate for restitution and the costs were reasonable, defendant’s argument about his inability to pay was persuasive.  The court’s decision was meant “to restrict the garnishing of [defendant’s] prison wages so that he can purchase the basic essentials of life.”  The state appealed.  The court explained that Minnesota’s restitution statute provides that a crime victim “has the right to receive restitution” after an offender is convicted.  The statute also provides that in determining whether to order restitution and the amount of restitution, the court must consider the amount of loss to the victim and the offender’s ability to pay.  The court held: “The language in the statute is plain. We conclude that when the legislature stated that a victim ‘has the right to receive restitution,’ it meant just that: restitution is a right.”  The court continued, finding that the right to restitution is not a right of standing, but a right to receive; although courts do have discretion in making an award, they do not have the authority to deny all restitution when there is economic loss to a victim.  Rather, the statute permits courts to deny restitution when no such economic loss is proven and to determine the amount of restitution.  The court found that this interpretation is consistent with case law, which describes the goals of restitution as both victim compensation and offender rehabilitation.  Accordingly, an inability to pay restitution cannot extinguish a victim’s right to compensation.  Turning to the facts of the case, the court found that a complete denial of restitution was contrary to the victim’s right to restitution. 
• Doe v. Old Dominion Univ., — F. Supp. 3d. —, No. 2:17cv15, 2018 WL 653797 (E.D. Va. Jan. 31, 2018)
  During discovery in a Title IX case, defendant-University requested that the victim produce all emails between her and her victim advocate during a certain timeframe.  The victim objected to producing the emails on the ground that communications between sexual assault victims and their advocates are privileged.  In support, she cited a section of the Virginia Code that states that programs and individuals providing services to victims of sexual assault, domestic violence, dating violence or stalking “shall protect the confidentiality and privacy of persons receiving services.”  Defendant subpoenaed the same documents from the victim’s parents and SurvJustice, who also objected under the victim-advocate privilege.  Defendant filed motions to compel, arguing that no such privilege exists.  Responsive papers were filed, and a hearing held.  The victim conceded that federal law governs the privilege issue in this case, not Virginia statute.  However, she argued that the court had the authority to define a new privilege by interpreting common law principles, and that the court should recognize a victim-advocate privilege for the same reasons the Supreme Court did in Jaffee v. Richmond, in which it recognized a psychotherapist-patient privilege.  The court agreed with the victim and found “that protecting confidential communications between victims and their advocates promotes sufficiently important interests to outweigh the need for probative evidence, and thus that a victim-advocate privilege is necessary for the same reasons as the psychotherapist-patient privilege in Jaffee.”
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  CLEs in Honor of Sexual Assault Awareness Month
  NCVLI is excited to offer two victim law online CLE trainings this April in honor of Sexual Assault Awareness month through NAVRA, our membership alliance.
• State v. Damato-Kushel, 173 A.3d 357 (Conn. 2017)
  A sexual assault victim petitioned for writ of error on the basis that the trial court violated his state constitutional right under Conn. Const. art. I, § 8(b)(5) to “attend the trial and all other proceedings the accused has the right to attend” by precluding him from attending in-chambers conferences related to plea negotiations in the case.  In reviewing the case, the court first found that the victim had standing to seek the writ of error because: (1) the arrest warrant was a sufficient determination of his status as a legal victim under the victims’ rights constitutional amendment; (2) the trial court’s denial of his request to attend pre-trial conferences was an appealable interlocutory order because the right to attend proceedings would be destroyed if appellate review was delayed until final judgment was rendered in the case; and (3) the victims’ rights amendment does not bar the type of the relief requested.  On the merits, the court’s analysis focused on whether in-chambers, pretrial disposition conferences were “court proceedings” that the accused “has the right to attend.”  Defendant argued that in-chambers, off-the-record conferences were not “court proceedings” and that the defendant does not have a right to attend them, thus the victim’s right did not apply.  The court found that it could not discern the meaning of the provision from the text alone and looked to extra-textual sources to interpret the right.  The court relied on prior case law where it found that a defendant does not have the right to attend disposition conferences.  In addition, it reasoned that although defendant’s counsel must be present at the conference to negotiate on behalf of defendant, this is not the same as defendant having a personal right to be present at the conference.