Victims’ Rights 101

Steven J. KellySANFORD HEISLER SHARP, LLP

Road Map

Understanding the basic context of Maryland

victims’ rights law

Finding sources of information about Maryland

victims’ rights law

Understanding Maryland victims’ rights

Understanding what victims can do to enforce

their rights

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Historically

Victim vs. Offender—Historically, victims ran the show.

Early history involves “private prosecutions” by victims for wrongs committed against them

Victims hired attorneys and paid constable

Had to be a white, Anglo-Saxon, protestant, landowning male

Advantages of Victim-Centered Prosecution

Victim has full control over case

Restorative and community-based

More flexibility for a judge to fit punishment to the crime

Comports with historical, cultural, and religious notions of fairness

Major Disadvantages

Only available to white, Anglo-Saxon, protestant,landowning males

Needed money to pay prosecutors and police

Prosecutor’s integrity questioned

Framers Throw Out Victim-Centered Prosecution

State becomes the party as offenses are against the “state” in system of “public prosecution” State is the legal “victim” Harm is to society, not to victim Victim is no longer a party—State vs. Defendant

Hence: Prosecutor is NOT the Victim’s Lawyer

The prosecutor works for the State, not the victim

Prosecutor’s duty is to the State and to the impartial administration of justice

Common clashes between the State and Victim:Plea Terms or Plea vs. Trial

Restitution

Victim Privacy

Views on Sentencing

Testimonial Accommodations for Victims

Victim’s Schedule

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Modern System of Assembly-Line Justice

Insiders (i.e., prosecutors, judges, and defense attorneys) share goal of moving cases Pleas, nolle prosequi, and dismissals are common tools Victims are seen as an impediment

Focus shifts away from victims, and victims’ rights become discretionary

Excluding Victims Leads to This:

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VS.

1970s Research Shows Harm to Society Based on Unmet Victim Needs

Safety

Support

Information

Access

Continuity

Voice

Justice

National Call for Rights and Services

In the 1980s, there is widespread, national consensus for more victim participation in criminal justice process

1982—President Regan convenes task force with law and

order conservatives and feminists who recognize

need for crime victims’ rights and calls for broad

reforms

The task force leads to the establishment VOCA,

which allocates federal fines and forfeitures to crime

victim compensation and to fund crime victim

services

Law Reform at the State Level Follows

34 states have amended their constitutions to provide for victims’ rights and Congress has enacted strong legal protections for victims

Basic rights are now afforded to victims in most states, including Maryland: Informed

Present

Heard

Restitution

Protection

Privacy & Confidentiality

Reforms are Limited Because They Lack “Teeth”

Ubi jus ibi remedium—no right without remedy: Rhode Island and Michigan pass laws in 1986 and 1987

30 additional states between 1988 and 1997

Maryland’s amendment passed in 1994

These amendments lack any mechanism for enforcement:

Victim cannot get a “do-over”

Victim cannot stay a trial or proceeding while their rights’ violation is considered

No penalty for violations of victims’ rights

Truck-sized loopholes

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What Should an Amendment Have?

Crime Victims’ Rights Act, 18 U.S.C.§3771 (CVRA) and model for Marcy’s law for all:

Be reasonably protected from the accused

Reasonable, accurate, and timely notice

Not be excluded

Be reasonably heard at any public proceeding

Confer with the attorney for the government

Full and timely restitution (if part of a PTA)

Proceedings free from unreasonable delay

Fairness, dignity, and privacy

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What Do We Have? Maryland’s Constitutional Amendment

Crime Victims’ Rights

Article 47. Crime Victims' Rights

(a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity

during all phases of the criminal justice process.

(b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall

have the right to be informed of the rights established in this Article and, upon request and if

practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these

rights are implemented and the terms "crime", "criminal justice proceeding", and "victim" are specified

by law.

(c) Nothing in this Article permits any civil cause of action for monetary damages for violation of any

of its provisions or authorizes a victim of crime to take any action to stay a criminal justice

proceeding.

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Key Points on Victims’ Rights under Maryland Law

It is opt-in—i.e., victims have the obligation to ask

for their rights

The “if practicable” wording makes it very

difficult to establish a rights violation

Victims’ appeal rights are very limited

Bottom Line: Victims must be very proactive in

asserting their rights

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What Legal Rights Do Maryland Victims Have and How Do Victims Enforce Them?

Where to Find Information About Victims’ Rights in Maryland

Maryland Criminal Procedure Article

Maryland Rules

Both available for free online

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Other Sources on Maryland Victims’ Rights Laws

• www.victimlaw.org

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Other Resources

National Crime Victim Law Institute (www.ncvli.org)

Technical assistance and amicus support

National Center for Victims of Crime (www.ncvc.org)

Network of civil lawyers representing child-victims

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Now for the Law on Victims’ Rights

Starts with who is a victim?

Substantive rights:

To be informed or notified

To be present

To be heard

Privacy

Restitution

Remedies for violations of victims’ rights

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Victim Defined

Person who suffers actual or threatened physical,

emotional or financial harm as a direct result of a

crime or delinquent act. A victim’s representative

is a family member or legal guardian who

represents a victim who has died, is disabled or is

a child. CP Sect. 11-104(a), 11-103(d).

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Maryland Victims Have the Right to be Represented by an Independent Lawyer

Rule 1-326(a)

“[A]n attorney may enter an appearance on behalf of a victim or victim’s representative under Title 4 [criminal trial], Title 8 [appeals] or Title 11 [juvenile cases] of these rules.”

No right to “free lawyer” but—

No-cost and low-cost lawyers available through Turnaround, SALI, Maryland Crime Victim Resource Center, and Mid-Shore Council, among others.

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Right to be Informed

Victims’ right to notification is driven by a couple

of forms:

LE & Dist. Ct. Comm., or Juv. Intake officer required to notify victims of rights—Brochure 1. CP Sect. 11-914(9)(i), 11-104(b).

SAO in Circuit Court must send victim notification request form and Brochure 2 within 10 days of indictment or information. CP Sect. 11-914(9)(ii).

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Right to be Informed—Brochure 1

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Right to be Informed—Brochure 1

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Right to be Informed—Brochure 2

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Right to be Informed—Brochure 2

Right to be Informed—Victim Notification Request Form

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Right to be Informed—Effect of Filing Notification Form

Filing the notification request form in juvenile or

circuit court triggers SAO’s obligation to notify

victims (in advance “if practicable”) of:

Changes in a defendant’s status

Any court decision or proceeding that could impact victim

Plea no right to confer (CP Sect. 11-104(f))

Appeals

CP Sect. 11-104, 11-503, 11-505

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Right to be Informed—District Court Victims

No mandatory notice requirement for

District Court Victims

Victims should file a Demand for Rights Form

to a district court

Victims should register for VINE

Use Maryland Judiciary Case Search!

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Demand for Rights Form

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Right to be Present

Two problems leading to victim exclusion in the past:

First, victims did not know about key events

Second, victims were excluded under sequestration rules because defense attorneys put them on the witness list

Now: Victims cannot be excluded from trial or other proceedings

after testifying unless the judge, after receiving clear and

convincing evidence, determines that testimony by the victim

would be materially altered if the victim heard other testimony at

that hearing or proceeding. MD Rule 5-615; CP Sect. 11-302(c) & (d).

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Right to be Present—Key Points

Victims and representatives must comport with

court rules of decorum and not identify

themselves or cause “undue prejudice” to

defendant.

Victims cannot be fired from job for attending

trial or other proceeding. CP Sect. 11-102.

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Right to be Heard

If a presentence investigation is ordered, it must

contain a victim impact statement—CP 11-402(a).

In every other case, the victim can submit an oral

and/or written statement. CP 11-402(b).

The court shall consider the impact statement in

deciding sentence. CP 11-402(d).

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Right to be Heard—Content of Victim Impact Statement

Sentencing is post-conviction, so a victim’s right

is much stronger

Section 11-402(e) suggests that the impact

statement contain:

Identity of victim, itemization of financial losses, physical injuries, emotional injuries, including impact on relationships, any request for counseling, any other information on the impact of the crime

In all but death penalty cases, the victim CAN give a sentencing recommendation

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Right to be Heard

Victim impact and restitution are post-trial rights No more “presumed innocent”

Sentencing is ALL ABOUT EMOTION

Victim impact statements Therapeutic vs. persuasive

Raging or preaching is not helpful

Use of video, photography, or a concrete example is helpful

Guide available at www.ncvc.org

Restitution requests can be powerful way of showing

impact on victims

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Right to be Heard—Other Proceedings

Victims have the right to be heard at pretrial

release hearings as well as bail or sentence review

hearings. CP Sect. 5-201, 8-106(b)(2).

Victims also have the right to notice, presence,

and comment at parole hearings. CP Sect. 11-

505(b). and certain proceedings at Patuxent

Institution. CP Sect. 11-504.

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Right to Privacy/Protection

Right to privacy and protection are not in the

Maryland Constitution

Number of statutory and common law protections

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Right to Privacy/Protection—Shielding Identifying Information

Victims can shield their identity:

Police reports, Maryland Judiciary Case Search

In court documents (CP Sect. 11-205, 11-301)

https://mdcourts.gov/district/selfhelp/accesstojudicialrecords

Using Pseudonym, Redaction, Initials, and/or Sealing documents revealing

a victim’s identity and/or location

• Fed. R. Crim. P. 49.1 and Fed. R. App. P. 25(a)(5)

• 44 U.S.C. § 3501

• Watch out for supporting documents

• Failure to seek to protect identity may waive subsequent rights—Sandusky

Sealing courtroom-compelling interest standard

• 18 U.S.C. § 3509(e)

• 18 U.S.C. § 3771

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Right to Privacy/Protection—Resisting Defense Discovery

Victims can resist discovery by defense attorney, including subpoenas

and depositions

Victims may NOT be notified of subpoena

Common third-party discovery sources include: schools, cellular

providers, internet service providers, social media, therapists, and

medical providers

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Right to Privacy/Protection—Materials Exempt from Discovery

Common Law/Statutory Privileges

Attorney-Client; Psychotherapist-Patient (MRE 513); Advocate (MRE 514); Rape shield (MRE 412); Spousal; exclude statements made by child outside presence of parents

Federal Educational Rights and Privacy Act (FERPA)

20 U.S.C. § 1232g (FERPA)—no release without parent permission (but limited remedies)

The Health Insurance Portability and Accountability Act, 42 U.S.C. §

201 (HIPAA)—victims must receive notice and opportunity to object

45 C.F.R. § 164.512(e)—qualified protective order

VAWA, 42 U.S.C. §13925(b)—imposes obligations regarding privacy

on recipients of VAWA funds

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Right to Privacy/Protection—Other Grounds for Resisting Discovery

Subpoena rules generally require notice and

opportunity to object

Fed. R. Crim. P. 17(c)(3): Subpoena for “personal or confidential information about a victim may be served on a third party only by a court order”; the victim must have notice and the opportunity to object.

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Defendant has no constitutional right to pretrial

discovery Weatherford v. Bursey, 429 U.S. 545, 559 (1977)

Criminal discovery is limited—defendant must have good faith belief (not speculation) that exculpatory evidence will be revealed

Victim has constitutional right to privacy. Roe v. Wade (NCVLI publication).

Characterize the requests as what they are—harassment/intimidation—tons of support. FRCP 45.

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Right to Privacy/Protection—Other Grounds for Resisting Discovery

Right to Privacy/Protection—Testimonial Accommodations

Maryland permits testimony of child-victim by

closed-circuit television. CP Sect. 11-303.

Any victim can testify by closed-circuit television if they are genuinely afraid that facing the defendant will cause significant emotional distress

Judge must make following findings: (a) necessary to protect welfare of the child; (b) child witness would

suffer emotional distress; (c) emotional distress is more than de minimis

Judge may question child or child representative in a comfortable setting or chambers

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Federal law on testimonial accommodations

Maryland v. Craig, 497 U.S. 835 (1990)

18 U.S.C. §3509 (codifies Craig)

Split in authority over whether expert testimony is

required

Easy way around this is to submit an affidavit from treating therapist that tracks the language of the rule (emotional distress due to seeing D)

Also, state and federal authority for array of other

accommodations

Pet, sitting on supportive person’s lap, screens, etc.

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Right to Privacy/Protection—Testimonial Accommodations

Right to Privacy/Protection—Victims’ Safety Must Be Considered

Get the Court to impose strict “no contact” conditions on any releaseInclude broad language on indirect contact through social media,

Internet, texting, etc.

Renew these conditions at sentencingContact with the victim is a violation of probation/parole

Better if it is connected to suspended sentence

Ask the Court to impose other conditions to release that address safety such as visitation, custody, etc.

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Right to Restitution—What is Restitution?

A judgment imposed on offender at time of sentencing

that requires offender to compensate the victim for

losses directly resulting from the victimization.

Criminal Procedure Article § 11-601(g) Judgment of restitution—"Judgment of restitution" means a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order of probation.

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Right to Restitution—Who Can Ask for Restitution?

The State or the victim may ask for restitution under

11-603(b)MD Rule 1-326 allows a victim’s attorney to request restitution

Third-party payers, like insurance companies and

CICB, can also seek restitution

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Right to Restitution—What Losses are Covered?

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Actual medical, dental, hospital, counseling, funeral, or burial expenses;

Loss of earnings “Direct out-of-pocket” losses Rehabilitation expenses

Future losses may be allowed: Counseling/Medical Prospective lost wages

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Right to Restitution—What do Victims Have to Prove?

Victim is “presumed” to have the right to restitution if

she or he presents “competent evidence” of losses Much more relaxed standard than general rules of evidence in civil case

Written statement of loss is prima facie evidence at a restitution hearing under section 11-615 of the Criminal Procedure Article

Bills or statements of loss are legally sufficient for victims

Party challenging the authenticity or fairness and reasonableness of the loss has the burden

Tell victims to keep their receipts!

Right to Restitution—Victim Can Submit Affidavits But Not

Live Witnesses to Prove Losses

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COURT

_________________

*

______________________

*

Plaintiff,

*

v. Case No. ______________

*

______________________

______________________ *

Defendants. *

* * * * * * * * * * * *

AFFIDAVIT OF

1. My name is ___________. I am over 18 years of age, have personal knowledge

of the facts set forth herein, and am otherwise competent to testify.

2.

3.

I SOLEMNLY AFFIRM UNDER THE PENALTIES OF PERJURY AND UPON

PERSONAL KNOWLEDGE THAT THE CONTENTS OF THE FOREGOING PAPER ARE

TRUE.

__________________ ________________________________

Date

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Right to Restitution—How is Restitution Collected?

Method I: The System

Restitution becomes a condition of parole/probation and DPP has the responsibility to collect—DPP/DJJ victim services have helpful hints http://www1.dpscs.state.md.us/victimservs/vs dpp.shtml

DPP Agent or prosecutor can ask the court for an earnings withholding order—the same as child support (a very effective tool)

Offender (theoretically) can be in violation for failure to pay

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Right to Restitution—Collecting Restitution, Method II: The Victim

Restitution becomes a super judgment.

Gives victim to all the benefits of an ordinary civil judgment, but it is not dischargeable in bankruptcy.

Victims have priority over payment of restitution to any other person or government unit. CP 11-606(b).

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Right to Restitution—Recording and Indexing the Restitution Judgment

This is important because it converts the restitution judgment into a lien on any land in which the offender has an interest in the county where indexed. MD Rule 2-621.

Recording and indexing should be automatic in many jurisdictions, although the victim may need to file a (free) form to record and index the judgment in any jurisdiction where the offender might have property.

There are special ways of recording and indexing the judgment in Baltimore City and the other District Courts under 11-610(a)(3)—this is done by the clerk when there is a termination of probation with unpaid rest. Under 11-612.

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Right to Restitution—Enforcing the Judgment

Victims can enforce the judgment like any other creditorWage garnishments

The victim may be entitled to use the earnings withholding order

Levy on property (homes, cars, boats, bank accounts)

Forms available at: http://www.courts.state.md.us/district/dctcivforms.html

Guide is available at: http://www.courts.state.md.us/district/forms/civil/dccv060br.pdf

Credit reporting agencies are notified of judgment

The judgment is good for 12 years and can be renewed for free

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Right to Restitution—Post-Judgment Collection

The rules allow the victim to use discovery to determine the offender’s assetsOffender can be compelled to appear before a judge to answer questions

about assets, banks, etc. under Maryland Rule 2-633

These mechanisms allow victims to get the necessary information to garnish bank accounts and other property

Third parties to whom assets may have been fraudulently transferred may be compelled to do the same

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The Victim Can Ask for Restitution AND Bring a Civil Claim

A judgment of restitution does not prevent the victim from suing the offender or any third party.

The civil court will be required to reduce the civil judgment against the offender by the amount of restitution that has been paid. CP 11-603(c).

CICB, insurers, and other third-party payers can assert a lien against recovery to get monies paid on behalf of the victim back out of the proceeds of any settlement.

Restitution forces the offender to pay something while leaving open the victim’s option to pursue insurance or other claims.

What Happens If a Victim’s Right is Violated?

The first and most important thing to do is to PRESERVE THE ISSUE FOR APPEAL! Victims need to (1) demand their rights proactively; (2)

contact an attorney as soon as there is a HINT of a violation; and, (3) ask the court for relief.

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Court can only modify sentence if victim files a motion

or otherwise requests relief within 30 days of the rights’

violation. CP 11-103.

Any remedy can be provided that does not violate a

constitutional right of a defendant.

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What Happens If a Victim’s Right is Violated?

Appeal from trial court’s denial of a victim’s right is governed by CP Sect. 11-103 Limits appeal rights to victims of death or serious

bodily injury Does not include drunk driving or boating offenses

that are not punishable by imprisonment

Victims can appeal to COSA from final orders Need to file application for leave to appeal for

interlocutory ordersCP 11-103

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What Happens If a Victim’s Right is Violated?

Victims can also submit complaints for a violation of a

victim’s rights to GOCCP:

http://goccp.maryland.gov/victims/rights-resources/compliance-initiative/

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What Happens If a Victim’s Right is Violated?

Feel Free to Reach Out to Me with Questions

Steven J. Kelly, Chair of the Criminal/Sexual Violence Practice GroupSanford Heisler Sharp, LLP400 East Pratt Street, 8th Fl.Baltimore, MD 21202410.834.7416 (direct)skelly@sanfordheisler.com

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