ARIZONA VOICE FOR CRIME VICTIMS

LEGAL RESPONSE MANUAL

CHAPTER TWO

AN OVERVIEW OF THE ARIZONA CRIME VICTIM LAWS

 

 

Table of Contents

Disclaimer

Acknowledgements

Who Qualifies as a “Crime Victim” Under Arizona Law?

Can Someone Other Than the Victim Assert a Victim’s Rights?

When Do the Rights of a Victim Commence?

How Are the “On Request” Rights of a Crime Victim Activated?

When Do the Rights of a Victim Cease?

What are the Basic Arizona Constitutional Rights of a Crime Victim?

Are There Any Remedies Available for a Failure to Comply with the Victim’s Bill of Rights?

 

 

DISCLAIMER

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These materials are designed to help attorneys acting in a pro bono capacity on behalf of crime victims who seek to assist or protect their rights on expressed cases. Although the materials in this binder are carefully reviewed, and significant editorial enhancements have been provided by knowledgeable editors, in dealing with specific legal matters, attorneys should research and review original sources of authority.

Neither Arizona Voice for Crime Victims, nor the Crime Victim Law Institute, make either express or implied warranties regarding the use of these materials. Each attorney must depend on his or her own research, knowledge of the law, and expertise in using or modifying these materials.

Drafting forms for court is essentially rendering legal advice.  No handbook can assume that responsibility, and this handbook does not assume such responsibility. It is intended to serve only as a guide for the practitioner, and assist in keeping the costs of representation low – an essential ingredient for the success and longevity of any pro bono effort. The responsibility of preparing the forms and all other documents that are to be submitted to courts ultimately remain, and entirely rest with, the individual practitioner.

The forms in this binder are suggestions only.  They have been carefully checked for conformity with the law as of the date of publication. Still, the facts of every case will necessarily require a variation or multiple variations from the forms presented in the binder.

It is our hope that all those who are dedicated to preserving and protecting the rights of crime victims in the criminal justice process will find these materials useful and helpful. We sincerely thank all those who have chosen to dedicate their time and talents to this most worthy cause.

 

ACKNOWLEDGEMENTS

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All cases reprinted herein were obtained through the Internet from Westlaw.  This material has been edited in an effort to remove any and all proprietary material owned and copyrighted by Westlaw and/or West Group, such as headnotes and case synopses.  In the event that any such material remains, that material remains the sole and exclusive property of Westlaw and/or West Group, and such material appears herein and has been used and reproduced with express written permission from West Group.

AVCV wishes to acknowledge the assistance of Laura Reckart, Gessner Harrison, Prof. Doug Beloof, Stasy Click and Steve Twist in the preparation of these materials.

 

In Arizona, the laws applying to crime victims may be found in the Arizona Constitution, Art. II, § 2.1; the Arizona Revised Statutes, Title 13, Chap. 40; and the Arizona Rules of Criminal Procedure, Rule 39. Although the Arizona Constitution grants constitutional rights to victims, those rights are defined, implemented, and expanded upon in Title 13, Chapter 40.[1]  “[This] enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the legislature [like those in Title 13, Chapter 40] or retained by the victims.”  Ariz. Const., Art. II, § 2.1(E).  This chapter will provide an overview of the laws pertaining to crime victims and a comparison between the relevant victims provisions.

 

Who Qualifies as a “Crime Victim” under Arizona Law?

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Before the laws pertaining to crime victims may be asserted, the first question must be: does this person qualify as a crime victim under Arizona law?  “Victim” is defined consistently as “a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person’s immediate family (defined as the victims’ spouse, parent, child or other lawful representative, except if the person is in custody or is the accused).[2]  A “lawful representative” is someone designated by the victim or appointed by the court and who will act in the best interests of the victim.[3] Victims of crimes committed before the effective date of the Victim’s Bill of Rights are “victims” for the purposes of that Act.”[4]

For victims who are in custody for committing an offense, the Arizona Supreme Court has ruled that “the victim’s right to be heard pursuant to this rule is satisfied through affording the victim the opportunity to submit a written statement, where legally permissible and in the discretion of the court.”[5]

“Criminal offense”, as used in the definition of “victim”, is described in ARS § 13-4401(6) is “conduct that gives a peace officer or prosecutor probable cause to believe that a felony or misdemeanor involving physical injury, the threat of physical injury or a sexual offense has occurred.”[6]

Our courts have further held that a cellmate is not a victim within the strict definition of the Victim’s Bill of Rights.[7]

 

Can Someone Other Than the Victim Assert a Victims’ Rights?

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In certain situations, a victim may be unwilling or unable to assert their rights as a crime victim.  If a victim is physically or emotionally unable to exercise any victim right but is capable of designating a lawful representative who is not a bona fide witness, the victim may designate a person who may then exercise the same rights that the victim is entitled to exercise.[8]  However, the victim may revoke the designation at any time and exercise his or her own rights.[9]  If the person is unable to designate another person to act in their place, the court may appoint a lawful representative who is not a witness in the case.[10]  If the victim becomes capacitated or competent, the victim may then personally exercise their rights.[11]  In cases involving minor victims, the victim’s parent or other immediate family member may exercise all of the rights on behalf of the victim.[12]  However, if the crime is alleged is alleged to be committed by a member of the minor’s immediate family, the victim’s rights may not be exercised by the accused family member but may be exercised by another member of the immediate family, unless the court finds that another person would better represent the interests of the minor for the purposes of their rights as a victim.[13]  As set forth in ARS § 13-4403(D), the court shall take into consideration the following guidelines in making that determination:

1. Whether there is a relative who would not be so substantially affected or adversely impacted by the conflict occasioned by the allegation of criminal conduct against as member of the immediate family of the minor that the relative could not represent the victim.

2. The representative’s willingness and ability to do all of the following:

(a) Undertake working with and accompanying the minor victim through all proceedings.

(b) Communicate with the minor victim.

(c) Express the concerns of the minor to those authorized to come in contact with the minor as a result of the proceedings.

 

3. The representative’s training, if any, to serve as a minor’s representative.

4. The likelihood of the representative being called as a witness in the case.

The duties of the minor’s representative are outlined in section (E) of ARS § 13-4403.

Upon request of the victim, the prosecutor shall have standing in any judicial proceeding to assert any of the rights to which the victim is entitled pursuant to ARS § 13-4437(D).[14]  A victim shall also have the right to engage and be represented by counsel of his or her choice in asserting their rights as a victim.

Special mention should be made of Crime Victim Advocates.  As defined in ARS § 13-4401(5), a Crime Victim Advocate is a person “employed or authorized by a public entity or a private entity that receives public funding primarily to provide counseling, treatment or other supportive assistance to crime victims.”  Many of the communications between a victim and a crime victim advocate are privileged and must not be disclosed, unless the advocate knows the communication contains exculpatory material, the advocate knows that the victim will give or has given perjured testimony, and/or the court finds the communication contains exculpatory evidence after an in camera review of the communication.[15]  Notwithstanding this privilege between the advocate and the victim, if a crime victim advocate is employed by a prosecutor’s office, the advocate may disclose information to the prosecutor with the victim’s verbal consent.[16]

 

When Do the Rights of a Victim Commence?

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A criminal case usually begins with the reporting of an alleged crime to law enforcement authorities.  With one exception, the rights of a victim and the duties attributed to law enforcement, prosecution agencies and the courts “arise on the arrest or the formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim.”[17]  Arrest may occur immediately at or near the scene of the crime or at a later date with or without the use of an arrest warrant, depending on the circumstances of the case.[18]  In some cases, a suspect may be merely cited and then released by the police agency.  The exception is found in the victim’s constitutional right to notice of their rights and implemented in A.R.S § 13-4405(A) which states that as soon after the detection of a criminal offense as the victim may be contacted without interfering with an investigation or an arrest, the victim shall be informed of their rights.

The law enforcement agency which is responsible for the crime’s investigation is required under ARS § 13-4405(A) to provide a crime victim with a multi-copy specialized form as soon after the detection of a criminal offense as the victim may be contacted without causing interference with the investigation or arrest of the suspect.  The form must contain provisions which:

1. Allow the victim to request or waive applicable rights to which the victim is entitled, on request, under this article.;

 

2. Provide the victim a method to designate a lawful representative if the victim so chooses pursuant to ARS § 13-4403 subsection A or 13-4404.

3. Provide notice to the victim of the following information:

a. The victim’s constitutional right to be treated with fairness, respect and dignity and to be free of intimidation, harassment or abuse throughout the criminal or justice process.  Ariz. Const., Art. II, section 2.1.

 

b. The availability, if any, of crisis intervention services and emergency and medical services and, where applicable, that medical expenses arising out of the need to secure evidence may be reimbursed under ARS § 13-1414.

 

c. In cases of domestic violence the procedures and resources available for the victim’s protection under ARS § 13-3601.

 

d. The names and telephone numbers of public and private victim assistance programs including the county victim compensation program and programs that provide counseling, treatment and other support services.

 

e. The police report number, if available, other identifying case information and the following statement:

“If within thirty days you are not notified of an arrest in your case, you may call (the law enforcement agency’s telephone number) for the status of the case.”

 

f. Whether the suspect is an adult or juvenile, a statement that the victim will be notified by the law enforcement agency at the earliest opportunity after the arrest of the suspect.

 

g. If the suspect is an adult and has been arrested, the victim’s right, on request, to be informed of:

·the suspect’s release;

·the next regularly scheduled time, place and date for initial appearances (IA) in the jurisdiction;

·the victim’s right to be heard at the IA; AND

·that to exercise these rights, the victim is advised to contact the agency holding the suspect regarding the status of the suspect’s release and to contact the court to discover if there are any changes to the IA schedule.

h. If the victim chooses to exercise the right to be heard through a written statement, how that statement may be submitted to the court [19]

 

If a victim is emotionally or physically unable to waive or request his/her rights as a victim, this condition must be indicated on the form and all agencies subsequently affected must presume that the victim invoked their rights (unless the victim later waives those rights).[20]

In situations where the perpetrator is cited and released, the investigating law enforcement agency shall inform the victim of the offender’s next court date and how to obtain additional information about the subsequent criminal proceedings.[21]

If a suspect has not been arrested at the time of contact with the victim, the investigating law enforcement agency shall notify the victim of the suspect’s arrest at the earliest opportunity after the arrest, and the time, place and date for the initial appearance.[22]   For cases where an arrest warrant is utilized and a victim has requested notice pursuant to ARS § 13-4405, once the investigating law enforcement agency receives notice that the warrant has been executed, that agency shall:

1. Notify the victim of the arrest, and of the time, place and date for the initial appearance.

 

2. Inform the victim of the telephone number of the custodial agency in which the arrested person is being held.[23]

 

3. Provide the custodial agency with the victim information so the custodial agency can notify the victim of the suspect’s release, if applicable.

 

How Are the “On Request” Rights of a Crime Victim Activated?

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Some of the rights afforded to crime victims provide that they are available “on request.”  Activating these rights begins with the multi-copy form that is provided to the victim by law enforcement.[24]

The law enforcement agency which is responsible for the crime’s investigation is required under ARS § 13-4405(A) to provide a crime victim with a multi-copy specialized form as soon after the detection of a criminal offense as the victim may be contacted without interfering with the investigation or arrest of the suspect.

That form allows the victim to request or waive applicable rights to which the victim is entitled, on request, under the law.[25]  ARS § 13-4417(A) requires that the victim “shall provide to and maintain with the agency that is responsible for providing notice to the victim a request for notice on a form that is provided by that agency.  The form shall include a telephone number and address.  If the victim fails to keep the victim’s telephone number and address current, the victim’s request for notice is withdrawn.  At any time the victim may request notice of subsequent proceedings by filing on a request form provided by the agency the victim’s current telephone number and address.”[26]

If a victim chooses to exercise any right granted under the Victim’s Bill of Rights, Art.II, § 2.1 of the Arizona Constitution, that exercise shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.[27]

 

When Do the Rights of a Victim Cease?

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ARS § 13-4402(A) provides that a victim’s rights and the duties of the relevant agencies continue to be enforceable until the final disposition of the charges, including acquittal or dismissal of the charges, all post-conviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution.[28]  The statute also provides that if a defendant is ordered to pay restitution to a victim, the rights and duties continue to be enforceable until restitution is paid or a criminal restitution order is entered in favor of the victim pursuant to ARS § 13-805.  If a conviction is subsequently reversed and the case is returned to the trial court for further proceedings, then the same victim rights that were applicable at the original criminal proceedings will be reinstated.[29]

 

What Are the Basic Arizona Constitutional Rights of a Crime Victim?

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Because the Constitution takes precedence over any statutory or procedural rules, it is important to know the basic rights that the Arizona Constitution affords a crime victim.  The Victims’ Bill of Rights, Article II, § 2.1 of the Arizona Constitution, states:

Section 2.1.  (A) To preserve and protect victims’ rights to justice and due process, a victim of crime has a right:

1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.

2. To be informed, upon request, when the accused or convicted person is released from custody or has escaped.

3. To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.

4. To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.

5. To refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant.

6. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the decision.

7. To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.

8. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury.

9. To be heard at any proceeding when any post-conviction release from confinement is being considered.

10. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.

11. To have all the rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims’ rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.

12. To be informed of victims’ constitutional rights.

 

Although the rights of a victim are provided in the Constitution, most of these rights are supplemented in Title 13, Chapter 40.  A comparison between these provisions is necessary to understand the full extent of these rights.

 

a. To Be Treated With Fairness, Respect, and Dignity, and To Be Free From Intimidation, Harassment, or Abuse

A victim is entitled to be informed of this specific right by law enforcement as soon after the detection of the criminal offense as the victim may be contacted.[30]  This right must be listed in the multi-copy form which the law enforcement agency provides to the victim.[31]

 

b. To Be Informed, Upon Request, When the Accused or Convicted Person Is Released From Custody or Has Escaped

This constitutional right grants a victim the right to be informed of both the release and escape of an individual, whether the individual is merely an accused or whether the individual stands convicted.  Also covered in Rule 39(b)(5), Rule 39(b)(6), ARS § 13-4407, ARS § 13-4412 and ARS § 13-4416, a victim has the right to be notified of a person’s release or escape from custody.

(1) Release:

ARS § 13-4412(A) specifically refers to the person being released as an “accused”.  “Accused” means a person who has been arrested for committing a criminal offense and who is held for an initial appearance or other proceeding prior to trial.[32]  If an accused is released, this statute obligates the sheriff or municipal jailer to inform the victim, upon request, of that release.  In addition, ARS § 13-4407 mandates that “[u]pon the request of the victim, the custodial agency shall provide a copy of the terms and conditions of release to the victim unless the accused appeared in response to a summons.  In that case, upon the request of the victim, the prosecutor’s office shall, on receiving such information, provide a copy of the terms and conditions or release to the victim.”  If a defendant is confined in a mental health treatment agency pursuant to sections 13-3994, 31-226, 31-226.01, 36-540.01 or 36-541.01 and is released or discharged, a victim is entitled to notification of that release or discharge if the victim made a request for such notice.[33]  The mental health agency responsible for the defendant’s confinement “shall mail to the victim at least ten days before the release or discharge of the person accused or convicted of the committing a criminal offense against the victim, notice of the release or discharge of the person.”

An extension of the right to be informed of a defendant’s release is contained in ARS § 13-4432.  This statute generally refers to situations where a defendant has been released, either on bond or on his own recognizance, and has violated his release conditions.  In such situations, the prosecutor may choose to file a motion to revoke the defendant’s bond or personal recognizance.[34]  If the prosecutor chooses not to move to revoke the bond or personal recognizance of the defendant, the prosecutor is obligated under ARS § 13-4432 to inform the victim that the victim may petition the court to revoke the defendant’s release.  This petition is required to be based on the victim’s notarized statement asserting that harassment, threats, physical violence or intimidation against the victim or the victim’s immediate family by the defendant or on behalf of the defendant has occurred.[35]

 

(2) Escape:

In the event of an escape, Rule 39(b)(5) states that a victim is entitled to assert “[t]he right to be notified of any escape of the defendant.”  ARS § 13-4412(B) covers who needs to be notified, who is required to give the notification and what efforts are to be made.  Specifically, if there is an escape by “an incarcerated person who is accused or convicted of committing a criminal offense against the victim”, it is the custodial agency’s duty to immediately notify the victim and the prosecutor of his escape by using any reasonable means.  The right to notification of an escape also applies to an individual who is accused of or who has been convicted of committing a criminal offense and has been placed in a mental health treatment agency by order of the court pursuant to sections § 13-3994, 31-226, 31-226.01, 36-540.01 or 36-541.01.  Pursuant to ARS § 13-4416(B), if that person’s crime involves a victim, and that person escapes from the mental health agency, that agency “shall mail to the victim, . . . notice of the escape or subsequent readmission of the person”.  The statute does not indicate that the victim must request notice for notification to be made as is required in the case of defendant’s release.

 

c. To Be Present At and, Upon Request, To Be Informed of All Criminal Proceedings Where the Defendant Has the Right to Be Present

This Constitutional provision provides two rights to a victim for criminal proceedings: (1) the right to be present and (2) the right to be given notice of those proceedings if the victim so requests.  These rights also exist in both Title 13, Chapter 40, and Rule 39. One distinction between the sections arises in the definition of “criminal proceeding”.

ARS § 13-4401(7) defines “criminal proceeding” as “a hearing, argument or other matter scheduled by and held before a trial court but does not include any deposition, lineup, grand jury proceeding or other matter not held in the presence of the court.”

Rule 39(a)(2) defines “criminal proceeding” as used in Rule 39 “as a trial, hearing, (including hearing before trial), oral argument, or other matter scheduled and held before a trial court at which the defendant has the right to be present, or any post-conviction proceeding.”

Under either definition, the victim has the right to be present during the course of trial even where the rule to preclude witnesses has been invoked.

 

(1) The right to be present at criminal proceedings

The right to be present at criminal proceedings is contained in both ARS § 13-4420 and Rule 39(b)(4).  ARS § 13-4420 states, “[t]he victim has a right to be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present”.  However, it is at the victim’s own discretion to exercise their statutory rights to be present and to be heard at a court proceeding.[36]  However, seeState ex rel. Dean v. City Court, 173 Ariz. 515, 844 P.2d 1165 (App. 1992) which held that the Victim’s Bill of Rights does not preclude defendant from issuing subpoena for victim to testify at evidentiary hearing on motion to dismiss for lack of probable cause.[37]  In addition, a victim does not have the constitutional right to refuse to obey a court order to appear and testify at an accused’s criminal trial.[38]

In addition, before, during and immediately after any court proceedings, the court is obligated to impose appropriate safeguards which will minimize the contact that occurs between the victim, the victim’s immediate family and the victim’s witnesses, and the defendant, the defendant’s family and the defense witnesses.[39]

Rule 39(b)(4) provides that a victim shall have and be entitled to assert the right “to be present at all criminal proceedings.”  The victim shall also have the right to be accompanied by a parent, relative or other support person at these proceedings, except where the support person’s testimony is required in the case.[40]

 

(2) The right to be informed of criminal proceedings

ARS § 13-4408(A)(1) requires that the prosecutor’s office give the victim, within seven days after the case is charged by complaint, information or indictment and the defendant is in custody or has been summoned, notice of their rights as a victim under the Victim’s Bill of Rights, Article II, Section 2.1 of the Arizona Constitution, and any other implementing legislation and court rule.  In addition, the prosecutor’s office is also obligated to notify the victim within this time frame of the charge(s) filed against the defendant, to provide to the victim a clear and concise statement of the procedural steps involved in a criminal prosecution, to give information on the procedures a victim must follow to invoke their right to confer with the prosecuting attorney under ARS § 13-4419, and notice regarding the person within the prosecutor’s office to contact for more information.[41]

As with all criminal proceedings where the defendant has the right to be present, the victim not only has a right, upon request, to be informed of the proceeding, but also has a right to be present at the proceeding.[42]

Rule 39(b)(3) simply states that a victim shall have and be entitled to assert “[t]he right to be given reasonable notice of the date, time and place of any criminal proceeding.”  Rule 39(f), however, places specific duties upon a court to enquire into whether the victim was given proper notice of the proceedings. Those duties require that at the commencement of any proceeding at which a victim has the right to be heard and which occurs more than seven days after the filing of charges by the prosecutor, the court must ask the prosecutor or otherwise determine whether the victim has requested notice and been notified of the proceeding.[43]  If  a victim has requested notice but notification has not occurred, the court should not proceed unless public policy, the specific provisions of a statute, or the interests of due process otherwise require.[44]  In the absence of such considerations, the court has discretion to reconsider any ruling made at a proceeding of which the victim did not receive the requested notice.[45]

ARS § 13-4409 outlines the responsibilities of the various parties in providing adequate notice of criminal proceedings.  ARS § 13-4409(A) requires a court to provide notice to the prosecutor’s office of forthcoming criminal proceedings.  Specifically, for criminal offenses filed by information, complaint or indictment, except initial appearances and arraignments, “the court shall provide notice of criminal proceedings” at least five days before one is scheduled “to allow the prosecutor’s office to provide notice to the victim.”[46]  Once the prosecutor’s office is notified by the court, the prosecutor’s office is then obligated to notify the victim of any scheduled criminal proceedings.[47]  “On receiving notice from the court, the prosecutor’s office shall, on request, give notice to the victim in a timely manner of scheduled proceedings and any changes in that schedule.”[48]

A victim’s right to be given notice of an initial appearance is specifically addressed in ARS § 13-4406.  That statute states that “[o]n becoming aware of the date, time and place of the initial appearance of the accused, the law enforcement agency shall inform the victim of such information unless the accused appeared in response to a summons.  In that case, the prosecutor’s office shall, on receiving such information, provide the notice to the victim.”

A victim also has the right to be given notice of the arrested person’s initial appearance under ARS § 13-4406, and has a right to be heard at that proceeding pursuant to ARS § 13-4421.[49]  ARS § 13-4406 requires that the law enforcement agency shall, upon becoming aware of the date, time and place of the initial appearance of the accused, inform the victim of such information.  However, in cases where the accused appears in response to a summons, the responsibility of notice falls on the prosecutor’s office.[50]

 

d. To Be Heard At Any Proceeding Involving a Post-Arrest Release Decision, a Negotiated Plea, and Sentencing.

This Constitutional right provides the right to be heard at three different events:  (1) post arrest release hearings; (2) plea negotiations and (3) sentencing.[51]

The right to be heard at certain criminal proceedings is covered in various statutes in Title 13, Chapter 40.

(1) Post Arrest Proceedings:

ARS § 13-4422 is specific to a victim’s right to be heard at post-arrest custody decisions.  The statute states that “[t]he victim has the right to be heard at any proceeding in which the court considers the post-arrest release of the person accused of committing a criminal offense against the victim or the conditions of that release.”  The right of a victim to be heard at the initial appearance is provided in ARS § 13-4421.

(2) Plea Agreements:

ARS § 13-4423(A) bestows upon a victim, if requested, the right to be present and heard at any proceeding in which a negotiated plea will be given to the court.  ARS § 13-4423(B) further provides that a court shall not accept a plea agreement unless:

1. The prosecuting attorney advises the court that reasonable efforts were made to confer with the victim regarding the negotiated plea pursuant to ARS § 13-4419 before the plea was presented to the court.

 

2. The prosecuting attorney advises the court that reasonable efforts were made to give the victim notice of the plea proceeding pursuant to ARS § 13-4409 and to inform the victim that the victim had the right to be present and heard.

 

3. The prosecuting attorney advises the court that to the best of the prosecutor’s knowledge notice requirements of Title 13, Chapter 40 have been complied with and the prosecutor informs the court of the victim’s position, if known, regarding the negotiated plea.

 

(3) Sentencing:

A victim’s statutory right to be present and heard at sentencing is found in ARS § 13-4426.  This statute first provides that a victim “may present evidence, information and opinions that concern the criminal offense, the defendant, the sentence or the need for restitution at any aggravation, mitigation, pre-sentencing or sentencing proceeding.”[52]  The victim then “has the right to be present and to address the court” at any disposition proceeding.[53]  If the victim elects to make an unsworn statement at defendant’s sentencing hearing, the defendant has a due process right to cross-examine the victim in order to bring out possible mitigating factors.[54]

A victim’s right to be heard at a criminal proceeding, pursuant to Rule 39 of the Arizona Rules of Criminal Procedure, may be exercised “by appearing personally, or where legally permissible and in the discretion of the court, by submitting a written statement, an audiotape or videotape.” [55]

A victim is entitled, under Rule 39(b)(7), to the pre-trial right to confer with the prosecution in connection with any decisions involving pre-conviction release of the defendant, a plea bargain, a decision not to proceed with criminal prosecution, dismissal of the case, plea or sentence negotiation, a pre-trial diversion program or other pre-trial disposition.[56]  This rule not only grants a victim the right to confer to with the prosecution, but it also provides a victim the right to be heard at any of the listed proceedings and at sentencing.[57]

e. Refusal To Be Interviewed, Deposed, or To Comply With Other Defense Discovery Requests

ARS § 13-4433 contains additional clarifications and restrictions surrounding a defense interview of a victim.[58]  ARS § 13-4433(A) explains that, unless the victim consents, a victim “shall not be compelled to submit to an interview on any matter, including a charged criminal offense witnessed by the victim that occurred on the same occasion as the offense against the victim, that is conducted by the defendant, the defendant’s attorney or an agent of the defendant.”

Section (B) of ARS § 13-4433 then sets parameters on the actions of the defense by requiring that contact with the victim by the defendant, the defendant’s attorney or other person acting on behalf of the defendant, be initiated only through the prosecutor’s office.  In exchange, the prosecutor’s office is required to promptly inform the victim of the defendant’s request for an interview and to inform the victim of their right to refuse the interview.[59]

ARS § 13-4433(C) clarifies that a prosecutor is not required to forward any correspondence from the defendant, the defendant’s attorney or other person acting on behalf of the defendant, to the victim or victim’s representative.

Section (D) of ARS § 13-4433 deals with those situations where a victim consents to a defense interview.  In that situation, the prosecutor’s office must inform the defendant, the defendant’s attorney or other person acting on behalf of the defendant of the time and place the victim has chosen for the interview.[60]  Rule 39(b)(12) also covers situations where a victim participates in a defense interview.  Under this rule, a victim has the right to terminate or condition a defense counsel’s interview or deposition on any of the following:

1. Specification of a reasonable date, time, duration and location of the interview or deposition, including a requirement that the interview or deposition be held at the victim’s home, at the prosecutor’s office, or in an appropriate location in the courthouse.

 

2. The right to terminate the interview or deposition if it is not conducted in a dignified and professional matter [sic].

 

If the victim wishes to impose other conditions on the interview, the prosecutor’s office shall inform the defendant, the defendant’s attorney or other person acting on behalf of the defendant of those conditions.[61]  If a victim participates in a defense interview or deposition, the victim has the right to be accompanied by a parent, relative or other support person of their choosing (including a victim’s caseworker), except where the chosen support person’s testimony is required in the case.[62]  However, the victim also has the right to terminate the interview at any time or to refuse to answer any question during the interview.[63]  The prosecutor also has standing, at the victim’s request, to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order.[64]

Unless the victim directs otherwise, the prosecutor may attend all interviews.[65]  “If a transcript or tape recording is made and on request of the prosecutor, the prosecutor shall receive a copy of the transcript or tape recording at the prosecutor’s expense.”[66]

ARS § 13-4433(F) establishes that “if the defendant or defendant’s attorney comments at trial on the victim’s refusal to be interviewed, the court shall instruct the jury that the victim has the right to refuse an interview under the Arizona constitution.”

For the purposes of this statutory section regarding the rights of a victim for pre-trial interviews, it states that a peace officer shall not be considered a victim if the act that would have made him a victim occurs while the peace officer is acting in the scope of his official duties.[67] However, the Arizona Supreme Court held that this statutory section was unconstitutional to the extent that it conflicted with the definition of the term “victim” as defined in the Victim’s Bill of Rights.[68]  Therefore, although this provision continues to be contained in ARS § 13-4433(G) it would appear that it is moot.

A victim also has a right to limit personal disclosure when testifying in court, pursuant to ARS § 13-4434.  That statute provides the victim the right at any court proceeding not to testify regarding the victim’s address, telephone numbers, place of employment or other locating information unless the victim consents or the court orders disclosure on finding that a compelling need exists for the information.  This provision is grounded in the victim’s constitutional right to be free from intimidation, harassment, or abuse.

Although a court may order certain information to be disclosed, it cannot compel a victim to participate in a defense interview if the victim has declined to be interviewed, even where the court has determined that key elements of the charge and the defense to the charge will likely involve information provided by the victim.[69]

Additionally, our courts have held that the victim’s right to refuse defense discovery requests does not affect the defendant’s right to confront and cross-examine witness, which can be fully exercised at trial.  This does not deprive defendants of due process or the right to fundamentally fair proceedings against them.[70] 

 

f. To Confer With The Prosecution Before Trial or Before Disposition and To Be Informed of The Decision

A victim’s statutory right to confer with the prosecuting attorney and to be informed of the disposition decision is first addressed in ARS § 13-4408(B).[71]  That statute establishes a victim’s right to confer with the prosecutor where the prosecutor declines to file a case for prosecution upon completion of the investigation and after final submission of the case by law enforcement.  Under those circumstances, the prosecutor must, before the decision not to proceed is final, notify the victim of the decision, provide the victim with the reasons for declining to proceed with the case and inform the victim of his/her right on request to confer with the prosecutor before the decision is final.

A victim’s statutory right to confer with the prosecutor regarding other processes or proceedings is contained in ARS § 13-4419(A).  “On request of the victim the prosecuting attorney shall confer with the victim about the disposition of a criminal offense, including the victim’s views about a decision not to proceed with a criminal prosecution, dismissal, plea or sentence negotiations and pretrial diversion programs.”  A court cannot require the state to record and disclose all conversations with the victim as this clearly violates the Victim’s Bill of Rights.[72]

ARS § 13-4419(B) also provides the victim the right, upon request, to confer with the prosecutor before the commencement of trial.  That same statute provides a victim the right to confer with the prosecutor in situations where the prosecutor declines to file a case for prosecution upon completion of the investigation and after final submission of the case by law enforcement to the prosecutor.  Under those circumstances, the prosecutor must, before the decision not to proceed is final, notify the victim of the decision, provide the victim with the reasons for declining to proceed with the case and inform the victim of his/her right on request to confer with the prosecutor before the decision is final.[73]

The right to be informed of the disposition of a case by a prosecutor’s office extends to cases which proceed to trial or are ultimately dismissed. When either situation occurs, the prosecutor’s office must, on request, give to the victim within fifteen days after the conviction or acquittal or dismissal, notice of the applicable result.[74]  If the victim has requested notice and the defendant is convicted, the victim must be notified, if pertinent, of:

1. The function of the pre-sentence report.

2. The name and telephone number of the probation department that is preparing the pre-sentence report.

3. The right to make a victim impact statement under ARS § 13-4424.

4. The defendant’s right to review the pre-sentence report.

5. The victim’s right to view the pre-sentence report except those parts excised by the court or made confidential by law and, on request, to receive a copy from the prosecutor.

 

6. The right to be present and heard at any pre-sentence or sentencing proceeding pursuant to ARS § 13-4426.

7. The time, place and date of the sentencing proceeding.

8. If the court orders restitution, the right to file a restitution lien under ARS § 13-806.[75]

In addition, the prosecutor’s office must inform the victim that the victim’s impact statement may contain, among other data, explanations regarding the harm, trauma or economic loss suffered by the victim, opinions on restitution and notice of whether the victim has applied for or received any compensation for the loss or damage.[76]

It should be noted that although the prosecutor’s office is obligated to provide notice of the conviction and the rights attributable to sentencing under ARS § 13-4410, that obligation does not remove the probation’s department’s responsibility pursuant to ARS § 12-253 to initiate contact between the victim and the probation department concerning the victim’s economic, physical, psychological or emotional harm.[77]  At the time of contact, the probation department must advise the victim of the date, time and place of sentencing and of the victim’s right to be present and be heard at that proceeding.[78]

Finally, a victim’s right to confer with the prosecutor regarding these various proceedings and decisions does not give a victim the authority to direct the prosecution of the case.[79]

 

g. To Read Pre-Sentence Reports When Available To The Defendant

A pre-sentence report is usually prepared by a probation officer assigned to a pre-sentence investigations unit.  The officer will typically, among other tasks, collect the relevant police reports, obtain statements from interested parties, conduct a criminal history check on the defendant and then make a sentencing recommendation to the court or advise the court what the sentencing possibilities are for the case.

As previously discussed, the prosecutor’s office must first give victims notice of the rights they have in regards to a pre-sentence report, including the right to make a victim’s impact statement.[80]  The victim shall also be notified that the victim’s impact statement may contain:[81]

1. An explanation of the nature and extent of any physical, psychological or emotional harm or trauma suffered by the victim.

 

2. An explanation of the extent of any economic loss or property damage suffered by the victim.

3. An opinion of the need for and extent of restitution.

4. Whether the victim has applied for or received any compensation for the loss or damage.

Once the victim is provided the adequate notice, the victim is, thereafter, entitled to make a written or oral impact statement to the probation officer for use in constructing the pre-sentence report.[82]  The probation officer must also consider the economic, physical and psychological impact that the crime has had on the victim and the victim’s immediate family pursuant to ARS § 12-253.[83]

The victim has the right to inspect the relevant pre-sentence report if it is available to the defendant, but a copy shall be provided to the victim by the prosecutor’s office if the victim requests a copy of the report.[84]  The victim is not entitled to inspect any portions of the report that are excised.[85]  If the court excises any portion of the report, it shall inform the parties and the victim of its decision and shall state on the record its reasons for the excision.[86]

 

h. To Receive Prompt Restitution

 

Trial courts are required to impose restitution to reimburse the victims of crime for their full economic loss, even if a victim declines to request restitution.[87]  If restitution is ordered, the victim receiving the restitution has a right to receive that restitution in a prompt manner.[88]  This constitutional right is not specifically contained in Rule 39.  Under Rule 39(b)(16), a victim is entitled to be informed of their right to receive restitution upon a defendant’s conviction and the right to be informed of the procedures for invoking that right.  ARS § 13-4426(A) only refers to restitution in regards to the victim’s right to present evidence on the need for restitution at a defendant’s aggravation, mitigation, pre-sentencing or sentencing disposition.

 

i. To Be Heard At Proceedings Involving Post-Conviction Release From Confinement

Proceedings which involve decisions on a defendant’s post-conviction release from confinement and the rights of victims at such proceedings are briefly addressed in Rule 39(b)(6), but more extensively addressed in ARS § 13-4414.

First, Rule 39(b)(6) does not use the terminology of “post-conviction release”.  Second, the rule does not grant a victim the right to be heard, but instead grants a victim the right to be informed of release or proposed release.  The rule states:

Upon request, the right to be informed of any release or proposed release of the defendant, whether that release be before expiration of the sentence or by expiration of the sentence, and whether it be permanent or temporary in nature.

The statutory rights of a victim for post-conviction proceedings are found in ARS § 13-4411.  Under that statute, (if requested) a victim is first entitled to be given notice within fifteen days after sentencing of the sentence imposed on the defendant.[89]  The statute then requires the prosecutor’s office to provide the victim with a form which allows the victim to request post-conviction notice of all post-conviction review and appellate proceedings, all post-conviction release proceedings, any decisions that arise out of these proceedings, all releases and escapes.[90]  The prosecutor’s office is then obligated to inform the victim on how the completed request form may be filed with the appropriate agencies and departments.[91]  From there, upon the victim’s request, the prosecutor’s office which is responsible for handling any post-conviction or appellate proceedings has the duty of notifying the victim of the proceedings and any decisions arising out of those proceedings.[92]

For post-conviction proceedings, crime victims are constitutionally entitled: (1) to be informed, upon request, when a convicted person is released from custody or has escaped and (2) to be heard at any proceeding where post-conviction release is being considered.[93]  However, ARS § 13-4411 provides a victim more extensive rights for post-conviction proceedings.  Under that statute, (if requested) a victim is first entitled to be given notice within fifteen days after sentencing of the sentence imposed on the defendant.[94]  The prosecutor’s office is required to provide the victim with a form, and instructions on how to file the form, which allows the victim to request post-conviction notice of all post-conviction review and appellate proceedings, all post-conviction release proceedings, any decisions that arise out of these proceedings, all releases and escapes.[95]  From there, upon the victim’s request, the prosecutor’s office which is responsible for handling any post-conviction or appellate proceedings, has the duty of notifying the victim of the proceedings and any decisions arising out of those proceedings.[96]

If a victim has requested post-conviction notice and the defendant is sentenced to the state department of corrections, the director of the state department of corrections is obligated to mail particular information to the victim about the prisoner.[97]  If the defendant is incarcerated in jail following a conviction and the victim has requested post-conviction notice, then the sheriff having custody of the prisoner shall comply with these obligations.[98]

When a defendant’s post-conviction release is being considered pursuant to ARS § 31-233, 31-236 or 31-411, ARS § 13-4414 affords a victim the right to be given notice, the right to be present, the right to be heard and the right to be informed of the decision reached by the Board of Executive Clemency.  This statute places the responsibility of notice upon the board.[99]  The board is also responsible for informing the victim of its hearing and release decision, and for offering the victim the right to be heard at this hearing.[100]

A victim’s statutory post-conviction rights are not limited to cases where the defendant was incarcerated for his sentence and the defendant is to be released.  This right can also extend to cases where the defendant was placed on probation.  Upon the victim’s request, a crime victim is also entitled to be notified about and to be present and heard regarding probation violations, modifications and/or revocation dispositions.[101]

If a victim has requested post-conviction notice and the defendant is sentenced to the state Department of Corrections, the Director of the State Department of Corrections is obligated to mail to the victim the following information about a prisoner:

1. Within thirty days after the request, notice of the earliest release date of the prisoner if his sentence exceeds six months.

2. At least fifteen days before the prisoner’s release, notice of the release.

3. Within fifteen days after the prisoner’s death, notice of the death.[102]

If the defendant is incarcerated in jail following a conviction and the victim has requested post-conviction notice, then the sheriff having custody of the prisoner must comply with obligations 2 and 3 as listed above.[103]

When a defendant’s post-conviction release is being considered pursuant to ARS § 31-233, 31-236 or 31-411, ARS § 13-4414 affords a victim the right to be given notice, the right to be present, the right to be heard and the right to be informed of the decision reached by the Board of Pardon and Paroles (now entitled the Board of Executive Clemency).  This statute places the responsibility of notice upon the Board.  “If the victim has made a request for post-conviction notice, the Board of Pardon and Paroles shall, at least fifteen days before the hearing, give to the victim written notice of the hearing and of the victim’s right to be present and be heard at the hearing.”[104]  The Board is also responsible for informing the victim of its release decision.  “If the victim has made a request for post-conviction notice, the board of pardon and paroles shall give to the victim notice of the decision reached by the board. The notice shall be mailed within fifteen days after the board reaches its decision.”[105]

A victim’s statutory post-conviction rights are not limited to cases where the defendant was incarcerated for his sentence and the defendant is to be released.  This right can also extend to cases where the defendant was placed on probation.  Under ARS § 13-4415 and 13-4427 a crime victim may also be entitled to be notified about and to be present and heard regarding probation violations, modifications and/or revocation dispositions. Upon the victim’s request, the court shall notify the victim of:

1. Any probation revocation disposition proceeding or any proceeding in which the court is asked to terminate the probation or intensive probation of a person who is convicted of committing a criminal offense against the victim.[106]  The victim shall also have the right to be present and to be heard at such proceedings.[107]

 

2. A modification of the terms of probation or intensive probation of a person where the modification will substantially affect the person’s contact or safety of the victim or if the modification affects restitution or incarceration status.[108]  The victim shall also have the right to be present and to be heard at such proceedings.[109]

 

3. The arrest of a person who is on supervised probation and is arrested pursuant to a warrant issued for a probation violation.[110]

 

j. To a Speedy Trial or Disposition and Prompt and Final Conclusion After Conviction and Sentence

ARS § 13-4435(A) states that “[i]n any criminal proceeding, the court, the prosecutor and law enforcement officials shall take appropriate action to ensure a speedy trial for the victim.”[111]  Section (B) of ARS § 13-4435 places an additional obligation on a court to consider the views of the victim and their right to a speedy trial in any criminal proceeding in which a continuance is requested, and if the requested continuance is granted, the court shall state its reasons for granting the continuance on the record.

Connected to the constitutional right to a prompt disposition of a case is the obligation placed upon investigating law enforcement agencies to make reasonable efforts to promptly return a victim’s property that was taken during the course of an investigation.[112]  If the property cannot be returned, the agency shall inform the victim the reasons why the property cannot be returned.[113]  In situations where the victim’s property is to be admitted into evidence at a trial or at a hearing, the court may order its release to the victim if a photograph can be substituted and the defense has had an opportunity to inspect and independently photograph the evidence.[114]

 

k. To Have All Rules Governing Criminal Procedure and Admissibility of Evidence Protect Victims’ Rights and To Have These Rules Be Subject to Amendment or Repeal By the Legislature

This Constitutional right is also expanded upon in Section (D), of Article II, § 2.1 of the Arizona Constitution, which states, “[t]he legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by [the Victim’s Bill of Rights], including the authority to extend any of these rights to juvenile proceedings.”

This specific constitutional right is not found in either Rule 39, or Title 13, Chapter 40.  However, Rule 39(b) does mandate that “[t]hese rules [contained in Rule 39 of the Arizona Rules of Criminal Procedure] shall be construed to preserve and protect a victim’s rights to justice and due process”, while ARS § 13-4418 provides the directive that Chapter 40 of Title 13 “be liberally construed to preserve and protect the rights to which victims are entitled.”

 

l. To Be Informed of Victims’ Constitutional Rights

Rule 39(b)(2) states that a victim shall have and be entitled to assert the right to be provided with written notice of those rights that are available to the victim under Rule 39 of the Rules of Criminal Procedure and any other provision of law.

Title 13, Chapter 40 refers to this right to be informed in ARS §13-4405(A)(3)(a) and 13-4408(A)(1).  ARS §13-4405(A)(3)(a) requires law enforcement to provide the victim with a multi-copy form which contains notice of the constitutional right to be treated with fairness, respect and dignity and to be free of intimidation, harassment or abuse throughout the criminal justice process.  ARS § 13-4408(A)(1) is the statutory provision which requires that the prosecutor’s office give the victim, within seven days after the case is charged by complaint, information or indictment and the defendant is in custody or has been summoned, notice of their rights as a victim under the Victim’s Bill of Rights, Article II, Section 2.1 of the Arizona Constitution, and any other implementing legislation and court rule.  In addition, the prosecutor’s office is also obligated to notify the victim of the charge(s) filed against the defendant, to provide to the victim a clear and concise statement of the procedural steps involved in a criminal prosecution, to give information on the procedures a victim must follow to invoke their right to confer with the prosecuting attorney under ARS § 13-4419, and notice regarding the person within the prosecutor’s office to contact for more information.[115]

 

Are There Any Remedies Available for a Failure To Comply with the Victim’s Bill of Rights?

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A conviction or sentence will not be set aside for the failure to use reasonable efforts to perform the duty owed to a victim or to provide a right granted under the relevant legal authorities.[116]

However, a victim does have standing to seek an order or to bring a special action mandating that the victim be afforded any right or to challenge an order denying any right guaranteed to victim under the Victim’s Bill of Rights, Article II, section 2.1, of the Arizona Constitution, any implementing legislation or court rules.[117]  In asserting any right, the victim has the right to be represented by personal counsel at the victim’s own expense.[118]

Victims also have the right to recover damages from a governmental entity responsible for the intentional, knowing or grossly negligent violation of the Victim’s Bill of Rights. Article II, § 2.1 of the Arizona Constitution, any implementing legislation or court rules.[119]  Notwithstanding these statutory provisions, nothing in Title 13, Chapter 40 alters or abrogates any immunity provision granted under common law or statute.

A violation of the Victim’s Bill of Rights pursuant to Rule 39 does not give a private cause of action for negligence.  The court, however, did not address the issue of whether a private cause of action in tort was created by the subsequent Constitutional amendment.[120]

For post-conviction release proceedings, “[u]nless the prisoner is discharged from his sentence, the failure to use reasonable efforts to provide notice and a right to be present or be heard pursuant to [Title 13, Chapter 40] that involves a post-conviction release is a ground for the victim to seek to set aside the post-conviction release until the victim is afforded the opportunity to be present or be heard.”[121]  If the victim seeks to have the post-conviction release set aside, the court, Board of Executive Clemency or State Department of Corrections shall afford the victim a reexamination proceeding after the parties are given notice.[122]  The reexamination hearing shall commence not more than thirty days after the appropriate parties have been given notice that the victim is exercising his or her right to a reexamination hearing pursuant this statute or to another proceeding based on the failure to perform a duty or provide a right.[123]

 

Az. Constitution

Rule 39

Title 13, Chapter 40

Crime Occurs/Arrest

XXX

XXX

13-4405   (V must be given multi-copy form)

Release or Escape

Art. II, § 2.1 (A)(2)

(rt. to be informed of release or escape)

 

Art. II, § 2. (A)(4)

(rt. to be heard at post-arrest release proceeding)

39(b)(5) (rt. to be given  notice re: escape)

 

39(b)(6) (rt. to be given notice  re: proposed release)

 

39(b)(7) (rt. to confer w/pros. & to be heard re: proposed release)

13-4407    (rt. to notice re:  release conditions)

 

13-4412   (rt. to notice of  release or escape)

 

13-4416  (rt. to notice of  rel./esc. from metal inst.)

 

13-4422 (rt. to be heard at  post-arrest release)

 

13-4432 (Victim’s rt. to file motion to revoke bond/release)

 

Initial Appearance

 

Art. II, § 2.1 (A)(3)

(rt. to be present & informed of crim. proceedings)

 

39(b)(3) (rt. to be given notice re: crim. proceedings)

 

13-4406  (rt. to notice of IA)

 

13-4421 (rt. to be heard at IA)

 

Charging Decision

 

XXX

 

39(b)(7) (rt. to confer w/pros. re: decision)

 

13-4408   (rt. to confer on turndown

 w/pros. & rt. to notice re: rts.)

 

Prelim./Grand Jury

 

Art. II, § 2.1(A)(3)

(rt. to be present & informed of crim. procdgs. -- prelim. only)

 

39(b)(3) (rt. to be given notice re: criminal proceedings--- prelim. only)

 

13-4409  (notice re: crim. proceedings-- prelim. only)

13-4420 (rt. to be present at all crim. proceedings)

 

 

Arraignment

 

Art. II, § 2.1 (A)(3)

(rt. to be present & informed of crim. proceedings)

 

39(b)(3) (rt. to be given notice re: crim. proceedings)

39(b)(4) (rt. to be present at crim. procdgs.)

 

13-4409 (notice re: crim. proceedings)

 

13-4420 (rt. To be present at criminal procgs.)

 

 

Pre-Trial Conference

 

Art. II, § 2.1 (A)(3)

(rt. to be present & informed crim. proceedings)

 

39(b)(3) (rt. to be given notice re: crim. proceedings)

39(b)(4) (rt. to be present at crim. procdgs.)

 

13-4409 (notice re: crim.prcdgs)

 

13-4420 (rt. To be present at criminal procgs.)

 

 

Discovery

Art. II, § 2.1(A)(5)

(rt. to refuse int. or other disc. requests)

 

 

39(b)(10) (rt. to refuse interview)

39(b)(11) (rt. to  have prosecutor w/hold discovery)

39(b)(12) (rt. to set conditions of int.)

 

13-4433 (rt. to refuse interview)

 

13-4434 (rt. to privacy)

 

 

Plea Negotiations

 

Art. II, § 2.1(A)(4) 

(rt. to be heard re: plea)

Art. II, § 2.1(A)(5)

(rt. to confer w/pros. re: plea)

 

39(b)(7) (rt. to confer w/pros. re: plea & rt. to be heard at plea)

 

13-4419 (rt. to confer w/pros. re: plea)

 

13-4423 (rt. to be present & heard  re: plea)

 

Trial

 

Art. II, § 2.1(A)(3)

(rt. to be present & informed of  crim. proceedings)

Art. § 2.1(A)(6)

(rt. to confer w/pros. before trial)

Art. § 2.1(A)(10)

(rt. to speedy trial)

 

39(b)(3) (rt. to be given notice of criminal procdgs.)

39(b)(4) (rt. to be present at criminal procdgs.)

 

39(b)(15) (rt. to speedy trial)

 

13-4409    (rt. to notice re: crim. prcdgs – prelim. only)

 

13-4410    (rt. to notice re: crim. prcdgs  - outcome of trial)

 

13-4420    (rt. to be present at criminal proceedings)

 

13-4435    (rt. to speedy trial)

 

Sentencing

 

Art. II, § 2.1 (A)(3)

(rt. to be present & informed of crim. proceedings)

Art. II, § 2.1 (A)(4)

(rt. to be heard at sent’g)

Art. II, § 2.1(A)(7)

(rt. to read pre-sent. report)

Art. II, § 2.1(A)(8)

(rt. to prompt restitution)

 

39(b)(7) (rt. to be heard at sent’g.)

 

39(b)(13) (rt. to read pre-sent. report)

 

13-4424  (impact statement)

 

13-4425  (rt. to inspect pre-sent. rpt)

 

13-4426  (rt. to present evid., be present & be heard)

 

13-4429  (return of V’s property)

 

Post-Conviction

 

Art. § 2.1(A)(9)

(rt. to be heard re: post-convn. release)

 

39(b)(6)   (rt. to notice re: release or proposed rel.)

 

13-4411   (notice of post-conviction review & app. procdgs.)

 

13-4413   (notice of prisoner’s status)

13-4414   (notice of post-conviction release)

 

13-4415   (notice of probation modification/revocation)

13-4427   (rt. to be present & heard at probation mod. hrgs.)

[1]  “Rights” are defined in ARS § 13-4401(17) as any right granted to a victim by the laws of this state. These rights are also the subject of Rule 39, Arizona Rules of Criminal Procedure.

[2]  Ariz. Const., Art. II,  § 2.1(C), ARS  § 13-4401(11) and (18) and Arizona Rules of Criminal Procedure, Rule 39(a)(1). Neighborhood associations may also register with the city, town or county in which the association is located to invoke the rights that are afforded pursuant to ARS  § 13-4401.02 and legal entities are entitled to limited victim rights under ARS  § 13-4404.  However, parents of a deceased qualify as victims only if the deceased was killed by the offense for which the defendant is charged.  State v. Coronado, 186 Ariz. 363, 922 P.2d 927 (1996).

[3] ARS  § 13-4401(12).

[4] Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992).

[5] Arizona Rules of Criminal Procedure, Rule 39(a)(1).  See also, ARS  § 13-4428(C); Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992)(“The only victims excluded from the protection of the Victim’s Bill of Rights are those ‘in custody for an offense’ or those who are the accused.’”).

[6] Judge Espinoza took a literal interpretation of victim as occurring the moment probable cause existed to believe a crime had been committed.  Division One then published an opinion that agreed.  State ex rel. Romley v. Superior Court (Cunnigham), 184 Ariz. 409, 909 P.2d 476 (App. 1995).  The question in Cunnigham was whether or not a person could be the victim even though he was not a named victim of the charged offense (DUI).  The court found that although the defendant only damaged the victim’s car, the crime of DUI was nonetheless committed against him.

[7] Stapleford v. Houghton, 185 Ariz. 560, 917 P.2d 703 (1996).

[8]ARS  § 13-4403(A).                       

 

[9]  Id.

[10] ARS  § 13-4403(B).

[11]  Id.

[12]  “Immediate family” is explained in ARS  § 13-4401(11) as a victim’s spouse, parent, child, sibling, grandparent or lawful guardian.  See ARS  § 13-4403(C) and Ariz. Rules of Crim. Proc., Rule 39(g). 

[13]  Id.

[14] See also Ariz. Rules of Crim. Proc., Rule 39(c)(2).

[15] See  ARS  § 13-4430(A) through (D).

[16] ARS  § 13-4430(F).

[17]  See ARS  §13-4402(A).

[18] “Arrest” is defined as the actual custodial restraint of a person or the person’s submission to custody.  ARS § 13-4401(3).

[19]  Although ARS  § 13-4405(A) sets forth the requirements for this multi-copy form, section (E) of that statute permits law enforcement agencies within a county to establish different procedures for efficient and effective victim notification or waiver information.  This statutory section establishes the requirements that must be met if different procedures are implemented.

[20] See ARS  §13-4405(B).

[21] See ARS  §13-4405(D).

[22] See ARS  §13-4405(F).

[23]  “Custodial agency” means a law enforcement officer, municipal jailer or sheriff, the state department of corrections or a secure mental health facility having custody of a person who is arrested or is in custody for a criminal offense.  ARS  §§ 13-4401(8).

[24] ARS  § 13-4405(A). 

[25] ARS  §13-4405(A)(1).

[26] “Any victim desiring to claim the notification rights and privileges provided by [Rule 39 of the Arizona Rules of Criminal Procedure] must provide his or her full name, address and telephone number to the entity prosecuting the case and to any other entity from which notice is requested by the victim.”  Ariz. Rules of Crim. Proc., Rule 39(d).

[27] Ariz. Const., Art. II,  § 2.1(B).

[28]  “Post-conviction Release” means parole, work-furlough, community supervision, probation if the court waived community supervision under ARS  § 13-603, home arrest or any other permanent, conditional or temporary discharge from confinement in the custody of the state department of corrections or a sheriff or municipal jail or secure mental health facility.  ARS  § 13-4401(14).

[29] See ARS  §13-4402(B).

[30] ARS § 13-4405(A)(3)(a).

[31] Id.

[32] ARS §13-4401(1).

[33] ARS §13-4416(A).

[34]   See e.g., Rule 7.5(a), Ariz. Rules of Crim. Proc.

[35]  ARS §13-4432.  See also, Rule 7.5(b), Ariz. Rules of Crim. Proc.  Rule 39(b)(6) mandates that the victim, upon his or her request, be informed of any release or proposed release of a “defendant, whether that release be before expiration of the sentence or by expiration of the sentence, and whether it be permanent or temporary in nature.”

[36] ARS §13-4428(A).

[37] The Victims’ Bill of Rights does not preclude the trial court from ordering the victim to appear and testify at a pretrial hearing on a motion to dismiss for lack of probable cause.  The victim’s right to refuse defense discovery requests does not protect victims from defense subpoenas to testify at pretrial hearings.  However, pretrial hearings are not to be used for purposes of discovery and, during the hearing, the trial court has the inherent power to ensure the victim is afforded the rights guaranteed by the Victims’ Bill of Rights.  State ex. Rel. Dean v. City Court of Tucson (LaBarge), 173 Ariz. 515, 844 P.2d 1165 (App. 1992).

[38] S.A. v. Superior Court, 171 Ariz. 529, 831 P.2d 1297 (App. 1992).

[39] ARS §13-4431.

[40]  Rules 39(b)(8) and (9).

[41] ARS § 13-4408(A)(2), (3) and (4).

[42] Ariz. Const., Art. II,  § 2.1(A)(3). See also, Rule 39(B)(3) and (4)(victim has right to be notified of and be present at criminal proceedings).

[43] Rule 39(f).

[44]   Id.

[45]   Id. 

[46]  ARS § 13-4409(A).   Section (B) of the same statute permits a court to extend the time requirement if the five day time period is not reasonable.  However, if the court deems the five day notice requirement as not reasonable, it must state in the record the reasons why it was not reasonable.

[47]  ARS § 13-4409(C).

[48] Id.

[49]   See also, Ariz. Const., Art. II, § 2.1(A)(3) and (4)(victim has constitutional right to be present and informed regarding criminal proceedings) and  Rule 39(B)(3) and(4), Arizona Rules of Criminal Procedure (rules of criminal procedure which grant the victim the rights to be given notice of and be present at criminal proceedings).

[50] ARS § 13-4406.

[51]  “Post-arrest release” is defined in ARS § 13-4401(13) as the discharge of the accused from confinement on recognizance, bond or other condition. 

[52] ARS § 13-4426(A).  In conjunction with this provision is ARS § 13-4424, which allows the victim to submit a written or oral impact statement to the person assigned to write the pre-sentence report for that person’s use in preparing that report. 

[53] ARS § 13-4426(B).

[54]   State v. Blackmon, 908 P.2d 10, 12 (App. 1995).

[55] Ariz. Rules of Crim. Proc., Rule 39(a)(1)  (This method of exercising the right to be heard does not apply to victims who are in custody.  Id.)

[56]  See also, Section 6(f), “To Confer With The Prosecution Before Trial or Before Disposition and To Be Informed of the Decision”.

[57] Rule 39(b)(7).

[58]  Rule 39(b)(11) begins with an exact replication of the constitutional right.  From there, the rule establishes two obligations on the prosecutor: (1) the obligation to communicate any defense initiated request for a victim interview to the victim and (2) to relay the victim’s response to that request back to the defense.  If a victim refuses to be interviewed and if there is any comment or evidence of this invocation at trial, the court shall instruct the jury that the victim has the right to refuse an interview under the Arizona Constitution.  Rule 39(b)(11).  Contra, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976)(A prosecutor is prohibited from using or commenting at trial on a defendant’s right to remain silent).  See also, State v. Riggs, State v. Taggert 189 Ariz. 327, 942 P.2d 1159(1997)(A victim’s right to refuse a pretrial interview is not analogous to a defendant’s right to remain silent under the Fifth Amendment and, therefore, the victim may be questioned at trial regarding his or her refusal of a pre-trial interview). 

A victim also has the right, pursuant to Rule 39(b)(10), to require the prosecutor to withhold certain information during the discovery process and other proceedings.  That information includes the victim’s home address, home telephone number, employer name, employer address and employer telephone number.  Nevertheless, upon a showing of good cause, the trial court may order that the information be disclosed to defendant’s counsel.  Id. See e.g., State ex rel. Romley v. Superior Court, Maricopa County, 172 Ariz. 232, 836 P.2d 445 (App. 1992)(due process required that medical records of victim be disclosed after in-camera inspection in order to allow defendant adequate opportunity to effectively cross-examine and impeach the victim to establish justification defense).  The court can place restrictions on dissemination of that information, “including a provision that the information shall not be disclosed by counsel to any person other than counsel’s staff and designated investigator and shall not be conveyed to the defendant.”

 

[59] ARS § 13-4433(B).

[60] ARS § 13-4433(D).

[61]  Id.   Note: Title 13, Chapter 40 does not indicate what type of conditions a victim may or may not impose on a defense interview.

[62]  Rules 39(b)(8) and (9). “If the court finds, under Rule 39(b)(8) or Rule 39(b)(9), that a party’s claim that a person is a prospective witness is not made in good faith, it may impose any sanction it finds just, including holding counsel in contempt.”  Rule 39(b)(8).

[63] Id.

[64]  Id.                                            

[65] ARS §13-4433(E).

[66]   Id.

[67]   ARS §13-4433(G).

[68] State v. Roscoe, 185 Ariz. 68, 912 P.2d 1297 (1996).  Previously numbered as ARS § 13-4433(F).

[69] State Ex Rel., Romley v. Hutt, RPI Treen, 195 Ariz. 256, 987 P.2d 218 (App. 1999).  See also, State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App. 1990)(Victim’s Bill of Rights clearly abrogates a defendant’s right under Rule 15 of the Arizona Rules of Criminal Procedure to interview or otherwise seek discovery from an unwilling victim).  See also, State v. O’Neil, 172 Ariz. 180, 181, 836 P.2d 393, 394 (App. 1991)(A court cannot require the state to record and disclose all conversations with the victim as this clearly violates the Victim’s Bill of Rights).

[70] State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App. 1990).

[71] Rule 39(b)(7) gives a victim, upon request,  “the right to confer with the prosecution prior to trial when applicable, in connection with any decision involving the pre-conviction release of the defendant, a plea bargain, a decision not to proceed with a criminal prosecution, dismissal of charges, plea or sentence negotiation, a pre-trial diversion program, or other disposition prior to trial.”  (This rule also grants the victim the right to be heard at any of these proceedings and at sentencing.  Id.)  A victim is entitled to be informed of the disposition of the case under Rule 39(b)(14).  In the event of any conflict of interest between the state or any other prosecutorial entity  and the wishes of the victim, the prosecutor shall be responsible for directing the victim to the appropriate legal referral, legal assistance, or legal aid agency.  Rule 39(c)(4).

[72] ARS § 13-4419(A).   See State v. O’Neil, 172 Ariz. 180, 181, 836 P.2d 393, 394 (App. 1991). 

[73]   See also, Rule 39(b)(7)(provides victim the right to confer with prosecutor regarding charging decision).

[74]   ARS §13-4410(A).

[75]  ARS § 13-4410(B).

[76] ARS § 13-4410(C).

[77] ARS § 13-4410(D). 

[78] Id.

[79] ARS § 13-4419(C).

[80]   ARS §13-4410(B)(3).

[81]  ARS §13-4410(C).

[82] ARS §13-442