MEMORANDUM OF POINTS AND AUTHORITIES

 

I.          STATEMENT OF FACT

[Type Statement of Fact for MOTION FOR CRIME VICTIM’S COUNSEL TO ASSIST PROSECUTION IN HEARINGS AND TRIAL here.]

II.        LAW AND ARGUMENT

The vast majority of jurisdictions, including the federal courts, allow the private attorney for the victim to assist the public prosecutor at trial, with the permission of the prosecutor and subject to the prosecutor’s control. Federal courts continue to allow the practice. E.g., Powers v. Hauck, 399 F.2d 322 (1968); Hughes v. Bowers, 711 F. Supp. 1574 (N.D. Ga. 1989), aff’d. without opinion, 896 F.2d 558 (year); East v. Scott and Person v. Miler, cited below. The vast majority of states permit the practice. Shelton v. State, 1 Stew. & P. (Alabama) 208 (1831); Lashar v. People, 74 Colo. 503, 239 P2d 258 (1952); Thalheim v. State, 31 Florida 169, 20 So. 938 (1896); State v. Scott, 239 P.2d 258 (Id. 1952), citing State v. Steers, 85 Pac. 104, 106 (1906); State v. Fitzgerald, 49 Iowa 260 (1878); State v. Wilson¸ 24 Kansas 189 (1880); Price v. Caperton, 1 Duvall (Kentucky) 208 (1864); State v. Petrich, 47 So. 438 (La. 1908); State v. Bartlett, 55 Maine 200 (1867); State v. Rue, 72 Minn. 296, 75 N.W. 3259 (1898); Byrd v. State, 1 Howard (Mississippi) 247 (1835); State v. Tighe, 27 Montana 327, 71 Pac. 3(1903); State v. Fluery, 364 A.2d 625 (N.H. 1976); Polin v. State, 55 N.J. Law (25 Vroom) 17,26 Atl. 30 (1892); State v. Lucero, 20 N.M. 55, 146 Pac. 407 (1915); State v. Carden, 209 N.C. 404, 189 Se 898 (1936); State v. Kent, 4 N.D. 577, 62 N.W. 631 (1895); State v. Ray, 143 N.E. 2d 484 (Ohio 1956); Reed v. State, 103 Pac. 1042 (1909); Commonwealth v. Carpenter, 4 A.2d 74 (1953); State v. Addis, 186 S.E. 2d 415 (S.C. 1972); State v. Basham, 170 N.W. 2d 238 (S.D. 1969); Burkhard v. State, 18 Tex Crim. App. Rep. 599 (1885); People v. Tidwell, 4 Utah 506, 12 Pac. 61 (1886); State v. Ward, 61 Vermont 153, 17 Atl. 483 (1889); Hopper v. Commonwealth, 6 Gratton (Virginia) 684 (1849); State v. Hoshor, 67 Pac. 386 (1901); State v. Lohm, 125 S.E. 758 (1924).

Two states have codified the common law that permitted the victim’s attorney to assist the prosecution. Ks. Stat Ann. 19-717; Tenn. Code Ann. Sec. 8-7-401.

The victim’s attorney can actively and directly participate in all phases of the trial including jury selection, examination, and closing argument. The due process limitation on participation are that the victim’s attorney cannot control crucial decisions. The limitation was set out in East v. Scott, 815 F2d 996 (5th Cir. 1995):

For purposes of due process, it is important to determine whether a private prosecutor controlled crucial prosecutorial decisions such as “whether to prosecute, what targets of prosecution to select, what investigative powers to utilize, what sanctions to seek, plea bargains to strike, or immunities to grant.” (Citing Person v. Miller 854 F.2d 656, 664 (4th Cir 1988), cert. den., 489 U.S. 1011 (1989)).

 

The few states that have disallowed the participation of the victim’s attorney did so on either the basis that a statute expressly prohibited the practice or on the basis of evolving standards of due process. See generally, Robert Ireland, Privately Funded Prosecution of Crime in the Nineteenth Century United States, 39 Am. J. Legal Hist. 43 (1995). The lead case in opposition is Meister v. People, 31 Mich. 99 (1875). However, due process standards are no longer evolving in the direction of victim exclusion. In Arizona, victims now have many rights pursuant to constitution, state statute and court rule. Furthermore, Arizona has no statute expressly prohibiting the practice. While Arizona courts have not ruled on the issue, allowing the participation of the crime victim’s attorney, while under the control of the public prosecutor, is consistent with the rationales underlying modern victims’ rights, is a procedure firmly rooted in history, and is in accord with the wisdom of the vast majority of state jurisdictions and the federal courts.

III.       CONCLUSION

[Type Conclusion here]

Respectfully submitted this _______ day of ________________, _____.

 

                                                           By                                                                    

                                                           (ATTORNEY)

                                                           Attorney for Crime Victim

                                                           Arizona Voice for Crime Victims