The Prosecutor, November-December 2012, Volume 42, No. 6

A victim’s right to be present throughout trial

A trial team in Travis County recently countered a  court’s order for victims to leave the courtroom during trial and were able to secure the victim’s out-of-state family a seat in court.

“A crime is often one of the most significant events in the lives of victims and their families. [Victims], no less than the defendant, have a legitimate interest in the fair adjudication of the case, and should therefore, as an exception to the general rule providing for the exclusion of witnesses, be permitted to be present for the entire trial.”1
    While being present at a trial may be extremely difficult emotionally for a victim, it has long been recognized that allowing crime victims to attend criminal justice proceedings may help victims recover from the crime2 and may prevent the secondary harm that can result from victims’ interactions with the criminal justice system.3
    Stacy Miles-Thorpe, a licensed clinical social worker at the Travis County District Attorney’s Office and Secretary of the Texas Victim Services Association Board of Directors, was working with a man who had been critically injured in an auto-bicycle intoxication assault; he was coming from out of state (with his family) to testify. The constitutional right to be present also should have attached to the family,4 but Stacy had all too often seen the rule of sequestration—often known simply as “the rule”—invoked to keep victims out of the courtroom. Struggling with this, Stacy said she “couldn’t imagine their having to travel so far only to sit out in the hall waiting to hear what would happen to the man who devastated their child and changed their lives forever.”5
    Under the Texas Constitution, crime victims have “the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.”6 Affording victims the right to be present to attend trial by constitution, statute, or rule of evidence is the norm across the country.7 When the victim is a minor, crime victims’ rights laws generally allow courts to recognize other persons, such as family members, who can exercise rights either in addition to or on behalf of that direct victim.8
    Despite the clarity of the law and the burden that must be met to exclude a victim, victims in Texas and across the country continue to be asked (and sometimes ordered) to stay out of the courtroom. In fact, most often the exclusion of victims seems to be based on “the rule” without regard to these constitutional rights or the test. Preempting or responding to these requests or orders involves a five-part legal analysis:
1)    criminal defendants do not have a constitutional right to exclude witnesses from the courtroom;
2)    as noted above, crime victims in Texas—including victim-witnesses—have a state constitutional right to be present at all public court proceedings, subject only to the limitation that a court make findings that their testimony will be materially altered by the victim hearing other trial testimony;
3)    under basic principles of law, a defendant’s rule-based right to exclude any witnesses must yield to a constitutional guarantee to be present;
4)    consensus among courts nationwide is that the mere presence of the victim in the courtroom does not infringe upon a defendant’s federal constitutional right to a fair trial; and
5)    the procedural remedies that exist within a criminal trial (e.g., cross-examination of victim-witnesses, judge/jury observation of a victim-witness, etc.) afford sufficient protection of a defendant’s fair trial right.9
    Fortunately, Stacy had been working with the Texas Advancing Crime Victims’ Rights Workgroup,10 a group spearheaded by passionate and forward-thinking victims’ advocates. In support of the group’s work, the National Crime Victim Law Institute (NCVLI)11 had provided a legal memorandum and sample motion on this very issue. Stacy took NCVLI’s memorandum and motion to the prosecutor on the case, who agreed to submit the arguments to the court. (Copies of both documents are available at www.tdcaa.com; just look for this story in the journal archive.) Based on the prosecutor’s arguments, the judge granted the motion, ruling that the family could stay in the courtroom.
    As Stacy reported, “Trial started on a Tuesday morning and the family was able to hear every witness testify. As hard as it was emotionally, it was healing for them to hear how hard law enforcement and medical personnel worked to treat their son, to find the perpetrator, and to gather evidence. I was grateful that I didn’t have to leave these parents sitting on pins and needles in the hall for a week.” The defendant was found guilty and was sentenced to 50 years in prison.
    The law in Texas supports victims being present in the courtroom even if they are witnesses. Unfortunately, sometimes local culture and practice rather than the law rule the day and victims are left outside. Thanks to the Travis County District Attorneys’ Office, we have a clear example of what can happen when a court is presented with the law: Victims are able to witness justice.

Endnotes

1 President’s Task Force on Victims of Crime: Final Report (1982).
2 See Douglas E. Beloof & Paul G. Cassell, The Crime Victim’s Right to Attend the Trial: The Reascendant National Consensus, 9 Lewis & Clark L. Rev. 481, 536 (2005).
3 See Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 Wayne L. Rev. 7, 18-19 (1987)).
4 The general right to be present is found in myriad places in Texas law. See, e.g., Tex. Const. art. I, §30(b)(2); Tex. Code Crim. Proc. art. 56.02(b); Tex. Fam. Code §57.002(a)(11); Tex. Fam. Code §54.08(b); Tex. R. Evid. 614(4). Some of these explicitly provide that it is the victim and the family members who can be present. Cf. Tex. Fam. Code §54.08(b) (providing that court may not “prohibit a person who is a victim of the conduct of a child, or the person’s family, from personally attending a hearing …”).
5 Texas Victim Services Association, “Keeping Victims in the Courtroom,” Volume 9, Issue 1, Spring 2012, Page 5.
6 Tex. Const. art. I, §30(b)(2). Texas statutes and rules of evidence also guarantee a victim, a victim’s guardian, and the close relative of a deceased victim a statutory right to be present. See Tex. Code Crim. Proc. art. 56.02(b); Tex. Fam. Code §57.002(a)(11); Tex. Fam. Code §54.08(b); Tex. R. Evid. 614(4).
7 See Beloof & Cassell, noting that approximately 17 states give victims unqualified rights to attend trial and approximately 25 states and the District of Columbia give victims qualified rights to attend trial. See, e.g., Cal. Const. art. I,  28(e) (“The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated”); Conn. Gen. Stat. Ann. §1-1k (“‘victim of crime’ or ‘crime victim’ means an individual who suffers direct or threatened physical, emotional or financial harm as a result of crime and includes immediate family members of a minor”); Mass. Gen. Laws. Ann. ch. 258B, §1 (defining “victim” as including “the family members of such person if the person is a minor”); Minn. Stat. Ann. §611A.01(b) (providing that the “term ‘victim’ includes the family members, guardian, or custodian of a minor”); Mo. Ann. Stat. §595.200(6) (defining “victim” to include “the family members of a minor”); N.D. Cent. Code §12.1-34-01(10) (specifying that “[t]he term ‘victim’ includes the family members of a minor”); S.C. Const. art. I, §24(C)(2) (providing that “the term ‘victim’ also includes the person’s spouse, parent, child, or lawful representative of a crime victim who is … a minor”). Cf. Utah Code Ann. §77-37-2 (defining “victim” generally, and specifying that the rights to information “also apply to the parents, custodian, or legal guardians of children”); Vt. Stat. Ann. Tit. 13, §5301(4) (“‘Victim’ means a person who sustains physical, emotional, or financial injury or death as a direct result of the commission or attempted commission of a crime or act of delinquency and shall also include the family members of a minor, incompetent, or a homicide victim”).
8 Id. See also Fundamentals Of Victims’ Rights: An Overview of the Legal Definition of Crime “Victim” in the United States, National Crime Victim Law Institute 2011. See also Child Victims’ Rights Bulletin: Child-Victims’ Independent Participation in the Criminal Justice System, National Crime Victim Law Institute August 2012.
9 Each of these arguments, annotated with Texas and national caselaw supporting them, can be found in a legal memorandum drafted by the National Crime Victim Law Institute (www.ncvli.org).
10 A workshop at the Texas Victim Services Association (TVSA) 2011 conference led to the creation of the workgroup. The group is focusing on awareness, compliance, and enforcement, examining our current victim rights legislation, analyzing which ones are enforceable, and studying what other states have done to make rights a reality for every victim every time. The National Crime Victim Law Institute is providing research and analysis to aid the group. If you would like to be involved, email [email protected].
11 The National Crime Victim Law Institute (NCVLI) is a nonprofit educational and advocacy organization located at Lewis and Clark Law School, in Portland, Oregon. NCVLI’s mission is to actively promote balance and fairness in the justice system through crime victim-centered legal advocacy, education, and resource sharing. For more information, visit its website, www.ncvli.org.