By: Sarah Fisher
Arizona has a robust structure for victims’ rights in the form of the Victim’s Bill of Rights (VBR). It is one of a growing number of states that are adjusting the criminal process to account for the victim’s wellbeing, desired outcome, and to prevent further re-traumatization. In 2018, many states passed a version of Marsy’s Law, a comprehensive bill that added victims’ rights into their respective state constitutions. At the time, Arizona had already implemented its VBR. While these provisions might seem like common sense public policy, the reality is that overly expansive victims’ rights bills may be detrimental to the rights of criminal defendants. Specifically, these bills pose a threat to a defendant’s right to due process, confrontation, and presumption of innocence.
In Arizona, victims have been able to refuse to interview with criminal defense attorneys with respect to ongoing cases. In 2019, the District Court in Arizona held that victims have the right to refuse contact throughout all pre-trial proceedings. However, in November of 2022, the District Court found that the section defining a victim’s right to refuse within the VBR was unconstitutional. It found that the State’s imposition of Ariz. Rev. Stat. Ann. § 13-4433 infringed on the constitutional rights of defense attorneys to speak with whomever they pleased and that the provision was not narrowly tailored to the goal of protecting the victim from further trauma:
[T]he Statute is not narrowly tailored to protecting victims’ right to be treated with fairness, respect, and dignity . . . [f]inding no evidence that members of the defense team were infringing on this right when initiating contact with victims prior to the Statute’s enactment or that they would do so in the Statute’s absence now, the Court cannot conclude that the Statute solves an ‘actual problem’ . . . the bulk of the evidence shows that contact with the criminal defense team is no more or less likely to traumatize a victim than contact with the prosecutor or any other participant in the legal system.
Arizona Att’ys for Crim. Just. v. Ducey, No. CV-17-01422-PHX-SPL, 2022 WL 16631088 (D. Ariz. Nov. 2, 2022). The Court also held that the statute was overinclusive with respect to the interests of the victims and noted that there is evidence suggesting that contact with the defense team may actually be helpful.
The Court in the AACJ ruling arrived at its conclusion based primarily on constitutional law. However, the dangers with incorporating victims’ rights in the criminal justice process reach far beyond a defense lawyer’s freedom of speech. In an era where a “tough-on-crime” rhetoric is politically popular, there is a risk of victims’ rights being equated with the rights of defendants, undermining the administration of justice. Put bluntly, “the criminal legal system is not designed to leave room for victim participation” because it was intended to remove personal interests from prosecutors and private citizens in the proceedings of another individual’s criminal prosecution.
The rights of defendants, which have been built up through decades of Supreme Court precedent, are drastically changed when the rights of a victim are be introduced and accounted for. Victim involvement during trial may improperly influence a jury. A study in the Atlantic showed that victim statements in a trial can make jurors angry and more willing to convict defendants, even more so when a victim is white.
Although the AACJ secured a win with the November 2022 ruling, the Arizona legislature has enacted a bill that will amend the Arizona Rules of Criminal Procedure. Unlike before, the Rules of Criminal Procedure will now include victims’ rights considerations. One section provides that the “State is not required to disclose a victim’s identifying or locating information unless the court finds, after considering the rights of the victim, that disclosure is required to protect the defendant’s constitutional rights.” Another provision requires that if the victim desires, the prosecutor in a case must consult with that victim before the prosecutor can dismiss criminal charges against the accused.
These changes, among others, go into effect in July of 2023. It is unclear how these changes may impact the rights of the defendant during all stages of litigation. However, it is clear that the rights of victims may be playing a far greater role in the realm of criminal defense than ever before.
Sarah is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After passing the bar, she hopes to work in criminal defense. Within the topic of social justice, her interests include criminal justice reform, wrongful convictions, and advocating against capital punishment. Outside of the law, Sarah enjoys back country camping, trying (and mostly failing at) new recipes, and overindulging in political podcasts.
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