Victims' Rights at Trial and Sentencing
Every state has a victim’s rights statute, or a state constitutional provision that provides crime victims with certain rights, or both. Prosecutors, law enforcement, and other public agencies must comply with these laws as part of the criminal justice process. Victims in every state have the following basic rights:
- to be informed of the date and time of criminal proceedings in their offender’s case
- to be heard and participate at trial and sentencing and other hearings in the criminal justice process
- to financial compensation or restitution, and
- to the return of property taken from the victim as evidence.
The specifics of these rights vary from state to state and are discussed in more detail below.
Statutes and Constitutional Provisions
Every state has a criminal statute addressing victim’s rights, but several states also have constitutional provisions (most commonly, a constitutional amendment) that guarantee crime victims certain enforceable constitutional rights. A constitutional provision is stronger than a statute passed by the legislature for at least two reasons.
- Permanence. Constitutional provisions are a permanent part of the state’s constitution. They are created by a lengthy process involving both legislative votes and a public election process, cannot be changed by a legislative vote alone, and are accordingly more difficult to change or eliminate than a statute, which can change from year to year as the political climate allows.
- More teeth. A constitutional provision guarantees the rights of a crime victim. If a crime victim believes that a public agency or official is violating the victim’s rights, the victim may file a lawsuit, demanding enforcement and requesting damages for harm caused by the violation of the constitutional right. By contrast, a victim relying on a statute can sue a public agency because it has violated a victims’ rights statute but the right to enforcement of rights and to collect damages is not as clear without a constitutional provision. If the statute does not provide the right to collect damages for violation of the statute, pursuing damages may be very difficult if not impossible. The victim could be limited to simply requesting enforcement of the statute and even enforcement could be difficult because public agencies have certain protections and sometimes even immunity against lawsuits.
Who Is a Victim?
Contrary to what you might assume, victim’s rights laws do not apply to just anyone who is the victim of a crime. Some states recognize only victims of felony crimes, while others’ laws apply to victims of any violent crime, whether a felony or misdemeanor. Some laws also apply to victims of serious juvenile criminal acts and to immediate family members of homicide victims and parents or guardians of minor, incompetent, or disabled crime victims. Finally, several states provide special rights for certain victims, such as victims who are elderly, disabled, young children, and victims of certain crimes, such as domestic violence, stalking, and sexual assault.
Crime Victims’ Rights to Notice and Information
All states have laws providing that a crime victim is entitled to notice of when a trial or sentencing will occur in the offender’s case. Victims’ rights laws or constitutional provisions also may require that crime victims be notified of some or all of the following:
- the defendant's arrest
- the defendant's arraignment
- that the defendant has been released on bail
- a dismissal of the charges against the defendant
- a plea agreement between the state and the defendant
- a convicted defendant's filing of a notice of appeal
- the defendant's release (or anticipated release) from jail, prison, or a mental institution
- pardon or commuted sentence proceedings, and
- the defendant’s escape and recapture.
Mandatory notification procedures vary from state to state. Some laws require that the prosecutor’s office call victims to notify them of certain events, while other laws specify only that the prosecutor or law enforcement agency provide the victim with a telephone number to call to request information.
Under many state laws, prosecutors’ offices and law enforcement agencies also must inform crime victims of their rights as victims and of services available to them through state agencies and the court system.
Victims’ Rights in Trial Proceedings
All victims’ rights laws give victims the right to attend trial proceedings (but see the exception just below). Some laws also allow victims to attend any hearing in the prosecution process at which the defendant has the right to be present, such as evidentiary hearings and plea hearings. In some states, victims also have the right to have an advocate or support person with them during court proceedings.
If the victim testifies at trial, the victim is also considered a witness, which can affect his right to be present during the rest of the trial proceedings. In most states, the court must exclude witnesses from the courtroom while other witnesses are testifying, if the prosecutor or defense attorney request exclusion. These laws grew out of a concern that the testimony of one witness can influence the testimony of another, or give another witness information that will improperly help his testimony. Some states now allow a victim who also is a witness to be present throughout the entire trial unless the defendant can convince the judge that not excluding the victim will affect his testimony in a way that could seriously affect the outcome of the trial.
Plea agreement, dismissal or alternative prosecution programs
Some states require that the prosecutor confer with the victim and consider the victim’s position before dismissing a case, agreeing to a plea deal for the defendant, or agreeing to place the defendant in an alternative program such as pre-trial prosecution or pre-trial diversion. Pre-trial prosecution or diversion programs allow the defendant to be placed on probation or special supervision without being convicted or entering a guilty plea. If the defendant successfully completes the program, the case usually is dismissed. If he does not comply with the probation or supervision or is arrested again for another crime, the court often is able to enter an automatic guilty plea and sentence the defendant.
A few states even require that, before the court accepts a plea agreement, the prosecutor certify to the court that he or she conferred with the victim and considered the victim’s wishes and concerns before agreeing to the plea.
Most states provide some protection for a crime victim’s employment if the victim must take time off from work to participate in the criminal court process. The most basic laws state that an employer must allow the victim time off from work only if he is subpoenaed to testify at trial, but some states guarantee the victim time off from work for any court proceedings or meetings with the prosecution to prepare for trial. Some states also require that employers allow crime victims time off for medical and counseling appointments necessitated by the crime.
Right to protection
Most crime victims’ rights laws contain a general provision regarding a crime victim’s right to physical protection during criminal proceedings. Some states add that specific protective measures be available to a victim, including some or all of the following:
- police protection at home, at work, or both
- police escort to and from court proceedings
- secure waiting areas during court proceedings, separate from family members or the defendant’s supporters
- relocation if necessary
- a provision that court must consider the victim’s safety and allow the victim to speak on the issue of whether to grant bail , and
- special conditions of release for the defendant, such as no contact with the victim.
Insisting on a speedy trial
Several state laws provide victims of crime with the right to have the criminal case proceed in a reasonably timely manner. These laws usually limit the continuances and delays that a court can allow in the criminal case. Some states require that the court consider the impact on the victim each time the court reviews a request for a continuance or rescheduling of the trial date, even if the defendant and the prosecutor agree on the delay. Several state laws require that courts give special scheduling priority to cases involving certain victims, such as elderly people or very young children. Under such a law, the court must schedule trial in a case involving an elderly or young victim sooner than other cases that were filed on earlier dates.
A Crime Victim’s Rights at Sentencing
Current victims’ rights laws require that, in the sentencing process, all criminal courts consider the impact of the crime on the victim. Victim impact information can come through a pre-sentence report prepared for the judge before sentencing, or through a statement from the victim at the sentencing hearing. Generally, if victims wish to be heard at sentencing, the court must allow them to speak. Some states specifically insist that the court consider the victim’s opinion about the length and type of sentence that the court should impose.
A Crime Victim’s Rights at Parole Hearings
Courts often sentence offenders to a range of years in prison, such as 15 to 20 years, rather than a fixed number of years. After the prisoner has served the minimum number of years, the parole board will determine whether the prisoner should be released on parole or should serve more time in prison. In many states, victims must be permitted to appear and speak at parole hearings.
The Crime Victim’s Rights to Restitution and Return of Property
In every state, crime victims have a right to be compensated for financial losses suffered as a result of a crime.
Courts in most states order restitution as part of sentencing. Restitution is the process by which an offender pays a victim for his financial losses or expenses resulting from the crime, such as:
- medical treatment
- lost wages
- expenses incurred while participating in the prosecution process (day care, travel expenses)
- replacement or repair of damaged property, and
- insurance deductibles.
Crime victim compensation programs
Many states have crime victim compensation programs that can help victims with costs and expenses, especially when the victim cannot expect to receive much restitution from an imprisoned and otherwise broke offender. In some states, the prosecutor’s office must inform victims of the availability of such programs. Compensation programs usually can provide payment for medical treatment, counseling, lost wages, funeral expenses, and sometimes crime scene clean-up and forensic exams.
Crime victims also are entitled to retrieve any property that police seized because it was evidence in the case. Law enforcement agencies store evidence and are required to return property taken from a victim as soon as possible once the trial or appeal process is complete. Because the trial and appeal process can take several months or even years, some states have passed laws allowing photographs of certain items to be used as evidence in trials, rather than the item itself, to allow the victim to retrieve the property sooner.