Crime Victims' Rights at Trial and Sentencing

Every state has a statute or constitutional provision that provides crime victims with certain legal rights. Federal law also provides a Crime Victims' Rights Act for victims of federal crimes.

What Are Crime Victims' Rights?

Crime victims suffer at the hands of the offender. But even once the crime is over, crime victims face a daunting and long road ahead as the case winds its way through the criminal justice system. To assist victims and their families, states enacted crime victims' rights laws to protect victims who are stuck in the system through no fault of their own. Prosecutors, law enforcement, and other public agencies must comply with these crime victims' laws.

Victims in every state have the following basic rights:

• to be treated with fairness, dignity, and respect
• to be notified and informed of criminal proceedings
• to be heard and present at trial and sentencing, and
• to receive financial compensation or restitution.

The specifics of these and other rights vary from state to state and are discussed in more detail below. But first, let's identify who exactly is a victim for purposes of these protections.

Who Is a Victim?

Contrary to what you might assume, victims' rights laws do not apply to all crime victims. Some states recognize only victims of felony crimes, while others give rights to victims of any crime (felony or misdemeanor). Certain states reference only violent crimes or crimes resulting in bodily injury (and not property crimes).

Most states provide victims' rights to immediate family members of homicide victims and to parents or guardians of minor, incompetent, or disabled crime victims. Finally, several states provide special rights for certain victims, such as elderly, disabled, and child victims, and for victims of certain crimes, such as domestic violence, stalking, and sexual assault.

Crime Victims' Rights to Notice and Information

Although it might seem obvious, the most basic and essential right is providing victims "notice of their rights." Typically, law enforcement, victim services, or a prosecutor's office automatically provides this initial notification of rights to victims. Other notifications, however, might only trigger when a victim requests it, such as by calling or emailing the prosecutor's office, filling out a form, or calling a hotline number.

Right to Notice of Criminal Proceedings

Many notice provisions aim to ensure victims know when criminal proceedings are taking place so they can avail themselves of other rights, such as the right to be present and heard at trial and sentencing (discussed below).

Depending on the state laws, victims might also be entitled to notice of:

• a defendant's arrest
• a defendant's arraignment
• a dismissal of the charges against the defendant
• a plea agreement, or
• a convicted defendant's filing of a notice of appeal.

Right to Notice of Defendant's Release From Custody

Another reason behind notifications is victim safety. Most states require victims to be notified when an offender will be released from jail (bail, probation) or from prison (supervised release, parole, or clemency) or if the offender escapes from confinement.

Right to Be Informed

Along with the right of notification, states typically provide the right to be informed about the nature of the criminal proceedings and services available through state and local agencies or the courts.

Crime Victims' Rights at Trial and Sentencing

Victims have certain rights that apply before and during trial and at sentencing. These rights vary by state and by the various stages of criminal trial proceedings. This section discusses only a few of these rights.

Right to Be Present

All victims' rights laws give victims the right to attend the trial proceedings with some exceptions (see the witness exception 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 can bring an advocate or support person with them to court.

If a victim testifies at trial, the victim becomes a witness. In most states, a court must exclude witnesses from the courtroom while other witnesses are testifying if requested by the prosecution or defense. These laws grew out of a concern that the testimony of one witness can influence the testimony of another. Some states now allow a victim-witness to be present throughout the entire trial unless the defendant can convince the judge that the victim's presence will affect the trial outcome.

Right to Confer With the Prosecutor

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, or agreeing to pretrial diversion or another alternative sentence. A victim might object to these decisions, especially if an agreement could result in dismissal of the charges.

The right to confer, however, does not give the victim the right to control the prosecution. The law might require the prosecutor to discuss the available options, explain the decision-making process, and take into consideration the victim's wishes and concerns. But, ultimately, the final decision rests with the prosecutor.

Right to Be Heard

A victim has a right to be heard by making oral or written statements to the court. In most (if not all) states, victims have the right to be heard at sentencing. Sometimes called a "victim impact statement," it offers victims a chance to tell the judge and defendant how the crime impacted their lives. Some victims want to make a statement on the record; others prefer that the prosecutor or another person read their statement.

Some states also allow victims the right to be heard at "critical stages" of the prosecution, such as pretrial release (or bail) hearings or presentation of a plea agreement. A victim might need to formally request permission to make a statement prior to the proceeding taking place.

Right to Reasonable Protection

Most crime victims' rights laws contain a general provision regarding a crime victim's right to physical protection during criminal proceedings. Some states go further by providing victims the right to be free from intimidation and harassment.

Some statutes outline specific protective measures for victims, which may include:

• issuance of a no contact, protection, or restraining order as a condition of a defendant's release (which means the defendant cannot contact or approach the victim)
• availability of secure victim waiting areas during court proceedings, separate from the defendant's family members or supporters, and
• confidentiality of a victim's identifying information (which means not disclosing the victim's contact information, address, and other sensitive information in court hearings and records).

Right to a Prompt Resolution (or Speedy Trial)

Several state laws provide victims 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 a 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. Several state laws require that courts give special scheduling priority in cases involving vulnerable victims, such as elderly people or very young children.

Crime Victims' Rights to Restitution and Return of Property

In every state and the federal government, crime victims have a right to be compensated for financial losses suffered as a result of a crime and to the return of any property taken as evidence

Restitution or Compensation

Courts in most states order restitution as part of sentencing. Restitution is compensation paid by an offender to a victim for financial losses or expenses resulting from the crime, such as medical treatment, counseling, lost wages, replacement or repair of damaged property, and insurance deductibles. Learn more in our article Understanding Victim Restitution: Paying Backs Victims of Crime.

Because offenders don't always pay (especially if they're in prison), many states have crime victim compensation programs (sometimes called reparations) that assist victims with unpaid costs. The National Crime Victim Law Institute provides links and contact information for each state's compensation board.

Property Return From Law Enforcement

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 promptly after the trial or appeals concludes. Because the trial and appeal process can take 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.

Enforcement of Crime Victims' Rights

While the goals of victims' rights law are laudable, enforcement of those rights can be tricky. Many states place the rights in the law but without any effective enforcement mechanisms. For instance, say the court or prosecutor doesn't notify the victim of a bail hearing. Should the bail hearing be delayed? If the hearing isn't delayed and the defendant attacks the victim after being released, does the victim have a remedy? In many instances, the answer is no. Some states place victims' rights in their constitutions, which can give the law more teeth when it comes to enforcement. (Check out What Is Marsy's Law?) In certain situations, victims might want the services of an attorney to assist in enforcing their rights.

Resources for Crime Victims

For more information on crime victims' rights, here are some helpful resources:

• National Organization for Victim Assistance
• National Center for Victims of Crime
• National Crime Victim Law Institute