Have you ever been a victim of a crime in Arizona? If you have been a crime victim and the police arrested the criminal, have you asserted your victim’s rights protected under the Arizona Constitution? Beyond what happens in the criminal proceedings, are you familiar with what civil remedies may be available to you? Each of these questions raise important issues. Fortunately, several resources exist in our state to assist victims as they move through our civil and criminal justice system. In this message, I will comment on a few of them.
Contrary to popular opinion, prosecutors in Arizona do not represent crime victims; rather, prosecutors represent the State of Arizona. Sometimes the interests of the State and crime victims differ. When they do, these situations can be difficult. Fortunately, our state constitution provides some protections to victims. Section 2.1 of the Arizona Constitution outlines victims’ rights as follows:
2.1. Victims’ bill of rights
Section 2.1. (A) To preserve and protect victims’ rights to justice and due process, a victim of crime has a right:
1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
2. To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
3. To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
4. To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.
5. To refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant.
6. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
7. To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.
8. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury.
9. To be heard at any proceeding when any post-conviction release from confinement is being considered.
10. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
11. To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims’ rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.
12. To be informed of victims’ constitutional rights.
(B) A victim’s exercise of any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.
(C) “Victim” means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person’s spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.
(D) The legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.
(E) The enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the legislature or retained by victims.
I recently attended a training seminar presented by the National Center for Victims of Crime. In this seminar, the organization presented suggestions for victims to investigate what civil remedies may be available to them to recover their true losses. Prosecutors send criminals to prison and help obtain restitution from the Defendant. However, the criminal justice system does not really assist victims to understand what civil remedies may be available to recover their true losses. Organizations such as the National Crime Victim Bar Association and the Never Again Foundation play an important role in filling this information void. The National Crime Victim Bar Association can help you find a civil attorney who will investigate the crime and determine whether you may be able to assert claims against others arising out of the criminal conduct. For example, a civil lawyer can advise you whether you may have a claim against a bar for over-serving a customer to the point of obvious intoxication, and who later gets into a car accident kiling a loved one. Also, a civil attorney can advise you whether to consider filing suit while criminal proceedings are underway or at some later time. A civil attorney can determine whether insurance may provide coverage for a victim’s losses. Other types of civil claims may involve negligent security, negligent hiring and supervision, or negligent infliction of emotional distress. Another organization, the Never Again Foundation, seeks to recover a civil judgment against the criminal defendant irrespective of whether that judgment may be recoverable in order to assist the victim to find some sense of closure.
When somebody has been victimized by criminal conduct, too often they ignore civil remedies which may be available to provide compensation for true damages. Civil lawsuits relating to criminal activity can compensate victims for their true damages and assist the public by lowering the risk of repeat crimes. So if you know of a crime victim in Arizona, make sure that they are doing all they can to seek BOTH criminal AND civil justice.