Monday, May 30, 2011

All the king's horses...

vic·tim   noun \ˈvik-təm\
: a living being sacrificed to a deity or in the performance of a religious rite: one that is acted on and usually adversely affected by a force or agent : as(1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 
Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

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