Tuesday, October 23, 2018

Marsy's Law will undermine due process

At some point I keep hoping folks will realize that the purpose of the 4th, 5th and 6th Amendments is to protect individuals accused of breaking the law from the long, strong arm of the government. Without these protections, the state would be able to run roughshod over a defendant and beat him into submission.

The purpose of the criminal (in)justice system is to create a forum in which a judge or jury can weigh evidence and determine whether or not the prosecutor proved her case beyond a reasonable doubt. The purpose of the criminal (in)justice system has never been to seek justice (whatever that is) for the victims of a crime. The system isn't equipped to handle such matters.

Other than retribution and possible restitution, if you want relief, you have to go to the civil courthouse and file a tort action.

Marsy's Law is the latest proposed measure promoting so-called "victim's rights" to be put before the public. Voters in Nevada will have the opportunity to vote on it this year.

But, regardless of how nice the proposal might sound to folks who have no connection to the criminal (in)justice system, Marsy's Law is yet another solution to a problem that doesn't exist.

The criminal courtroom has never been about seeking the truth. It has never been about filling the void in a victim's life. It is our means of trying to seek a resolution to a case. The resolution is rarely perfect. The people deciding the case didn't see what happened. They must rely on two attorneys who are telling them two very different stories.

Victim advocacy groups get upset whenever a defendant is freed on what they refer to as a technicality. Of course that "technicality" is a defendant's constitutional right and if that's the reason a person is being freed, then it's the police who fucked up.

The people behind proposals such as Marsy's Law are people who are seeking to undermine the presumption of innocence. They are people who either don't understand exactly what the presumption of innocence or beyond a reasonable doubt are; or they are seeking to reduce the state's burden of proof.

The people behind the movement also don't seem to understand that they aren't a party to the case. They are but witnesses. The prosecutors may very well consult with them and keep them in the loop as to what is happening in the case, but that's the prosecutor's prerogative. As I have mentioned here many times in the past, prosecutors will listen to what a victim wants when it aligns with the prosecutor's goals and they will ignore victims when it doesn't.

Marsy's Law, and other crime victims' bills, seek to attack the very concept of due process in favor of a process that is much more user friendly for them. Of course advocates claim that Marsy's Law will give crime victims "due process"  and the right to a speedy trial. In California, crime victims cannot be compelled to talk with the defendant's attorney about the facts of the case.

In reality, Marsy's Law will accomplish none of that. Due process in a criminal case is, by its very nature, a right reserved exclusively for the accused. The state doesn't have a right to confront witnesses, the state doesn't have the right to remain silent, the state doesn't have any protections under the 4th Amendment. The defendant has the right to a jury trial and the defendant has the right to go to either the judge or jury for punishment.

My colleague Scott Greenfield has long stated that whenever someone proposes a law named after someone (particularly a child), the consequences to the accused and the constitution are never good.

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