You wanted to know what the consequences would be if the victims' right amendment conflicted with the rights of criminal defendants.

SUMMARY

To date, no Connecticut court has been asked to decide a case where a party argued that a crime victim's rights guaranteed under Article 29 of the state constitution conflict with those of a criminal defendant. Thus, it is unclear how a court would decide such a case. But it is likely that the court would balance the conflicting interests, as it has done in cases involving other constitutional conflicts. For example, in State v. Simms, 170 Conn. 206, 209 (1976), the Court balanced a witness' privilege against self-incrimination (Fifth Amendment to the federal constitution and Article First, Section Eight of the state constitution) against a criminal defendant's right to produce witnesses in his behalf (Sixth Amendment to the federal constitution and Article First, Section Eight of the state constitution). It concluded that the witness' privilege against self-incrimination was superior to defendant's right to compel testimony.

Although not controlling in Connecticut, the Arizona Court of Appeals has balanced that state's victims' rights amendment against the federal Due Process Clause and concluded that the latter prevails over the former (Romley v. County of Maricopa, 172 Ariz. 232 (1992)).

The General Assembly appears to have reduced the opportunity for conflict by limiting when victims can exercise certain rights guaranteed under the victims' rights amendment. For example, victims have a right to a timely disposition of the criminal case only if it would not abridge the defendant's rights. And victims can attend the criminal proceedings only if their impending trial testimony would not be materially affected by their presence.

Article 29 of the Connecticut Constitution gives crime victims the right to be informed, present, heard, and involved in the criminal proceedings, including the right to confer with the prosecution and comment on plea agreements. Opponents of this and similar constitutional amendments have argued that they may conflict with criminal defendants' constitutional rights to the presumption of innocence and to a fair and speedy trial.

ROMLEY v. COUNTY OF MARICOPA

A criminal defendant charged with aggravated assault asked for a victim's medical records in order to prove that he acted in self-defense. The victim refused to providing them, asserting Arizona's Victims' Bill of Rights (Az. Const. Art. II, § 2.1). The state constitution, in pertinent part, provides:

To preserve and protect victims' rights to justice

and due process, a victim of crime has a right 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.

Citing federal and Arizona Supreme Court decisions, the court ordered the records disclosed. It found that "due process is the primary and indispensable foundation of individual freedom in our legal system...[and] denial of due process is a denial of fundamental fairness, shocking to a universal sense of justice" (Romley, citing Application of Gault, 87 S. Ct. 1428 (1967) and Oshrin v. Coulter, 142 Ariz. 109 (1984)).

The court held that the defendant's constitutional right to due process, which directly conflicted with the Victims' Bill of Rights, was superior to the victim's right to refuse access to the records.

CRIME VICTIM CONSTITUTIONAL AMENDMENT

Article 29 of the state constitution gives crime victims the right to:

1. be treated with fairness and respect and be protected from the accused throughout the criminal justice process;

2. notification of court proceedings and information about the arrest, conviction, sentence, imprisonment, and release of the accused;

3. communicate with prosecutors and attend all criminal proceedings, including the trial, unless the court determines that their impending trial testimony would be materially affected if they heard other testimony;

4. object to or support any plea agreement entered into by the accused and the prosecution, make a statement to the court before it accepts any plea agreement, and make a statement to the court at sentencing;

5. timely disposition of the criminal case following arrest, provided the accused's rights are not abridged; and

6. restitution, enforceable in the same manner as any other cause of action or as otherwise provided by law.

Under the amendment, the General Assembly can define "victim" and must enact laws to enforce the amendment. Neither the amendment nor any law enacted to enforce it creates (1) a basis for vacating a conviction or (2) grounds for appellate relief in any criminal case.

ARGUMENTS OF COMPETING CONSTITUTIONAL INTERESTS

Opponents, both locally and nationally, have argued that crime victims constitutional amendments:

1. conflict with the historic imbalance in the constitution that protects people accused of crime from the overwhelming, freedom-infringing power of the government;

2. undermine the presumption of innocence by naming and protecting the victim before the crime is proven;

3. add another party to the prosecution with interests opposed to the defendant's, vastly increasing the state's power and unacceptably diminishing the rights of the accused (i.e., elevating the victim's status in a case tried to a jury has great potential for unfair prejudice to the defendant);

4. allow victims to be involved in and have effective veto power over various defense, prosecutorial, and judicial decisions at accusatory and trial stages of criminal proceedings and thus overwhelm the rights of the accused to a fair trial; and

5. permit victims' private interests to dominate public criminal proceedings at the accusatory stage and gravely increase the likelihood of wrongful convictions.

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