Law Student
Training Manual
Revised: November 21, 2006
UTAH CRIME VICTIMS LEGAL CLINIC
2035 SOUTH 1300 EAST
SALT LAKE CITY, UTAH 84105
PHONE: (801) 467-7282
FAX: (801) 467-7280
WWW.UTAHVICTIMSCLINIC.ORG
November 21, 2006
Dear Law Student Volunteer,
Welcome to the Utah Crime Victims Legal Clinic! We are excited to have you with us this
semester, and look forward to working with you to promote and enforce victims’ legal rights.
The Legal Clinic is devoted to enforcing the rights of crime victims through trial and appellate
legal representation, educating criminal justice professionals, and developing a network of
victims’ services. We work to help crime victims feel supported, informed, and empowered, and
we seek to involve volunteer attorneys and law students so that we can serve more victims.
During your time with us, you will be assigned to assist with specific cases, and you will also be
invited to observe some of the Clinic’s other cases. Your activities will include client intake,
observing hearings, case planning, drafting pleadings, and other client-related activities. You
may also be involved in research and writing, our efforts to reach out to attorneys and law
students, and our efforts to educate the community about victims’ rights.
It is important to us to learn more about you as an individual law student so that we can better
tailor your experience to be interesting, educational, and meaningful. We will speak with you
soon after the semester begins to discuss your professional goals and whether certain types of
crimes or victims interest you more than others, whether you are more interested in trial or
appellate work, and whether you have any special skills. We will also want to know whether
there are certain Clinic goals that you are more interested in than others. Please let us know what
your particular interests, and also feel free to ask for a variety of experiences.
This manual was designed to provide you with a brief introduction to Utah crime victim law and
to the Utah Crime Victims Legal Clinic. Please do not hesitate to approach us with any
questions or concerns. We look forward to making this an experience that is positive and
meaningful both for you and for the crime victims you work with.
Sincerely,
Heidi Nestel
Staff Attorney and Clinic Director
Brandon Simmons
Victim Advocate and Pro Bono Coordinator
UTAH CRIME VICTIMS LEGAL CLINIC
Table of Contents
Section 1
About the Utah Crime Victims Legal Clinic
Introduction
Contact Information
Background and Overview
Priority Issues
Goals
History of Victims’ Rights
Policies and Procedures
Section 2
Section 3
Intern Confidentiality Agreement
Rape Recovery Center Policies and Procedures
Project Management Policies and Procedures
Intake and Case Management Protocol
Tips for Conducting Intake Interviews
Sample Intake Form
Client File Structure Diagram
Sample Client Satisfaction Survey
Utah Victims’ Rights: Constitution, Statutes, and Court Rules
Section 4
Victims’ Rights Act (1987)
Victims’ Rights Amendment to the Utah Constitution (1994)
Rights of Crime Victims Act (1994)
Crime Victims’ Reparations Act
Crime Victims Restitution Act
Utah Rules of Evidence (selected rules)
Utah Rules of Criminal Procedure (selected rules)
Utah Victims’ Rights: Cases
State v. Blake (Utah 2002)
State v. Casey (Utah 2002)
State v. Gonzales (Utah 2005)
Section 5
Utah Victims’ Resources
Appendix 1
Sample Training Slides
Law Enforcement Training
Appendix 2
Detailed UCVLC Goals and Strategies
UTAH CRIME VICTIMS LEGAL CLINIC
Overview and Goals
The Utah Crime Victims Legal Clinic (UCVLC) is a statewide non-profit
organization created in August 2005 that provides free legal representation to
crime victims when victims' rights issues are at stake. The Legal Clinic is available
to serve victims of all types of crime.
UCVLC has three goals:
1. to provide free legal services to crime victims in criminal district, justice,
juvenile and appellate courts
2. to recruit and train a roster of pro bono attorneys and law students to provide
legal services to victims
3. to provide education to criminal justice professionals on victims' rights
UCVLC is supported by:
• subgrant funding awarded by the National Crime Victim Law Institute
(NCVLI) under a grant from the Office for Victims of Crime (Office of
Justice Programs, United States Department of Justice)
• grant funding under the Victims of Crime Act (VOCA) awarded by the
Office for Victims of Crime, Office of Justice Programs, United States
Department of Justice
• funding from the Utah Office of Crime Victim Reparations
Location and Contact Information
The UCVLC is located in the Rape Recovery Center at:
2035 S. 1300 E.
Salt Lake City, Utah 84105
Phone: (801) 467-7282
Fax: (801) 467-7280
www.utahvictimsrights.org
UCVLC Staff
Heidi Nestel
Clinical Director / Staff Attorney
Brandon Simmons
Victim Advocate / Pro Bono Coordinator
Cell: (801) 721-8321
Office: (801) 467-7282 ext. 20
Email: heidi@utahvictimsclinic.org
Cell: (801) 864-7909
Office: (801) 467-7282 ext. 22
Email: brandon@utahvictimsclinic.org
UCVLC Advisory Board
Laura Blanchard
Reed Richards
Jo Brandt
Linda Smith
Sharon Daurelle
Heather Stringfellow
Susan Griffith
Mel Wilson
Anne Milne
JoAnn Zaharias, co-chair
Utah County Children’s Justice Center
Chair, 3rd District Victims Rights Committee
Utah Department of Corrections
J. Reuben Clark Law School, BYU
Utah Legal Services, Inc.
Stewart Ralphs, co-chair
Legal Aid Society
Chair, Utah Council on Victims of Crime
S.J. Quinney College of Law, University of Utah
Rape Recovery Center
Davis County Attorney
Salt Lake County District Attorney’s Office
UCVLC Background and Overview
Mission statement of the UCVLC’s parent project:
In community with victims, advocates and organizations, the Project promotes and advances
crime victims’ civil rights in the criminal justice culture through a nationwide system of legal
advocacy, education, and resource sharing.
UCVLC Abstract:
January 2006 marked the eleven-year anniversary of the passage and implementation of
Utah’s Victims’ Rights Constitutional Amendment and the Victims’ Bill of Rights. Notably, the
past decade has marked a significant increase and improvement of victim participation in the
criminal justice system and a flourish of victim advocate programs and services available to
crime victims in Utah. Now, Utah is prepared to tackle enforcement of all the rights victims
have, by instituting a legal clinic for crime victims.
The Utah Crime Victims Legal Clinic is designed to provide free legal representation to
crime victims when their rights are at stake. The Legal Clinic is available to serve victims of all
types of crime and has a state-wide focus. The goals of the Legal Clinic are three fold—namely,
1) to provide free legal services to victims in criminal district, justice, juvenile and appellate
courts; 2) to recruit and train a roster of pro bono attorneys and law students to provide legal
services to victims; & 3) to provide education to criminal justice professionals on victims’ rights.
The Legal Clinic is available to help individual crime victims whose victims’ rights are in
jeopardy or for victims whose rights have already been violated. The Legal Clinic is ready to
identify “test cases”—namely cases in which a victims’ rights issue has significance for many
victims; it is hoped that the Legal Clinic can identify and take these test cases to the appellate
courts and establish case precedent advancing the rights of all crime victims in Utah. The
priority issues the Legal Clinic has identified include a victim’s right to privacy, the right to
speedy trial and final disposition, the right to restitution, to protect the rights of victims in the
juvenile justice system and to advance the rights for child victims. Through collaboration and
diligence, the Legal Clinic can make equal rights translate into equal justice for Utah crime
victims.
Problems the Clinic addresses:
Since The Utah Crime Victims Legal Clinic was funded and officially started taking cases
(late summer 2005), there has been a tremendous response from the victim advocacy community
and crime victims throughout the state. The Clinic is currently receiving at least one to two new
case referrals each week, and it is anticipated that this will at least double with continued
promotion and education of the Clinic’s services; this could translate into hundreds of victims
being served by the Clinic during the coming year. This initial success and promise for
continued success is attributable to several factors:
1) Great Rights – Poor Enforcement: Utah has been fairly progressive in recognizing,
through legislation, the many rights of victims in the criminal justice system. Despite legislative
efforts, however, the problem in Utah is one of practically being able to enforce the rights
victims have been afforded. Unskilled and very intimidated, victims of crime enter the Utah
criminal justice system confused, afraid and often still exhibiting financial and emotional trauma
from the crime committed against them. Few victims have the resources or knowledge to fully
exercise their rights; and, when their rights are violated they are often untrained to seek remedies
on their own. Utah crime victims are fortunate, however, to have an active and thriving victim
service community; these programs, usually located in not-for-profit, law enforcement or
prosecutor offices, typically only address the physiological, psychological and educational wellbeing of the victim. Although these services for victims are important, it is equally critical that
victims have a substantive voice in the legal process—to have an attorney raise issues, file
motions and fight for victims’ right in the courtroom setting. The funding of the Legal Clinic,
using trained law students and pro bono attorneys, addresses the gap in victim services.
2) Victim Crimes: A State Epidemic: As all states suffer horrendous crime rates, Utah is
no exception. In 2002, there were approximately 99,958 crimes reported to police throughout
Utah.* Moreover, from 2002 to 2003, violent crimes in Utah increased 7%.† According to the
2002 Crime Statistics Report compiled by the Federal Bureau of Investigations, Utah is ranked
13th highest in the nation, overall, in crime categories used by the federal agency. The unusually
high incidence of property crimes and sexual assault rate keeps Utah in this undistinguished
ranking.‡ As long as there are going to be these dramatic crime rate numbers, the victims of
those crimes are going to need information, support and assistance through the justice system.
In 2005, Utah crime victims were given a unique opportunity to finally bring balance to
the scales of justice—namely, victims have been given free legal representation; they have been
given a voice in a traditionally deaf system. Utah’s victim advocate community is excited about
* Federal Bureau of Investigation to the National Archive of Criminal Justice Data. Web cite: www.fedstats.gov.
† Utah Department of Public Safety, Crime Statistics for the State of Utah. Web cite: www.publicsafety.utah.gov.
Notably, index crimes include murder, rape, robbery, aggravated assault, burglary, larceny, motor vehicle theft
and arson.
‡ The 2002 crime statistics from the FBI Report indicate that there are 38.6 reported forced rapes per 100,000
people for that year.
this new resource for victims and is consistently referring victims to same. The Utah Crime
Victims Legal Clinic has momentum and intends to dramatically change the face of Utah’s
criminal justice system by helping victims exercise and enforce the Constitutional and statutory
rights afforded them by the legislature and courts as it advocates on behalf of victims and
educates those working with victims about the sacred and important rights victims have fought
so hard to establish.
UTAH CRIME VICTIMS LEGAL CLINIC
2035 SOUTH 1300 EAST
SALT LAKE CITY, UTAH 84105
TELE: (801) 467-7282
PRIORITY ISSUES DEFINED
1.
Theory: The thoughtful identification of rights that need to be tested in the courts and
the tactical analysis of how to target and litigate those rights including education, system
development and use of pro bono attorneys.
2.
Utah Priority Issues Identified: (Through feedback from the Council for Victims
Rights, the judicial Victims’ Rights Committees, SWAVO members and the Clinic’s
Advisory Board). The Clinic welcomes feedback as to the validity of the identified
priority issues and would appreciate suggestions for additional priority issues.
a. Confidentiality/Privacy of protected records: Frequently a victim’s medical,
psychological or school records are subpoenaed by the defendant, often times without
notice being given to the prosecutor or even the victim. Moreover, the State does not
always have an interest in quashing those subpoenas or preventing the defendant from
acquiring the information; whereas, the victim has a significant interest in the records
remaining confidential. Through federal and state laws and case precedent, victims
have an inherent privacy interest in such documents and their rights to suppress the
disclosure of same should be pursued.
b. Restitution: Recovering from the financial impact of crime is a top priority for
victims. When the State is not willing to aggressively pursue the Restitution rights of
victims, the Legal Clinic can request hearings, prepare documentation and witnesses
and help secure restitution payments from the defendant.
c. Speedy Trial and Disposition: One of the most frustrating elements of the criminal
justice system to a victim is the length of time it takes to try a defendant for a crime.
With frequent delays, victims have a rights, through state statute (§77-38-7), to have a
“speedy disposition” of their case and to have final resolution in the criminal matter.
Of course, this right will always be balanced with the Defendant’s right to due
process; however, unnecessary delays and frivolous requests for continuances should
be challenged and the victims’ rights asserted.
d. Rights for Victims in the Juvenile Court: Because formal victim advocacy (either
support or legal advocacy) has not been established state-wide in our juvenile courts,
the Legal Clinic will look for opportunities to assist victims through the juvenile court
process and ensure the enforcement of rights in that unique system.
UTAH CRIME VICTIMS LEGAL CLINIC
2035 SOUTH 1300 EAST
SALT LAKE CITY, UTAH 84105
TELE: (801) 467-7282
e. Special Rights for Child Victims: Utah Victims’ Rights laws provide specific
protections for child victims of crime—e.g., alternative forums for testimony, specific
hearsay exceptions, right to specific notification of rights and services, etc. The
Clinic will strive to ensure that child victims are afforded all rights under the law and
advocate specifically when the interests of children are at stake.
3.
Case Selection Criteria: In order to adhere to our Priority Issues and Strategic
Litigation Plan, the following selection criteria have been drafted. The ultimate goal is to
identify cases which will enforce existing rights while paving the way for the
advancement of new victims’ rights. Notably, some victim clients may contact the Clinic
for services, however, not meet the selection criteria. These victims will be assisted
through referral to other services or resources. (Please refer to Clinic’s Intake and Case
Management Protocol for detailed list of case selection procedure).
Current Criteria:
a) Case must be an active criminal case in the investigative state
or the State trial or appellate courts (including juvenile court);
b) Case must involve an enumerated Constitutional or statutory
victims’ right (either pre-emptive or post violation). Again,
precedence will be given to cases in which an identified
priority issue is at stake;
c) The victim client must be willing to sign a representation
agreement, establishing an attorney/client relationship and
sign any relevant informed consents and waiver forms
deemed necessary for the case.
UCVLC Goals (Summary)*
Parent Project (NCVLI) Goals:
1.
2.
3.
4.
Provide effective legal representation of crime victims
Recruit pro bono attorneys and law students to represent crime victims
Educate the legal profession about victims’ rights
Develop a network of victims’ services
UCVLC Goals for NCVLI Grant:
Goal 1: Ensure enforcement of crime victim rights, in criminal cases, through pro bono
legal representation in the trial and appellate courts [rights enforcement component]
1. Provide legal representation in criminal cases, including: in-court legal advocacy;
preparing and filing legal memoranda; preparing victims for giving testimony; and
providing victim service referrals
2. At least 60 victims will be referred to the Legal Clinic and receive services
a. Promote Legal Clinic’s services throughout the State—via media exposure,
literature distribution, web-site development and personal contact with victim
advocacy programs and local criminal justice professionals (i.e., law enforcement,
prosecutors and judges).
3. At least 30 crime victims will receive legal representation in the trial and appellate court
a. Project staff will establish a respectful and productive relationship with other
criminal justice professionals.
b. Each qualifying victim will receive free legal representation—including client
consultations, notification of case status, motions filed and made on their behalf
and in-court support.
c. Adverse legal decisions which violate a client victim’s right will be appealed.
4. Undertake and accomplish a project for at least two of the clinic’s priority issues
a. Each priority issue will be analyzed and a plan developed to educate, enforce or
advance the right associated with the issue (e.g., developing a restitution
handbook for victims; or, developing model speedy trial policies for different
criminal justice agencies to adopt.)
* See Appendix 1 for a detailed list of UCVLC and grant goals and strategies.
Goal 2: Ensure enforcement of crime victim rights, in criminal cases, through pro bono
legal representation in the trial and appellate courts [pro bono component]
1. Recruit, train and supervise at least four (4) law students from the University of Utah
and/or Brigham Young University law schools.
2. Recruit, train and supervise at least five (5) pro bono attorneys along the Wasatch Front
3. Law students will contribute 125 hours toward the Clinic’s goals and objectives.
a. Teach law students about the rights which are afforded crime victims in Utah and
about the victims’ rights movement in general; and, provide law students with
skill-based training on how to effectively advocate for and work with crime
victims—especially those victims who have been traumatized by the crime or feel
“re-victimized” by the system.
b. Allow students to provide direct services to crime victims and be supervised by
Clinic staff.
c. Assign students to develop and work on projects for the Clinic’s priority issues.
4. At least one attorney from each of the eight judicial districts will be recruited, trained,
and willing to assist crime victims pro bono.
a. Recruit at least eight attorneys, one from each judicial district, to serve Clinic
victim clients.
b. Provide training materials and consult with pro bono attorneys on victims’ rights
issues.
c. Supervise the work of pro bono attorneys on Clinic cases.
Goal 3: Further the enforcement of victims’ rights by educating criminal justice
participants about crime victim rights.
1. Educate law students at the University of Utah and Brigham Young University about
victims’ rights in criminal law cases.
2. Educate criminal justice professionals about victims’ rights and legal advocacy through
the Clinic program.
3. The general legal profession and allied criminal justice professionals will have increased
awareness about victims’ rights and the clinic’s resources.
a. Write and submit an article about victims’ rights to be published in the Utah State
Bar, Law School Journal or other widely distributed publication.
b. Set up an educational display board, including information about victims’ rights
and Clinic services, at four state-wide criminal justice trainings (e.g., the Utah
Victim Assistance Academy and/or the Annual Utah Prosecutors’ Training).
c. Contact local bars and schedule victims’ rights training.
4. Sub-goal 2: Three-hundred criminal justice professionals will receive training on victims’
rights and information on the clinic’s goals and services.
a. Train at least 150 victim advocates state-wide on how they can assist victims in
exercising their rights and fully participate in the criminal justice and juvenile
justice system.
b. Educate at least 25 prosecutors about how to get victims to cooperate in criminal
cases through respect, communication and protecting the victim’s rights.
c. Organize and participate in law school events designed to heightened students
awareness of victims’ rights issues and the dynamics of victimization.
d. Ensure that 125 law enforcement and/or corrections officers are trained on
victims’ rights issues, how to effectively work with victims and what mandates
they have in protecting victims’ rights.
Goal 4: Develop in Utah a network of victims’ services.
1. Further the enforcement of rights by networking with victim advocacy programs
a. Network and collaborate with victim advocacy partners on behalf of victim
clients.
2. Foster promising practices in working with and protecting the legal rights of crime
victims
a. Collaborate with Utah Victims’ Rights Council to identify trends in victims’
needs and provide advice for potential legislative initiatives & court rule changes
b. Collaborate and share program information, successes and barriers with other
pilot project states and prospective projects in non-funded states
3. Have established procedures, criteria, materials, and protocols to guide Clinic
development and operation
a. Develop Clinic brochure, act as a clearinghouse for victim services brochures and
rights information and develop new brochures to fill gaps in available printed
information.
4. At least three new partners will be added to the Clinic’s collaboration plan.
a. Solicit input from existing partners about new groups with which to collaborate.
b. Approach, recruit and develop a plan with three new partners (e.g., Parents of
Murdered Children; MADD; the Domestic Violence Shelters Network, etc.)
5. Requests for information from collaborative partners and referral of victim clients to the
Legal Clinic will increase 300% in the next sub-grant year.
a. Inform partners and advocacy agencies state-wide as to the Legal Clinic’s
services and process for referral.
b. Provide timely response to inquiries about victims’ rights or Clinic services.
c. Provide appropriate follow-up to specific client cases in which the Clinic and
partner are collaborating or which was originally referred by a partner.
6. The Legal Clinic will collaborate with at least two partners to provide relevant specific
training to their staff or constituency about victims’ rights and Clinic services.
a. Accept requests from partners for training or legal research.
b. Training will be conducted & feedback solicited on other opportunities to assist.
UCVLC Goals for VOCA Grant:
Victims will feel supported, informed, and empowered to participate in the criminal justice
system.
1. Complete intake forms and conduct a needs assessment for all victims contacting the
legal clinic.
2. Inform, support, and advocate for victims in the criminal justice system
3. Thoroughly advocate for restitution claims and help victims receive reparations.
Volunteer attorneys and law students will be trained on victims’ rights and be scheduled to
represent crime victims.
1. Recruit pro bono attorneys and law students to represent crime victims
2. Develop a training curriculum for volunteer attorneys and law students
3. Schedule volunteer attorneys and law students to represent crime victims or provide legal
research for the clinic.
UTAH CRIME VICTIMS LEGAL CLINIC
2035 SOUTH 1300 EAST
SALT LAKE CITY, UTAH 84105
TELE: (801) 467-7282
FAX: (801) 467-7280
WWW.UTAHVICTIMSCLINIC.ORG
UTAH CRIME VICTIMS LEGAL CLINIC (UCVLC)
LAW STUDENT CONFIDENTIALITY
AGREEMENT
I understand that in the performance of my duties as a student at UCVLC—a partnership
of the Rape Recovery Center and the Utah Crime Victims Legal Clinic—I may have access to
confidential and privileged information. I understand that any violation of the confidentiality or
privilege of this information may result in my dismissal or possible legal action taken against
me. I agree to maintain the confidential or privileged status of any information I have access to
through my duties at the Utah Crime Victims Legal Clinic. I agree to not disclose to a third party
any confidential or privileged information regarding a client of the UCVLC.
__________________________________________
INTERN SIGNATURE
_____________________________
DATE
Applicable Rape Recovery Center Policies and Procedures
Because the Utah Crime Victims Legal Clinic is currently housed within the Rape
Recovery Center (“RRC”), its employees and volunteers use RRC facilities. The
following RRC policies and procedures apply to law student volunteers. While the policy
refers to “employees,” it applies to volunteers as well. If you have questions about a
policy or are unsure how it applies to you, please ask.
SOLICITATION AND DISTRIBUTION
Employees must not solicit other employees for any purpose during work time and in work areas.
This does not include break or meal times in non-work areas. Employees are not permitted to
distribute literature of any kind at any time in work areas.
People who do not work for the RRC or are not approved vendors are prohibited from
distributing literature of any kind or soliciting employees for any purpose at any time on RRC
property, or in facilities in which the RRC is operating under a consulting services agreement or
management contract.
USE OF RRC EQUIPMENT/FACILITIES
RRC equipment such as telephones, computers, fax machines, copiers, etc. is for business use.
Personal use of the telephone should be limited, and personal calls should be kept brief. Personal
long distance calls are not permitted. Personal computer use, including Internet access, is not
allowed during work time. The RRC facility is for professional business use only. The Executive
Director may approve personal use of RRC equipment and/or facilities during non-work time as
an exception.
USE OF RRC PERSONAL COMPUTER SOFTWARE
The RRC licenses the use of computer software from a variety of outside companies. The RRC
does not own this software or its related documentation and unless authorized by the software
developer, does not have the right to reproduce it except for back-up purposes.
With regard to Client/Server and network applications, RRC employees shall use the software
only in accordance with license agreements.
RRC employees shall not download or upload unauthorized software over the Internet.
RRC employees learning of any misuse of software or related documentation with the RRC shall
notify the Executive Director immediately.
According to applicable law, persons involved in the illegal reproduction of software can be
subject to civil damages and criminal penalties including fines and imprisonment. The RRC does
not condone the illegal duplication of software. Any RRC employee, who makes, acquires, or
uses unauthorized copies of computer software shall be disciplined as appropriate under the
circumstances up to and including termination.
Any doubts concerning whether any employee may copy or use a particular software program
should be raised with a supervisor.
RRC AND PERSONAL PROPERTY
Protection of RRC and employee personal property is everyone’s responsibility. If you find
property missing or damaged, report it to your supervisor immediately. The RRC will actively
pursue the apprehension and conviction of individuals involved in theft or vandalism of RRC
property. RRC will not be responsible for property that employees choose to bring to work, but
will assist employees in contacting authorities and reporting theft or vandalism. If you see
individuals who appear suspicious and do not have apparent reason to be on the property, report
the situation to your supervisor immediately.
SEXUAL HARASSMENT
Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964. The RRC will not
tolerate any person (including managers, supervisors, employees, clients or vendors) sexually
harassing an employee. Sexual harassment includes, but is not limited to, sexual advances,
requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
1.
Submission to such conduct is made either explicitly or implicitly a condition of an
individual’s employment;
2.
Reaction to such conduct by an individual is used as the basis for employment decisions
affecting such individual; or
3.
Such conduct has the purpose of effect of interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive working environment.
All employees must comply with this policy and take appropriate measures to ensure that such
conduct does not occur. Violations of this policy may result in corrective action up to and
including termination. Persons who believe they or any other person(s) have been the subject of
sexual harassment must report the matter to their supervisor, who must take immediate action to
address the issue. In the case of supervisory harassment, employees must report the situation to
their supervisor’s manager, who must take immediate action to address the issue.
There will be no action taken against anyone who complains of sexual harassment unless such
accusation is shown to be intentionally false. Supervisory retaliation for complaints of
harassment is strictly forbidden.
SAFETY
Employees are expected to conduct themselves in a safe manner. All employees should use good
judgment and common sense in matters of safety, observe any rules posted in work areas and
client facilities, and follow OSHA, state and other safety regulations as applicable. Posters
clarifying these regulations are located by the copy machine.
DRUG-FREE WORKPLACE
The RRC is committed to providing a safe work environment and to fostering the well-being and
health of its employees. That commitment is jeopardized when any employee uses illegal drugs
on the job, comes to work with these substances present is his/her body, or possesses, distributes
or sells drugs in the workplace. Following are critical elements of our commitment to a drug-free
workplace:
1.
It is a violation of our policy for any employee to possess, sell, trade, or offer for sale
illegal drugs or otherwise engage in the use of illegal drugs on the job.
2
2.
3.
4.
It is a violation of our policy for anyone to report to work under the influence of illegal
drugs - that is, with illegal drugs in his/her body.
It is a violation of our policy for anyone to report to work under the influence of alcohol
to the point of impairment.
It is a violation of our policy for anyone to use prescription drugs illegally. (It is not a
violation of our policy for an employee to use legally prescribed medications, but the
employee should notify his/her supervisor if the prescribed medication will affect the
employee’s ability to perform his/her job).
Violations of this policy are subject to corrective action, up to and including termination.
Any employee who is suspected of reporting to work under the influence of drugs or intoxicated,
other than those legally prescribed by a personal physician which do not inhibit job performance,
will be confronted by their immediate supervisor. The employee may be asked to submit to a test to
confirm or rule out drug or alcohol use. Any employee who reports to work under the influence of
drugs or intoxicated, who refuses to submit to testing as requested by his/her supervisor, or who has
been tested positive, in a random test or a test for cause may be terminated. Under no
circumstances will an impaired individual be allowed to continue working. Assistance may be
provided to ensure that the employee arrives home safely.
SMOKING
The RRC maintains a non-smoking work environment. Employees who smoke must limit their
smoking to outside areas as designated by the facility/location where they are working. Under no
circumstances should smoking increase the frequency or duration of standard breaks and lunch
periods.
DRESS/APPEARANCE
In order to favorably represent the RRC and show respect for our clients, members of the public
and industry representatives, it is important for all employees to present a business-like appearance.
Following are general guidelines:
1.
2.
3.
4.
5.
Clothing must not constitute a safety hazard.
All employees should practice common sense rules of neatness, good taste and comfort.
Revealing clothing is prohibited.
Tank tops, tee shirts, “flip-flop” sandals and similar casual apparel are not permitted.
Jewelry associated with body piercing should be modest and not create a distraction.
If you are not certain of a specific issue of appearance not addressed in this policy, please consult
your supervisor. The nature of an individual’s position and degree of public interface will be taken
into consideration in determining appropriate guidelines for dress/appearance.
3
The following sections do not apply directly to law student volunteers, but are helpful in
understanding our relationship with the RRC, and can help guide you in your use of the
RRC facilities. Some sections are followed by italicized tips about how these policies are
related to law student volunteers.
RRC MISSON STATEMENT
To empower those victimized by sexual violence through advocacy, crisis intervention and therapy
and to educate the community about the cause, impact, and prevention of sexual violence.
Philosophy: That every person victimized by sexual violence is treated with dignity and respect
and is empowered to work toward recovery.
•
We uphold the highest professional standards and are accountable to our clients, partners,
donors, and the greater community.
•
We recognize and validate all experiences through respect for diversity of culture, race,
gender, socioeconomic status, physical and mental abilities, faith and sexual orientation.
•
We embrace and value diversity in our staff, board, and volunteers. As an organization that
supports inclusion, we utilize the unique talents of all people.
•
We believe in social justice and work to improve and enhance systems to better serve
victims.
•
We understand that sexual violence is a deeply rooted community problem. As such we are
dedicated to developing community alliances to better serve people effected by sexual
violence and work toward its elimination.
•
We provide information and education designed to improve the understanding of the causes
and prevention of sexual assault.
•
We represent our collective victims and speak and act publicly on their behalf.
•
We work toward the day when sexual violence is part of history, rather than a part of our
daily lives.
This section is not included as a policy to be followed by law student volunteers, but with the intention of making
volunteers aware of the nature and philosophy of our host organization.
EXPECTATIONS
Every organization has certain guidelines, which were developed to reflect good business
practice. In establishing rules of conduct, the RRC has no intention of restricting the rights of
any individual. Rather, we wish to define guidelines that protect the rights of all employees and
to ensure maximum understanding and cooperation. Therefore, employees are expected to be:
4
RRC Policy and Procedures
September 2005
•
•
•
•
On time and mentally prepared when scheduled to work.
Careful and conscientious in performance of duties.
Thoughtful and considerate of other people.
Courteous and helpful, both when dealing with clients and with other employees.
This section is included to set forth the mentality and work ethic expected of RRC employees, and also applies to
volunteers (along with the Rules of Ethics that also apply to law students as prospective lawyers).
CONFIDENTIALITY
The RRC serves clients and their families in extremely traumatic and sensitive situations.
Employees have access to highly confidential and proprietary information; not only of the
organization, but also of the clients it serves. Clients trust the RRC with highly sensitive
information, and the unauthorized disclosure of such information would have a material adverse
impact on the integrity of the RRC, and would adversely impact our relationships with our
clients. All employees are asked to agree to keep proprietary and client information confidential,
and to recognize that divulging confidential information may constitute grounds for termination
and/or legal action.
Although the UCVLC has its own confidentiality policy, you may observe or overhear potentially sensitive or
confidential information regarding RRC clients while you are in the building. Law student volunteers are to avoid
overhearing potentially confidential information and are to treat all information about RRC clients and those
seeking RRC services confidential to the greatest extent allowed by law.
CONFLICT OF INTEREST
Employees of the RRC should avoid engaging in any activity, investment, interest or association
that would interfere, or appear to interfere, with the independent exercise of his or her judgment
in situations where personal interest may arise. Following are areas of potential conflict of
interest:
•
Financial interest in vendors, clients or competitors
•
Competing employment
•
Acceptance of gifts and favors
•
Business transactions involving relatives
Employees who become involved in situations of potential conflict must disclose these situations
to their immediate supervisor. The supervisor, in conjunction with upper management will
review the situation and determine whether a conflict does, in fact, exist. An appropriate
resolution will then be identified and presented to the employee.
5
RRC Policy and Procedures
September 2005
UTAH CRIME VICTIMS
LEGAL CLINIC
2035 SOUTH 1300 EAST
SALT LAKE CITY, UTAH 84105
TELE: (801) 721-8321
www.utahvictimsclinic.org
UTAH CRIME VICTIMS LEGAL CLINIC:
PROJECT MANAGEMENT POLICIES AND PROCEDURES
I.
FINANCIAL: The purpose of this policy is to establish procedures for how
expenditures get approved and how the project’s budget is maintained—e.g., a
bidding process, submission and review by Executive Director, maintaining financial
records, etc.
A.
Budget: The Rape Recovery Center’s—Utah Crime Victim Legal Clinic has
an established budget (see attached). Revenue is currently collected from a
subgrant awarded by NCVLI and the Utah Crime Victims’ Reparations Board
(CVR). Personnel and Operations expenses have specific budgets based on
the submission and approval of NCVLI and CVR. It is the responsibility of
the RRC’s Executive Director and the Project Director for the Legal Clinic to
monitor the Budget on a monthly basis to ensure that the project is financially
on task and expenditures are kept within budget. Utilizing the assistance of
an accountant to establish, maintain and monitor the budget is acceptable.
B.
Personnel – The Project Director is currently paid through Davis County
Corporation, which, in turn, is reimbursed by the Rape Recovery Center for
all personnel costs. To facilitate this arrangement, the below listed
procedures are to be followed:
1. Timesheets: The Project Director is required to fill out a Davis County
timesheet and submit it every other week to the office manager of the
Davis County Attorney’s Office. A separate time sheet, developed for
the Legal Clinic Project, which keeps an accounting for how the
Director’s time is spent on project goals, will be filled out and submitted
every other week (corresponding with Davis County’s payroll period) to
the RRC’s Executive Director for review and signing. (See attached
blank project timesheet). The two timesheets shall be consistent with
one another as per hours worked. It is the responsibility of the RRC’s
Executive Director and the project director to ensure consistency and
accuracy of time sheets.
2. Payment, Billing and Reimbursement: The Project Director will receive
payment for service from the Davis County Corporation. Moreover,
Davis County will also ensure the payment of taxes, social security and
PROJECT MANAGEMENT POLICY & PROCEDURE
PAGE 1
will maintain health and other benefits offered through the County. On a
monthly basis, Davis County will prepare a billing invoice and submit it
to the RRC no later than by the 15th of the subsequent month (e.g., a bill
for October’s expenses will be submitted to the RRC no later than
November 15th). The RRC shall remit reimbursement to Davis County
in no longer than a 30 day period. In turn, the RRC shall request
reimbursement from NCVLI for approved personnel expenditures and to
CVR for other expenditures not covered by the approved NCVLI
budget.
C.
Operations: This budget includes all non-personnel expenditures, including
fees, supplies, equipment, training and travel, etc.
1. RRC Policies Apply: The RRC has established policies and procedures
for non-personnel expenditures—i.e., for purchases from $1- $299; and
for those purchases of $300 or above. (See attached procedures). These
policies and procedures are adopted for the Legal Clinic while it is
housed and sponsored by the RRC. Specifically, the project director has
the authority and ability to make purchases for supplies, equipment, and
miscellaneous expenses, without prior approval of the RRC’s Executive
Director. If the purchase exceeds $300, the project director shall submit
a request and three bids, when applicable, to the Executive Director for
approval before purchase.
2. Bids and Receipts: Whoever makes purchases for the Clinic—i.e., the
project director or RRC Executive Director—shall keep copies of all
bids received and receipts. The original shall be submitted to the
contracted accountant who will file and maintain the record and request
reimbursement when applicable. The project director and RRC
Executive Director may also maintain a copy of these documents for
their records.
D.
II.
EPLS: Before any item is purchased for the Legal Clinic, per
NCVLI/OVC requirements, an EPLS search will be conducted for the vendor
selling the item. A record will be kept by the project director of all EPLS
searches completed including vendor name, date of search and result.
ADMINISTRATIVE: The purpose of this policy is to outline how the Legal Clinic is
administered—i.e., how the clinic is coordinated within the RRC and other allied
professionals and agencies, what the decision-making line of authority is and the
established reporting hierarchy.
A. In General: Overall, the Legal Clinic is being administered through the RRC, led by
an Executive Director; the Legal Clinic has a hired project director/staff attorney
whose job description is to fulfill the goals and objectives of the Legal Clinic.
B. Authorization and Project Administration: It is the responsibility of the RRC
Executive Director to oversee the project’s functions, to authorize financial matters,
and ensure compliance with grant requirements. Furthermore, all official financial
PROJECT MANAGEMENT POLICY & PROCEDURE
PAGE 2
and narrative reports shall be reviewed and authorized by the RRC Executive
Director.
C. Day-to-day Duties and Responsibilities: As explained in detail below (Programmatic
Policy), it is the responsibility of the project director to administer the day-to-day
functions and make routine administrative decisions. Because the project director
will be dedicating all work time to the Legal Clinic, the project director will draft all
required reports including monthly and quarterly progress reports; the project director
shall draft program policies and procedures, compile training materials, schedule
training dates, and draft and distribute program promotion materials—e.g., brochure,
website, flyers, etc.. All written materials shall be presented to the RRC Executive
Director for review and authorization before submitted or distributed outside of the
Legal Clinic. Furthermore, the project director shall keep the RRC Executive
Director informed of training dates, and programmatic issues on a regular basis.
D. Advisory Board: The RRC Executive Director can request that the Advisory Board
review and assist the RRC and Legal Clinic on pending project issues when
appropriate. Notably, the Advisory Board serves a mere advisory role and does not
have authority to authorize financial or programmatic transactions.
III.
PROGRAMMATIC: The purpose of this policy is to describe how legal cases handled and
project goals are pursued—i.e., case management, decision-making on cases and project
goals, how files are organized and maintained, etc.
A. In General: Overall, the programmatic aspects of the project are the responsibility of
the project manager/staff attorney.
B. Case Management:
1.
Intake Process: When a victim, or an advocate on behalf of a victim,
contacts the Legal Clinic, the student intern, staff victim advocate or
project attorney completes an intake form. Within 48 work hours, the
project director/staff attorney, reviews the intake forms and must decide to
accept the case because it qualifies for services, reject the cases because it
does not qualify or decide to contact the victim for further information.
2.
Accepted Cases-Decision Making: Once a case is accepted, the project
director/staff attorney is responsible for all legal decisions made in the
case. The project director will decide what legal strategy to pursue with
individual cases, what pleadings to file, when court appearances will be
made and what appeals will be filed. The project director/staff attorney
shall review each case when the criminal proceedings or involvement are
thru and determine when to officially withdraw from the case and close
same.
3.
Pro Bono Attorneys: If a pro bono attorney is solicited to work on a
particular case, the project director will supervise the work of pro bono
attorney, through periodic summaries and review of all legal pleadings
prepared by the pro bono attorneys. If a decision is made on a Clinic case
by a pro bono attorney which is contrary to the mission or project goals of
PROJECT MANAGEMENT POLICY & PROCEDURE
PAGE 3
the Legal Clinic, the project director shall terminate the pro bono
attorney’s association on the case. If the victim wishes the pro bono
attorney to remain on the case, despite being in conflict with the project,
the project director shall send a letter to both the pro bono attorney and the
victim, terminating the Clinic’s involvement with the victim.
C. File Maintenance: In general, only the project attorney and assigned attorney on a
case will have access to a hard copy of the client’s file or access to the database
including a particular victim’s information.
1.
Hard File: When a client is accepted for service, a hard file shall be
maintained. The hard file shall include a copy of the initial completed
intake, any legal documents relevant to the case and all pleadings and
correspondence written by Clinic staff, case summaries and other relevant
documents obtained in hard copy—e.g., police reports, court dockets, etc.
Hard files shall be kept in a locked filing cabinet. If the case is worked on
by paid Clinic staff, the hard file shall be stored in a locked filing cabinet
located in the project director’s office. The project director shall determine
who has access to the hard file—e.g., law student, paid advocate or
qualified volunteer.
2.
Data Base: Only qualified Clinic staff shall have access to electronic data
bases established by the Clinic—i.e., project director, law student or paid
advocate. The data base shall be entered by a protected password. The
project director shall have access to all case files and will determine to
which cases a law student, volunteer or paid advocate will have access.
3.
Confidentiality: All persons having access to client information shall sign
and abide by a confidentiality agreement—essentially committing the
person to keep all victim specific information confidential and not to
access victim files or information unless to pursue a Clinic purpose or
objective.
PROJECT MANAGEMENT POLICY & PROCEDURE
PAGE 4
INTAKE & CASE MANAGEMENT SYSTEM PROTOCOL
STEP 1: INITIAL CONTACT – POTENTIAL CLIENTS
Whether initial contact is made over the telephone or in person, the objective during this
first contact with a potential client is to solicit basic contact and case information; to evaluate client
needs; and, to provide referrals to other services when appropriate. During this initial contact,
Clinic personnel should indicate to a potential client that the Clinic’s attorney or advocate will be in
contact.
Clinic staff authorized to facilitate this initial contact include the victim advocate, project
Director/staff attorney, law student or trained volunteer.
When an initial contact is made the following steps are taken:
Recorded Notes on Initial Contacts: All initial contacts are recorded on a yellow
intake document. (See attached Intake Form). This Intake Form solicits basic
information about the victim, defendant and case—namely, the victim name and safe
contact information, name of the defendant, court, prosecution and general case
facts. If the potential client is not able to provide all information on the intake form,
it is the responsibility of the staff member filling out the intake to secure the
remaining information (e.g., make calls to the court, secure a police report, etc.)
Intake Form Routing: All intake forms are to be directed to and reviewed by the
Clinic Director/attorney, except for those involving Davis County employees; these
cases shall be routed according to the Conflict Protocol (See Attached). After the
Intake Form is filled out, it is placed in the victim advocate’s inbox for 48 hour
processing. Those intakes strictly referred out to other programs or services are kept
in one file, and the rest are put into individual file folders for further assistance by
Clinic staff.
Review for Legal Issues: All intake forms are reviewed by project Director/attorney
to identify both potential legal and systemic issues, and to identify possible victim
rights violations—namely, both pre-emptive and post rights violation cases will be
targeted. A spread sheet, which electronically tracks all contacts, shall record when
each client has been reviewed by the staff attorney, and whether the case involves
legally cognizable issues that the Clinic can assist with representation or advice. It is
the policy of the organization that all initial contacts are responded to within 48
hours.
Conflicts Check: All new cases shall be screened for a conflicts check. If the case is
handled by the Legal Clinic’s staff attorney, a conflict check shall be run by the
program’s database, Case Framework. Furthermore, the Project Director/staff
attorney, when reviewing the case intake, shall identify any potential conflict
issues—e.g., representing multiple victims in the same criminal case, past
representations, etc. If a pro bono attorney is assigned to the victim client’s case, the
pro bono attorney will be required to run a conflicts check through his or her
UTAH CRIME VICTIMS LEGAL CLINIC - INTAKE & CASE MANAGEMENT PROTOCOL
11/29/05
Page 1 of 6
established conflicts program and send a notification to the Legal Clinic whether or
not there is a conflict in the case.
Referral to Outside Services: If the case requires services which are outside the realm
of the services the Clinic performs, this is communicated to the potential client and
referrals are made to other service providers. The Clinic maintains, and updates as
necessary, a comprehensive listing of statewide services for victims of crime,
including but not limited to financial, mental health, housing, and civil legal
assistance (still developing). All referrals are tracked both through hard copy (on the
intake form) and through the case tracking database.
Input into Electronic Data Base: All potential client and actual client contacts are
entered into a tracking spreadsheet. The spreadsheet is the initial step in ensuring that
each contact is reviewed by the Clinic Director/attorney in a timely manner. All
contacts, including the initial contact, are entered into electronic database within 72
hours of the intake.
STEP 2: FOLLOW-UP - POTENTIAL CLIENTS
These follow-up interviews are designed to elicit the details of the case and the potential
client’s situation.
When a follow-up contact is made the following steps are taken:
Recorded Notes on Follow-up Contact: Notes on any follow-up contact are recorded
either on the intake form or on hard copy sheets of paper that are then attached to the
original Intake Form.
Creating a Hard Copy & Electronic File: After securing more case information, a
hard copy file is started and labeled to hold all paperwork pertaining to the potential
client. All hard copy files are kept in a secure file cabinet in the Project office. A file
on the potential client is also started in case database at this point. Case database is
password protected.
Referral to Outside Services: If the follow-up reveals that the potential client requires
services which are outside the realm of the services that the Clinic performs, this is
communicated to the potential client and referrals are made as noted in Step 1.
Conflict Checking: As the Clinic attorney reviews every potential client, prior to
making the decision to accept a client for legal representation, the attorney checks
the potential new client against all existing clients for any conflict. The potential
client provides background, a criminal offense check is run, and an offender check is
run. (Still need to install conflict check program).
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Use of a Case Management Data Base: A data base is used to document the Clinic’s
interaction and assistance to a potential client. Even if all the Clinic does is give the
potential client a referral, he or she is logged into case database and the referral is
documented. (Specific instructions on utilizing the data base to follow). The
database provides a method to track referrals, client surveys, crime, offender
information as well as tracking of victim’s rights violations.
STEP 3: ACCEPTING/DECLINING CASE
All cases are reviewed to determine whether legal or systemic issues, and/or legal rights
violations are present. In some situations, limited review will make clear that nothing can be done
within the scope of the offered Clinic services, and the case is declined. In other cases, after
conference with the victim, the case will be accepted.
If a case is declined the following steps are taken:
Communicating the Declination: This declination is communicated to the victim, at
least in writing, where any review of issues has occurred. Notably, there is some
level of screening which occurs from initial contacts with staff that involve a single
communication where the needs of an individual, contacting the Clinic, are clearly
outside of the scope of the Clinic’s offered services; in those cases only a verbal
declination is communicated. Moreover, in some instances, individuals have
contacted the Clinic with legal needs that are exclusively civil in nature; and, in that
case, the policy of this organization is to advise the individual to seek advice of a
reputable civil attorney in his or her area.
Database Entry: All cases that are reviewed, even those declined, are input into the
case management data base.
Advisory Board Update: All declined case will be provided in summary form
including potential client inquiry, reason for declination and indication as any other
alternative services to which the potential client is referred.
If a case is accepted the following steps are taken:
Establishing Attorney/Client Relationship: Upon determining that a victim qualifies
for Clinic services, a “representation packet” including a scope of representation
letter, project brochure and explanation of rights, is mailed to the potential client.
The scope of representation letter is expected to be signed by the victim and
returned.
Filing Client Information: When the signed representation letter is signed and
returned it is placed in the client’s hard file. The client contact is also recorded in
case management data base.
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Contact with Other Service Providers: Clinic personnel may make contact with
other support agencies in cases where the client allows the Clinic to give other
providers notice that legal services are available.
Advisory Board Update: All accepted cases will be generally discussed at the next
appropriate monthly Advisory Board Meetings and periodic updates on the case
progression will be provided to the Board. Although private and confidential
information (e.g., specific client identifying and contact information, privileged
communications, etc) will not be shared, the Board will be generally apprised of how
many new clients have been retained, the victims’ rights issue to be addressed, from
which county the case originates and the procedural posture of the case.
STEP 4: MANAGEMENT OF OPEN CASES
Management of open cases requires maintenance of hard copy files and the case
management database system files. Both filing systems are designed to ensure confidentiality and
security.
Steps for Using Case Management Database:
Access to Files: Clinic personnel (including trained and designated volunteers) will
have access to the case management database (and hard files). All confidentiality
agreements will apply to information stored in the database.
Tracking Active Cases: An electronic calendar is kept up by Clinic staff for each
active case. All court hearings, appointments, etc., are put into an electronic
calendar with tickle system, and all cases are checked at least bi-weekly for changes.
Entering Notes, Updates and Tracking Correspondence and Activities: Notes are
entered into database by a staff member who is working with client on that instance
(all notes have signature/date info for input). Typically, the notes will be entered at
the time of the interaction or once an inquiry has been satisfied or problem solved.
Case database has conflict check function. (Still to be installed).
Steps for Maintaining Hard Copy Files in Locked File Cabinets:
File Organization & Storage: Files are maintained in locked cabinet in the Clinic
office. Files are organized in procedural fashion, so all pre-trial files are kept in one
alphabetical section, trial/plea files are kept in another alphabetical section, and posttrial files are kept in a third alphabetized area. A separate locked cabinet is available
for closed files, which are also kept alphabetically.
Filing Responsibilities: Files are created and kept up to date on an ongoing basis,
with the victim advocate responsible for most of the daily filing.
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Confidentiality Protocol
Confidentiality Agreement: All employees, volunteers (including interns, law school
students and pro bono attorneys) shall read and sign a confidentiality agreement
which applies to all hard copy, database, and personally obtained information
regarding specific case files and victims. (Agreement to be drafted and approved)
Violations: Substantiated violations of the Confidentiality Agreement can result in
suspension or termination of the employee/volunteer service for the Clinic.
STEP 5: CLOSING CASES
Open cases are periodically—at minimum on a quarterly basis—reviewed by the Clinic
attorney for closure.
If a case is determined to be appropriate for closure the following steps are taken:
Determination to Close Case: The Clinic Director/attorney determines when a case
is appropriate for closure. Accordingly, the client is notified, in writing, regarding
the end of representation from the Clinic.
Closing Case in Electronic Database: Once a determination to close the client’s case
is made, the case is designated as “closed” in case management database.
Archiving the Hard Copy File: Once a determination to close the client’s case is
made, the hard copy file is moved from the file cabinet that holds the active files to a
separate cabinet that holds the closed files. A hardcopy of the final correspondence
regarding the closure is placed in the file. The final correspondence is done by the
Clinic attorney if the client had formally entered into a services agreement with
Clinic counsel. The final correspondence is done by a victim advocate if the client
was using only victim advocate services. There are two categories of “closed” files,
one which reflects full completion of services and one that reflects that there will be
a significant time delay before services are again required. If there will be a
significant time delay prior to the next needed services (that delay typically being
anything over 365 days) the file is put in the Inactive cabinet where it can be
accessed later for future monitoring—e.g., for parole hearings, parole/probation upon
defendants release from incarceration, restitution issues upon release of defendant
from incarceration, notification of escape of offender.
If the services provided by the Clinic are fully completed, the hard copy file is
moved to the Closed cabinet, containing the final correspondence indicating the
termination of services. A file is considered closed due to factors such as: inability
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to prosecute the case; defendant has pled/been prosecuted; fully met obligations; the
jurisdiction over the defendant has ended; or the victim chooses to terminate
services.
At the end of each calendar year, the files from the Closed drawer are removed and
put in storage boxes which are labeled as closed files. Files are put away
alphabetically by victim name. The boxes are moved into the Clinic’s a secure
storage room.
Advisory Board Update: All closed cases will be summarized at the next appropriate
monthly Advisory Board Meetings.
Client Satisfaction Surveys: At minimum when a case is closed, a Client
Satisfaction Survey will be mailed and solicited from the served client. Surveys may
be sent out periodically during representation and service. These surveys will be
copied and placed in clients overall hard file before archived. All returned surveys
will be compiled, analyzed and determinations for changed services will be based on
client feedback.
STEP 6: POST REPRESENTATION FOLLOW-UP
Professional Recognition: In all cases, where any professional (except for a judge)
in the criminal system performs in an exemplary manner, a Clinic representative will
send them a thank you letter mentioning the specific case and expressing gratitude
for the attention that person gave to victim’s rights. The Clinic keeps a record of
these persons in an effort to find best practices in the community and to have the
means to celebrate these professionals at appropriate intervals and meetings.
Duration of Archived Files: The practice of the Clinic is to keep closed client files
as long as required by federal and state law as well as that determined by
professional responsibility rules, but at a minimum for a term of at least five (5)
years.
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Tips for Conducting an Intake Interview with a Victim Client
1.
Introduce yourself:
“Hi, I’m ___________________ from the Utah Crime Victims Legal Clinic. Heidi Nestel asked
me to call and get more information about your situation. After I get this information, I will staff
your case with Heidi and we will determine what can be done for you. Do you mind if I ask you
a few questions?. . .”
2.
Express compassion and empathy when appropriate.
“I am very sorry this happened to you.”
“This must have been very difficult for you.”
Because these are such serious cases which affect the victim clients’ lives tremendously, it is
good to express empathy after they share personal or embarrassing information. The key is to be
appropriate. Never relate a personal experience which happened to you.
3.
Remember the purpose of the Clinic
The purpose of the Legal Clinic is to assist victims in exercising their Constitutional and
statutory rights. Our work focuses on the criminal justice system. People may have a lot of
collateral issues (e.g. landlord-tenant disputes or divorce issues). While it is good to write down,
on the intake sheet, other issues the victim is dealing with, remind the client that the Legal Clinic
can really only assist them in the criminal justice system. We can and should make referrals to
other resources for outside issues. Even if it is clear, early on in the initial interview, that the
client will not qualify for the Clinic’s services, still complete the intake form and commit to get
back to the client within the next week.
4.
Use the intake form as a guide
Although it is helpful to get the information requested on the intake form, be flexible in your
interview style. Try to encourage a discussion with narrative responses, rather than a formal
interrogation with closed questions. The key is to have the victim tell you the information they
think is important about the case. If they do not have the police report number or not know
where the case is in the criminal process, assure the victim that we can secure that information
later or on our own. The key pieces of information we need are the defendant’s name, in
which city the crime occurred, and the general nature of the crime (e.g., sexual assault,
domestic violence, etc). Finally, get as much victim client contact information as possible.
5.
Find out what the prospective client wants
Ask, “What would you like—or what do you expect—the Legal Clinic to do for you?” It’s
important to know, up front, what the client’s expectations are.
6.
Ending the Interview
Thank the prospective client for the information and their time. Tell them that someone will
contact them within the next 7 days. DON’T make a commitment that the Legal Clinic will be
taking them on as a client. Explain that the case will be staffed with the Director (Heidi), and
then they will be contacted. Ask them if there is anything else they would like to add.
INTAKE FORM
SECTION I
- INTAKE INFORMATION
Person Doing Intake: __________________________ Date of Intake: __________________________
Attorney Reviewing: __________________________
Name
Case Accepted:
Yes
Referral to Program By:
No
___________________________________
Date
If no, what action: __________________________
victim advocate
prosecutor
law enforcement
victim
program materials
Victim’s Rights Committee
other
SECTION II - VICTIM INFORMATION
(CONFIDENTIAL)
___________________________________________________________________________________
Victim:
Last
First
Middle
D.O.B.
___________________________________________________________________________________
Parent Name (if minor): Last
First
Middle
___________________________________________________________________________________
Other Names Used:
Last
First
Middle
___________________________________________________________________________________
Address:
City
State
Zip
___________________________________ Can a message be left?
Telephone Number
___________________________________
Fax Number
Yes
No
_________________________________________
Can an email be left?
Yes
No
Email
Alternative Contact Information: _________________________________________________________
Name
Phone
Email
SECTION III - CASE INFORMATION
Crime(s): ___________________________
Right(s): __________________________________
Procedural Posture: ___________________
Legal Product(s): ___________________________
Date of Crime: ______________________
Location of Crime: __________________________
City & County
Police Department:________________________ Report Number:______________________________
Assigned Judge: __________________________ Court Case No.: _____________________________
UCVLC – INTAKE FORM
11/05
1
FACTS OF CASE (attach additional sheets):
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
SECTION IV - OTHER PARTICIPANTS
A) Defendant
___________________________________________________________________________________
Defendant:
Last
First
Middle
D.O.B.
___________________________________________________________________________________
Defendant Attorney:
Last
First
Middle
___________________________________________________________________________________
Address:
City
_______________________
Telephone
State
____________________
Email
Zip
____________________________
Fax
B) Alternate Names/ Affiliated Entities of Defendant
___________________________________________________________________________________
Name/Address
C) State’s Attorney
___________________________________________________________________________________
Name:
Last
First
Middle
___________________________________________________________________________________
Address:
City
_______________________
Telephone
State
____________________
Email
Zip
____________________________
Fax
D) Victim / Witness Advocate:
Yes
No
___________________________________________________________________________________
Name:
Last
First
Middle
___________________________________________________________________________________
Organization
___________________________________________________________________________________
Address:
City
_______________________
Telephone
UCVLC – INTAKE FORM
11/05
State
____________________
Email
Zip
____________________________
Fax
2
Utah Crime Victims Legal Clinic Folder Structure
Service Evaluation
Misc.
Case Strategy/referrals
Professional Correspondence
Client Correspondence
Pleadings
Service Agreement/Consent
Police Reports
Client Intake
Notice of Appearance
UTAH CRIME VICTIMS LEGAL CLINIC
Client Satisfaction Survey
Please take a few moments to fill out this short survey evaluating the effectiveness and usefulness of our program.
For each question, circle the response you feel best describes the services you have received. If you would like to be
contacted about any concerns, please include your contact information at the bottom of the survey and mail the
completed survey in the provided self-addressed stamped envelope. Thank you for your participation.
1. The Legal Clinic assisted me with:
______ a problem within the criminal justice system
_____ finding legal assistance
______ referred me to another resource or service.
2. The services I received through the Legal Clinic have increased my level of participation in the criminal
justice process.
(strongly disagree) 1
2
3
4
5 (strongly agree)
3. I am more likely to report a future crime based on the services I received.
(strongly disagree) 1
2
3
4
5 (strongly agree)
3
4
5 (strongly agree)
4. The Legal Clinic’s services were very helpful.
(strongly disagree) 1
2
5. Services I received through the Legal Clinic have increased my understanding of victims’ rights.
(strongly disagree) 1
2
3
4
5 (strongly agree)
6. Services I received through the Legal Clinic have increased my understanding of the criminal justice
process.
(strongly disagree) 1
2
3
4
5 (strongly agree)
4
5 (strongly agree)
7. The Legal Clinic staff was helpful and and responsive.
(strongly disagree) 1
2
3
8. What was the most valuable service provided to you by the Legal Clinic?
__________________________________________________________________________________________
__________________________________________________________________________________________
9. What other services do feel would be helpful for the Legal Clinic to offer?
__________________________________________________________________________________________
__________________________________________________________________________________________
Additional Comments:
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Client Contact Information (optional):
Name: ______________________________________
Address:_____________________________________
____________________________________________
Telephone: (
) ________-_________________
Email: __________________________________
Utah Crime Victims Legal Clinic Contact Information:
Heidi Nestel, Project Director
2035 South 1300 East
Salt Lake City, Utah 84105
Tele: (801) 721-8321
Fax: (801) 467-7280
This document is supported by subgrant funding awarded by the National Crime Victim Law Institute (NCVLI) under a grant from the Office for Victims of Crime,
Office of Justice Programs, United States Department of Justice (Grant No. 2002-VF-GX-K004). Points of view in this document are those of the author and do not
necessarily represent the official position or policies of the U.S. Department of Justice or NCVLI.
Utah Code 77-37-1 et seq.
Victims’ Rights Act (1987)
77-37-1.
Legislative intent.
(1) The Legislature recognizes the duty of victims and witnesses of crime to fully and voluntarily
cooperate with law enforcement and prosecutorial agencies, the essential nature of citizen cooperation
to state and local law enforcement efforts, and the general effectiveness and well-being of the
criminal justice system of this state. In this chapter, the Legislature declares its intent to ensure that all
victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity, and that the
rights extended in this chapter to victims and witnesses of crime are honored and protected by law in
a manner no less vigorous than protections afforded criminal defendants.
(2) The Legislature finds it is necessary to provide child victims and child witnesses with additional
consideration and different treatment than that usually afforded to adults. The treatment should ensure
that children's participation in the criminal justice process be conducted in the most effective and least
traumatic, intrusive, or intimidating manner.
Enacted by Chapter 194, 1987 General Session
77-37-2. Definitions.
In this chapter:
(1) "Child" means a person who is younger than 18 years of age, unless otherwise specified in statute. The
rights to information as extended in this chapter also apply to the parents, custodian, or legal
guardians of children.
(2) "Family member" means spouse, child, sibling, parent, grandparent, or legal guardian.
(3) "Victim" means a person against whom a crime has allegedly been committed, or against whom an act
has allegedly been committed by a juvenile or incompetent adult, which would have been a crime if
committed by a competent adult.
(4) "Witness" means any person who has been subpoenaed or is expected to be summoned to testify for
the prosecution or who by reason of having relevant information is subject to call or likely to be
called as a witness for the prosecution, whether any action or proceeding has commenced.
Enacted by Chapter 194, 1987 General Session
77-37-3. Bill of Rights.
(1) The bill of rights for victims and witnesses is:
(a) Victims and witnesses have a right to be informed as to the level of protection from
intimidation and harm available to them, and from what sources, as they participate in
criminal justice proceedings as designated by Section 76-8-508, regarding witness tampering,
and Section 76-8-509, regarding threats against a victim. Law enforcement, prosecution, and
corrections personnel have the duty to timely provide this information in a form that is useful
to the victim.
(b) Victims and witnesses, including children and their guardians, have a right to be informed and
assisted as to their role in the criminal justice process. All criminal justice agencies have the
duty to provide this information and assistance.
(c) Victims and witnesses have a right to clear explanations regarding relevant legal proceedings;
these explanations shall be appropriate to the age of child victims and witnesses. All criminal
justice agencies have the duty to provide these explanations.
(d) Victims and witnesses should have a secure waiting area that does not require them to be in
close proximity to defendants or the family and friends of defendants. Agencies controlling
facilities shall, whenever possible, provide this area.
(e) Victims are entitled to restitution or reparations, including medical costs, as provided in Title
63, Chapter 25a, Criminal Justice and Substance Abuse, and Sections 62A-7-109, 77-38a302, and 77-27-6. State and local government agencies that serve victims have the duty to
have a functional knowledge of the procedures established by the Utah Crime Victims'
Reparations Board and to inform victims of these procedures.
(f) Victims and witnesses have a right to have any personal property returned as provided in
Sections 77-24-1 through 77-24-5. Criminal justice agencies shall expeditiously return the
property when it is no longer needed for court law enforcement or prosecution purposes.
(g) Victims and witnesses have the right to reasonable employer intercession services, including
pursuing employer cooperation in minimizing employees' loss of pay and other benefits
resulting from their participation in the criminal justice process. Officers of the court shall
provide these services and shall consider victims' and witnesses' schedules so that activities
which conflict can be avoided. Where conflicts cannot be avoided, the victim may request
that the responsible agency intercede with employers or other parties.
(h) Victims and witnesses, particularly children, should have a speedy disposition of the entire
criminal justice process. All involved public agencies shall establish policies and procedures
to encourage speedy disposition of criminal cases.
(i) Victims and witnesses have the right to timely notice of judicial proceedings they are to attend
and timely notice of cancellation of any proceedings. Criminal justice agencies have the duty
to provide these notifications. Defense counsel and others have the duty to provide timely
notice to prosecution of any continuances or other changes that may be required.
(j) Victims of sexual offenses have a right to be informed of their right to request voluntary
testing for themselves for HIV infection as provided in Section 76-5-503 and to request
mandatory testing of the convicted sexual offender for HIV infection as provided in Section
76-5-502. The law enforcement office where the sexual offense is reported shall have the
responsibility to inform victims of this right.
(2) Informational rights of the victim under this chapter are based upon the victim providing his current
address and telephone number to the criminal justice agencies involved in the case.
Amended by Chapter 13, 2005 General Session
77-37-4. Additional rights -- Children.
In addition to all rights afforded to victims and witnesses under this chapter, child victims and witnesses
shall be afforded these rights:
(1) Children have the right to protection from physical and emotional abuse during their involvement with
the criminal justice process.
(2) Children are not responsible for inappropriate behavior adults commit against them and have the right
not to be questioned, in any manner, nor to have allegations made, implying this responsibility. Those
who interview children have the responsibility to consider the interests of the child in this regard.
(3) Child victims and witnesses have the right to have interviews relating to a criminal prosecution kept to
a minimum. All agencies shall coordinate interviews and ensure that they are conducted by persons
sensitive to the needs of children.
(4) Child victims have the right to be informed of available community resources that might assist them
and how to gain access to those resources. Law enforcement and prosecutors have the duty to ensure
that child victims are informed of community resources, including counseling prior to the court
proceeding, and have those services available throughout the criminal justice process.
Enacted by Chapter 194, 1987 General Session
77-37-5. Remedies -- Victims' Rights Committee.
Remedies available are:
(1) In each judicial district, the presiding district court judge shall appoint a person who shall establish
and chair a victims' rights committee consisting of:
(a) a county attorney or district attorney;
(b) a sheriff;
(c) a corrections field services administrator;
(d) an appointed victim advocate;
(e) a municipal attorney;
(f) a municipal chief of police; and
(g) other representatives as appropriate.
(2) The committee shall meet at least semiannually to review progress and problems related to this
chapter, Title 77, Chapter 38, and Utah Constitution Article I, Section 28. Victims and other
interested parties may submit matters of concern to the victims' rights committee. The committee may
hold a hearing open to the public on any appropriate matter of concern and may publish its findings.
These matters shall also be considered at the meetings of the victims' rights committee. The
committee shall forward minutes of all meetings to the Commission on Criminal and Juvenile Justice
and the Office of Crime Victims' Reparations for review and other appropriate action.
(3) The Office of Crime Victims' Reparations shall provide materials to local law enforcement to inform
every victim of a sexual offense of the right to request testing of the convicted sexual offender and of
the victim as provided in Section 76-5-502.
(4) If a person acting under color of state law willfully or wantonly fails to perform duties so that the
rights in this chapter are not provided, an action for injunctive relief may be brought against the
individual and the government entity that employs the individual. The failure to provide the rights in
this chapter or Title 77, Chapter 38, does not constitute cause for a judgment against the state or any
government entity, or any individual employed by the state or any government entity, for monetary
damages, attorney's fees, or the costs of exercising any rights under this chapter.
(5) The person accused of and subject to prosecution for the crime or the act which would be a crime if
committed by a competent adult, has no standing to make a claim concerning any violation of the
provisions of this chapter.
Amended by Chapter 352, 1995 General Session
Utah Constitution, Article I, Section 28
(Victims’ Rights Amendment, 1994)
(1) To preserve and protect victims' rights to justice and due process, victims of crimes have these rights,
as defined by law:
(a) To be treated with fairness, respect, and dignity, and to be free from harassment and abuse
throughout the criminal justice process;
(b) Upon request, to be informed of, be present at, and to be heard at important criminal justice
hearings related to the victim, either in person or through a lawful representative, once a
criminal information or indictment charging a crime has been publicly filed in court; and
(c) To have a sentencing judge, for the purpose of imposing an appropriate sentence, receive and
consider, without evidentiary limitation, reliable information concerning the background,
character, and conduct of a person convicted of an offense except that this subsection does
not apply to capital cases or situations involving privileges.
(2) Nothing in this section shall be construed as creating a cause of action for money damages, costs, or
attorney's fees, or for dismissing any criminal charge, or relief from any criminal judgment.
(3) The provisions of this section shall extend to all felony crimes and such other crimes or acts, including
juvenile offenses, as the Legislature may provide.
(4) The Legislature shall have the power to enforce and define this section by statute.
Utah Code 77-38-1 et seq.
Rights of Crime Victims Act (1994)
77-38-1. Title.
This act shall be known and may be cited as the "Rights of Crime Victims Act."
Enacted by Chapter 198, 1994 General Session
77-38-2. Definitions.
For the purposes of this chapter and the Utah Constitution:
(1) "Abuse" means treating the crime victim in a manner so as to injure, damage, or disparage.
(2) "Dignity" means treating the crime victim with worthiness, honor, and esteem.
(3) "Fairness" means treating the crime victim reasonably, even-handedly, and impartially.
(4) "Harassment" means treating the crime victim in a persistently annoying manner.
(5) "Important criminal justice hearings" or "important juvenile justice hearings" means the following
proceedings in felony criminal cases or cases involving a minor's conduct which would be a felony if
committed by an adult:
(a) any preliminary hearing to determine probable cause;
(b) any court arraignment where practical;
(c) any court proceeding involving the disposition of charges against a defendant or minor or the
delay of a previously scheduled trial date but not including any unanticipated proceeding to
take an admission or a plea of guilty as charged to all charges previously filed or any plea
taken at an initial appearance;
(d) any court proceeding to determine whether to release a defendant or minor and, if so, under
what conditions release may occur, excluding any such release determination made at an
initial appearance;
(e) any criminal or delinquency trial, excluding any actions at the trial that a court might take in
camera, in chambers, or at a sidebar conference;
(f) any court proceeding to determine the disposition of a minor or sentence, fine, or restitution of
a defendant or to modify any disposition of a minor or sentence, fine, or restitution of a
defendant; and
(g) any public hearing concerning whether to grant a defendant or minor parole or other form of
discretionary release from confinement.
(6) "Reliable information" means information worthy of confidence, including any information whose use
at sentencing is permitted by the United States Constitution.
(7) "Representative of a victim" means a person who is designated by the victim or designated by the
court and who represents the victim in the best interests of the victim.
(8) "Respect" means treating the crime victim with regard and value.
(9)
(a) "Victim of a crime" means any natural person against whom the charged crime or conduct is
alleged to have been perpetrated or attempted by the defendant or minor personally or as a
party to the offense or conduct or, in the discretion of the court, against whom a related crime
or act is alleged to have been perpetrated or attempted, unless the natural person is the
accused or appears to be accountable or otherwise criminally responsible for or criminally
involved in the crime or conduct or a crime or act arising from the same conduct, criminal
episode, or plan as the crime is defined under the laws of this state.
(b) For purposes of the right to be present, "victim of a crime" does not mean any person who is
in custody as a pretrial detainee, as a prisoner following conviction for an offense, or as a
juvenile who has committed an act that would be an offense if committed by an adult, or who
is in custody for mental or psychological treatment.
(c) For purposes of the right to be present and heard at a public hearing as provided in Subsection
77-38-2(5)(g) and the right to notice as provided in Subsection 77-38-3(7)(a), "victim of a
crime" includes any victim originally named in the allegation of criminal conduct who is not
a victim of the offense to which the defendant entered a negotiated plea of guilty.
Amended by Chapter 103, 1997 General Session
77-38-3. Notification to victims -- Initial notice, election to receive subsequent notices -- Form of
notice -- Protected victim information.
(1) Within seven days of the filing of felony criminal charges against a defendant, the prosecuting agency
shall provide an initial notice to reasonably identifiable and locatable victims of the crime contained
in the charges, except as otherwise provided in this chapter.
(2) The initial notice to the victim of a crime shall provide information about electing to receive notice of
subsequent important criminal justice hearings listed in Subsections 77-38-2(5)(a) through (f) and
rights under this chapter.
(3) The prosecuting agency shall provide notice to a victim of a crime for the important criminal justice
hearings, provided in Subsections 77-38-2(5)(a) through (f) which the victim has requested.
(4)
(a) The responsible prosecuting agency may provide initial and subsequent notices in any
reasonable manner, including telephonically, electronically, orally, or by means of a letter or
form prepared for this purpose.
(b) In the event of an unforeseen important criminal justice hearing, listed in Subsections 77-382(5)(a) through (f) for which a victim has requested notice, a good faith attempt to contact the
victim by telephone shall be considered sufficient notice, provided that the prosecuting
agency subsequently notifies the victim of the result of the proceeding.
(5)
(a) The court shall take reasonable measures to ensure that its scheduling practices for the
proceedings provided in Subsections 77-38-2(5)(a) through (f) permit an opportunity for
victims of crimes to be notified.
(b) The court shall also consider whether any notification system that it might use to provide
notice of judicial proceedings to defendants could be used to provide notice of those same
proceedings to victims of crimes.
(6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give notice to the
responsible prosecuting agency of any motion for modification of any determination made at any of
the important criminal justice hearings provided in Subsections 77-38-2(5)(a) through (f) in advance
of any requested court hearing or action so that the prosecuting agency may comply with its
notification obligation.
(7)
(a) Notice to a victim of a crime shall be provided by the Board of Pardons and Parole for the
important criminal justice hearing provided in Subsection 77-38-2(5)(g).
(b) The board may provide notice in any reasonable manner, including telephonically,
electronically, orally, or by means of a letter or form prepared for this purpose.
(8) Prosecuting agencies and the Board of Pardons and Parole are required to give notice to a victim of a
crime for the proceedings provided in Subsections 77-38-2(5)(a) through (f) only where the victim
has responded to the initial notice, requested notice of subsequent proceedings, and provided a current
address and telephone number if applicable.
(9)
(a) Law enforcement and criminal justice agencies shall refer any requests for notice or
information about crime victim rights from victims to the responsible prosecuting agency.
(b) In a case in which the Board of Pardons and Parole is involved, the responsible prosecuting
agency shall forward any request for notice that it has received from a victim to the Board of
Pardons and Parole.
(10) In all cases where the number of victims exceeds ten, the responsible prosecuting agency may send
any notices required under this chapter in its discretion to a representative sample of the victims.
(11)
(a) A victim's address, telephone number, and victim impact statement maintained by a peace
officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice Services,
Department of Corrections, and Board of Pardons and Parole, for purposes of providing
notice under this section, is classified as protected as provided in Subsection 63-2-304(10).
(b) The victim's address, telephone number, and victim impact statement is available only to the
following persons or entities in the performance of their duties:
(i) a law enforcement agency, including the prosecuting agency;
(ii) a victims' right committee as provided in Section 77-37-5;
(iii) a governmentally sponsored victim or witness program;
(iv) the Department of Corrections;
(v) Office of Crime Victims' Reparations;
(vi) Commission on Criminal and Juvenile Justice; and
(vii) the Board of Pardons and Parole.
(12) The notice provisions as provided in this section do not apply to misdemeanors as provided in
Section 77-38-5 and to important juvenile justice hearings as provided in Section 77-38-2.
Amended by Chapter 171, 2003 General Session
77-38-4. Right to be present and to be heard -- Control of disruptive acts or irrelevant statements - Statements from persons in custody.
(1) The victim of a crime shall have the right to be present at the important criminal or juvenile justice
hearings provided in Subsections 77-38-2(5)(a) through (f), the right to be heard at the important
criminal or juvenile justice hearings provided in Subsections 77-38-2(5)(b), (c), (d), and (f), and, upon
request to the judge hearing the matter, the right to be present and heard at the initial appearance of
the person suspected of committing the conduct or criminal offense against the victim on issues
relating to whether to release a defendant or minor and, if so, under what conditions release may
occur.
(2) This chapter shall not confer any right to the victim of a crime to be heard:
(a) at any criminal trial, including the sentencing phase of a capital trial under Section 76-3-207
or at any preliminary hearing, unless called as a witness; and
(b) at any delinquency trial or at any preliminary hearing in a minor's case, unless called as a
witness.
(3) The right of a victim or representative of a victim to be present at trial is subject to Rule 615 of the
Utah Rules of Evidence.
(4) Nothing in this chapter shall deprive the court of the right to prevent or punish disruptive conduct nor
give the victim of a crime the right to engage in disruptive conduct.
(5) The court shall have the right to limit any victim's statement to matters that are relevant to the
proceeding.
(6) In all cases where the number of victims exceeds five, the court may limit the in-court oral statements
it receives from victims in its discretion to a few representative statements.
(7) Except as otherwise provided in this section, a victim's right to be heard may be exercised at the
victim's discretion in any appropriate fashion, including an oral, written, audiotaped, or videotaped
statement or direct or indirect information that has been provided to be included in any presentence
report.
(8) If the victim of a crime is a person who is in custody as a pretrial detainee, as a prisoner following
conviction for an offense, or as a juvenile who has committed an act that would be an offense if
committed by an adult, or who is in custody for mental or psychological treatment, the right to be
heard under this chapter shall be exercised by submitting a written statement to the court.
(9) The court may exclude any oral statement from a victim on the grounds of the victim's incompetency
as provided in Rule 601(a) of Utah Rules of Evidence.
(10) Except in juvenile court cases, the Constitution may not be construed as limiting the existing rights
of the prosecution to introduce evidence in support of a capital sentence.
Amended by Chapter 352, 1995 General Session
77-38-5. Application to felonies and misdemeanors of the declaration of the rights of crime victims.
The provisions of this chapter shall apply to:
(1) any felony filed in the courts of the state;
(2) to any class A and class B misdemeanor filed in the courts of the state; and
(3) to cases in the juvenile court as provided in Section 78-3a-115.
Amended by Chapter 10, 1997 General Session
Amended by Chapter 365, 1997 General Session
Amended by Chapter 103, 1997 General Session
77-38-6. Victim's right to privacy.
(1) The victim of a crime has the right, at any court proceeding, including any juvenile court proceeding,
not to testify regarding the victim's address, telephone number, place of employment, or other
locating information unless the victim specifically consents or the court orders disclosure on finding
that a compelling need exists to disclose the information. A court proceeding on whether to order
disclosure shall be in camera.
(2) A defendant may not compel any witness to a crime, at any court proceeding, including any juvenile
court proceeding, to testify regarding the witness's address, telephone number, place of employment,
or other locating information unless the witness specifically consents or the court orders disclosure on
finding that a compelling need for the information exists. A court proceeding on whether to order
disclosure shall be in camera.
Amended by Chapter 352, 1995 General Session
77-38-7. Victim's right to a speedy trial.
(1) In determining a date for any criminal trial or other important criminal or juvenile justice hearing, the
court shall consider the interests of the victim of a crime to a speedy resolution of the charges under
the same standards that govern a defendant's or minor's right to a speedy trial.
(2) The victim of a crime has the right to a speedy disposition of the charges free from unwarranted delay
caused by or at the behest of the defendant or minor and to prompt and final conclusion of the case
after the disposition or conviction and sentence, including prompt and final conclusion of all
collateral attacks on dispositions or criminal judgments.
(3)
(a) In ruling on any motion by a defendant or minor to continue a previously established trial or
other important criminal or juvenile justice hearing, the court shall inquire into the
circumstances requiring the delay and consider the interests of the victim of a crime to a
speedy disposition of the case.
(b) If a continuance is granted, the court shall enter in the record the specific reason for the
continuance and the procedures that have been taken to avoid further delays.
Amended by Chapter 352, 1995 General Session
77-38-8. Age-appropriate language at judicial proceedings -- Advisor.
(1) In any criminal proceeding or juvenile court proceeding regarding or involving a child, examination
and cross-examination of a victim or witness 13 years of age or younger shall be conducted in ageappropriate language.
(2)
(a) The court may appoint an advisor to assist a witness 13 years of age or younger in
understanding questions asked by counsel.
(b) The advisor is not required to be an attorney.
Amended by Chapter 352, 1995 General Session
77-38-9. Representative of victim -- Court designation -- Representation in cases involving minors
-- Photographs in homicide cases.
(1)
(a) A victim of a crime may designate, with the approval of the court, a representative who may
exercise the same rights that the victim is entitled to exercise under this chapter.
(b) Except as otherwise provided in this section, the victim may revoke the designation at any
time.
(c) In cases where the designation is in question, the court may require that the designation of the
representative be made in writing by the victim.
(2) In cases in which the victim is deceased or incapacitated, upon request from the victim's spouse,
parent, child, or close friend, the court shall designate a representative or representatives of the victim
to exercise the rights of a victim under this chapter on behalf of the victim. The responsible
prosecuting agency may request a designation to the court.
(3)
(a) If the victim is a minor, the court in its discretion may allow the minor to exercise the rights of
a victim under this chapter or may allow the victim's parent or other immediate family
member to act as a representative of the victim.
(b) The court may also, in its discretion, designate a person who is not a member of the
immediate family to represent the interests of the minor.
(4) The representative of a victim of a crime shall not be:
(a) the accused or a person who appears to be accountable or otherwise criminally responsible for
or criminally involved in the crime or conduct, a related crime or conduct, or a crime or act
arising from the same conduct, criminal episode, or plan as the crime or conduct is defined
under the laws of this state;
(b) a person in the custody of or under detention of federal, state, or local authorities; or
(c) a person whom the court in its discretion considers to be otherwise inappropriate.
(5) Any notices that are to be provided to a victim pursuant to this chapter shall be sent to the victim or
the victim's lawful representative.
(6) On behalf of the victim, the prosecutor may assert any right to which the victim is entitled under this
chapter, unless the victim requests otherwise or exercises his own rights.
(7) In any homicide prosecution, the prosecution may introduce a photograph of the victim taken before
the homicide to establish that the victim was a human being, the identity of the victim, and for other
relevant purposes.
Amended by Chapter 352, 1995 General Session
77-38-10. Victim's discretion.
(1)
(a) The victim may exercise any rights under this chapter at his discretion to be present and to be
heard at a court proceeding, including a juvenile delinquency proceeding.
(b) The absence of the victim at the court proceeding does not preclude the court from conducting
the proceeding.
(2) A victim shall not refuse to comply with an otherwise lawful subpoena under this chapter.
(3) A victim shall not prevent the prosecution from complying with requests for information within a
prosecutor's possession and control under this chapter.
Amended by Chapter 352, 1995 General Session
77-38-11. Enforcement -- Appellate Review -- No right to money damages.
(1) If a person acting under color of state law willfully or wantonly fails to perform duties so that the
rights in this chapter are not provided, an action for injunctive relief, including prospective injunctive
relief, may be brought against the individual and the governmental entity that employs the individual.
(2)
(a) The victim of a crime or representative of a victim of a crime, including any Victims' Rights
Committee as defined in Section 77-37-5 may:
(i) bring an action for declaratory relief or for a writ of mandamus defining or enforcing
the rights of victims and the obligations of government entities under this chapter;
and
(ii) petition to file an amicus brief in any court in any case affecting crime victims.
(b) Adverse rulings on these actions or on a motion or request brought by a victim of a crime or a
representative of a victim of a crime may be appealed under the rules governing appellate
actions, provided that no appeal shall constitute grounds for delaying any criminal or juvenile
proceeding.
(c) An appellate court shall review all such properly presented issues, including issues that are
capable of repetition but would otherwise evade review.
(3) The failure to provide the rights in this chapter or Title 77, Chapter 37, Victims Rights, shall not
constitute cause for a judgment against the state or any government entity, or any individual
employed by the state or any government entity, for monetary damages, attorneys' fees, or the costs of
exercising any rights under this chapter.
Amended by Chapter 79, 1996 General Session
77-38-12. Construction of this chapter -- No right to set aside conviction, adjudication, admission,
or plea -- Severability clause.
(1) All of the provisions contained in this chapter shall be construed to assist the victims of crime.
(2) This chapter may not be construed as creating a basis for dismissing any criminal charge or
delinquency petition, vacating any adjudication or conviction, admission or plea of guilty or no
contest, or for appellate, habeas corpus, except in juvenile cases, or other relief from a judgment in
any criminal or delinquency case.
(3) This chapter may not be construed as creating any right of a victim to appointed counsel at state
expense.
(4) All of the rights contained in this chapter shall be construed to conform to the Constitution of the
United States.
(5)
(a) In the event that any portion of this chapter is found to violate the Constitution of the United
States, the remaining provisions of this chapter shall continue to operate in full force and
effect.
(b) In the event that a particular application of any portion of this chapter is found to violate the
Constitution of the United States, all other applications shall continue to operate in full force
and effect.
(6) The enumeration of certain rights for crime victims in this chapter shall not be construed to deny or
disparage other rights granted by the Utah Constitution or the Legislature or retained by victims of
crimes.
Amended by Chapter 352, 1995 General Session
77-38-13. Declaration of legislative authority.
It is the view of the Legislature that the provisions of this chapter, and other provisions enacted
simultaneously with it, are substantive provisions within inherent legislative authority. In the event that
any of the provisions of this chapter, and other provisions enacted simultaneously with it, are interpreted
to be procedural in nature, the Legislature also intends to invoke its powers to modify procedural rules
under the Utah Constitution.
Enacted by Chapter 198, 1994 General Session
77-38-14. Notice of expungement petition -- Victim's right to object.
(1) The Department of Corrections or the Juvenile Probation Department shall prepare a document
explaining the right of a victim or a victim's representative to object to a petition for expungement
under Section 77-18-11 or 78-3a-905 and the procedures for obtaining notice of any such petition.
The department or division shall also provide each trial court a copy of the document which has
jurisdiction over delinquencies or criminal offenses subject to expungement.
(2) The prosecuting attorney in any case leading to a conviction or an adjudication subject to
expungement shall provide a copy of the document to each person who would be entitled to notice of
a petition for expungement under Sections 77-18-11 and 78-3a-905.
Amended by Chapter 1, 1996 General Session
Utah Code 63-25a-401 et seq.
Crime Victims’ Reparation Act
63-25a-401. Title.
This part is known as the "Crime Victims' Reparations Act" and may be abbreviated as the "CVRA."
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-402. Definitions.
As used in this chapter:
(1) "Accomplice" means a person who has engaged in criminal conduct as defined in Section 76-2-202.
(2) "Board" means the Crime Victims' Reparations Board created under Section 63-25a-404.
(3) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
(4) "Claim" means:
(a) the victim's application or request for a reparations award; and
(b) the formal action taken by a victim to apply for reparations pursuant to Sections 63-25a-401
through 63-25a-428.
(5) "Claimant" means any of the following claiming reparations under this chapter:
(a) a victim;
(b) a dependent of a deceased victim;
(c) a representative other than a collateral source; or
(d) the person or representative who files a claim on behalf of a victim.
(6) "Child" means an unemancipated person who is under 18 years of age.
(7) "Collateral source" means the definition as provided in Section 63-25a-413.
(8) "Contested case" means a case which the claimant contests, claiming the award was either inadequate
or denied, or which a county attorney, a district attorney, a law enforcement officer, or other
individual related to the criminal investigation proffers reasonable evidence of the claimant's lack of
cooperation in the prosecution of a case after an award has already been given.
(9)
(a) "Criminally injurious conduct" other than acts of war declared or not declared means conduct
that:
(i) is or would be subject to prosecution in this state under Section 76-1-201;
(ii) occurs or is attempted;
(iii) causes, or poses a substantial threat of causing, bodily injury or death;
(iv) is punishable by fine, imprisonment, or death if the person engaging in the conduct
possessed the capacity to commit the conduct; and
(v) does not arise out of the ownership, maintenance, or use of a motor vehicle, aircraft,
or water craft, unless the conduct is intended to cause bodily injury or death, or is
conduct which is or would be punishable under Title 76, Chapter 5, Offenses Against
the Person, or as any offense chargeable as driving under the influence of alcohol or
drugs.
(b) "Criminally injurious conduct" includes an act of terrorism, as defined in 18 U.S.C. 2331
committed outside of the United States against a resident of this state. "Terrorism" does not
include an "act of war" as defined in 18 U.S.C. 2331.
(10) "Dependent" means a natural person to whom the victim is wholly or partially legally responsible for
care or support and includes a child of the victim born after his death.
(11) "Dependent's economic loss" means loss after the victim's death of contributions of things of
economic value to his dependent, not including services the dependent would have received from the
victim if he had not suffered the fatal injury, less expenses of the dependent avoided by reason of
victim's death.
(12) "Dependent's replacement services loss" means loss reasonably and necessarily incurred by the
dependent after the victim's death in obtaining services in lieu of those the decedent would have
performed for his benefit if he had not suffered the fatal injury, less expenses of the dependent
avoided by reason of the victim's death and not subtracted in calculating the dependent's economic
loss.
(13) "Director" means the director of the Reparations Office.
(14) "Disposition" means the sentencing or determination of penalty or punishment to be imposed upon a
person:
(a) convicted of a crime;
(b) found delinquent; or
(c) against whom a finding of sufficient facts for conviction or finding of delinquency is made.
(15) "Economic loss" means economic detriment consisting only of allowable expense, work loss,
replacement services loss, and if injury causes death, dependent's economic loss and dependent's
replacement service loss. Noneconomic detriment is not loss, but economic detriment is loss although
caused by pain and suffering or physical impairment.
(16) "Elderly victim" means a person 60 years of age or older who is a victim.
(17) "Fraudulent claim" means a filed claim based on material misrepresentation of fact and intended to
deceive the reparations staff for the purpose of obtaining reparation funds for which the claimant is
not eligible as provided in Section 63-25a-410.
(18) "Fund" means the Crime Victim Reparation Fund created in Section 63-63a-4.
(19) "Law enforcement officer" means a law enforcement officer as defined in Section 53-13-103.
(20) "Medical examination" means a physical examination necessary to document criminally injurious
conduct but does not include mental health evaluations for the prosecution and investigation of a
crime.
(21) "Mental health counseling" means outpatient and inpatient counseling necessitated as a result of
criminally injurious conduct. The definition of mental health counseling is subject to rules
promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(22) "Misconduct" as provided in Subsection 63-25a-412(1)(b) means conduct by the victim which was
attributable to the injury or death of the victim as provided by rules promulgated by the board
pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(23) "Noneconomic detriment" means pain, suffering, inconvenience, physical impairment, and other
nonpecuniary damage, except as provided in this chapter.
(24) "Pecuniary loss" does not include loss attributable to pain and suffering except as otherwise provided
in this chapter.
(25) "Offender" means a person who has violated the criminal code through criminally injurious conduct
regardless of whether he is arrested, prosecuted, or convicted.
(26) "Offense" means a violation of the criminal code.
(27) "Perpetrator" means the person who actually participated in the criminally injurious conduct.
(28) "Personal property" has the same definition as provided in Section 68-3-12.
(29) "Reparations Office" means the office of the reparations staff for the purpose of carrying out this
chapter.
(30) "Reparations officer" means a person employed by the Reparations Office to investigate claims of
victims and award reparations under this chapter, and includes the director when he is acting as a
reparations officer.
(31) "Reparations staff" means the director, the reparations officers, and any other staff employed to
administer the Crime Victims' Reparations Act.
(32) "Replacement service loss" means expenses reasonably and necessarily incurred in obtaining
ordinary and necessary services in lieu of those the injured person would have performed, not for
income but the benefit of himself or his dependents if he had not been injured.
(33) "Representative" means the victim, immediate family member, legal guardian, attorney, conservator,
executor, or an heir of a person but does not include service providers.
(34) "Restitution" means money or services an appropriate authority orders an offender to pay or render to
a victim of the offender's conduct.
(35) "Secondary victim" means a person who is traumatically affected by the criminally injurious conduct
subject to rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking Act.
(36) "Service provider" means a person or agency who provides a service to crime victims for a monetary
fee except attorneys as provided in Section 63-25a-424.
(37)
(a) "Victim" means a person who suffers bodily or psychological injury or death as a direct result
of criminally injurious conduct or of the production of pornography in violation of Sections
76-5a-1 through 76-5a-4 if the person is a minor.
(b) "Victim" does not include a person who participated in or observed the judicial proceedings
against an offender unless otherwise provided by statute or rule.
(c) "Victim" includes a resident of this state who is injured or killed by an act of terrorism, as
defined in 18 U.S.C. 2331, committed outside of the United States.
(38) "Work loss" means loss of income from work the injured victim would have performed if he had not
been injured and expenses reasonably incurred by him in obtaining services in lieu of those he would
have performed for income, reduced by any income from substitute work he was capable of
performing but unreasonably failed to undertake.
Amended by Chapter 256, 2002 General Session
63-25a-403. Restitution -- Reparations not to supplant restitution -- Assignment of claim for
restitution judgment to Reparations Office.
(1) A reparations award shall not supplant restitution as established under Title 77, Chapter 38a, Crime
Victims Restitution Act, or as established by any other provisions.
(2) The court shall not consider a reparations award when determining the order of restitution nor when
enforcing restitution.
(3) If, due to reparation payments to a victim, the Reparations Office is assigned under Section 63-25a419 a claim for the victim's judgment for restitution or a portion of the restitution, the Reparations
Office may file with the sentencing court a notice of the assignment. The notice of assignment shall
be signed by the victim and a Reparations Officer and shall state the amount of the claim assigned.
(4) Upon conviction and sentencing of the defendant, the court shall enter a civil judgment for complete
restitution as provided in Section 77-38a-401 and identify the Reparations Office as the assignee of
the assigned portion of the judgment.
(5) If the notice of assignment is filed after sentencing, the court shall modify the civil judgment for
restitution to identify the Reparations Office as the assignee of the assigned portion of the judgment.
Amended by Chapter 35, 2002 General Session
63-25a-404. Crime Victims' Reparations Board -- Members.
(1)
(a) A Crime Victims' Reparations Board is created, consisting of seven members appointed by the
governor with the consent of the Senate.
(b) The membership of the board shall consist of:
(i) a member of the bar of this state;
(ii) a victim of criminally injurious conduct;
(iii) a licensed physician;
(iv) a representative of law enforcement;
(v) a mental health care provider; and
(vi) two other private citizens.
(c) The governor may appoint a chair of the board who shall serve for a period of time prescribed
by the governor, not to exceed the length of the chair's term. The board may elect a vice chair
to serve in the absence of the chair.
(d) The board may hear appeals from administrative decisions as provided in rules adopted
pursuant to Section 63-25a-415.
(2)
(a) Except as required by Subsection (2)(b), as terms of current board members expire, the
governor shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time of
appointment or reappointment, adjust the length of terms to ensure that the terms of board
members are staggered so that approximately half of the board is appointed every two years.
(c) A member may be reappointed to one successive term.
(3)
(a) When a vacancy occurs in the membership for any reason, the replacement shall be appointed
for the unexpired term.
(b) A member resigning from the board shall serve until his successor is appointed and qualified.
(4)
(a)
(i) Members who are not government employees shall receive no compensation or
benefits for their services, but may receive per diem and expenses incurred in the
performance of the member's official duties at the rates established by the Division of
Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b)
(i) State government officer and employee members who do not receive salary, per diem,
or expenses from their agency for their service may receive per diem and expenses
incurred in the performance of their official duties from the board at the rates
established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and
expenses for their service.
(5) The board shall meet at least once quarterly but may meet more frequently as necessary.
Amended by Chapter 176, 2002 General Session
63-25a-405. Board and office within Commission on Criminal and Juvenile Justice.
(1) The Crime Victims' Reparations Board and Reparations Office are placed within the Commission on
Criminal and Juvenile Justice for the provision by the commission of administrative and support
services to the Reparations Office.
(2) The board or the director may request assistance from the Commission on Criminal and Juvenile
Justice, the Department of Public Safety, and other state agencies in conducting research or
monitoring victims' programs.
(3) The fund shall appear as a separate line item in the Commission on Criminal and Juvenile Justice
budget.
Amended by Chapter 256, 2002 General Session
63-25a-406. Functions of board.
(1) The board shall:
(a) adopt a description of the organization and prescribe the general operation of the board;
(b) prescribe policy for the Reparations Office;
(c) adopt rules to implement and administer Sections 63-25a-401 through 63-25a-428 pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act, which may include setting of
ceilings on reparations, defining of terms not specifically stated in this chapter, and
establishing of rules governing attorney fees;
(d) prescribe forms for applications for reparations;
(e) review all awards made by the reparations staff, although the board may not reverse or modify
awards authorized by the reparations staff;
(f) render an annual report to the governor and the Legislature regarding the staff's and the board's
activities;
(g) cooperate with the director and his staff in formulating standards for the uniform application of
Section 63-25a-409, taking into consideration the rates and amounts of reparation payable for
injuries and death under other laws of this state and the United States;
(h) advocate the adoption, repeal, or modification of laws or proposed legislation in the interest of
victims of crime;
(i) allocate monies available in the Crime Victim Reparation Fund to victims of criminally
injurious conduct for reparations claims; and
(j) allocate monies available to other victim services as provided by administrative rule once a
sufficient reserve has been established for reparation claims.
(2) All rules, or other statements of policy, along with application forms specified by the board, are
binding upon the director, the reparations officers, and other staff.
Amended by Chapter 256, 2002 General Session
63-25a-407. Director -- Appointment and functions.
The executive director of the Commission on Criminal and Juvenile Justice, after consulting with the
board, shall appoint a director to carry out the provisions of this chapter. The director shall be an
experienced administrator with a background in at least one of the following fields: social work,
psychology, criminal justice, law, or a related field. The director shall demonstrate an understanding of
the needs of crime victims and of services to victims. The director shall devote his time and capacity to
his duties. The director shall:
(1) hire staff, including reparations officers, as necessary;
(2) act when necessary as a reparations officer in deciding initial claims;
(3) possess the same investigation and decision-making authority as the reparations officers;
(4) hear appeals from the decisions of the reparations officers, unless he acted as a reparations officer on
the initial claim;
(5) serve as a liaison between the reparations staff and the Reparations Office;
(6) serve as the public relations representative of the Reparations Office;
(7) provide for payment of all administrative salaries, fees, and expenses incurred by the staff of the
board, to be paid out of appropriations from the fund;
(8) cooperate with the state treasurer and the state Division of Finance in causing the funds in the trust
fund to be invested and its investments sold or exchanged and the proceeds and income collected;
(9) apply for, receive, allocate, disburse, and account for grants of funds made available by the United
States, the state, foundations, corporations, and other businesses, agencies, or individuals;
(10) obtain and utilize the services of other governmental agencies upon request; and
(11) act in any other capacity or perform any other acts necessary for the Reparations Office or board to
successfully fulfill its statutory objectives.
Amended by Chapter 256, 2002 General Session
63-25a-408. Reparations officers.
The reparations officers shall in addition to any assignments made by the director of the Reparations
Office:
(1) hear and determine all matters relating to claims for reparations and reinvestigate or reopen claims
without regard to statutes of limitation or periods of prescription;
(2) obtain from prosecuting attorneys, law enforcement officers, and other criminal justice agencies,
investigations and data to enable the reparations officer to determine whether and to what extent a
claimant qualifies for reparations;
(3) hold hearings, administer oaths or affirmations, examine any person under oath or affirmation, issue
subpoenas requiring the attendance and giving of testimony of witnesses, require the production of
any books, papers, documents, or other evidence which may contribute to the reparations officer's
ability to determine particular reparation awards;
(4) determine who is a victim or dependent;
(5) award reparations or other benefits determined to be due under this chapter and the rules of the board;
(6) take notice of judicially recognized facts and general, technical, and scientific facts within their
specialized knowledge;
(7) advise and assist the board in developing policies recognizing the rights, needs, and interests of crime
victims;
(8) render periodic reports as requested by the board concerning:
(a) the officers' activities; and
(b) the manner in which the rights, needs, and interests of crime victims are being addressed by
the state's criminal justice system;
(9) establish priorities for assisting elderly victims of crime or those victims facing extraordinary
hardships;
(10) cooperate with the Commission on Criminal and Juvenile Justice to develop information regarding
crime victims' problems and programs; and
(11) assist the director in publicizing the provisions of the Crime Victims' Reparations Act, including the
procedures for obtaining reparation, and in encouraging law enforcement agencies, health providers,
and other related officials to take reasonable care to ensure that victims are informed about the
provisions of this chapter and the procedure for applying for reparation.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-409. Grounds for eligibility.
In order to be eligible for a reparations award under this chapter:
(1) The claimant shall be:
(a) a victim of criminally injurious conduct;
(b) a dependent of a deceased victim of criminally injurious conduct; or
(c) a representative acting on behalf of one of the above.
(2) The victim shall be either a resident of Utah or the criminally injurious conduct shall have occurred in
Utah.
(3) The application shall be made in writing in a form that conforms substantially to that prescribed by the
board.
(4) The criminally injurious conduct shall be reported to a law enforcement officer, in his capacity as a
law enforcement officer, or other federal or state investigative agencies.
(5)
(a) The claimant or victim shall cooperate with the appropriate law enforcement agencies in their
efforts to apprehend or convict the perpetrator of the alleged offense.
(b) An award to a victim may be made whether any person is arrested, prosecuted, or convicted of
the criminally injurious conduct giving rise to the claim.
(6) The criminally injurious conduct shall have occurred after December 31, 1986.
Amended by Chapter 235, 2000 General Session
63-25a-410. Ineligible persons -- Fraudulent claims -- Penalties.
(1) The following individuals shall not be eligible to receive an award of reparations:
(a) persons who do not meet all of the provisions set forth in Section 63-25a-409;
(b) the offender;
(c) an accomplice of the offender;
(d) any person whose receipt of an award would unjustly benefit the offender, accomplice, or
other person reasonably suspected of participating in the offense;
(e) the victim of a motor vehicle injury who was the owner or operator of the motor vehicle and
was not at the time of the injury in compliance with the state motor vehicle insurance laws;
(f) any convicted offender serving a sentence of imprisonment for that conviction or residing in
any other institution which provides for the maintenance of convicted persons; and
(g) residents of halfway houses or any other correctional facilities and all persons who are on
probation or parole if the circumstances surrounding the offense of which they are victims
constitute a violation of their parole or probation.
(2) A person who knowingly submits a fraudulent claim for reparations or who knowingly misrepresents
material facts in making a claim, and who receives an award based on that claim, is guilty of an
offense, based on the following award amounts:
(a) for value under $300, a class B misdemeanor;
(b) for value equal to or greater than $300, but less than $1,000, a class A misdemeanor;
(c) for value equal to or greater than $1,000, but less than $5,000, a third degree felony; and
(d) for value equal to or greater than $5,000, a second degree felony.
(3) A person who submits a claim described in Subsection (2) but receives no award based on that claim
is guilty of a class B misdemeanor.
(4) The state attorney general may prosecute violations under this section or may make arrangements with
county attorneys for the prosecution of violations under this section when the attorney general cannot
conveniently prosecute.
(5) The state may also bring a civil action against a claimant who receives reparation payments that are
later found to be unjustified and who does not return to the board the unjustified amount.
Amended by Chapter 235, 2000 General Session
Amended by Chapter 28, 2000 General Session
63-25a-411. Compensable losses and amounts.
A reparations award under this chapter may be made if:
(1) the reparations officer finds the claim satisfies the requirements for the award under the provisions of
this chapter and the rules of the board;
(2) monies are available in the fund;
(3) the person for whom the award of reparations is to be paid is otherwise eligible under this act;
(4) the claim is for an allowable expense incurred by the victim, as follows:
(a) reasonable and necessary charges incurred for products, services, and accommodations;
(b) inpatient and outpatient medical treatment and physical therapy, subject to rules promulgated
by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
(c) mental health counseling which:
(i) is set forth in a mental health treatment plan which has been approved prior to any
payment by a reparations officer; and
(ii) qualifies within any further rules promulgated by the board pursuant to Title 63,
Chapter 46a, Utah Administrative Rulemaking Act;
(d) actual loss of past earnings and anticipated loss of future earnings because of a death or
disability resulting from the personal injury at a rate not to exceed 66-2/3% of the person's
weekly gross salary or wages or the maximum amount allowed under the state workers'
compensation statute;
(e) care of minor children enabling a victim or spouse of a victim, but not both of them, to
continue gainful employment at a rate per child per week as determined under rules
established by the board;
(f) funeral and burial expenses for death caused by the criminally injurious conduct, subject to
rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking Act;
(g) loss of support to the dependent or dependents not otherwise compensated for a pecuniary loss
for personal injury, for as long as the dependence would have existed had the victim survived,
at a rate not to exceed 66-2/3% of the person's weekly salary or wages or the maximum
amount allowed under the state workers' compensation statute, whichever is less;
(h) personal property necessary and essential to the health or safety of the victim as defined by
rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking Act; and
(i) medical examinations as defined in Section 63-25a-402, subject to rules promulgated by the
board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act, which may
allow for exemptions from Sections 63-25a-409, 63-25a-412, and 63-25a-413.
(5) If a Utah resident suffers injury or death as a result of criminally injurious conduct inflicted in a state,
territory, or country that does not provide a reciprocal crime victims' compensation program, the Utah
resident has the same rights under this chapter as if the injurious conduct occurred in this state.
(6) An award of reparations shall not exceed $25,000 in the aggregate unless the victim is entitled to
proceeds in excess of that amount as provided in Subsection 77-38a-403(2). However, reparations for
actual medical expenses incurred as a result of homicide, attempted homicide, aggravated assault, or
DUI offenses, may be awarded up to $50,000 in the aggregate.
Amended by Chapter 256, 2002 General Session
Amended by Chapter 35, 2002 General Session
63-25a-412. Reparations reduction.
(1) Reparations otherwise payable to a claimant may be reduced or denied as follows:
(a) the economic loss upon which the claim is based has been or could be recouped from other
persons, including collateral sources, and the victim was not entitled to nor receiving monies
prior to the criminally injurious conduct giving rise to the claim under this chapter;
(b) the reparations officer considers the claim unreasonable because of the misconduct of the
claimant or of a victim through whom he claims; or
(c) the victim had not used a facility or health care provider that would be covered by a collateral
source.
(2) When two or more dependents are entitled to an award as a result of a victim's death, the award shall
be apportioned by the reparations officer among the dependents.
Amended by Chapter 235, 2000 General Session
63-25a-413. Collateral sources.
(1) Collateral source shall include any source of benefits or advantages for economic loss otherwise
reparable under this chapter which the victim or claimant has received, or which is readily available
to the victim from:
(a) the offender;
(b) the insurance of the offender;
(c) the United States government or any of its agencies, a state or any of its political subdivisions,
or an instrumentality of two or more states, except in the case on nonobligatory state-funded
programs;
(d) social security, Medicare, and Medicaid;
(e) state-required temporary nonoccupational income replacement insurance or disability income
insurance;
(f) workers' compensation;
(g) wage continuation programs of any employer;
(h) proceeds of a contract of insurance payable to the victim for the loss he sustained because of
the criminally injurious conduct;
(i) a contract providing prepaid hospital and other health care services or benefits for disability; or
(j) veteran's benefits, including veteran's hospitalization benefits.
(2)
(a) An order of restitution shall not be considered readily available as a collateral source.
(b) Receipt of an award of reparations under this chapter shall be considered an assignment of the
victim's rights to restitution from the offender.
(3) The victim shall not discharge a claim against a person or entity without the state's written permission
and shall fully cooperate with the state in pursuing its right of reimbursement, including providing the
state with any evidence in his possession.
(4) The state's right of reimbursement applies regardless of whether the victim has been fully
compensated for his losses.
(5) Notwithstanding the collateral source provisions in Subsection (1) and Subsection 63-25a-412(1)(a), a
victim of a sexual offense who requests testing of himself may be reimbursed for the costs of the HIV
test only as provided in Subsection 76-5-503(4).
Amended by Chapter 116, 2001 General Session
63-25a-414. Notification of claimant -- Suspension of proceedings.
(1) The Reparations Office shall immediately notify the claimant in writing of any decision and shall
forward to the Division of Finance a certified copy of the decision and a warrant request for the
amount of the claim. The Division of Finance shall pay the claimant the amount submitted to the
division, out of the fund. If monies in the fund are temporarily depleted, claimants entitled to receive
awards shall be placed on a waiting list and shall receive their awards as funds are available in the
order in which their claims were awarded.
(2) The reparations officer may suspend the proceedings pending disposition of a criminal prosecution
that has been commenced or is imminent.
Amended by Chapter 256, 2002 General Session
63-25a-415. Rules for contested claims -- Exemption from Administrative Procedures Act.
(1) Rules for procedures for contested determinations by a reparations officer shall be adopted pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(2) Crime Victims' Reparations is exempt from Title 63, Chapter 46b, Administrative Procedures Act.
Amended by Chapter 235, 2000 General Session
63-25a-416. Waiver of privilege.
(1) A victim filing a claim under the provisions of this chapter shall be considered to have waived any
privilege as to communications or records relevant to an issue of the physical, mental, or emotional
conditions of the victim except for the attorney-client privilege. The waiver shall apply only to
reparations officers, the director of reparations, the board, and legal counsel.
(2) The claimant may be required to supply any additional medical or psychological reports available
relating to the injury or death for which compensation is claimed.
(3) The reparations officer hearing a claim or an appeal from a claim shall make available to the claimant
a copy of the report. If the victim is deceased, the director or his appointee, on request, shall furnish
the claimant a copy of the report unless dissemination of that copy is prohibited by law.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-417. Additional testing.
(1) If the mental, physical, or emotional condition of a victim is material to a claim, the reparations
officer, director, or chair of the board who hears the claim or the appeal may order the claimant to
submit to a mental or physical examination by a physician or psychologist and may recommend to the
court to order an autopsy of a deceased victim.
(2) Any order for additional examination shall be for good cause shown and shall provide notice to the
person to be examined and his representative.
(3) All reports from additional examinations shall set out findings, including results of all tests made,
diagnoses, prognoses, other conclusions, and reports of earlier examinations of the same conditions.
(4) A copy of the report shall be made available to the victim or the representative of the victim unless
dissemination of that copy is prohibited by law.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-418. Failure to comply.
If a person refuses to comply with an order under this chapter or asserts a privilege, except privileges
arising from the attorney-client relationship, to withhold or suppress evidence relevant to a claim, the
director or reparations officer may make any appropriate determination including denial of the claim.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-419. Assignment of recovery -- Reimbursement.
(1) By accepting an award of reparations, the victim automatically assigns to the state, subject to the
provisions of Subsection (2), all claims against any third party to the lesser of:
(a) the amount paid by the state; or
(b) the amount recovered from the third party.
(2) The board, with the concurrence of the director, may reduce the state's right of reimbursement if it is
determined that the reduction will benefit the fund.
(3) The state reserves the right to make a claim for reimbursement on behalf of the victim and the victim
shall not impair the state's claim or the state's right of reimbursement.
Amended by Chapter 256, 2002 General Session
63-25a-420. Special verdict -- Allocation of damages.
In an action in a court of this state arising out of criminally injurious conduct, the judge, on timely
motion, shall direct the jury to return a special verdict, indicating separately the awards to noneconomic
detriment, punitive damages, and economic loss.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-421. Award -- Payment methods -- Claims against the award.
(1) The reparations officer may provide for the payment of an award in a lump sum or in installments.
The part of an award equal to the amount of economic loss accrued to the date of the award shall be
paid in a lump sum. An award of allowable expense that would accrue after an initial award is made
may not be paid in a lump sum. Except as provided in Subsection (2), the part of an award that may
not be paid in a lump sum shall be paid in installments.
(2) At the request of the claimant, the reparations officer may convert future economic loss installment
payments, other than allowable expense, to a lump sum payment, discounted to present value, but
only upon a finding by the officer that the award in a lump sum will promote the interests of the
claimant.
(3) An award for future economic loss payable in installments may be made only for a period for which
the reparations officer can reasonably determine future economic loss. The reparations officer may
reconsider and modify an award for future economic loss payable in installments, upon his finding
that a material and substantial change of circumstances has occurred.
(4) An award is not subject to execution, attachment, or garnishment, except that an award for allowable
expense is not exempt from a claim of a creditor to the extent that he provided products, services, or
accommodations, the costs of which are included in the award.
(5) An assignment or agreement to assign a right to reparations for loss accruing in the future is
unenforceable, except:
(a) an assignment of a right to reparations for work loss to secure payment of alimony,
maintenance, or child support;
(b) an assignment of a right to reparations for allowable expense to the extent that the benefits are
for the cost of products, services, or accommodations necessitated by the injury or death on
which the claim is based and are provided or to be provided by the assignee; or
(c) an assignment to repay a loan obtained to pay for the obligations or expenses described in
Subsection (5) (a) or (b).
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-422. Emergency award.
If the reparations officer determines that the claimant will suffer financial hardship unless an emergency
award is made, and it appears likely that a final award will be made, an amount may be paid to the
claimant, to be deducted from the final award or repaid by and recoverable from the claimant to the extent
that it exceeds the final award. The board may limit emergency awards to any amount it considers
necessary.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-423. Review of award decision.
The reparations officer shall review at least annually every award being paid in installments. An order on
review of an award does not require refund of amounts previously paid unless the award was obtained by
fraud or a material mistake of fact.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-424. Attorney fees.
(1) The claims procedures shall be sufficiently simple that the assistance of an attorney is unnecessary,
and no attorney fees shall be paid for the assistance of an attorney or any other representative in filing
the claim or providing information to the reparations officer.
(2) Attorney fees may be granted in the following circumstances and shall be paid out of the reparations
award not to exceed 15% of the amount of the reparations award:
(a) when an award has been denied and, after a hearing, the decision to deny is overturned; or
(b) when minor dependents of a deceased victim require assistance in establishing a trust or
determining a guardian.
(3) An attorney or any other person providing assistance in a reparations claim, who contracts for or
receives sums not allowed under this chapter, is guilty of a class B misdemeanor. This provision shall
not extend to attorneys who assist the victim in filing a civil action against the perpetrator.
Renumbered and Amended by Chapter 242, 1996 General Session
63-25a-428. Purpose -- Not entitlement program.
(1) Crime Victims' Reparations is a program with the purpose to assist victims of criminally injurious
conduct. Reparation to a victim is limited to the monies available in the fund.
(2) This program is not an entitlement program. Awards may be limited or denied as determined
appropriate by the board. Failure to grant an award does not create a cause of action against Crime
Victims' Reparations, the state, or any of its subdivisions. There is no right to judicial review over the
decision whether or not to grant an award.
(3) A cause of action based on a failure to give or receive the notice required by this chapter does not
accrue to any person against the state, any of its agencies or local subdivisions, any of their law
enforcement officers or other agents or employees, or any health care or medical provider or its
agents or employees. The failure does not affect or alter any requirement for filing or payment of a
claim.
Amended by Chapter 256, 2002 General Session
Utah Code 77-38a-101 et seq.
Crime Victims Restitution Act
77-38a-101. Title.
This chapter is known as the "Crime Victims Restitution Act."
Enacted by Chapter 137, 2001 General Session
77-38a-102. Definitions.
As used in this chapter:
(1) "Conviction" includes a:
(a) judgment of guilt;
(b) a plea of guilty; or
(c) a plea of no contest.
(2) "Criminal activities" means any offense of which the defendant is convicted or any other criminal
conduct for which the defendant admits responsibility to the sentencing court with or without an
admission of committing the criminal conduct.
(3) "Department" means the Department of Corrections.
(4) "Diversion" means suspending criminal proceedings prior to conviction on the condition that a
defendant agree to participate in a rehabilitation program, make restitution to the victim, or fulfill
some other condition.
(5) "Party" means the prosecutor, defendant, or department involved in a prosecution.
(6) "Pecuniary damages" means all demonstrable economic injury, whether or not yet incurred, which a
person could recover in a civil action arising out of the facts or events constituting the defendant's
criminal activities and includes the fair market value of property taken, destroyed, broken, or
otherwise harmed, and losses including lost earnings and medical expenses, but excludes punitive or
exemplary damages and pain and suffering.
(7) "Plea agreement" means an agreement entered between the prosecution and defendant setting forth the
special terms and conditions and criminal charges upon which the defendant will enter a plea of guilty
or no contest.
(8) "Plea in abeyance" means an order by a court, upon motion of the prosecution and the defendant,
accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment
of conviction against him nor imposing sentence upon him on condition that he comply with specific
conditions as set forth in a plea in abeyance agreement.
(9) "Plea in abeyance agreement" means an agreement entered into between the prosecution and the
defendant setting forth the specific terms and conditions upon which, following acceptance of the
agreement by the court, a plea may be held in abeyance.
(10) "Plea disposition" means an agreement entered into between the prosecution and defendant including
diversion, plea agreement, plea in abeyance agreement, or any agreement by which the defendant may
enter a plea in any other jurisdiction or where charges are dismissed without a plea.
(11) "Restitution" means full, partial, or nominal payment for pecuniary damages to a victim, including
prejudgment interest, the accrual of interest from the time of sentencing, insured damages,
reimbursement for payment of a reward, and payment for expenses to a governmental entity for
extradition or transportation and as may be further defined by law.
(12)
(a) "Reward" means a sum of money:
(i) offered to the public for information leading to the arrest and conviction of an
offender; and
(ii) that has been paid to a person or persons who provide this information, except that the
person receiving the payment may not be a codefendant, an accomplice, or a bounty
hunter.
(b) "Reward" does not include any amount paid in excess of the sum offered to the public.
(13) "Screening" means the process used by a prosecuting attorney to terminate investigative action,
proceed with prosecution, move to dismiss a prosecution that has been commenced, or cause a
prosecution to be diverted.
(14)
(a) "Victim" means any person whom the court determines has suffered pecuniary damages as a
result of the defendant's criminal activities.
(b) "Victim" may not include a codefendant or accomplice.
Amended by Chapter 96, 2005 General Session
77-38a-201. Restitution determination -- Law enforcement duties and responsibilities.
Any law enforcement agency conducting an investigation for criminal conduct which would constitute a
felony or class A misdemeanor shall provide in the investigative reports whether a claim for restitution
exists, the basis for the claim, and the estimated or actual amount of the claim.
Enacted by Chapter 137, 2001 General Session
77-38a-202. Restitution determination -- Prosecution duties and responsibilities.
(1) At the time of entry of a conviction or entry of any plea disposition of a felony or class A
misdemeanor, the attorney general, county attorney, municipal attorney, or district attorney shall
provide to the district court:
(a) the names of all victims, including third parties, asserting claims for restitution;
(b) the actual or estimated amount of restitution determined at that time; and
(c) whether or not the defendant has agreed to pay the restitution specified as part of the plea
disposition.
(2) In computing actual or estimated restitution, the attorney general, county attorney, municipal attorney,
or district attorney shall:
(a) use the criteria set forth in Section 77-38a-302 for establishing restitution amounts; and
(b) in cases involving multiple victims, incorporate into any conviction or plea disposition all
claims for restitution arising out of the investigation for which the defendant is charged.
(3) If charges are not to be prosecuted as part of a plea disposition, restitution claims from victims of
those crimes shall also be provided to the court.
Enacted by Chapter 137, 2001 General Session
77-38a-203. Restitution determination -- Department of Corrections -- Presentence investigation.
(1)
(a) The department shall prepare a presentence investigation report in accordance with Subsection
77-18-1(5). The prosecutor and law enforcement agency involved shall provide all available
victim information to the department upon request. The victim impact statement shall:
(i) identify all victims of the offense;
(ii) itemize any economic loss suffered by the victim as a result of the offense;
(iii) include for each identifiable victim a specific statement of the recommended amount
of complete restitution as defined in Section 77-38a-302, accompanied by a
recommendation from the department regarding the payment by the defendant of
court-ordered restitution with interest as defined in Section 77-38a-302;
(iv) identify any physical, mental, or emotional injuries suffered by the victim as a result
of the offense, and the seriousness and permanence;
(v) describe any change in the victim's personal welfare or familial relationships as a
result of the offense;
(vi) identify any request for mental health services initiated by the victim or the victim's
family as a result of the offense; and
(vii) contain any other information related to the impact of the offense upon the victim or
the victim's family that the court requires.
(b) The crime victim shall be responsible to provide to the department upon request all invoices,
bills, receipts, and other evidence of injury, loss of earnings, and out-of-pocket loss. The
crime victim shall also provide upon request:
(i) all documentation and evidence of compensation or reimbursement from insurance
companies or agencies of the state of Utah, any other state, or federal government
received as a direct result of the crime for injury, loss, earnings, or out-of-pocket loss;
and
(ii) proof of identification, including date of birth, Social Security number, drivers license
number, next of kin, and home and work address and telephone numbers.
(c) The inability, failure, or refusal of the crime victim to provide all or part of the requested
information shall result in the court determining restitution based on the best information
available.
(2)
(a) The court shall order the defendant as part of the presentence investigation to submit to the
department any information determined necessary to be disclosed for the purpose of
ascertaining the restitution.
(b) The willful failure or refusal of the defendant to provide all or part of the requisite information
shall constitute a waiver of any grounds to appeal or seek future amendment or alteration of
the restitution order predicated on the undisclosed information.
(c) If the defendant objects to the imposition, amount, or distribution of the restitution
recommended in the presentence investigation, the court shall set a hearing date to resolve the
matter.
(d) If any party fails to challenge the accuracy of the presentence investigation report at the time
of sentencing, that matter shall be considered to be waived.
Amended by Chapter 96, 2005 General Session
77-38a-301. Restitution -- Convicted defendant may be required to pay.
In a criminal action, the court may require a convicted defendant to make restitution.
Enacted by Chapter 137, 2001 General Session
77-38a-302. Restitution criteria.
(1) When a defendant is convicted of criminal activity that has resulted in pecuniary damages, in addition
to any other sentence it may impose, the court shall order that the defendant make restitution to
victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to
make restitution as part of a plea disposition. For purposes of restitution, a victim has the meaning as
defined in Subsection 77-38a-102(14) and in determining whether restitution is appropriate, the court
shall follow the criteria and procedures as provided in Subsections (2) through (5).
(2) In determining restitution, the court shall determine complete restitution and court-ordered restitution.
(a) "Complete restitution" means restitution necessary to compensate a victim for all losses
caused by the defendant.
(b) "Court-ordered restitution" means the restitution the court having criminal jurisdiction orders
the defendant to pay as a part of the criminal sentence at the time of sentencing or within one
year after sentencing.
(c) Complete restitution and court-ordered restitution shall be determined as provided in
Subsection (5).
(3) If the court determines that restitution is appropriate or inappropriate under this part, the court shall
make the reasons for the decision part of the court record.
(4) If the defendant objects to the imposition, amount, or distribution of the restitution, the court shall
allow the defendant a full hearing on the issue.
(5)
(a) For the purpose of determining restitution for an offense, the offense shall include any
criminal conduct admitted by the defendant to the sentencing court or to which the defendant
agrees to pay restitution. A victim of an offense that involves as an element a scheme, a
conspiracy, or a pattern of criminal activity, includes any person directly harmed by the
defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
(b) In determining the monetary sum and other conditions for complete restitution, the court shall
consider all relevant facts, including:
(i) the cost of the damage or loss if the offense resulted in damage to or loss or
destruction of property of a victim of the offense;
(ii) the cost of necessary medical and related professional services and devices relating to
physical or mental health care, including nonmedical care and treatment rendered in
accordance with a method of healing recognized by the law of the place of treatment;
(iii) the cost of necessary physical and occupational therapy and rehabilitation;
(iv) the income lost by the victim as a result of the offense if the offense resulted in
bodily injury to a victim;
(v) up to five days of the individual victim's determinable wages that are lost due to theft
of or damage to tools or equipment items of a trade that were owned by the victim
and were essential to the victim's current employment at the time of the offense; and
(vi) the cost of necessary funeral and related services if the offense resulted in the death
of a victim.
(c) In determining the monetary sum and other conditions for court-ordered restitution, the court
shall consider the factors listed in Subsections (5)(a) and (b) and:
(i) the financial resources of the defendant and the burden that payment of restitution will
impose, with regard to the other obligations of the defendant;
(ii) the ability of the defendant to pay restitution on an installment basis or on other
conditions to be fixed by the court;
(iii) the rehabilitative effect on the defendant of the payment of restitution and the method
of payment; and
(iv) other circumstances which the court determines may make restitution inappropriate.
(d)
(i) Except as provided in Subsection (5)(d)(ii), the court shall determine complete
restitution and court-ordered restitution, and shall make all restitution orders at the
time of sentencing if feasible, otherwise within one year after sentencing.
(ii) Any pecuniary damages that have not been determined by the court within one year
after sentencing may be determined by the Board of Pardons and Parole.
(e) The Board of Pardons and Parole may, within one year after sentencing, refer an order of
judgment and commitment back to the court for determination of restitution.
Amended by Chapter 96, 2005 General Session
77-38a-401. Entry of judgment -- Interest -- Civil actions -- Lien.
(1) Upon the court determining that a defendant owes restitution, the clerk of the court shall enter an order
of complete restitution as defined in Section 77-38a-302 on the civil judgment docket and provide
notice of the order to the parties.
(2) The order shall be considered a legal judgment, enforceable under the Utah Rules of Civil Procedure.
In addition, the department may, on behalf of the person in whose favor the restitution order is
entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.
(3) If the defendant fails to obey a court order for payment of restitution and the victim or department
elects to pursue collection of the order by civil process, the victim shall be entitled to recover
reasonable attorney's fees.
(4) A judgment ordering restitution when recorded in a registry of judgments docket shall have the same
affect and is subject to the same rules as a judgment in a civil action. Interest shall accrue on the
amount ordered from the time of sentencing, including prejudgment interest.
(5) The department shall make rules permitting the restitution payments to be credited to principal first
and the remainder of payments credited to interest in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act.
Enacted by Chapter 137, 2001 General Session
77-38a-402. Nondischargeability in bankruptcy.
Restitution imposed under this chapter and interest accruing in accordance with Subsection 77-38a-401(4)
is considered a debt and may not be discharged in bankruptcy.
Enacted by Chapter 137, 2001 General Session
77-38a-403. Civil action by victim for damages.
(1) Provisions in this part concerning restitution do not limit or impair the right of a person injured by a
defendant's criminal activities to sue and recover damages from the defendant in a civil action.
Evidence that the defendant has paid or been ordered to pay restitution under this part may not be
introduced in any civil action arising out of the facts or events which were the basis for the restitution.
However, the court shall credit any restitution paid by the defendant to a victim against any judgment
in favor of the victim in the civil action.
(2) If conviction in a criminal trial necessarily decides the issue of a defendant's liability for pecuniary
damages of a victim, that issue is conclusively determined as to the defendant if it is involved in a
subsequent civil action.
Enacted by Chapter 137, 2001 General Session
77-38a-404. Priority.
(1) If restitution to more than one person, agency, or entity is set at the same time, the department shall
establish the following priorities of payment, except as provided in Subsection (3):
(a) the crime victim;
(b) the Office of Crime Victim Reparations;
(c) any other government agency which has provided reimbursement to the victim as a result of
the offender's criminal conduct;
(d) the person, entity, or governmental agency that has offered and paid a reward under Section
76-3-201.1 or 78-3a-118;
(e) any insurance company which has provided reimbursement to the victim as a result of the
offender's criminal conduct; and
(f) any county correctional facility to which the court has ordered the defendant to pay restitution
under Subsection 76-3-201(6).
(2) Restitution ordered under Subsection (1)(f) is paid after criminal fines and surcharges are paid.
(3) If the offender is required under Section 53-10-404 to reimburse the department for the cost of
obtaining the offender's DNA specimen, this reimbursement is the next priority after restitution to the
crime victim under Subsection (1)(a).
(4) All money collected for court-ordered obligations from offenders by the department will be applied:
(a) first, to victim restitution, except the $30 per month required to be collected by the department
under Section 64-13-21, if applicable; and
(b) second, if applicable, to the cost of obtaining a DNA specimen under Subsection (3).
Amended by Chapter 280, 2003 General Session
Amended by Chapter 278, 2003 General Session
77-38a-501. Default and sanctions.
(1) When a defendant defaults in the payment of a judgment for restitution or any installment ordered, the
court, on motion of the prosecutor, parole or probation agent, victim, or on its own motion may
impose sanctions against the defendant as provided in Section 76-3-201.1.
(2) The court may not impose a sanction against the defendant under Subsection (1) if:
(a) the defendant's sole default in the payment of a judgement for restitution is the failure to pay
restitution ordered under Subsection 76-3-201(6) regarding costs of incarceration in a county
correctional facility; and
(b) the sanction would extend the defendant's term of probation or parole.
Amended by Chapter 280, 2003 General Session
77-38a-502. Collection from inmate offenders.
In addition to the remedies provided in Section 77-38a-501, the department upon written request of the
prosecutor, victim, or parole or probation agent, shall collect restitution from offender funds held by the
department as provided in Section 64-13-23.
Enacted by Chapter 137, 2001 General Session
77-38a-601. Preservation of assets.
(1) At the time a criminal information, indictment charging a violation, or a petition alleging delinquency
is filed, or at any time during the prosecution of the case, a prosecutor may petition the court to enter
a restraining order or injunction, require the execution of a satisfactory performance bond, or take any
other action to preserve the availability of property which may be necessary to satisfy an anticipated
restitution order if, in the prosecutor's best judgement, there is a substantial likelihood that a
conviction will be obtained and restitution will be ordered.
(a) Upon receiving a petition from a prosecutor under this Subsection (1), and after notice and a
hearing, the court may enter a restraining order or injunction, require the execution of a
satisfactory performance bond, or take any action necessary to preserve the availability of
property which may be necessary to satisfy an anticipated restitution order.
(b) An order entered under this Subsection (1) is effective for up to 90 days, unless extended by
the court for good cause shown.
(2) Prior to the filing of a criminal information, indictment charging a violation, or a petition alleging
delinquency, a prosecutor may petition the court to enter a restraining order or injunction, require the
execution of a satisfactory performance bond, or take any other action to preserve the availability of
property which may be necessary to satisfy an anticipated restitution order if, in the prosecutor's best
judgement, there is a substantial likelihood that a conviction will be obtained and restitution will be
ordered.
(a) Upon receiving a request from a prosecutor under this Subsection (2), the court may enter a
restraining order or injunction, require the execution of a satisfactory performance bond, or
take any action necessary to preserve the availability of property which may be necessary to
satisfy an anticipated restitution order after notice to persons appearing to have an interest in
the property and affording them an opportunity to be heard, if the court determines that:
(i) there is probable cause to believe that a crime has been committed and that the
defendant committed it, and that failure to enter the order will result in the property
being sold, distributed, exhibited, destroyed, or removed from the jurisdiction of the
court, or otherwise be made unavailable for restitution; and
(ii) the need to preserve the availability of the property or prevent its sale, distribution,
exhibition, destruction, or removal through the entry of the requested order outweighs
the hardship on any party against whom the order is to be entered.
(b) An order entered under this Subsection (2) is effective for the period of time given in the
order.
(3)
(a) Upon receiving a request from a prosecutor under Subsection (2), and notwithstanding
Subsection (2)(a)(i), a court may enter a temporary restraining order against an owner with
respect to specific property without notice or opportunity for a hearing if:
(i) the prosecutor demonstrates that there is a substantial likelihood that the property with
respect to which the order is sought appears to be necessary to satisfy an anticipated
restitution order under this chapter; and
(ii) that provision of notice would jeopardize the availability of the property to satisfy any
restitution order or judgment.
(b) The temporary order in this Subsection (3) expires not more than ten days after it is entered
unless extended for good cause shown or the party against whom it is entered consents to an
extension.
(4) A hearing concerning an order entered under this section shall be held as soon as possible, and prior to
the expiration of the temporary order.
Enacted by Chapter 160, 2004 General Session
Utah Rules of Evidence
Rules 404, 412, 615, 1102
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.
(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion, except:
.
.
.
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of
the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the alleged victim offered by the prosecution in a homicide
case to rebut evidence that the alleged victim was the first aggressor;
Rule 412. Admissibility of alleged victim's sexual behavior or alleged sexual predisposition.
(a) Evidence generally inadmissible. The following evidence is not admissible in any criminal proceeding
involving alleged sexual misconduct except as provided in paragraphs (b) and (c):
(1) evidence offered to prove that any alleged victim engaged in other sexual behavior; and
(2) evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions. The following evidence is admissible, if otherwise admissible under these rules:
(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a
person other than the accused was the source of the semen, injury, or other physical evidence;
(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the
person accused of the sexual misconduct offered:
(A) by the accused to prove consent; or
(B) by the prosecution; and
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under paragraph (b) must:
(A) file a written motion at least 14 days before trial specifically describing the evidence
and stating the purpose for which it is offered unless the court, for good cause,
requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties. The prosecutor shall timely notify the alleged victim
or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule, the court must conduct a hearing in camera and
afford the alleged victim and parties a right to attend and be heard. The motion, related
papers, and the record of the hearing must be sealed and remain under seal unless the court
orders otherwise.
Rule 615. Exclusion of witnesses.
(1) At the request of a party the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order on its own motion. This rule does not
authorize exclusion of:
.
.
.
(d) a victim in a criminal or juvenile delinquency proceeding where the prosecutor agrees with
the victim's presence; or
(e) a victim counselor while the victim is present unless the defendant establishes that the
counselor is a material witness in that criminal or juvenile delinquency proceeding.
(2) The court may exclude or excuse a victim from the courtroom if the victim becomes disruptive.
(3) A victim in a criminal or juvenile delinquency proceeding who elects to be present in the courtroom
may not be prevented from testifying, even after being present and having heard other testimony.
(4) As used in this rule, "victim counselor":
(a) means a person who is present in the courtroom to assist the victim and is employed by or
volunteers at any office, institution, or center assisting victims of crimes and their families
which offers crisis intervention or support, medical or legal services, or counseling; and
(b) includes a "sexual assault counselor" as defined in Section 78-3c-3, Utah Code Annotated.
Rule 1102. Reliable Hearsay in Criminal Preliminary Examinations
(a) Statement of the Rule.
Reliable hearsay is admissible at criminal preliminary examinations.
(b) Definition of reliable hearsay.
For purposes of criminal preliminary examinations only, reliable hearsay includes:
.
.
.
(7) a statement made by a child victim of physical abuse or a sexual offense which is promptly reported
by the child victim and recorded in accordance with Rule 15.5 of the Utah Rules of Criminal
Procedure;
Utah Rules of Criminal Procedure
Rules 15.5, 16, 21A, 27, 35
Rule 15.5. Visual recording of statement or testimony of child victim or witness of sexual or
physical abuse - Conditions of admissibility.
(1) In any case concerning a charge of child abuse or of a sexual offense against a child, the oral
statement of a victim or witness younger than 14 years of age may be recorded prior to the filing of an
information or indictment, and upon motion and for good cause shown is admissible as evidence in
any court proceeding regarding the offense if all of the following conditions are met:
(a) no attorney for either party is in the child's presence when the statement is recorded;
(b) the recording is visual and aural and is recorded on film or videotape or by other electronic
means;
(c) the recording equipment is capable of making an accurate recording, the operator of the
equipment is competent, and the recording is accurate and has not been altered;
(d) each voice in the recording is identified;
(e) the person conducting the interview of the child in the recording is present at the proceeding
and is available to testify and be cross-examined by either party;
(f) the defendant and his attorney are provided an opportunity to view the recording before it is
shown to the court or jury;
(g) the court views the recording before it is shown to the jury and determines that it is
sufficiently reliable and trustworthy and that the interest of justice will best be served by
admission of the statement into evidence; and
(h) the child is available to testify and to be cross-examined at trial, either in person or as
provided by Subsection (2) or (3), or the court determines that the child is unavailable as a
witness to testify at trial under the Utah Rules of Evidence. For purposes of this subsection
"unavailable" includes a determination, based on medical or psychological evidence or expert
testimony, that the child would suffer serious emotional or mental strain if required to testify
at trial.
(2) In any case concerning a charge of child abuse or of a sexual offense against a child, the court may
order, upon motion of the prosecution and for good cause shown, that the testimony of any witness or
victim younger than 14 years of age be taken in a room other than the court room, and be televised by
closed circuit equipment to be viewed by the jury in the court room. All of the following conditions
shall be observed:
(a) Only the presiding judge, attorneys for each party, persons necessary to operate equipment,
and a counselor or therapist whose presence contributes to the welfare and emotional wellbeing of the child may be with the child during his testimony. The defendant may also be
present during the child's testimony unless he consents to be hidden from the child's view, or
the court determines that the child will suffer serious emotional or mental strain if he is
required to testify in the defendant's presence, or that the child's testimony will be inherently
unreliable if he is required to testify in the defendant's presence. If the court makes that
determination, or if the defendant consents:
(i) the defendant may not be present during the child's testimony;
(ii) the court shall ensure that the child cannot hear or see the defendant;
(iii) the court shall advise the child prior to his testimony that the defendant is present at
the trial and may listen to the child's testimony;
(iv) the defendant shall be permitted to observe and hear the child's testimony, and the
court shall ensure that the defendant has a means of two-way telephonic
communication with his attorney during the child's testimony; and
(v) the conditions of a normal court proceeding shall be approximated as nearly as
possible.
(b) Only the presiding judge and attorneys may question the child.
(c) As much as possible, persons operating the equipment shall be confined to an adjacent room
or behind a screen or mirror so the child cannot see or hear them.
(d) If the defendant is present with the child during the child's testimony, the court may order that
persons operating the closed circuit equipment film both the child and the defendant during
the child's testimony, so that the jury may view both the child and the defendant, if that may
be arranged without violation of other requirements of Subsection (2).
(3) In any case concerning a charge of child abuse or of a sexual offense against a child, the court may
order, upon motion of the prosecution and for good cause shown, that the testimony of any witness or
victim younger than 14 years of age be taken outside the courtroom and be recorded. That testimony
is admissible as evidence, for viewing in any court proceeding regarding the charges if the provisions
of Subsection (2) are observed, in addition to the following provisions:
(a) the recording is both visual and aural and recorded on film or videotape or by other electronic
means;
(b) the recording equipment is capable of making an accurate recording, the operator is
competent, and the recording is accurate and is not altered;
(c) each voice on the recording is identified; and
(d) each party is given an opportunity to view the recording before it is shown in the courtroom.
(4) If the court orders that the testimony of a child be taken under Subsection (2) or (3), the child may not
be required to testify in court at any proceeding where the recorded testimony is used.
Rule 16. Discovery.
.
.
.
(e) When convenience reasonably requires, the prosecutor or defense may make disclosure by notifying
the opposing party that material and information may be inspected, tested or copied at specified
reasonable times and places. The prosecutor or defense may impose reasonable limitations on the further
dissemination of sensitive information otherwise subject to discovery to prevent improper use of the
information or to protect victims and witnesses from harassment, abuse, or undue invasion of privacy,
including limitations on the further dissemination of videotaped interviews, photographs, or psychological
or medical reports.
Rule 18. Selection of the jury.
(a) The judge shall determine the method of selecting the jury and notify the parties at a pretrial
conference or otherwise prior to trial. The following procedures for selection are not exclusive.
.
.
.
(e) A challenge for cause is an objection to a particular juror and shall be heard and determined by the
court. The juror challenged and any other person may be examined as a witness on the hearing of
such challenge. A challenge for cause may be taken on one or more of the following grounds. On its
own motion the court may remove a juror upon the same grounds.
.
.
.
(4) The existence of any social, legal, business, fiduciary or other relationship between the
prospective juror and any party, witness or person alleged to have been victimized or injured
by the defendant, which relationship when viewed objectively, would suggest to reasonable
minds that the prospective juror would be unable or unwilling to return a verdict which would
be free of favoritism. A prospective juror shall not be disqualified solely because the juror is
indebted to or employed by the state or a political subdivision thereof.
Rule 21A. Presentence investigation reports; Restitution.
.
.
.
(c) Restitution.
(1) The presentence investigation report prepared by the Department of Corrections shall include
a specific statement of pecuniary damages as provided in Utah Code Section 77-18-1(4). This
statement shall include, but not be limited to, a specific dollar amount recommended by the
Department of Corrections to be paid by the defendant to the victim(s).
(2) In cases where a specific dollar value is not known, and is not an accumulating amount, e.g.
continuing medical expenses, the court may continue the sentencing. If sentencing occurs, it
shall be done with the concurrence of defense counsel/defendant and the prosecutor and an
agreement shall be reached as to how restitution shall be determined. In no instance shall the
restitution amount be determined by the Department of Corrections without approval of the
court, defendant, defense counsel and the prosecutor. If the parties disagree about the
restitution amount, a restitution hearing shall be scheduled.
Rule 27. Stays pending appeal.
.
.
.
(g) If the court determines that the defendant may be released pending appeal, it may release the
defendant on the least restrictive condition or combination of conditions that the court determines will
reasonably assure the appearance of the person as required and the safety of persons and property in
the community, which conditions may include, without limitation, that the defendant:
.
.
.
(7) avoid all contact with the victim or victims of the crime(s), any witness or witnesses who
testified against the defendant and any potential witnesses who might testify concerning the
offenses if the appeal results in a reversal or an order for a new trial;
Rule 35. Victims and witnesses.
(a) The prosecuting agency shall inform all victims and subpoenaed witnesses of their responsibilities
during the criminal proceedings.
(b) The prosecuting agency shall inform all victims and subpoenaed witnesses of their right to be free
from threats, intimidation and harm by anyone seeking to induce the victim or witness to testify
falsely, withhold testimony or information, avoid legal process, or secure the dismissal of or prevent
the filing of a criminal complaint, indictment or information.
(c) If requested by the victim, the prosecuting agency shall provide notice to all victims of the date and
time of scheduled hearings, trial and sentencing and of their right to be present during those
proceedings and any other public hearing unless they are subpoenaed to testify as a witness and the
exclusionary rule is invoked.
(d) The informational rights of victims and witnesses contained in paragraphs (a) through (c) of this rule
are contingent upon their providing the prosecuting agency and court with their current telephone
numbers and addresses.
(e) In cases where the victim or the victim's legal guardian so requests, the prosecutor shall explain to the
victim that a plea agreement involves the dismissal or reduction of charges in exchange for a plea of
guilty and identify the possible penalties which may be imposed by the court upon acceptance of the
plea agreement. At the time of entry of the plea, the prosecutor shall represent to the court, either in
writing or on the record, that the victim has been contacted and an explanation of the plea bargain has
been provided to the victim or the victim's legal guardian prior to the court's acceptance of the plea. If
the victim or the victim’s legal guardian has informed the prosecutor that he or she wishes to address
the court at the change of plea or sentencing hearing, the prosecutor shall so inform the court.
(f) The court shall not require victims and witnesses to state their addresses and telephone numbers in
open court.
(g) Judges should give scheduling priority to those criminal cases where the victim is a minor in an effort
to minimize the emotional trauma to the victim. Scheduling priorities for cases involving minor
victims are subject to the scheduling priorities for criminal cases where the defendant is in custody.
63 P.3d 56
63 P.3d 56, 2002 UT 113, 461 Utah Adv. Rep. 25
(Cite as: 63 P.3d 56)
Briefs and Other Related Documents
Supreme Court of Utah.
STATE of Utah, Plaintiff and Appellee,
v.
Damond BLAKE, Defendant and Appellant.
No. 20000967.
Page 1
For purposes of a defendant's request for a hearing
involving the admissibility of an alleged victim's
sexual behavior or alleged sexual predisposition, an
appellate court reviews the question of law for
correctness while deferring to the lower court's
subsidiary factual determinations. Rules of Evid.,
Rule 412.
[2] Criminal Law 110
Nov. 26, 2002.
Defendant was charged in the District Court, Salt
Lake County, Dennis M. Fuchs, J., with sexual abuse
of a child and was denied request for victim's mental
health and juvenile court records. Defendant filed an
interlocutory appeal. The Supreme Court, Wilkins, J.,
held that: (1) defendant was not entitled to hearing
involving the admissibility of an alleged victim's
sexual behavior or alleged sexual predisposition; (2)
defendant was not entitled to discovery of victim's
juvenile court records under rule of criminal
procedure governing what a prosecutor shall disclose;
and (3) defendant failed to establish a reasonable
certainty that exculpatory evidence existed in victim's
counseling records that would be favorable to his
defense to entitle defendant to in camera review of
such records.
Affirmed.
Howe and Russon, JJ., concurred in result only.
West Headnotes
[1] Criminal Law 110
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
Criminal Law 110
1158(4)
110 Criminal Law
110XXIV Review
110XXIV(O) Questions of Fact and Findings
110k1158 In General
110k1158(4) k. Reception of Evidence.
Most Cited Cases
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
Decisions regarding the release of juvenile court
records are governed by statute and reviewed for
correctness.
[3] Criminal Law 110
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
A court's decision regarding the existence of a
privilege is a question of law for the court, and is
reviewed for correctness.
[4] Criminal Law 110
695.5
110 Criminal Law
110XX Trial
110XX(D) Procedures for Excluding Evidence
110k695.5 k. Hearing, Ruling, and
Objections. Most Cited Cases
Defendant was not entitled to hearing involving the
admissibility of an alleged victim's sexual behavior or
alleged sexual predisposition, where defendant failed
to identify any evidence he wished to have admitted.
Rules of Evid., Rule 412.
[5] Criminal Law 110
627.6(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
63 P.3d 56
63 P.3d 56, 2002 UT 113, 461 Utah Adv. Rep. 25
(Cite as: 63 P.3d 56)
Page 2
to Trial
110k627.6 Information or Things,
Disclosure of
110k627.6(6) k. Records. Most Cited
Cases
Defendant, who was charged with sexual assault of a
child, was not entitled to discovery of victim's
juvenile court records under rule of criminal
procedure governing what a prosecutor shall disclose,
where prosecution had no access to the requested
records. U.C.A.1953, 78-3a-206; Rules Crim.Proc.,
Rule 16.
[6] Criminal Law 110
627.8(4)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
to Trial
110k627.8 Proceedings to Obtain
Disclosure
110k627.8(4) k. Examination by
Court; Inspection in Camera. Most Cited Cases
Where a defendant's request for in camera review of
privileged communications between a crime victim
and therapist is accompanied by specific facts
justifying the review, a court will be much more
likely to find with reasonable certainty that
exculpatory evidence exists which would be
favorable to his defense. Rules of Evid., Rule 506.
[7] Criminal Law 110
627.8(4)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
to Trial
110k627.8 Proceedings to Obtain
Disclosure
110k627.8(4) k. Examination by
Court; Inspection in Camera. Most Cited Cases
When a request for in camera review of privileged
communications between a crime victim and
therapist is a general one, a court ought not to grant
in camera review; at a minimum, specific facts must
be alleged that may include references to records of
only certain counseling sessions, which are alleged to
be relevant, independent allegations made by others
that a victim has recanted, or extrinsic evidence of
some disorder that might lead to uncertainty
regarding a victim's trustworthiness. Rules of Evid.,
Rule 506.
[8] Criminal Law 110
627.8(4)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
to Trial
110k627.8 Proceedings to Obtain
Disclosure
110k627.8(4) k. Examination by
Court; Inspection in Camera. Most Cited Cases
If a defendant can show with reasonable certainty
that exculpatory evidence exists from privileged
communications between a crime victim and a
therapist which would be favorable to his defense, a
court then conducts an in camera review of such
privileged communications for materiality, and such
review is conducted using a reasonable probability
standard where evidence is deemed material where
there is a reasonable probability that, if the evidence
is disclosed to the defense, the result of the
proceeding will be different. Rules of Evid., Rule
506.
[9] Criminal Law 110
627.8(4)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
to Trial
110k627.8 Proceedings to Obtain
Disclosure
110k627.8(4) k. Examination by
Court; Inspection in Camera. Most Cited Cases
Defendant, who was charged with sexual assault of a
child, failed to establish a reasonable certainty that
exculpatory evidence existed in victim's counseling
records that would be favorable to his defense to
entitle defendant to in camera review of such records;
defendant only alleged that records were important
because they may have had information about
medication victim had been taking that affected her
credibility. Rules of Evid., Rule 506.
*57 Mark L. Shurtleff, Att'y Gen., Marian Decker,
Asst. Att'y Gen., and Michaela Andruzzi, Salt Lake
City, for plaintiff.
Susanne Gustin-Furgis, Salt Lake City, for defendant.
Kara L. Barton, Salt Lake City, Douglas E. Beloof,
Gina S. McClard, Portland, Oregon, Wendy Murphy,
Boston, Massachusetts, for amicus Rape Recovery
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
63 P.3d 56
63 P.3d 56, 2002 UT 113, 461 Utah Adv. Rep. 25
(Cite as: 63 P.3d 56)
Center.
WILKINS, Justice:
¶ 1 Defendant, Damond Blake (“Blake”), brings this
interlocutory appeal from the denial of his request for
discovery of the victim's mental health and juvenile
court records for use in defending himself against
charges of sexual abuse of a child, S.D. He further
challenges the denial of a motion for a hearing,
pursuant to rule 412 of the Utah Rules of Evidence
(“412 hearing”), to explore S.D.'s sexual past and
whether there have been any prior accusations of
crimes similar to that alleged here. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
¶ 2 Blake is charged with sexual abuse of a child for
alleged sexual misconduct with his then girlfriend's
twelve-year-old daughter, S.D. At a preliminary
hearing, after which Blake was bound over for trial,
S.D. was asked by Blake's counsel if she had ever
accused anyone else of similar incidents. After an
initially vague answer, she denied that she had ever
done so.
Upon conclusion of this line of
questioning, Blake requested that the court allow him
to conduct a 412 hearing to inquire about S.D.'s
sexual history, particularly any past allegations of
sexual abuse made by S.D. against others, and any
drug and alcohol use by S.D. The trial court denied
this request. In other questioning, S.D. admitted to a
stay in juvenile detention and a juvenile record for
theft. Further, Blake uncovered the fact that S.D.
had received counseling in connection with the
assault he allegedly committed.
¶ 3 After the preliminary hearing, Blake attempted to
discover sensitive information relating to S.D.'s
answers at the preliminary hearing, including school
grade reports, DCFS reports, juvenile detention and
arrest records, and mental health records. Because
Blake has obtained the DCFS reports and school
grade reports, they are not a part of this appeal.FN1
The other records sought were in the custody of the
various agencies and entities with which they
originated. Though the custodians of the records
were subpoenaed, Blake never brought the custodians
of those records before the court.
FN1. Because the DCFS and school records
have already been provided, we express no
opinion as to whether defendant was entitled
to their production, or could have compelled
discovery.
Page 3
¶ 4 In conjunction with Blake's requests for
discovery and a 412 hearing, which were denied, the
trial court determined that the sought-after records
were not in possession of the prosecution and that the
mental health records were privileged material, not
subject to discovery. The court also found that there
was no evidence that S.D.'s preliminary hearing
testimony was unreliable or that she had made prior
accusations of sexual assault.
¶ 5 The court denied the request for a 412 hearing on
the ground that the defendant *58 failed to meet the
requirement of rule 412(c) of the Utah Rules of
Evidence that a party file a motion “stat[ing] with
specificity the evidence ... sought to [be] admitted
and the purpose for its admission.” Blake's request
for S.D.'s juvenile records was denied by the court
because the records were not in possession of the
State; the court further held that such records were
closed. Applying the privilege of rule 506 of the
Utah Rules of Evidence, the court also denied the
request for S.D.'s counseling records.
The court
determined that rule 506 did not allow discovery of
material intended only for impeachment, that Blake
merely made a general request for information, and
that there was no evidence of prior accusations of
another or unreliable testimony by S.D. Further, the
court noted the State's substantial interest in
protecting counseling relationships and the chilling
effect of piercing that relationship.
ANALYSIS
I. STANDARD OF REVIEW
[1][2][3] ¶ 6 As to Blake's request for a 412 hearing,
we review the question of law for correctness while
deferring to the lower court's “subsidiary factual
determinations.” State v. Quinonez-Gaiton, 2002 UT
App 273, ¶ 9, 54 P.3d 139 (internal quotations and
citations omitted). Decisions regarding the release
of juvenile court records are governed by statute and
reviewed for correctness. See State v. Casey, 2002
UT 29, ¶ 19, 44 P.3d 756.
A court's decision
regarding “the existence of a privilege is a question
of law for the court,” and is reviewed for correctness.
Riddle v. Perry, 2002 UT 10, ¶ 6, 40 P.3d 1128
(citations omitted).
II. 412 HEARING
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63 P.3d 56
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Page 4
[4] ¶ 7 Blake's stated purpose in requesting a 412
hearing is to “question [the] alleged victim about
prior false allegations and prior sexual abuse.”
However, Blake ignores the plain language of rule
412, which provides for a hearing “only if the court
sees the applicability of one of the limited exceptions
and intends to admit such evidence.” QuinonezGaiton, 2002 UT App 273 at ¶ 12, 54 P.3d 139. In
this case, Blake failed to identify any evidence he
wished to have admitted and his request for a hearing
to attempt discovery of evidence was properly
denied.
defendants-in the desire to protect victims.
The
premise of Blake's argument is that the pendulum has
swung too far from the historically poor treatment of
victims and reached *59 the other end, treating
defendants unjustly. We agree that in the event the
protection of victims prevents a fair trial of those
accused of rape or sexual assault, the right to a fair
trial must be preserved. We have not yet reached
that point.
III. JUVENILE COURT RECORDS
IV. COUNSELING RECORDS
¶ 11 The revelation that women victims of rape have
long been mistreated by the law is a relatively recent
development. Courts have long held institution-wide
distrust of rape victims in cases where they were
acquainted with their assailants. See Susan Estrich,
Real Rape 28-29 (1987) (discussing suspicion of
women victims and legal presumptions against
women in “simple,” as opposed to “stranger” rapes).
As recently as the mid-twentieth century, articles in
the nation's most prestigious legal journals openly
suggested that the testimony of female rape victims
was not to be trusted. Note the language of one such
journal: “a woman's need for sexual satisfaction may
lead to the unconscious desire for forceful
penetration, the coercion serving neatly to avoid the
guilt feeling which might arise after willing
participation.” Note, Forcible and Statutory Rape:
An Exploration of the Operation and Objectives of
the Consent Standard, 62 Yale L.J. 55, 67 (1952).
Yet another: “a woman may note a man's brutal
nature and be attracted to him rather than repulsed.
Masochistic tendencies seem to lead many women to
seek men who will ill-treat them sexually.” Note,
The Resistance Standard in Rape Legislation, 18
Stan. L.Rev. 680, 682 (1966).
The tone of the
literature had begun to change by the 1980s when
Professor Susan Estrich of the University of Southern
California authored an extensive law review article,
entitled Rape, and her related book, Real Rape. These
works present a thorough survey of the historical
treatment of women rape victims and are useful for
understanding the issue now before this court.
¶
10 Women and children represent a
disproportionate number of the rape and assault
victims in our society.
Historically, the law has
failed to adequately protect these victims; however,
recent efforts have been made to correct this
injustice.
It has been suggested that there is an
imaginary pendulum swinging from one end-poor
treatment of victims-to the other-unjust treatment of
¶
12 Estrich notes that the law has been
accommodating of victims of rape where a stranger
forcibly attacks the victim while it has been leery of
victims raped by acquaintances. Real Rape, supra,
at 28-29. The vehicles for institutionalized suspicion
of rape complainants have typically been nonconsent,
corroboration,
and
other
related
requirements, where the focus is shifted to the
[5] ¶ 8 The records of the juvenile court and its
probation department are governed by Utah Code
Ann. section 78-3a-206 (Supp.2002). That section
prescribes the method by which such records may be
released or opened for inspection. Blake has cited
no provision, other than rule 16 of the Utah Rules of
Criminal Procedure, that purports to give him the
right to review S.D.'s juvenile records. Rule 16 is
inapplicable where, as here, the prosecution does not
Rule 16
have access to the requested records.
applies only to information available to the
prosecution. Utah R.Crim. P. 16 (“the prosecutor
shall disclose ...”). Thus, where the prosecution has
no access to the records a motion under rule 16 is
ineffective to compel the records' release.
¶ 9 Blake also refers this court to Davis v. Alaska,
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)
for support of his argument for access to S.D.'s
juvenile records. However, as the State has correctly
noted, Davis dealt with the question of admissibility
of such records on cross-examination, not discovery.
See generally Davis, 415 U.S. at 315-16, 94 S.Ct.
1105 (noting Sixth Amendment right to confront
witnesses through impeachment on crossexamination).
Accordingly, Davis avails Blake
nothing. The trial court's ruling is affirmed.
A. Historical Treatment of Rape and Sexual Assault
Victims
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
63 P.3d 56
63 P.3d 56, 2002 UT 113, 461 Utah Adv. Rep. 25
(Cite as: 63 P.3d 56)
victim's acts, rather than the defendant's. Id. at 29
(noting that rape victims are required to show nonconsent by physical resistance).
While the nonconsent standard and its related requirements may
initially seem benign and similar to requirements in
other criminal matters, such as theft and trespassing,
Professor Estrich suggests that they have been
applied very differently in rape cases than in the
others. See, e.g., Susan Estrich, Rape, 95 Yale L.J.
1087, 1094 (1986) (stating, “The definition of rape
stands in striking contrast to this tradition, because
courts, in defining the crime, have focused almost
incidentally on the defendant-and almost entirely on
the victim.”).
¶ 13 Illustrative of the difference between rape and
other crimes is the non-consent requirement. The
non-consent requirement for a rape conviction has
been expressed not as non-consent is in trespass but
in terms of the victim's resistance. In the words of
one court, “[n]ot only must there be entire absence of
mental consent or assent, but there must be the most
vehement exercise of every physical means or faculty
within the woman's power to resist the penetration of
her person, and this must be shown to persist until the
offense is consummated.” Brown v. State, 127 Wis.
193, 106 N.W. 536, 538 (1906). This degree of nonconsent is not paralleled by tests for non-consent in
cases other than rape. Real Rape, supra, at 40-41
(noting that non-consent in trespass cases requires
only verbal or posted warnings).
¶ 14 In addition to the resistance requirement, the
law of many states has further failed victims by
requiring evidentiary corroboration of a victim's
testimony, allowing evidence of a victim's sexual
past, and mandating jury instructions cautioning
juries against giving too much weight to victims'
testimony.
Id. at 42 (corroboration), 47 (sexual
past), 54-55 (cautionary instruction). By the 1980s
these requirements had “enshrined distrust of women
in the law ... and ensured that rape trials would
indeed be real nightmares-for the women victims.”
Id. at 56. *60 One unfortunate result of the law's
mistreatment and distrust has been that women raped
by acquaintances, as opposed to strangers, are much
less likely to report those rapes to police. See id. at
10-12 (noting widely divergent reporting statistics in
stranger and acquaintance rapes and citing various
surveys to that effect);
Wendy J. Murphy,
Minimizing the Likelihood of Discovery of Victims'
Counseling Records and Other Personal Information
in Criminal Cases: Massachusetts Gives a Nod to a
Constitutional Right to Confidentiality, 32 New Eng.
L.Rev. 983, 1016-17 (1998) (noting judicial
Page 5
recognition of decline in reporting when records not
protected).
¶ 15 In an effort to remedy many of the past failings
of the law in relation to victims of rape and similar
sexual crimes, many jurisdictions have reformed rape
laws. E.g., Real Rape, supra, at 57 (noting that
corroboration requirements have been discarded and
rape shield statutes often protect information about
victims' sexual pasts).
Utah has enacted both
statutes and rules of evidence designed specifically to
protect the victims of sexual assaults. Utah Code
Ann. § § 78-3c-1 to -4 (1996) (invoking privilege in
rape crisis counseling);
Utah R. Evid. 412
(preventing most uses of evidence of victim's sexual
behavior). While these provisions apply specifically
to victims of sexual assaults, the more general
movement toward recognizing the rights of all crime
victims has given birth to other provisions in Utah
law that extend to victims of sexual assault.
B. The Victims' Rights Amendment
¶ 16 We discuss the victims' rights amendment to
Utah's Constitution (“the amendment”) to provide
useful context for our review of past and current
treatment of rape and sexual assault victims.
However, because “[r]ules, like statutes, are to be
construed to avoid constitutional interpretation where
possible,” we do not decide this case by resorting to
Preuss v.
Utah's victims' rights amendment.
Wilkerson, 858 P.2d 1362, 1362-63 (Utah 1993).
The amendment recognizes specific rights of crime
victims. Among those rights is the right “[t]o be
treated with fairness, respect, and dignity, and to be
free from harassment and abuse throughout the
criminal justice process.” Utah Const. art. I, §
28(1)(a). This provision was enacted in response to
an increasing recognition that:
Victims who do survive their attack, and are brave
enough to come forward, turn to their government
expecting it to ... protect the innocent.... Without the
cooperation of victims and witnesses in reporting and
testifying about crime, it is impossible in a free
society to hold criminals accountable. When victims
come forward to perform this vital service, however,
they find little protection. They discover instead that
they will be treated as appendages of a system
appallingly out of balance.
They learn that
somewhere along the way the system has lost track of
the simple truth that it is supposed to be fair and to
protect those who obey the law while punishing those
who break it. Somewhere along the way, the system
began to serve lawyers and defendants, treating
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Page 6
victims with institutionalized disinterest.
President's Task Force on Victims of Crime, Final
Report, iv (1982) (quoted in Paul Cassell, Balancing
the Scales of Justice: The Case for and the Effects of
Utah's Victims' Rights Amendment, 1994 Utah L.Rev.
1373, 1379). Utah law now recognizes that victims
have fared poorly in the criminal justice system and
that they are to be more involved in the process of
punishing the acts of which they became unwilling
participants.
C. Rule 506 Privilege
¶ 17 Rule 506 of the Utah Rules of Evidence
controls our decision today. Utah law provides for a
statutory privilege for certain sexual assault
counseling. However, as the State has noted, that
privilege does not apply in this case. The counseling
S.D. received does not meet the definition provided
in section 78-3c-3 of the Utah Code, accordingly, we
agree that any privilege in this case must be
supported by other authority. See Utah Code Ann. §
78-3c-3 (1996) (defining “rape crisis center” and
“sexual assault counselor” to exclude the counseling
received by S.D.). We thus resort to rule 506 of the
Utah Rules of Evidence for analysis of the
applicability *61 of the therapist-patient privilege to
S.D.'s counseling records.
¶ 18 Rule 506 cloaks in privilege confidential
communications between a patient and her therapist
in matters regarding treatment.
Utah R. Evid.
506(b). The very nature of all privileges means that
they will sometimes “interfere with establishment of
the whole truth.”
Utah R. Evid. 501 advisory
committee notes. Nevertheless, the various rules of
privilege are recognized as “reflect[ing] good policy
choices, fostering candor in important relationships
by promising protection of confidential disclosures.”
Id. Although this privilege is an important one, the
rule provides exceptions in certain circumstances,
one of which Blake suggests is applicable here.
Utah R. Evid. 506(d) (listing exceptions).
Specifically, it provides that no privilege will exist if
an otherwise covered communication is “relevant to
an issue of the physical, mental, or emotional
condition of the patient in any proceeding in which
that condition is an element of any claim or defense.”
Id. at (d)(1). We have had occasion to consider the
boundaries of this exception in previous cases,
particularly State v. Cardall, 1999 UT 51, 982 P.2d
79. We take this opportunity to clarify the standard
and test laid out in Cardall.
1. In Camera Review
¶ 19 We have previously recognized that there are
situations
in
which
otherwise
privileged
communications between a crime victim and her
therapist might be subject to in camera review and
disclosure. Cardall, 1999 UT 51, at ¶ ¶ 29-35, 982
P.2d 79. We noted in Cardall that the disclosure of
such material was limited and required a showing
“with reasonable certainty that exculpatory evidence
exists which would be favorable to [the] defense.”
Id. at ¶ 30. In the context of this case it is not
enough to show that the counseling records exist.
Blake must show, with reasonable certainty, that the
sought-after records actually contain “exculpatory
evidence ... which would be favorable to his
defense.” Cardall, 1999 UT 51 at ¶ 30, 982 P.2d 79.
This is a stringent test, necessarily requiring some
type of extrinsic indication that the evidence within
the records exists and will, in fact, be exculpatory.FN2
The difficulty in meeting this test is deliberate and
prudent in light of the sensitivity of these types of
records and the worsening of under-reporting
problems in the absence of a strong privilege. See
supra Part IV., A. (noting problems of underreporting); see also, Murphy, supra, at 1016-17
(noting judicial recognition of decline in reporting
when records not protected). Exactly how much is
required to satisfy the “reasonable certainty” test of
Cardall varies with each case, nevertheless, we will
attempt to give some guidance.
FN2. Blake seeks disclosure of the
counseling records for use in impeaching the
victim's testimony.
It is unlikely that
impeachment evidence qualifies as an
element of a claim or defense. However,
we need not reach the question of whether
an element of a claim or defense is
implicated since Blake has not shown with
reasonable certainty that the records he
seeks contain exculpatory evidence.
¶ 20 Standards such as “reasonable certainty” or
“reasonable probability” elude quantification. See
State v. Knight, 734 P.2d 913, 919-20 (Utah 1987)
(noting an imaginary spectrum and recognizing
inability to “assign a definite spot on the spectrum” to
the reasonable probability standard).
While we
cannot define the precise limits of such standards, we
can determine their place relative to one another.
Discussing a variety of these elusive tests in another
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context, we explained that the reasonable probability
standard lies somewhere between “mere possibility”
and “more likely than not.” Id. at 920. On a similar
spectrum, “reasonable certainty,” within the meaning
of Cardall, lies on the more stringent side of “more
likely than not.”
¶ 21 Accordingly, the mere speculation offered by
Blake that S.D.'s counseling records might contain
exculpatory evidence useful to his case is clearly not
enough to warrant in camera review. The following
represents a summary of Blake's stated basis for
review of S.D.'s counseling records: “[t]he mental
health records ... are important because it [sic] may
have information about medication she's taking that
effect her credibility; about whether she has recanted
or not ... [a]lso, she may have a mental illness where
part of *62 the diagnosis is chronic lying.” This
situation differs markedly from cases where a
criminal defendant can point to information from
outside sources suggesting that a victim has recanted
or accused another of the crime alleged or has a
history of mental illness relevant to the victim's
ability to accurately report on the assault.
[6][7] ¶ 22 One difference between Blake's request
and a request likely to be successful was hinted at in
Cardall. 1999 UT 51 at ¶ ¶ 32-33, 982 P.2d 79
(discussing specific requests versus general requests).
Where a defendant's request for in camera review is
accompanied by specific facts justifying the review, a
court will be much more likely to find “with
reasonable certainty that exculpatory evidence exists
which would be favorable to his defense.” Id. at ¶
30. However, when the request is a general one, such
as the request in this case for any impeachment
material that might happen to be found in the
privileged records, a court ought not to grant in
camera review. At a minimum, specific facts must
be alleged.
These might include references to
records of only certain counseling sessions, which are
alleged to be relevant, independent allegations made
by others that a victim has recanted, or extrinsic
evidence of some disorder that might lead to
uncertainty regarding a victim's trustworthiness.
This listing is not intended to be exclusive, but is
only an example of the type and quality of proof
needed to overcome the high Cardall hurdle.
2. Materiality and Disclosure
[8] ¶ 23 Upon satisfying the “reasonable certainty”
test, the court would then conduct an in camera
review for materiality. This review is conducted
Page 7
using a “reasonable probability” standard. Under
this standard, evidence is deemed material where
there is a reasonable probability that, if the evidence
is disclosed to the defense, the result of the
proceeding will be different. Cardall, 1999 UT 51 at
¶ 30, 982 P.2d 79. In the context of a case yet to go
to trial, the test becomes more difficult to apply
because the trial court must anticipate the efficacy of
the material contained in the records in persuading
the fact-finder to discredit the victim. See, e.g.,
Chauncey B. Wood, Note, Rape Prosecutions and
Privileged Psychological Counselling Records: How
much does a Defendant have a Right to Know about
his Accuser?, 3 B.U. Pub. Int. L.J. 351, 374 (1993)
(noting necessity and difficulty of anticipating
defendant's case and evaluating information reviewed
in camera ). Despite the problems inherent in in
camera review without the presence of counsel, such
review represents a satisfactory method of balancing
the interests of privacy and full reporting of crime
with defendants' ability to present the best case at
trial. Accordingly, it is the method of review we
adopt.
[9] ¶ 24 In this instance, Blake has failed to meet the
necessary minimum showing, that of a reasonable
certainty that exculpatory evidence exists which
would be favorable to his defense. As such, his
challenge fails and we affirm the decision of the trial
court.
CONCLUSION
¶ 25 Rule 412 provides for a hearing only when the
trial court intends to admit evidence.
Blake has
proffered no evidence for admission. We therefore
affirm the trial court's denial of that request.
Furthermore, no authority exists for the release of
S.D.'s juvenile records and we affirm the denial of
that request.
Blake has likewise not met the
minimum showing required to trigger in camera
review of S.D.'s counseling records and we affirm
that denial. We remand to the trial court for further
proceedings consistent with this opinion.
¶ 26 Chief Justice DURHAM and Associate Chief
Justice DURRANT concur in Justice WILKINS'
opinion.
¶ 27 Justice HOWE and Justice RUSSON concur in
the result.
Utah,2002.
State v. Blake
63 P.3d 56, 2002 UT 113, 461 Utah Adv. Rep. 25
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Briefs and Other Related Documents (Back to top)
• 2002 WL 32769972 (Appellate Brief) Reply Brief
of Petitioner (Jun. 13, 2002) Original Image of this
Document with Appendix (PDF)
• 2000 WL 34475489 (Appellate Brief) Brief of Rape
Recovery Center Joined by the National Alliance to
End Sexual Violence (Jan. 01, 2000) Original Image
of this Document with Appendix (PDF)
END OF DOCUMENT
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Page 8
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Page 1
conclusions.
Supreme Court of Utah.
STATE of Utah, Plaintiff and Appellee,
v.
Patrick William CASEY, Defendant and Appellee,
M.R. By and Through His Guardian, Cynthia F.
Casey, Appellant.
No. 20001067.
March 12, 2002.
Defendant was convicted on guilty plea in the Third
District Court, Tooele County, David S. Young, J., of
misdemeanor offense of lewdness involving a child.
Thereafter, child victim and his mother filed motion
for misplea and motion to reject plea bargain. The
district court informally reopened the plea hearing to
accept testimony from victim and his mother, and
then reaffirmed the plea. Victim and mother
appealed. On certification from the Court of Appeals,
the Supreme Court, Durrant, J., held that: (1) victim
had the right to appeal the district court's adverse
rulings regarding his right to be heard; (2) change-ofplea mounted to an “important criminal justice
hearing,” and thus, victim had a constitutional and
statutory right to be heard; (3) prosecutor who failed
to notify court of victim's desire to be heard breached
duty imposed upon him by Victims' Rights Act,
Rights of Crime Victims Act, and his position as an
officer of the court; but (4) district court remedied
violation at sentencing.
Affirmed.
Wilkins, J., filed concurring opinion.
West Headnotes
[1] Criminal Law 110
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
Because interpreting the State Constitution and the
state code presents questions of law, the Supreme
Court reviews these questions for correctness and
gives no deference to the district court's legal
[2] Constitutional Law 92
47
92 Constitutional Law
92II Construction, Operation, and Enforcement of
Constitutional Provisions
92k44 Determination of Constitutional
Questions
92k47 k. Scope of Inquiry in General. Most
Cited Cases
In accordance with the analytical hierarchy relative to
constitutions and statutes, the Supreme Court would
first examine the textual language of the Victims
Rights Amendment to the State Constitution and look
secondly to the Victims' Rights Act and the Rights of
Crime Victims Act. U.C.A.1953, 77-37-1 et seq., 7738-1 et seq.; Const. Art. 1, § 28.
[3] Constitutional Law 92
14
92 Constitutional Law
92II Construction, Operation, and Enforcement of
Constitutional Provisions
92k11 General Rules of Construction
92k14 k. Meaning of Language. Most Cited
Cases
In construing the Victims' Rights Amendment to the
State Constitution, the Supreme Court would initially
scrutinize the plain meaning of the constitutional
provision; it would not need to inquire beyond the
plain meaning of the amendment unless it found it
ambiguous.
[4] Statutes 361
188
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k188 k. In General. Most Cited Cases
Statutes 361
190
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k190 k. Existence of Ambiguity.
Most Cited Cases
As with constitutional analysis, the Supreme Court
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(Cite as: 44 P.3d 756)
looks first to the plain meaning of statutes and goes
no further unless they are ambiguous.
[5] Criminal Law 110
1023.5
110 Criminal Law
110XXIV Review
110XXIV(D) Right of Review
110k1023.5 k. Right to Review in General.
Most Cited Cases
Crime victim had the right to appeal the district
court's adverse rulings regarding his right to be heard.
U.C.A.1953, 77-38-11(2)(b, c).
Page 2
Change-of-plea hearing conducted by the district
court amounted to an “important criminal justice
hearing,” and thus, crime victim had a constitutional
and statutory right to be heard, where hearing
disposed of a first-degree felony charge filed against
defendant in return for a guilty plea on a class A
misdemeanor, hearing was not an initial appearance,
and defendant did not accept responsibility for the
first-degree felony charge previously filed. Const.
Art. 1, § 28(1)(b); U.C.A.1953, 77-38-4(1), 77-382(5)(c).
[9] Criminal Law 110
273(4.1)
110 Criminal Law
110XXIV Review
110XXIV(D) Right of Review
110k1023.5 k. Right to Review in General.
Most Cited Cases
Rights of Crime Victims Act demonstrates (1) that
crime victims possess the right to appeal rulings on
motions related to their rights as a victim and (2) that
an appellate court must review appeals of such a
nature. U.C.A.1953, 77-38-11(2)(b, c).
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k273 In General
110k273(4) Requisites and Proceedings
for Entry
110k273(4.1) k. In General. Most
Cited Cases
A victim's right to be heard at a plea hearing is
triggered where a request has been submitted to the
prosecutor handling the case. Const. Art. 1, §
28(1)(b); U.C.A.1953, 77-37-3(1)(b, c).
[7] Criminal Law 110
[10] Criminal Law 110
[6] Criminal Law 110
1023.5
661
273(4.1)
110 Criminal Law
110XX Trial
110XX(C) Reception of Evidence
110k661 k. Necessity and Scope of Proof.
Most Cited Cases
The plain language of the Rights of Crime Victims
Act defines “important criminal justice hearings,” at
which a crime victim has the right to be heard, as any
proceeding involving the disposition of felony
charges against a defendant, with two notable
exceptions: (1) a plea taken at an initial appearance,
and (2) a proceeding in which a defendant accepts
responsibility for all of the charges previously filed.
U.C.A.1953, 77-38-2(5)(c).
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k273 In General
110k273(4) Requisites and Proceedings
for Entry
110k273(4.1) k. In General. Most
Cited Cases
Prosecutors must assist crime victims in exercising
their right to be heard at plea hearings and provide
them with clear explanations regarding such
proceedings. U.C.A.1953, 77-37-3(1)(b, c).
[8] Criminal Law 110
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k273 In General
110k273(4) Requisites and Proceedings
for Entry
110k273(4.1) k. In General. Most
Cited Cases
A crime victim may deliver a request to be heard at a
plea hearing to a prosecutor, and a prosecutor
273(4.1)
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k273 In General
110k273(4) Requisites and Proceedings
for Entry
110k273(4.1) k. In General. Most
Cited Cases
[11] Criminal Law 110
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273(4.1)
44 P.3d 756
44 P.3d 756, 443 Utah Adv. Rep. 3
(Cite as: 44 P.3d 756)
Page 3
receiving such a request must convey it to the court.
U.C.A.1953, 77-37-3(1)(b, c).
[12] Attorney and Client 45
32(14)
45 Attorney and Client
45I The Office of Attorney
45I(B) Privileges, Disabilities, and Liabilities
45k32 Regulation of Professional Conduct,
in General
45k32(14) k. Candor, and Disclosure to
Opponent or Court. Most Cited Cases
Prosecutors are obligated to alert the court when they
know that the court lacks relevant information; this
duty, which is incumbent upon all attorneys, is
magnified for prosecutors because prosecutors have
unique responsibilities.
[13] Criminal Law 110
700(1)
110 Criminal Law
110XX Trial
110XX(E) Arguments and Conduct of Counsel
110k700 Rights and Duties of Prosecuting
Attorney
110k700(1) k. In General; Misconduct
in General. Most Cited Cases
In light of the fact that prosecutors must defend and
uphold the State's interest in procuring justice, they
have an obligation to ensure that the constitutional
rights of crime victims are honored and protected.
U.C.A.1953, 77-37-1.
[14] Criminal Law 110
700(1)
110 Criminal Law
110XX Trial
110XX(E) Arguments and Conduct of Counsel
110k700 Rights and Duties of Prosecuting
Attorney
110k700(1) k. In General; Misconduct
in General. Most Cited Cases
Prosecutor failed to satisfy obligations imposed upon
him by Victims' Rights Act, Rights of Crime Victims
Act, and his position as an officer of the court by
failing to convey to the trial court a request of child
victim's mother that victim wished to be heard at
defendant's change-of-plea hearing. U.C.A.1953, 7737-3(1)(b, c), 77-38-4(1).
[15] Criminal Law 110
110 Criminal Law
110XXIV Review
1167(5)
110XXIV(Q) Harmless and Reversible Error
110k1167 Rulings as to Indictment or Pleas
110k1167(5) k. Plea or Demurrer. Most
Cited Cases
District court at sentencing remedied initial violation
of victim's right to be heard at change-of-plea
hearing, where it permitted child victim and his
mother to testify regarding appropriateness of
defendant's plea bargain, permitted extensive
argument by victim's counsel, and after hearing this
testimony and argument, “informally” reopened
defendant's change-of-plea hearing and accepted the
testimony that it had just heard from victim and his
mother. Const. Art. 1, § 28(1)(b); U.C.A.1953, 7737-3(1)(b, c).
*757 Mark L. Shurtleff, Att'y Gen., J. Frederic
Voros, Jr., Asst. Att'y Gen., Salt Lake City, for
plaintiff Walter F. Budgen, Jr.
Tara L. Isaacson, Salt Lake City, for defendant.
Paul G. Cassell, Douglas E. Beloof, Gina McClard,
for appellant.
DURRANT, Justice.
¶ 1 The central issue presented in this appeal is
whether the district court deprived M.R., a victim of
sexual abuse, of his constitutional and statutory right
to be heard at defendant's change of plea hearing. At
that hearing, defendant pleaded guilty to lewdness
involving a child, a class A misdemeanor. He had
previously been charged with aggravated sexual
abuse of a child, a first degree felony, and had
pleaded not guilty. The reduction in the charge was
the result of a plea bargain negotiated between
defendant and the State. Prior to the change of plea
hearing, M.R.'s mother had advised the prosecutor of
M.R.'s and her own desire to make a statement to the
court.
M.R. and his mother both attended this
hearing and, during a recess, M.R.'s mother reiterated
to the *758 prosecutor that she and M.R. wished to
be heard. The prosecutor did not, however, advise
the court of this request. In addition, neither M.R.
nor his mother petitioned the court directly for an
opportunity to speak. Unaware of M.R.'s request to
be heard, the court accepted the defendant's guilty
plea to the reduced charge and set the matter for
sentencing.
¶ 2 Following this change of plea hearing, M.R.'s
mother, acting on behalf of M.R., obtained legal
assistance and filed two motions to set aside the plea
bargain. In response, the State and defendant filed
separate motions to strike M.R.'s pleadings. At the
sentencing hearing, the district court heard from M.R.
and his mother regarding the appropriateness of the
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plea bargain, and permitted argument from M.R.'s
counsel.
Thereafter, the court “informally
reopen[ed] the plea for the purpose of [accepting
M.R.'s and his mother's] testimony.” The court then
accepted the testimony that it had just heard. Having
accepted M.R.'s and his mother's testimony, the court
“reaffirm[ed defendant's] plea at the class A level.”
The court then denied both of M.R.'s pending
motions and sentenced defendant to eight months in
jail on the class A misdemeanor charge. Based on
these facts, we conclude that M.R. was initially
denied his right to be heard at the change of plea
hearing in violation of the Utah Constitution and
related statutes, but that the court thereafter remedied
this violation by reopening the change of plea hearing
and receiving testimony from M.R. and his mother,
and permitting argument from M.R.'s counsel. We
therefore affirm.
BACKGROUND
¶ 3 On November 3, 1999, the Tooele County
Attorney's Office charged defendant with aggravated
sexual abuse of a child, a first degree felony, in
violation of section 76-5-404.1(3) of the Utah Code.
Following a preliminary hearing in which both the
victim, M.R., and his mother testified, the district
court bound defendant over for trial.
¶ 4 A few weeks later the prosecutor handling
defendant's case sent M.R.'s mother a letter
explaining that defendant had requested a plea
bargain. After receiving this letter, M.R.'s mother,
according to her affidavit, met with the prosecutor
and obtained an assurance that the first degree felony
charge would not be reduced due to the strong
evidence of guilt compiled against defendant.
¶
5 Nevertheless, the prosecutor subsequently
offered to reduce the first degree felony charge to
lewdness involving a child, a class A misdemeanor,
in return for a guilty plea. See Utah Code Ann. §
76-9-702.5 (1999). M.R.'s mother, upon learning of
the State's extension of this offer and defendant's
acceptance, contacted the prosecutor and expressed a
desire to tell the district court how her family,
including M.R., felt about the proposed plea. The
prosecutor advised her to attend the change of plea
hearing scheduled for October 24, 2000.
I. CHANGE OF PLEA HEARING
¶ 6 M.R. and his mother appeared at this change of
Page 4
plea hearing as directed. At a recess during this
proceeding, M.R.'s mother approached the
prosecutor, objected to the reduced charge, and
reiterated M.R.'s, and her own, desire to make a
statement.FN1 She later testified that she believed the
prosecutor was going to inform the district court of
her request. Acknowledging that he did not know
that M.R. had a right to be heard either directly or
through his legal guardian, the prosecutor maintained
the following: (1) he did not intentionally deprive
M.R. of his right to be heard at defendant's change of
plea hearing, (2) he did not tell M.R.'s mother she and
M.R. had no right to testify at the plea hearing, and
(3) he told M.R.'s mother that she would eventually
have an opportunity to address the court in the presentence report and at the sentencing hearing.
FN1. For the purposes of this appeal, we
assume that the prosecutor received the
request to be heard from M.R.'s mother at
defendant's change of plea hearing.
We
make this assumption because none of the
parties to this appeal disputes this claim and
the prosecutor admitted in a letter that he
was “cognizant” of the fact that M.R.'s
mother wished to address the court at
defendant's change of plea hearing.
*759 ¶ 7 Notwithstanding his conversations with
M.R.'s mother, the prosecutor did not inform the
district court that M.R. and his mother had requested
to be heard at the change of plea hearing. M.R. and
his mother also failed to bring the issue to the court's
attention.
The court therefore proceeded with
defendant's change of plea hearing unaware of M.R.'s
request.
Noting the “dramatic” reduction in the
charge, the court refused to be limited to the fourmonth sentence recommended in the stipulated plea
agreement. The State and defendant responded to
the court's concern by agreeing to delete the
stipulated sentence provision.
The court then
accepted defendant's guilty plea to the class A
misdemeanor charge and set the matter for
sentencing.
II. SENTENCING HEARING
¶ 8 Subsequently, M.R.'s mother, acting on behalf of
M.R., obtained legal assistance and filed two motions
with the district court: a motion for a misplea and a
motion to reject the plea bargain. In response, the
prosecutor and defendant filed separate motions to
strike M.R.'s pleadings, claiming that M.R. lacked
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standing to set aside the plea because he was not a
party to the criminal proceeding.FN2
FN2. Although the prosecutor moved to
strike M.R.'s pleadings, he later moved to
reopen the plea hearing.
¶ 9 Without ruling on whether M.R. had standing to
challenge defendant's guilty plea, the district court
held defendant's sentencing hearing on November 27,
2000. At the start of this hearing, M.R.'s counsel
moved the court to set aside the accepted plea. The
court initially questioned whether M.R. had the right
to be heard but then allowed M.R. and his mother to
testify regarding the propriety of the plea bargain.
Despite its reservations, the court also permitted
extensive argument from M.R.'s counsel.
¶ 10 M.R. and his mother testified that the court
should have rejected the plea bargain. Specifically,
M.R. declared, “I don't think it's right that
[defendant] gets that less of a plea agreement because
[of] what he's done [.] He's done it to me ... and ...
he's hurt my whole family.” M.R.'s mother testified
that “the [c]ourt should reject the plea bargain
[because] a misdemeanor sentence d[id] not truly
reflect the seriousness of the offenses committed by
[defendant] the same way that a felony conviction
would.” FN3 She further averred that she believed the
prosecutor was going to inform the court of M.R.'s,
and her own, desire to make a statement at
defendant's change of plea hearing. She also stated
that she did not know she could interrupt the change
of plea hearing and address the court directly.
FN3. As part of her argument that the plea
bargain should be rejected, M.R.'s mother
discussed the impact defendant's abuse had
on M.R. and the effect defendant's conduct
had on her three other children.
¶ 11 After M.R. and his mother had testified, the
district court turned its attention to M.R.'s attorney
and inquired whether M.R. was entitled to use
counsel to assert his right to be heard. In response to
the court's query, M.R.'s counsel argued that the
Victims' Rights Amendment of the Utah Constitution
placed M.R. on equal footing with defendant and
envisioned that M.R. could employ an attorney in
exercising his legal rights.
M.R.'s counsel then
argued that (1) M.R. had the right to be heard before
the court's acceptance of defendant's plea, (2) M.R.'s
right to be heard had been violated, and (3) the court
Page 5
should grant a misplea and hear from M.R. before
accepting any subsequent plea between the State and
defendant.
The prosecutor and defendant both
objected, asserting that M.R. lacked standing to
challenge the accepted plea and that the prosecutor
had discretion to determine how defendant's case was
negotiated.
¶ 12 Following these objections, the district court
noted that it had not been previously informed by
M.R. or his representative, i.e., his mother, that M.R.
desired to be heard at the change of plea hearing.
Despite this lack of notification, the court decided to
“informally” reopen the plea hearing in order to
accept the testimony that it had just heard from M.R.
and his mother. Having accepted this testimony, the
court “reaffirm[ed defendant's] plea at the class A
level.” The court *760 then denied both of M.R.'s
pending motions, sentenced defendant to eight
months in jail on the class A misdemeanor charge,
and fined him.FN4
FN4. Defendant asserts in his brief that he
has served the sentence imposed by the
district court. Neither the State nor M.R.
disputes this assertion.
We therefore
presume it to be true.
III. CLAIMS ON APPEAL
¶ 13 M.R. immediately appealed to the Utah Court
of Appeals, which certified M.R.'s appeal to us,
concluding that a “petition for writ of certiorari
would likely be ... granted [because] resolution of the
case ha[d] potentially broad-reaching impact.” See
Utah R.App. P. 43(c)(1).
¶ 14 On appeal, M.R., by and through his legal
guardian, contends that (1) he had the right to seek
appellate review of the district court's adverse rulings
on his two motions, (2) he had the right to be heard
through counsel with respect to legal issues related to
the constitutional and statutory rights afforded him as
a victim, (3) he had a constitutional and statutory
right to be heard regarding the appropriateness of the
plea bargain, (4) he properly invoked his right to be
heard at defendant's change of plea hearing by
submitting a request to the prosecutor, and (5) the
court, through the negligence of the prosecutor,
denied him his right to be heard by accepting the plea
bargain without hearing from him.
¶ 15 The State agrees with M.R. on several issues,
including the following: (1) a crime victim may seek
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appellate review of decisions affecting his or her
rights as a victim, (2) a crime victim may employ
counsel in exercising his or her constitutional and
statutory rights, and (3) a crime victim has a
constitutional and statutory right to be heard upon
request at a change of plea hearing.
The State
argues, however, that M.R. waived his right to be
heard when he failed to assert this right at the change
of plea hearing. The State also maintains that the
court cured any violation by “informally reopen[ing]”
defendant's plea, accepting the testimony regarding
the propriety of the plea that had been offered earlier
in the sentencing hearing by M.R. and his mother,
allowing argument by M.R.'s counsel, and
reaffirming the plea at the class A misdemeanor
level. Further, the State asserts that even if M.R.'s
right to be heard was violated, a misplea is not an
available remedy under sections 77-38-11 and 77-3812 of the Rights of Crime Victims Act.
¶ 16 Defendant asserts that M.R. lacks standing to
seek appellate review on all of these issues. Like the
State, he also claims that the Utah Code precludes us
from declaring a misplea. He further alleges that
even if the declaration of a misplea is an available
remedy under the Utah Code, such a declaration
would violate the double jeopardy clauses of both the
United States Constitution and the Utah Constitution.
¶ 17 We conclude that M.R. was entitled to appellate
review of the district court's rulings related to his
right to be heard. We further hold that M.R., as the
victim of a crime, had both a constitutional and
statutory right to be heard at defendant's change of
plea hearing and that he properly invoked this right
by informing the prosecutor that he desired to be
heard. Finally, we conclude that the court remedied
its initial violation of M.R.'s right to be heard at
defendant's change of plea hearing by reopening the
plea hearing and receiving testimony from M.R. and
his mother, and by permitting argument from M.R.'s
counsel.
ANALYSIS
I. THE VICTIMS' RIGHTS AMENDMENT, THE
VICTIMS' RIGHTS ACT, AND THE RIGHTS OF
CRIME VICTIMS ACT
¶ 18 In 1987, the Utah Legislature enacted the
Victims' Rights Act. See Utah Code Ann. § § 77-371 to -5 (1999). This statute included, among other
things, a bill of rights for victims, id. § 77-37-3, and
Page 6
declared that these rights must be “protected in a
manner no less vigorous than protections afforded
criminal defendants.” Id. § 77-37-1. The Utah
Legislature then passed the Victims' Rights
Amendment, which was ratified by Utah citizens on
November 8, 1994, and took *761 effect on January
1, 1995. FN5 Utah Const. art. I, § 28 compiler's notes.
This constitutional amendment bestowed specific
rights upon crime victims and gave the Utah
Legislature the power to “enforce and define [its
terms] by statute.” Acting pursuant to this authority,
the Utah Legislature subsequently enacted the Rights
of Crime Victims Act. Utah Code Ann. § § 77-38-1
to -14 (1999 & Supp.2001). This act elaborated
upon the rights afforded crime victims under the
Victims' Rights Amendment and defined several
terms included in the amendment.FN6 Id.
FN5. Although Article I, Section 28 of the
Utah Constitution is titled “Declaration of
the rights of crime victims,” it is commonly
referred to as the Victims' Rights
Amendment. In full, the Victims' Rights
Amendment declares as follows:
(1) To preserve and protect victims' rights to
justice and due process, victims of crimes
have these rights, as defined by law:
(a) To be treated with fairness, respect, and
dignity, and to be free from harassment and
abuse throughout the criminal justice
process;
(b) Upon request, to be informed of, be
present at, and to be heard at important
criminal justice hearings related to the
victim, either in person or through a lawful
representative, once a criminal information
or indictment charging a crime has been
publicly filed in court; and
(c) To have a sentencing judge, for the
purposes of imposing an appropriate
sentence, receive and consider, without
evidentiary limitation, reliable information
concerning the background, character, and
conduct of a person convicted of an offense
except that this subsection does not apply to
capital cases or situations involving
privileges.
(2) Nothing in this section shall be construed
as creating a cause of action for money
damages, costs, or attorney's fees, or for
dismissing any criminal charge, or relief
from any criminal judgment.
(3) The provisions of this section shall
extend to all felony crimes and such other
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Page 7
crimes or acts, including juvenile offenses,
as the Legislature may provide.
(4) The Legislature shall have the power to
enforce and define this section by statute.
Utah Const. art. I, § 28.
Victims Act. See State v. Ostler, 2001 UT 68, ¶ 7, 31
P.3d 528. As with our constitutional analysis, we
look first to the plain meaning of the statutes and go
no further unless they are ambiguous. See id.
FN6. Utah is one of many states that afford
rights to crime victims. In the early 1970's,
a victims' rights movement spread across the
United States and focused on integrating
victims of crimes into the criminal justice
process. Ex Parte Littlefield, 343 S.C. 212,
540 S.E.2d 81, 83 (2000). Responding to
this movement, many legislatures across the
country enacted statutes affording victims a
voice at critical stages of the criminal justice
process. Id. (citing Peggy M. Tobolowsky,
Victim Participation in the Criminal Justice
Process: Fifteen Years After the President's
Task Force on Victims of Crime, New Eng.
J. On Crim. & Civ. Confinement 21 (Winter
1999)).
IV. M.R. HAD THE RIGHT TO APPEAL
ADVERSE RULINGS RELATED TO HIS
MOTION FOR A MISPLEA AND HIS MOTION
TO REJECT THE PLEA BARGAIN
II. APPLICABLE STANDARD OF REVIEW
[1] ¶ 19 Because this appeal asks us to analyze one
of the rights afforded crime victims (i.e., M.R.'s right
to be heard at defendant's change of plea hearing), we
are called upon to interpret the meaning of the
Victims' Rights Amendment, the Victims' Rights Act,
and the Rights of Crime Victims Act. Because
interpreting the Utah Constitution and the Utah Code
presents questions of law, we review these questions
for correctness and give no deference to the district
court's legal conclusions.
See Cache County v.
Property Div. of the Utah State Tax Comm'n, 922
P.2d 758, 766 (Utah 1996).
III. CONSTITUTIONAL AND STATUTORY
INTERPRETATION
[2][3][4] ¶ 20 In accordance with the analytical
hierarchy relative to constitutions and statutes, we
first examine the textual language of the Victims
Rights Amendment and look secondly to the Victims'
Rights Act and the Rights of Crime Victims Act. In
construing the Victims' Rights Amendment, we
initially scrutinize the plain meaning of the
constitutional provision. See Utah Sch. Bds. Ass'n v.
Utah State Bd. of Educ., 2001 UT 2, ¶ 13, 17 P.3d
1125.
We need not inquire beyond the plain
meaning of the amendment unless we find it
ambiguous. Id. Our inquiry is similar in reviewing
the Victims' Rights Act and the Rights of Crime
[5] ¶ 21 Applying the principles outlined above, we
first address whether M.R. had the *762 right to
appeal the district court's rulings regarding his right
to be heard. The Victims' Rights Amendment does
not address the question of M.R.'s right to appeal
decisions impacting his right to be heard.
The
Rights of Crime Victims Act is on point, however,
and we conclude that M.R. had the right to seek
appellate review pursuant to the plain meaning of that
statute. See Utah Code Ann. § 77-38-11(2)(b)(c)
(1999).
[6] ¶ 22 We resolve this issue under a plain meaning
analysis for two reasons. First, subsection 77-3811(2)(b) explicitly provides that “[a]dverse rulings on
... a motion or request brought by a victim of a crime
or a representative of a victim of a crime may be
appealed under the rules governing appellate actions,
provided that no appeal shall constitute grounds for
delaying any criminal ... proceeding.” Id. § 77-3811(2)(b). Second, subsection 77-38-11(2)(c) of the
Utah Code declares that “[a]n appellate court shall
review all such properly presented issues, including
issues that are capable of repetition but would
otherwise evade review.” Id. § 77-38-11(2)(c). In
short, these two provisions demonstrate (1) that crime
victims possess the right to appeal rulings on motions
related to their rights as a victim and (2) that an
appellate court must review appeals of such a nature.
Accordingly, M.R.'s appeal is properly before us.
V. M.R. POSSESSED A CONSTITUTIONAL AND
STATUTORY RIGHT TO BE HEARD UPON
REQUEST AT IMPORTANT CRIMINAL JUSTICE
HEARINGS
A. Defendant's Change Of Plea Hearing Constituted
An Important Criminal Justice Hearing Under Both
The Utah Constitution And The Utah Code
¶ 23 We next address whether M.R. had the right to
be heard at defendant's change of plea hearing. We
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conclude that he did, upon request, have such a right
pursuant to the plain meaning of the Victims' Rights
Amendment and subsections 77-38-4(1) and 77-382(5)(c) of the Rights of Crime Victims Act.
¶
24 In pertinent part, the Victims' Rights
Amendment states as follows:
(1) To preserve and protect victims' rights to justice
and due process, victims of crimes have [the right]:
...
(b) Upon request, to be ... heard at important
criminal justice hearings related to the victim, either
in person or through a lawful representative, once a
criminal information or indictment charging a crime
has been publicly filed in court[.]
Utah Const. art. I, § 28(1)(b) (emphasis added).
Using comparable language, section 77-38-4 of the
Rights of Crime Victims Act similarly declares that
“[t]he victim of a crime shall have ... the right to be
heard at ... important criminal ... justice hearings....”
Utah Code Ann. § 77-38-4(1) (1999).
[7] ¶ 25 Given that both the Utah Constitution and
the Utah Code grant crime victims the right to be
heard at “important criminal justice hearings,” the
question that arises is what constitutes an “important
criminal justice hearing” under the Victims' Rights
Amendment and the Utah Code. Section 77-38-2 of
the Rights of Crime Victims Act answers this
question with respect to both the Utah Constitution
and the Utah Code; FN7 it defines “important criminal
justice hearings” involving the disposition of charges
in this way:
FN7. Article I Section 28 of the Utah
Constitution gives “[t]he [Utah] Legislature
... the power to enforce and define [the
Victims' Rights Amendment] by statute.”
Utah Const. art. I, § 28(4).
For the purposes of this chapter and the Utah
Constitution[,][i]mportant criminal justice hearings ...
means the following proceedings in felony criminal
cases ...:
any court proceeding involving the
disposition of charges against a defendant [except
for] unanticipated proceedings to take an admission
or a plea of guilty as charged to all charges
previously filed or any plea taken at an initial
appearance.
Utah Code Ann. § 77-38-2(5)(c) (1999). Thus, the
plain language of the statute defines “important
criminal justice hearings” as any proceeding
involving the disposition of *763 felony charges
Page 8
against a defendant, with two notable exceptions: (1)
a plea taken at an initial appearance and (2) a
proceeding in which a defendant accepts
responsibility for all of the charges previously
filed.FN8 Id.
FN8. Subsection 77-38-2(5) of the Rights of
Crime Victims Act delineates other
proceedings that qualify as important
criminal justice hearings. See Utah Code
Ann. § 77-38-2(5)(a), (b), (d)-(g).
[8] ¶ 26 Here, the change of plea hearing conducted
by the district court fell within the definition of an
important criminal justice hearing because it disposed
of a first degree felony charge filed against defendant
in return for a guilty plea on a class A misdemeanor.
Further, neither exception applied because the
hearing was not an initial appearance and the
defendant did not accept responsibility for the first
degree felony charge previously filed. Accordingly,
M.R.'s constitutional and statutory right to be heard
upon request at important criminal justice hearings
included the right to be heard upon request at
defendant's change of plea hearing.
B. M.R. Invoked His Right To Be Heard At
Defendant's Change Of Plea Hearing By Informing
The Prosecutor That He Wished To Speak
[9] ¶ 27 While it is clear that the Utah Constitution
and the Utah Code afforded M.R. the right to be
heard upon request at defendant's change of plea
hearing, see Part V(A) supra, neither the constitution
nor the code mandates how M.R.'s request must be
submitted. Relying on the Victims' Rights Act and
the Rights of Crime Victims Act, M.R. argues that a
request to be heard at a plea hearing suffices if it is
submitted either to the district court or to the
prosecutor. The State contends that the two statutes
require a crime victim to petition the court directly.
After examining the relevant constitutional and
statutory authority, we are satisfied that a victim's
right to be heard at a plea hearing is triggered where a
request has been submitted to the prosecutor handling
the case.
¶ 28 We begin our analysis with the Victims' Rights
Amendment. This constitutional provision merely
notes that the right to be heard is activated “upon
request.” Utah Const. art. I, § 28(b). Unlike the
previous constitutional language we have analyzed,
we find this language ambiguous and undefined. We
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thus “consider all other relevant factors.” In re
Inquiry Concerning a Judge, the Honorable David S.
Young, 1999 UT 6, ¶ 15, 976 P.2d 581.
In
particular, we seek guidance from the statutes related
to the Victims' Rights Amendment (i.e., the Victims'
Rights Act and the Rights of Crime Victims Act).
Cf. In re Worthen, 926 P.2d 853, 867 (Utah 1996).
[10] ¶ 29 The Victims' Rights Act states that
“[v]ictims ... have [the] right to be informed and
assisted as to their role in the criminal justice process
[, and a]ll criminal justice agencies have the duty to
provide this information and assistance.” Utah Code
Ann. § 77-37-3(1)(b) (Supp.2001) (emphasis added).
Additionally, the Victims' Rights Act declares that
“[v]ictims ... have a right to clear explanations
regarding relevant legal proceedings[, and a]ll
criminal justice agencies have the duty to provide
these explanations.”
Id. §
77-37-3(1)(c)
(Supp.2001) (emphasis added). Because prosecutors
are a component of the criminal justice system and
the Victims' Rights Act applies to “all criminal
justice agencies,” the aforementioned duties
necessarily fall upon prosecutors.
Id. § 77-373(1)(b)-(c). Hence, we conclude that prosecutors
must “assist” victims in exercising their right to be
heard at plea hearings and provide them with “clear
explanations regarding [such] proceedings.” Id.
[11] ¶ 30 We further conclude that a prosecutor's
obligation to provide “assistance” to the victim
should mean, at a minimum, that a victim may submit
a request to be heard at a plea hearing to a prosecutor
and expect that the request will be forwarded to the
court. Likewise, a prosecutor's obligation to provide
a “clear explanation” of events occurring at a plea
hearing should mean that a victim can rely on a
prosecutor's statement indicating he or she will
convey a request to be heard to the district court.
We therefore hold that a victim may deliver a request
to be heard at a plea hearing to a *764 prosecutor and
that a prosecutor receiving such a request must
convey it to the court.
¶ 31 This conclusion is supported by the text of the
Rights of Crime Victims Act because that statute,
while explicitly mandating direct requests in some
instances, does not require direct requests to be heard
at plea hearings. For example, a victim's request to
be heard at an accused's initial appearance is
predicated expressly upon delivering a “request to the
judge hearing the matter.” Utah Code Ann. § 7738-4(1) (1999).
This same section, however,
conveys a broad right to be heard at various legal
proceedings-including
plea
hearings-without
Page 9
mentioning how the request to be heard must be
made. FN9 Id. Had the Utah Legislature intended to
require victims to petition the district court directly in
order to invoke their right to be heard at plea
hearings, it could have inserted the phrase, “upon
request to the judge,” into that sentence as well. Cf.
State v. Chaney, 1999 UT App. 309, ¶ 46, 989 P.2d
1091 (concluding that, due to the placement of the
word “intentionally,” the Utah Legislature intended
to modify only one verb rather than the entire
sentence).
We conclude that by electing not to
incorporate this phrase when referring to plea
hearings the Legislature implicitly authorized other
methods of delivering requests to be heard.
Accordingly, the language of the Rights of Crime
Victims Act contradicts the State's theory that
requests to be heard at a plea hearing must be
delivered directly to the district court.FN10
FN9. In relevant part, subsection 77-38-4(1)
of the Utah Code states as follows:
The victim of a crime shall have ... the right
to be heard at the important criminal ...
justice hearings provided in Subsections 7738-2(5)(b), (c), (d), and (f), and upon request
to the judge hearing the matter, the right to
be present and heard at the initial
appearance of the person suspected of
committing the conduct or criminal offense
against the victim on issues relating to
whether to release a defendant or minor and,
if so, under what conditions release may
occur.
Utah Code Ann. § 77-38-4(1) (1999).
FN10. A second section in the Rights of
Crime Victims Act similarly requires that
certain requests be delivered to the district
court. Subsection 77-38-4(8) provides that
“[i]f the victim of a crime is a person who is
in custody ... the right to be heard ... shall be
exercised by submitting a written statement
to the court.” Utah Code Ann. § 77-384(8) (1999). The Utah Legislature therefore
evinced a clear intent to require victims to
petition the court directly in two separate
contexts but chose not to impose a similar
requirement with respect to a victim's right
to be heard at plea hearings.
[12] ¶ 32 In addition to having a duty to convey
requests to be heard under the Victims' Rights Act
and the Rights of Crime Victims Act, prosecutors
also have a duty to convey requests to be heard as
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officers of the court. Prosecutors must convey such
requests because they are obligated to alert the court
when they know that the court lacks relevant
information. Cf. Clingman v. State, 23 P.3d 27, 29
(Wyo.2001). This duty, which is incumbent upon all
attorneys, is magnified for prosecutors because, as
our case law has repeatedly noted, prosecutors have
unique responsibilities. See, e.g., State v. Thomas,
1999 UT 2, ¶ 24 n. 3, 974 P.2d 269. Specifically, a
prosecutor is a minister of justice, id., possessing
“duties that rise above those of privately employed
attorneys.” State v. Saunders, 1999 UT 59, ¶ 31, 992
P.2d 951. The prosecutor “is the representative not
of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and
whose interest ... in a criminal prosecution is not that
it shall win ... but that justice shall be done.” State v.
Emmett, 839 P.2d 781, 787 (Utah 1992).
[13] ¶ 33 In light of the fact that prosecutors must
defend and uphold the State's interest in procuring
justice, they have an obligation to ensure that the
constitutional rights of crime victims are honored and
protected. In fact, the Victims' Rights Act explicitly
declares that the rights extended to crime victims “are
to be honored and protected by law in a manner no
less vigorous than protections afforded criminal
defendants.” Utah Code Ann. § 77-37-1 (1999).
Accordingly, as an officer of the court, a prosecutor
must convey a victim's request to be heard at a
change of plea hearing.
[14] ¶ 34 It is undisputed by the parties to this appeal
that M.R.'s mother, acting on *765 behalf of M.R.,
informed the prosecutor that M.R. wished to be heard
at defendant's change of plea hearing. It is also
undisputed that the prosecutor did not convey this
request to the district court. Consistent with our
foregoing analysis, we conclude that the prosecutor
failed to satisfy the obligations imposed upon him by
the Victims' Rights Act, the Rights of Crime Victims
Act, and his position as an officer of the court.
¶ 35 To begin with, as a representative of a criminal
justice agency, the prosecutor violated M.R.'s rights
under the Victims' Rights Act (1) by failing to
“assist” him in exercising his right to be heard and
(2) by failing to provide him with a “clear
explanation” regarding the events transpiring at
defendant's change of plea hearing. Utah Code Ann.
§ 77-37-3(1)(b)-(c) (1999). The prosecutor violated
both of these statutory duties when he implied that he
would convey M.R.'s request to be heard to the
district court and then failed to do so.
Page 10
¶ 36 Moreover, given that the prosecutor received
M.R.'s request to be heard and subsequently made no
effort to alert the district court, the prosecutor's
conduct violated the Rights of Crime Victims Act.
That statute, by requiring direct requests to the court
at initial appearances but not requiring such direct
requests at plea hearings, implicitly authorized
requests to be heard at plea hearings to be delivered
to prosecutors.
¶ 37 Lastly, the prosecutor breached his duty as an
officer of the court because he failed to bring relevant
information to the court's attention. See Clingman,
23 P.3d at 29. Fully aware of M.R.'s desire to speak
at defendant's change of plea hearing, the prosecutor
did not inform the court that M.R. had invoked his
constitutional and statutory right to be heard. We
therefore conclude that M.R. properly submitted his
request to be heard at defendant's change of plea
hearing to the prosecutor.FN11
FN11. As part of the disposition of this case,
M.R. urges us to order the redrafting of rule
11 of the Utah Rules of Criminal Procedure
and mandate that district courts ask whether
a victim wishes to be heard at plea hearings.
We note that it is sound judicial practice for
a judge to inquire into the victim's desires at
plea hearings, but decline to require such a
question under rule 11.
VI. THE DISTRICT COURT REMEDIED THE
VIOLATION OF M.R.'S RIGHT TO BE HEARD
[15] ¶ 38 Based on the prosecutor's failure to relay
M.R.'s request to be heard, the district court initially
deprived M.R. of his right to speak at the change of
plea hearing.
At defendant's sentencing hearing,
however, the court learned of M.R.'s earlier desire to
be heard. The court then permitted M.R. and his
mother to take the stand and testify regarding the
appropriateness of defendant's plea bargain.
The
court also permitted extensive argument by M.R.'s
counsel. Restricted in no respect by the court, all
three individuals claimed that the plea bargain should
have been rejected. After hearing this testimony and
argument, the court “informally” reopened
defendant's change of plea hearing and accepted the
testimony that it had just heard from M.R. and his
mother. The court then reaffirmed defendant's plea
at the Class A level. FN12
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FN12. At the sentencing hearing, the district
court made the following remarks:
[I have] heard from the victim and ... been
informed by the victim and the victim's
representative, i.e., the victim's mother, that
[I] was not informed of the desire or request
of the victim to be heard at the time the plea
was taken. [I] will informally reopen the
plea for the purpose of hearing that
testimony, which I've already heard.... [I]
find[ ] that the prosecutor should have, does
have and did have in this case ... discretion
in his negotiations with the defense attorney.
They entered into that agreement with sound
legal considerations that they alone basically
negotiated.... [I now] accept[ ] and reaffirm[
] the plea at the Class A level and den[y] any
request to the contrary.
¶ 39 By taking these steps, the district court
remedied its initial denial of M.R.'s right to be heard.
Our conclusion is based on the following rationale.
First, we note that the plea was subject to review up
until the time of sentencing. See Ostler, 2001 UT 68
at ¶ 10, 31 P.3d 528 (noting that “it makes no sense
to deprive the district court of the power to review a
plea before it enters a judgment of conviction and
sentence.”). Accordingly, in exercising its power to
reopen *766 the plea, the court permitted M.R. to be
heard at a time when he could have persuaded the
court to reject the proposed plea. Second, the record
clearly demonstrates that the court reaffirmed the
plea only after having accepted M.R.'s and his
mother's testimony, and permitting argument by his
counsel.FN13
FN13. In this appeal, M.R. asks us to hold
that he had the right to speak through
counsel at the change of plea hearing. We
need not reach this question because (1) the
district court did, in fact, permit M.R.'s
counsel to speak at that hearing, and (2)
neither the State nor the defendant has
challenged the district court's decision.
Accordingly, there is no bona fide dispute
regarding this issue, and it is not ripe for
review. See State v. Herrera, 895 P.2d 359,
371 (Utah 1995) (explaining that we do not
examine controversies that have not “yet
sharpened into an actual or imminent clash
of legal rights and obligations between the
parties
thereto.”
(internal
quotation
omitted)). We therefore decline to address
it.
Page 11
¶ 40 Thus, although M.R. was entitled to be heard at
defendant's change of plea hearing, we conclude that
he has enjoyed the fruits of the right he now claims
he was denied.
Accordingly, we hold that the
district court, to its credit, cured the error initially
committed at the change of plea hearing and honored
M.R.'s right to be heard as soon as it discovered M.R.
wished to be heard.FN14
FN14. Because the district court upheld
M.R.'s right to be heard in the present case,
we decline to address what remedies are
available for the hypothetical denial of a
victim's right to be heard. We do note,
however, that the Utah Legislature
established a framework in which only three
remedies were provided for the violation of
a victim's right:
injunctive relief,
declaratory relief, and writ of mandamus.
Utah Code Ann. §
77-38-11(1)-(2)(i)
(1999). Absent from this list is the right to
obtain a declaration of a misplea.
Moreover, even if the declaration of a
misplea were assumed to be an available
remedy, such a declaration would raise
constitutional issues regarding the double
jeopardy clauses of both the United States
Constitution and the Utah Constitution.
CONCLUSION
¶ 41 We conclude that M.R. (1) had the right to
appeal the district court's rulings related to his right to
be heard, (2) had the right to be heard upon request at
defendant's change of plea hearing, and (3) properly
invoked his right to be heard by informing the
prosecutor he wished to speak. We further conclude
that, although the prosecutor failed to convey M.R.'s
request to the court and this failure initially deprived
M.R. of his right to be heard at defendant's change of
plea hearing, the court subsequently remedied the
error.
The court did so by reopening the plea
hearing, accepting unrestricted testimony and
argument, and reaffirming the plea. We therefore
affirm the decision below.
¶ 42 Chief Justice HOWE, Associate Chief Justice
RUSSON, and Justice DURHAM concur in Justice
DURRANT's opinion.WILKINS, Justice, concurring:
¶ 43 I concur in the result reached in the majority
opinion. However, I would affirm the trial court's
action only because the conflict between two
constitutional principles gives us no other choice. At
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
44 P.3d 756
44 P.3d 756, 443 Utah Adv. Rep. 3
(Cite as: 44 P.3d 756)
the time the motion was made, however, the trial
court could have, and under the mandate of our
constitution should have, granted M.R.'s motion for a
misplea.
¶ 44 I fully agree with the analysis set forth in the
majority opinion leading to the conclusions that M.R.
was entitled to appellate review of the district court's
adverse rulings, and that, as a victim of crime, he had
both a constitutional and statutory right to be heard at
defendant's change of plea hearing. I also agree fully
that M.R., in informing the prosecutor of his desire to
be heard, did everything necessary to properly invoke
his right. However, I believe that when the trial
court was finally informed of M.R.'s desire to be
heard, it was clearly insufficient for the trial court to
“informally” reopen the change of plea hearing and
“consider” M.R.'s concerns before summarily
reaffirming the “accepted” plea. Doing so merely
compounded the error invited by the prosecution in
failing to promptly inform the court of M.R.'s initial
request to be heard at the change of plea hearing.
¶ 45 As we today hold, M.R. clearly had a
constitutional right to speak prior to the acceptance of
the change of plea in this case. *767 Under our
decision in State v. Ostler, 2001 UT 68, ¶ 10, 31
P.3d 528, defendant's plea had not yet been finally
accepted at the time the trial court became aware of
M.R.'s desire to be heard on the matter. The correct
course would have been for the trial court to reopen
the hearing, after notice to all concerned.
¶ 46 The constitutional provisions granting M.R. his
right to be heard, however, also limit this right.
Subsection (2) of the Victims' Rights Amendment,
Article I, Section 28 of the Utah Constitution,
specifically prohibits construing the rights afforded
M.R. in such a way as to provide “relief from any
criminal judgment.” The defendant's plea, once
accepted by the court and sentence imposed, is a
criminal judgment.
Consequently, once the trial
court accepted defendant's plea and entered the
judgment of sentence on the plea, M.R.'s rights as a
victim could not result in the “misplea” M.R. sought.
Only while the plea was still not final, that is, prior to
the entry of sentence, could M.R.'s motion for
misplea have been granted on the basis of M.R.
having been denied his constitutional right to speak at
the change of plea hearing.
¶ 47 A second difficulty is created by the provisions
of the Rights of Crime Victims Act, Utah Code Ann.
§ 77-38-11(2)(1999), that authorize appellate review
of an adverse ruling by the trial court on M.R.'s
Page 12
motions, but specifically provide that no such appeal
“shall constitute grounds for delaying any criminal ...
proceeding.” § 77-38-11(2)(b). When juxtaposed
with the rights of the criminal defendant to a speedy
trial and the necessity to move forward with the
criminal process despite an otherwise valid appeal by
a victim, appellate relief for M.R. is a practical
impossibility.
Moreover, the same statute limits
M.R.'s remedies to injunctive relief, declaratory
relief, and writ of mandamus. § 77-38-11(1)(2). If
the criminal action proceeds, and if the victim is
denied his or her constitutional right to address the
court, the victim has little hope of a meaningful
remedy.
While the criminal proceeding moves
forward, the victim denied rights may seek only an
injunction or writ of mandamus that will preserve the
right to speak if such an appeal can be filed,
perfected, heard, and decided before entry of the
criminal judgement. This will often not be the case.
This was clearly not the case in M.R.'s situation.
¶
48 So, our hands are tied by the same
constitutional and statutory provisions that gave M.R.
his right to be heard in the first place. We cannot
order the plea “undone” once the sentence and
judgment have been entered by the trial court. We
cannot impose any corrective action on the failure of
the prosecutor to inform the court of the request to
speak, or the failure of the trial court to fully
reconsider the change of plea, with all due formality,
thereby according M.R. his constitutional right to
actually be heard.
¶ 49 As it works in practice, the right of a victim to
be heard at a change of plea hearing is fragile at best,
and may be made illusory by the intentional or
unintentional mishandling of the situation by the
prosecutor or the trial court, all without meaningful
remedy. Perhaps the legislature may find it wise to
reconsider the provisions of the statute addressing
appellate review of the denial of a victim's request to
assert the rights granted by the Victims' Rights
Amendment.
There may be other circumstances
under which those rights may be just as easily and
negligently denied as were M.R.'s in this case.
Utah,2002.
State v. Casey
44 P.3d 756, 443 Utah Adv. Rep. 3
END OF DOCUMENT
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
Supreme Court of Utah.
STATE of Utah, Plaintiff and Appellee,
v.
Arthur Anthony GONZALES, Defendant and
Appellant.
No. 20020935.
Nov. 4, 2005.
Background: Defendant was convicted in the Third
District Court, Salt Lake County, Joseph C. Fratto,
Jr., J., of attempted rape and forcible sexual abuse.
Defendant appealed.
Holdings:
that:
Page 1
to notify opposing counsel of the subpoenas and
failed to turn over the records to the court for an in
camera review before inspecting the content of the
records.
[2] Witnesses 410
16
410 Witnesses
410I In General
410k16 k. Subpoena Duces Tecum. Most Cited
Cases
Rule of civil procedure requiring that prior notice of
any commanded production or inspection of
documents before trial be served on each party
applies to criminal matters where privileged
information is at stake. Rules Civ.Proc., Rule
45(b)(1)(A).
The Supreme Court, Nehring, J., held
[3] Constitutional Law 92
1(1) trial court did not err in quashing defendant's
subpoenas for alleged victim's mental health records;
2(2) rule of civil procedure requiring that prior notice
of any commanded production or inspection of
documents before trial be served on each party
applies to criminal matters where privileged
information is at stake;
5(3) defendant was not entitled to cross-examine
alleged juvenile victim and State's juvenile witness
about their prior shoplifting adjudications in order to
attack their credibility; and
11(4) defendant was not denied effective assistance.
Affirmed.
West Headnotes
[1] Witnesses 410
16
410 Witnesses
410I In General
410k16 k. Subpoena Duces Tecum. Most Cited
Cases
Trial court did not err in quashing defendant's
subpoenas for alleged victim's mental health records
in attempted rape prosecution, where defendant failed
251.6
92 Constitutional Law
92XII Due Process of Law
92k251.6 k. Notice and Hearing. Most Cited
Cases
The fundamental requisite of due process of law is
the opportunity to be heard, a right which has little
reality or worth unless one is informed that the matter
is pending and one can choose for himself whether to
contest. U.S.C.A. Const.Amend. 14.
[4] Criminal Law 110
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
Attempted rape defendant's claim that trial court's
ruling that his attorney had a conflict of interest
denied him his right counsel of his choice was moot,
where trial court did not remove defendant's attorney,
rather trial court, after reprimanding attorney for his
unauthorized acquisition of alleged victim's mental
health records, granted attorney's motion to
withdraw, to which defendant did not object to.
[5] Witnesses 410
345(9)
410 Witnesses
410IV Credibility and Impeachment
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
Crime
410IV(B) Character and Conduct of Witness
410k345 Accusation or Conviction of
Pardon
410k345(4) Conviction, Acquittal, and
410k345(9) k. Juvenile, Youthful
Offender or Military Adjudications. Most Cited
Cases
Defendant was not entitled to cross-examine alleged
juvenile victim and State's juvenile witness about
their prior shoplifting adjudications in order to attack
their credibility in attempted rape and forcible sexual
abuse prosecution, where shoplifting was not a felony
or crime involving dishonesty. Rules of Evid., Rule
609(a).
[6] Criminal Law 110
1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in
General. Most Cited Cases
The, denial of the right to confront and cross-examine
witnesses presents a question of law which is
reviewed for correctness. U.S.C.A. Const.Amend. 6.
[7] Criminal Law 110
662.7
110 Criminal Law
110XX Trial
110XX(C) Reception of Evidence
110k662 Right of Accused to Confront
Witnesses
110k662.7 k. Cross-Examination and
Impeachment. Most Cited Cases
Cross-examination is the tool that gives practical
effect to the right of confrontation, and through its
use, an accused can test the believability and
truthfulness of a witness's testimony. U.S.C.A.
Const.Amend. 6.
[8] Witnesses 410
266
410 Witnesses
410III Examination
410III(B) Cross-Examination
410k266 k. Right to Cross-Examine and ReExamine in General. Most Cited Cases
Witnesses 410
410 Witnesses
268(1)
Page 2
410III Examination
410III(B) Cross-Examination
410k268 Scope and Extent of CrossExamination in General
410k268(1) k. In General. Most Cited
Cases
Witnesses 410
280
410 Witnesses
410III Examination
410III(B) Cross-Examination
410k279 Questions on Cross-Examination
410k280 k. In General. Most Cited Cases
The right of cross-examination is not without
limitation; such right does not entail the right to
harass, annoy, or humiliate the witness on crossexamination, nor to engage in repetitive questioning,
nor to inquire into matters which would expose the
witness to danger of physical harm.
[9] Criminal Law 110
1036.2
110 Criminal Law
110XXIV Review
110XXIV(E) Presentation and Reservation in
Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1036 Evidence
110k1036.2
k.
Competency,
Examination, and Impeachment of Witnesses. Most
Cited Cases
Defendant's claim that he was entitled to crossexamine alleged juvenile victim and State's juvenile
witness about their past adjudications for shoplifting
in prosecution for sexual assault of child to show bias
would not be considered for first time on appeal,
absent plain error or exceptional circumstances.
Rules of Evid., Rule 608(c).
[10] Criminal Law 110
1119(1)
110 Criminal Law
110XXIV Review
110XXIV(G) Record and Proceedings Not in
Record
110XXIV(G)15 Questions Presented for
Review
110k1113 Questions Presented for
Review
110k1119 Conduct of Trial in
General
110k1119(1) k. In General. Most
Cited Cases
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
Page 3
Defendants may raise ineffective assistance of
counsel claims on direct appeal when they are
represented by new counsel, and the record is
adequate. U.S.C.A. Const.Amend. 6.
her objection and did not renew it based on any other
grounds, and thus counsel may have felt that the
objection was futile and chose not to object for
strategic reasons. U.S.C.A. Const.Amend. 6.
[11] Criminal Law 110
[13] Criminal Law 110
641.13(6)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(2) Particular Cases and
Problems
110k641.13(6)
k.
Evidence;
Procurement, Presentation and Objections. Most
Cited Cases
Trial counsel's act asking of defendant if he had even
been accused of sexual assault, which enabled the
prosecution to attack as untrue defendant's response
that he had never been accused of sexual assault and
to inquire after the details of alleged victim's past
accusations of sexual assault against him, did not
result in prejudice to defendant in prosecution for
attempted rape and forcible sexual abuse, and thus
could not amount to ineffective assistance; counsel
was given the opportunity to rehabilitate defendant
and did so in a manner that effectively diminished the
importance of the past accusations, and the evidence
regarding alleged victim's past accusations was not
otherwise inadmissible. U.S.C.A. Const.Amend. 6.
[12] Criminal Law 110
641.13(6)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(2) Particular Cases and
Problems
110k641.13(6)
k.
Evidence;
Procurement, Presentation and Objections. Most
Cited Cases
Trial counsel did not render ineffective assistance in
attempted rape and forcible sexual abuse prosecution
when she withdrew her objection to the State's
introduction of evidence that defendant was in arrears
on his child support payments; counsel had objected
to the statement regarding child support arrears on
the basis of lack of foundation, and after being
provided with a document by the State, she withdrew
641.13(2.1)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(2) Particular Cases and
Problems
110k641.13(2.1) k. In General.
Most Cited Cases
In analyzing a defendant's complaints about trial
counsel for purposes of an ineffective assistance
claim, the Supreme Court usually gives great
deference to counsel's trial decisions, and mistakes in
trial strategy or tactics do not render counsel's
performance ineffective. U.S.C.A. Const.Amend. 6.
[14] Criminal Law 110
641.13(2.1)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(2) Particular Cases and
Problems
110k641.13(2.1) k. In General.
Most Cited Cases
Generally, an attorney's performance will be held
ineffective only when there is no tactical or strategic
justification for his conduct of the trial. U.S.C.A.
Const.Amend. 4.
[15] Criminal Law 110
641.13(2.1)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(2) Particular Cases and
Problems
110k641.13(2.1) k. In General.
Most Cited Cases
In determining whether trial counsel rendered
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
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ineffective assistance, Supreme Court will not
second-guess counsel's legitimate strategic choices.
U.S.C.A. Const.Amend. 6.
[16] Criminal Law 110
1186.1
110 Criminal Law
110XXIV Review
110XXIV(U) Determination and Disposition of
Cause
110k1185 Reversal
110k1186.1 k. Grounds in General. Most
Cited Cases
Under the cumulative error doctrine, Supreme Court
will reverse only if the cumulative effect of the
several errors undermines its confidence that a fair
trial was had.
[17] Criminal Law 110
1186.1
110 Criminal Law
110XXIV Review
110XXIV(U) Determination and Disposition of
Cause
110k1185 Reversal
110k1186.1 k. Grounds in General. Most
Cited Cases
If the claims raised on appeal are found to not
constitute error, or the errors are found to be so minor
as to result in no harm, the cumulative error doctrine
will not be applied.
*880 Mark L. Shurtleff, Att'y Gen., Marian Decker,
Asst. Att'y Gen., Michaela D. Andruzzi, Salt Lake
City, for plaintiff.
Kent R. Hart, Salt Lake City, for defendant.
Gregory G. Skordas, Jack M. Morgan, Salt Lake
City, Douglas E. Beloof, Liana Jeanheh Reeve,
Portland, OR, for State of Utah amicus.
NEHRING, Justice:
¶ 1 Arthur Anthony Gonzales appeals his conviction
for attempted rape and forcible sexual abuse. Mr.
Gonzales challenges the trial court's rulings quashing
a subpoena for the victim's mental health records,
removing his counsel, and denying him the
opportunity to cross-examine the victim about her
previous juvenile adjudications. He also claims that
his attorney rendered ineffective assistance, and that,
cumulatively, all these errors require reversal. We
affirm.
FACTS
Page 4
¶ 2 Elizabeth Snodgrass and her sixteen-year-old
daughter Jessica moved next door to Mr. Gonzales
and his children in 1999. Ms. Snodgrass and Mr.
Gonzales began dating and became engaged. During
the engagement, each maintained a separate
residence, but they began to blend their families with
activities such as joint dinners.
¶ 3 Mr. Gonzales and Ms. Snodgrass began to
discuss their differences in discipline, which was
creating contention between the two families. When
disagreements over parenting styles would arise, Mr.
Gonzales and Ms. Snodgrass would host “table talks”
to discuss the issue. One of these meetings was held
after Ms. Snodgrass broke off the engagement when
Jessica accused Mr. Gonzales of grabbing her
buttocks and pressing himself against her during a
hug. After discussing the matter with the family,
Ms. Snodgrass concluded Jessica either was lying or
misunderstood Mr. Gonzales's actions and
subsequently recommitted to marry Mr. Gonzales.
¶ 4 On the Saturday before the planned wedding, Mr.
Gonzales drove Ms. Snodgrass to work. When he
dropped her off, Ms. Snodgrass took only her office
keys, leaving her car and house keys with Mr.
Gonzales. Around 9:00 a.m., Mr. Gonzales told his
daughter that he was going next door to do laundry.
Access to the laundry room could only be gained by
passing through Jessica's bedroom.
At
approximately 10:00 a.m., Mr. Gonzales again told
his daughter he was going to check on the laundry.
¶ 5 Jessica alleged that around that same time, she
felt a man crawl into her bed and put his arms around
her. He began to rub his pelvis against her backside
and to “hump” her on her buttocks. She says that
when she saw the man's hand, she knew it was Mr.
Gonzales. He put his hand under her shirt and bra
and started touching her breasts, to which she
responded by stating “no.” He said “it's okay” and
then pulled down her pants and underpants, grabbed
her buttocks, and placed his finger inside of her
vagina. He then rubbed his penis on her buttocks
before placing it between her legs and tried to
penetrate her. At that point, Jessica put her feet
against the wall and pushed Mr. Gonzales off of the
bed. She told him it wasn't right and that “this is not
what fathers and daughters do.”
According to
Jessica, Mr. Gonzales warned her not to tell anyone
because no one would believe her and that he would
give her whatever she wanted. She also said that Mr.
Gonzales asked her not to notify the police.
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125 P.3d 878
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Page 5
¶ 6 In Mr. Gonzales's version of events, he kneeled
on Jessica's bed to wake her up. He put his arms
around and under her while calling her by her
nickname and saying, “Come on ... let's go ... I need
your help.” *881 Jessica then became “irate” and
began yelling at him. He threw his hands in the air
and told her if she was hungry to come over and eat
and repeated that he needed her help.
without the knowledge or over the objection of his
attorney, the matters raised in it were at the core of
his defense. His effort to advance the cause of his
theory that his accuser was a mentally disturbed teen
bent on retaliation gives rise to the first issue that we
decide today: the admissibility of Jessica's mental
health records.
¶ 7 After Mr. Gonzales left, Jessica called her friend
Anjali, who testified that Jessica was scared and
upset. Jessica also spoke with Anjali's father, Rajiv
Kulkarni. He testified that Jessica was crying and
upset when he spoke to her that morning.
Mr.
Kulkarni called the police, and then went to pick up
Jessica, leaving his car parked about a block away.
Jessica came running toward Mr. Kulkarni, carrying
her bed sheets. Jessica suspected that some of the
stains on her sheets might be semen. Mr. Kulkarni
drove Jessica to meet with the police. During her
police interview, Jessica told police that a week
before this incident Mr. Gonzales had tried to
hypnotize her, asked her to remove her clothing, and
touched her breast.
I. THE SUBPOENAS FOR JESSICA'S MENTAL
HEALTH RECORDS
¶ 8 The morning of the incident, Mr. Gonzales paged
Ms. Snodgrass twice. The second time, he included
a “911” along with his cell phone number, indicating
to her that she needed to call back immediately. Ms.
Snodgrass called Mr. Gonzales, who said he thought
he scared Jessica when he awoke her for breakfast
and that she may have run away.
¶ 9 The police officers who interviewed Mr.
Gonzales said that he admitted “wrestling” with
Jessica. Jessica was not tested for seminal fluid or
other physical evidence. No semen was found on
Jessica's sheets or pants.
PROCEDURAL HISTORY
¶ 10 Mr. Gonzales was charged with one count of
attempted rape and one count of forcible sexual
abuse.
Despite having appointed counsel, Mr.
Gonzales filed a pro se motion stating that Jessica's
claim was a retaliation against an unwanted marriage.
He also claimed, apparently to suggest that Jessica's
ability to tell the truth was impaired, that Jessica was
undergoing psychological therapy, and that she was
taking medicine for a psychological condition. Mr.
Gonzales's counsel withdrew and the trial court
appointed Mr. Edward Montgomery as new counsel.
¶
11 Although Mr. Gonzales's motion was filed
¶ 12 Mr. Montgomery served a subpoena on the
University of Utah Neuropsychiatric Institute (UNI)
for Jessica's treatment records. UNI responded with
a letter stating that the records were privileged under
Utah Rule of Evidence 506 and could only be
released if an affidavit attesting that the request for
records satisfied an exception to the privilege. Mr.
Montgomery completed an affidavit for medical
records entitled “PATIENT HAS PLACED
MENTAL OR PHYSICAL CONDITION AT ISSUE
AS A CLAIM OR DEFENSE IN A LAWSUIT” and
checked the boxes indicating that Jessica's mental and
physical condition were “an element of a claim or
defense in this lawsuit.”
UNI sent Jessica's
treatment records directly to Mr. Montgomery. Not
long after Mr. Montgomery received the records,
UNI's general counsel called him to say that a
mistake had been made; UNI should not have
released the records; and instead, should have moved
to quash the subpoena.
¶ 13 Investigators retained by Mr. Gonzales's
counsel also contacted Ms. Snodgrass at her home
and attempted to serve her with subpoenas seeking
the names of Jessica's mental health providers.
These actions prompted the prosecutor to request that
any contact with State witnesses should be made
through her.
The prosecutor also told Mr.
Montgomery to serve subpoenas on mental health
service providers directly, but indicated an intention
to move to quash any subpoenas regarding Jessica's
mental health. On April 2, 2002, Mr. Montgomery
served subpoenas on two of Jessica's private
therapists.
*882 ¶ 14 At a pre-trial conference, the State
challenged Mr. Gonzales's acquisition of the UNI
treatment records. Having learned that the records
had been obtained by Mr. Montgomery, the State
sought to have them turned over to the court. The
State asserted that Mr. Montgomery had obtained the
documents improperly because he had signed the
form provided by UNI as a condition to its release of
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125 P.3d 878
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(Cite as: 125 P.3d 878)
Jessica's treatment records that included the false
representation that Jessica had placed her mental or
physical condition at issue.
¶ 15 Mr. Montgomery admitted that he looked at the
records, but said that after UNI general counsel
alerted him that UNI believed that he had acquired
the records improperly, he safe-guarded them until
the matter was resolved. The trial court ordered Mr.
Montgomery to submit the records to the court and
the trial court sealed them, conditioning their
disclosure on the acquisition of a court order.
¶ 16 At a subsequent hearing on the fate of the
records, the State sought to quash the subpoenas for
the records and to exclude any evidence obtained
from them. The State argued that Mr. Montgomery's
access to the records had been gained fraudulently
and that, by inspecting them, Mr. Montgomery had
violated Jessica's rights. Mr. Montgomery replied
that Jessica's mental state was an element of the
defense.
Mr. Montgomery understood Jessica's
relevant mental state to be an inability to tell the
truth. Thus, he argued, because of the likelihood of
finding exculpatory evidence that Jessica “cannot be
believed” in her mental health records, the defense
was entitled to an in camera review under State v.
Cardall, 1999 UT 51, 982 P.2d 79.
¶ 17 Mr. Montgomery also stated that Mr. Gonzales
had independent knowledge of Jessica's severe
emotional problems because Mr. Gonzales personally
knew of Jessica's medical conditions and had
attended one of her therapy sessions.
Mr.
Montgomery therefore asserted that the records were
obtained for good cause and through proper
procedures.
¶ 18 The trial court disagreed and quashed the
subpoenas for the records. The court further ruled
that the information obtained from the records could
not be used at trial, and noted that Mr. Montgomery
had created a possibly insurmountable conflict of
interest, as “it is impossible to divorce defense
counsel's knowledge obtained from the privileged
information from his knowledge of the rest of the
case.” Three days later, Mr. Montgomery submitted
a motion to withdraw, which the trial court granted.
Ms. Janet Miller replaced Mr. Montgomery as Mr.
Gonzales's trial counsel.
II. TRIAL TESTIMONY
¶ 19 Once the case went to trial, Ms. Miller moved
Page 6
in limine to exclude evidence concerning Mr.
Gonzales's previous firearms and drug possession
convictions, as well as two prior accusations of
sexual misconduct made by Jessica. The trial court
allowed introduction of the prior convictions for the
limited purpose of impeaching Mr. Gonzales. The
court deferred ruling on the admissibility of Jessica's
uncharged allegations until the evidence was
presented.
¶ 20 On direct examination, Ms. Miller asked Mr.
Gonzales if he had ever been accused of sexual
assault. Mr. Gonzales answered that he had not.
Outside of the presence of the jury, the State argued
that Ms. Miller had opened the door for admission of
prior bad acts.
The State sought permission to
introduce details of past accusations of sexual assault
made by Jessica against Mr. Gonzales. The trial
court allowed the evidence. On cross-examination,
Mr. Gonzales admitted to trying to hypnotize Jessica,
but denied touching her sexually or asking her to
remove her shirt.
¶ 21 Mr. Gonzales testified that his children were his
“life.” This led the prosecutor to ask Mr. Gonzales,
if this was so, why he owed $47,000 in child support
arrears. Ms. Miller initially objected to this question
on the grounds of foundation, but later withdrew her
objection. Mr. Gonzales then admitted to owing the
money.
¶ 22 Finally, Ms. Miller sought to admit evidence of
Jessica and Anjali's retail theft convictions for
purposes of impeachment. The trial court rejected
the evidence under *883 Utah Rule of Evidence 609
as inadmissible misdemeanor theft convictions that
do not involve dishonesty.
¶ 23 The jury convicted Mr. Gonzales of both
attempted rape, a first degree felony, and forcible sex
abuse, a second degree felony.
This appeal
followed.
ISSUES
¶ 24 Mr. Gonzales raises five issues: (1) that the
trial court erred in granting the State's motion to
quash subpoenas for Jessica's mental health records
from UNI; (2) that by removing Mr. Gonzales's
counsel for having a conflict of interest, the trial
court denied him the right to the counsel of his
choice; (3) that the trial court erred in denying Mr.
Gonzales the opportunity to cross-examine the victim
and her friend about prior juvenile convictions; (4)
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that his attorney rendered ineffective assistance of
counsel by opening the door to prior bad acts and
also by withdrawing an objection to irrelevant
prejudicial evidence; and (5) that the errors in the
trial, if they do not individually warrant reversal,
cumulatively merit a new trial.
ANALYSIS
I. MOTION TO QUASH
[1] ¶ 25 Mr. Gonzales claims that the trial court
erred when it quashed the subpoenas for the victim's
mental health records.
Although Mr. Gonzales
raises complex evidentiary issues, the real issue is
actually very narrow: did the trial court err in
quashing the subpoenas? We conclude that it did
not. The trial court supported its decision to quash
FN1
the subpoenas in two ways: first, because Mr.
Montgomery failed to notify opposing counsel of the
subpoenas, and second, because Mr. Montgomery
failed to turn the records over to the court for an in
camera review of the privileged information before
inspecting the contents of the records. Mr. Gonzales
argues that the process by which his attorney
obtained and reviewed the records was not flawed.
We review for correctness the trial court's conclusion
of law that Mr. Gonzales failed to follow the proper
procedures for subpoenaing documents. State v.
Pena, 869 P.2d 932, 936 (Utah 1994). We affirm.
FN1. We note initially that, although the
trial court used the term “quash,” and we
continue to do so here, the circumstances of
this case do not follow the typical sequence
of quashing events. Ordinarily, a trial court
quashes a subpoena before the records are
obtained. Here, however, the trial court set
aside information found in records that had
already been obtained citing a failure to
comply with proper procedures. The trial
court did so in a retroactive attempt to right
the wrongs that had been created by Mr.
Montgomery's premature acquisition of
Jessica's mental health records. The trial
court referred to its actions as “quashing,” a
term we adopt.
A. Subpoena of Records Without Notifying the
Prosecution, Victim, or Trial Court
[2] ¶ 26 Mr. Gonzales first argues that he had no
Page 7
duty to notify either the State or the court of his
pending subpoenas to UNI. He relies on rule 14 of
the Utah Rules of Criminal Procedure, which states:
The clerk of the court in which a case is pending shall
issue in blank to the defendant, without charge, as
many signed subpoenas as the defendant may require.
An attorney admitted to practice in the court in which
the action is pending may also issue and sign a
subpoena as an officer of the court.
A subpoena may command the person to whom it is
directed to appear and testify or to produce in court
or to allow inspection of records, papers, or other
objects.
Utah R.Crim. P. 14(a), (b). This rule does not
specifically require a party seeking a subpoena to
notify anyone of his intention, and therefore,
according to Mr. Gonzales, Mr. Montgomery acted
properly when he subpoenaed Jessica's records from
UNI.
¶ 27 The text of rule 14 does not, however, end the
discussion of this matter.
The Utah Rules of
Criminal Procedure are subject to some of the
requirements of the Utah Rules of Civil Procedure.
Prominent among these is civil rule 81(e), which
states, “[t]hese rules of [civil] procedure shall also
govern in any aspect of criminal proceedings where
there is no other applicable statute or rule, provided,
that any rule so applied does not conflict with any
statutory or constitutional requirement.” Utah R.
Civ. P. 81(e). The rules of civil *884 procedure
mandate notice to parties of an attempt to procure
documents by subpoena.
Specifically, civil rule
45(b) requires “[p]rior notice of any commanded
production or inspection of documents ... before trial
shall be served on each party in the manner
prescribed by Rule 5(b).” FN2 Utah R. Civ. P. 45(b).
FN2. Rule 5(b) outlines the rules governing
proper service.
¶ 28 Mr. Gonzales contends that civil rule 81's
general incorporation language does not merge civil
rule 45's notice requirement into criminal rule 14.
He understands criminal rule 14 to be an
independent, stand-alone rule that communicates all
there is to say about subpoenas in criminal cases. Its
silence on notice is, according to Mr. Gonzales, an
affirmative declaration that notice is not required.
Thus, criminal rule 14 serves as the “other applicable
rule” on the subject of notice, rendering it immune
from the incorporation language of civil rule 81.
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¶ 29 The applicability of civil rule 81 cannot be
determined merely by comparing rule titles, index
entries, or the contents of the rules of criminal and
civil procedure. Instead, our “applicable statute or
rule” analysis obliges us to consider the text and
purpose of a rule of criminal procedure against the
text and purposes of the related statutes and rules,
and thereby determine whether an applicable rule of
civil procedure should be grafted onto a rule of
criminal procedure through civil rule 81. An inquiry
central to this task is the assessment of what more a
civil rule may permit or require than the criminal rule
on a similar topic, and what reasons, if any, justify
the differences.
¶ 30 The civil subpoena rules are both more
comprehensive and more exacting than the criminal
rules. For example, criminal rule 14(b) states that
the court may quash or modify a subpoena if
compliance is “unreasonable,” but provides no
further guidance. Utah R.Crim. P. 14(b). In contrast,
civil rules 45(c)(3)(A) and (B) each provide for four
occasions when the court may quash or modify the
subpoena, and provide direction for doing so. Utah
R. Civ. P. 45(c)(3)(A), (B). Similarly, civil rule 45
expressly addresses the status of unsubpoenaed
persons who are present in the courtroom whose
testimony is sought, while criminal rule 14 does not.
Criminal rule 14 also does not specify what
information is required to appear in a subpoena, such
as name or address, whereas civil rule 45(a) provides
detailed instructions concerning the contents of any
subpoena.
Page 8
have notice enabling them to object or participate in
discovery, or to serve a demand for additional
materials.” Utah R. Civ. P. 45 Adv. Note. This
policy applies equally to the rules of criminal
procedure; the right of a victim of a crime to be
aware of any subpoenas concerning privileged
information is at least as important as the same right
of a civil defendant. FN3 “[T]he fundamental
requisite of due process of law is the opportunity to
be heard, a right which has little reality or worth
unless one is informed that the matter is pending and
one can choose for himself *885 whether to contest.”
Worrall v. Ogden City Fire Dep't., 616 P.2d 598, 601
(Utah 1980).
FN3. Mr. Gonzales was aware that the State
felt strongly about this issue. In this case,
the prosecution had previously advised Mr.
Gonzales that the victim did not intend to
waive her privilege to her mental health
records, and accordingly, the prosecution
would move to quash any subpoenas for
them.
¶ 33 The Utah legislature has codified its intent “to
ensure that all victims ... of crime are treated with
dignity, respect, courtesy, and sensitivity, and that the
rights ... to victims ... are honored and protected by
law.” Utah Code Ann. § 77-37-1 (2003). When a
victim's confidential records are reviewed before she
even knows they are subpoenaed, she cannot choose
to protect them. The only way to prevent this is to
ensure that the party receives notification that a
subpoena has been issued. In light of the purpose
behind the notification requirements of civil rule 45,
it is clear that the same policies must apply in a
criminal setting to protect the rights of victims.
¶ 31 In evaluating the merits of Mr. Gonzales's
interpretation that criminal rule 14's silence regarding
notice is intentional, we note that the text of rule
14(b) clearly signals that some notice to adverse
parties of the issuance of a subpoena is contemplated.
It expressly authorizes trial courts to quash or modify
unreasonable subpoenas. In doing so, criminal rule
14(b) was not inviting unilateral action by trial
courts.
Rather, the rule expects those parties
affected by unreasonable compliance to seek relief
from the court. Of course no application for an order
to quash or modify could be made by an adversely
affected party who received no notice of the
subpoena.
¶ 34 Similar policy considerations have contributed
to our earlier application of civil rule 81(d) to the
rules of criminal procedure.
See, e.g., State v.
Walker, 743 P.2d 191, 192-93 (Utah 1987) (applying
civil rule 52(a) to a criminal matter), State v. Bell,
770 P.2d 100, 109 (Utah 1988) (applying civil rule 49
to a criminal matter),FN4 and State v. Anderson, 797
P.2d 1114, 1116-17 (Utah 1990) (applying civil rule
58A to a criminal matter).
[3] ¶ 32 Policy considerations underlying civil rule
45(b) reinforce the right of an opposing party to be
informed of subpoenas for documents.
The
Advisory Committee Note describing the addition of
the notification requirement to civil rule 45 states,
“[Rule 45(b)(1)(A)] ensures that other parties will
FN4. At the time Walker and Bell were
issued, Utah Code section 77-35-26(g)
provided that “[t]he rules of civil procedure
relating to appeals shall govern criminal
appeals to the Supreme Court except as
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otherwise provided.” Utah Code Ann. § 7735-26(g) (1982). This chapter was repealed
in 1990 and the Supreme Court adopted the
rules of procedure as provided in the Utah
Court Rules Annotated.
¶ 35 Mr. Gonzales argues that civil rule 45 cannot be
applied to his case under our holding in State v.
Nielsen, 522 P.2d 1366 (Utah 1974), in which we
determined that the rules of civil procedure did not
apply to discovery in a criminal matter. See id. at
1367. Mr. Gonzales culls language from that case
which stated, without analysis, “the Rules of Civil
Procedure pertaining to discovery may not be used in
criminal cases.” Id. However, Nielsen is easily
distinguished from this case and thus does not hinder
our holding here.
¶ 36 The defendant in Nielsen was charged with a
felony and a misdemeanor. Mr. Nielsen claimed the
right to take depositions of various witnesses. The
State sought a court declaration as to whether or not
the defendant was entitled to pursue discovery under
the Utah Rules of Civil Procedure. At the time, the
rules of criminal procedure were codified in the Utah
Code. Utah Code section 77-46-1, which governed
the taking of depositions stated that “[w]hen a
defendant has been held to answer a charge for a
public offense ... he may, either before or after an
indictment or information, have witnesses examined
conditionally on his behalf as prescribed in this
chapter, and not otherwise.” Utah Code Ann. § 7746-1 (1978) (emphasis added).
We read “not
otherwise” to mean that a defendant could access no
other discovery tool, including the rules of civil
procedure. We therefore concluded that “[i]t appears
that the wording of the statutes above set forth makes
Rule 81(e) inapplicable and that the Rules of Civil
Procedure pertaining to discovery may not be used in
criminal cases.” Nielsen, 522 P.2d at 1367. We
noted that “until such time as the [relevant] statutes ...
are modified or repealed by the legislature this court
would be without power to provide for discovery
proceedings by court rule.” Id. Utah Code section
77-46-1 (1978) was repealed in 1980, and no longer
exists in that form.FN5 Accordingly, there now exists
no prohibition against using the rules of civil
procedure to inform discovery in a criminal matter.
FN5. The statutes at issue in Nielsen were
77-46-1 and 77-46-2 (1978). In 1980, Title
77 was repealed, reorganized, and reenacted,
again as Title 77. Former chapter 46 was
reenacted as Utah Code section 77-35-14
Page 9
(1982).
Former section 77-46-1 did not
survive the repeal and does not appear in
Utah Code section 77-35-14 (1982).
Former section 77-46-2, on the other hand,
reemerged more or less intact as Utah Code
section 77-35-14(h) (1980). In 1989, the
legislature repealed the entirety of chapter
35 of Title 77. The Utah Supreme Court
adopted the statutory rules of procedure
contained in Utah Code sections 77-35-1 to 33 (1982 & Supp.1988) and transformed
them into the current Utah Rules of Criminal
Procedure. Section 77-35-14(h) (1982) is
currently located at rule 14(h). The former
section 77-46-1, discussed here, no longer
exists.
¶ 37 Furthermore, we stated in Nielsen that there was
a sound policy reason not to apply civil rule 30's
broad use of depositions *886 to a criminal case,
noting that such application may well infringe a
defendant's constitutional right against selfincrimination. Id. Mr. Gonzales's case, however,
marks the emergence of an equally persuasive policy
reason to apply the rules of civil procedure to a
criminal case-an obligation to give practical effect to
the statutory mandate that a victim's interest be
meaningfully considered. The circumstances present
here underscore why Nielsen should not be read to
create an inflexible prohibition against the
application of civil procedure rules to discovery in
criminal matters.
¶ 38 Mr. Gonzales further attempts to buttress his
argument by invoking State v. Pliego, 1999 UT 8,
974 P.2d 279, in which we directed a defendant to
subpoena the victim's mental health records, and
State v. Hansen, 2002 UT 114, 61 P.3d 1062, in
which we applied the rule of Pliego to privately held
documents. However, these cases do not stand for
the propositions that Mr. Gonzales advances.
¶ 39 Mr. Gonzales correctly states that in Pliego, we
directed the defendant to subpoena the rape victim's
mental health records.
He suggests that this
statement allows any defendant to subpoena a rape
victim's mental health records.
However, to the
extent that Pliego mandates a procedure for acquiring
mental health records by subpoena, it is limited by
the facts presented to us in that case. The Pliego
result emerged in the context of rejecting the
defendant's preferred discovery technique of seeking
a court order requiring the prosecution to subpoena
the records under rule 16(a) of the Utah Rules of
Criminal Procedure.FN6 Pliego, 1999 UT 8 at ¶ 20,
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974 P.2d 279. We affirmed the trial court's ruling
that this would place too great a burden on the
prosecution, and if the defendant wanted to see the
records, he should subpoena them himself. Id. We
neither stated nor implied that subpoenas could or
should be served without notification to opposing
counsel.
FN6. Rule 16(a) requires the prosecutor to
disclose to the defendant various pieces of
evidence relevant to the defendant's case.
However, in Pliego, we clarified that this
rule is limited to only that evidence “of
which [the prosecutor] has knowledge. It
does not require [the prosecutor] to make an
investigation on behalf of the defendant.”
Pliego, 1999 UT 8 at ¶ 9, 974 P.2d 279.
¶ 40 Mr. Gonzales also relies on our statement in
Hansen that “[i]n order to obtain privileged mental
health records, a party must first ‘serv[e] the holders
of [those] records with a subpoena duces tecum.’ ”
Hansen, 2002 UT 114, ¶ 6 n. 1, 61 P.3d 1062 (some
brackets in original). (quoting Pliego, 1999 UT 8 at ¶
21, 974 P.2d 279). Again, Mr. Gonzales reads too
much into this simple statement; we neither stated
nor implied that serving subpoenas on holders of
privileged records can be done without notification to
the court and opposing counsel, or that a defendant is
entitled to examine the records without an in camera
review.
¶ 41 Accordingly, we hold that rule 45(b)(1)(A)'s
notification requirement applies to criminal matters
where privileged information is at stake. Because
Mr. Gonzales's attorney improperly subpoenaed
Jessica's private mental health records in violation of
her right to privacy, we affirm the trial court's ruling
that the subpoenas must be quashed.
B. Failure to Turn Records Over to Court for In
Camera Review
¶ 42 Next, Mr. Gonzales argues that he was entitled
to review Jessica's mental health records because her
mental health is an element or claim of his defense.
Utah Rule of Evidence 506, which defines a privilege
between a patient and a mental health therapist,
excludes communications that concern a patient's
condition where the condition is “an element of any
claim or defense.” This is the same wording that is
found on the UNI form that Mr. Montgomery filled
out. Mr. Gonzales argues that Jessica's mental health
Page 10
was an element of a claim or defense in the lawsuit,
and therefore his request for the records was proper.
¶ 43 Mr. Gonzales's argument is flawed in two ways.
First, his defense is simply “I didn't do it.”
He
wishes to use Jessica's mental health records to
impeach her credibility as a witness-part of his
defense strategy, but not actually an element of his
defense.
Second, regardless of whether *887
Jessica's mental health is an “element” of Mr.
Gonzales's defense, it is the process by which the
records were obtained, not the status of the records as
privileged or unprivileged, that prevents Mr.
Gonzales from reviewing them. Even if it were true
that the records were an element of the defense, or
were never privileged in the first place, Mr. Gonzales
would still be obligated to obtain them using the
proper avenue.
¶ 44 Mr. Montgomery used a flawed subpoena
process to obtain privileged records.FN7 His authority
to examine those records, however obtained,
depended on approval of the trial court following an
in camera review.
Drawing on a United States
Supreme Court case, Pennsylvania v. Ritchie, 480
U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), we
made this clear in State v. Cardall, 1999 UT 51, 982
P.2d 79.FN8 We stated:
FN7. It is not in dispute that UNI
erroneously released the records to Mr.
Montgomery based upon an affidavit that he
signed asserting that Jessica's mental state
was an element of the crime. Everyone
agrees that UNI should properly have moved
to quash the subpoena itself, rather than
turning the records over to Mr.
Montgomery. That UNI could have and
likely should have acted to protect its
patient's privacy interest in no way
diminishes our conviction that Mr.
Montgomery was obligated by rule to notify
the State of the UNI subpoenas.
FN8. We have since issued another case,
State v. Blake, 2002 UT 113, 63 P.3d 56, in
which we discussed this at length. Blake,
however, was not available at the time Mr.
Montgomery obtained the records or at the
time the trial court issued its decision.
Accordingly, we rely on Cardall, which
adequately explained the law in Utah at the
time.
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In Ritchie, the Supreme Court held that where an
exception to privilege allows a defendant access to
otherwise confidential records, the defendant does
not have the right to examine all of the confidential
information or to search through state files without
supervision. However, if a defendant can show with
reasonable certainty that exculpatory evidence exists
which would be favorable to his defense, Ritchie
gives him the right to have the otherwise confidential
records reviewed by the trial court to determine if
they contain material evidence.
...
[W]here “a defendant is aware of specific
information contained in the file ..., he is free to
request it directly from the court, and argue in favor
of its materiality.”
Cardall, 1999 UT 51 at ¶ ¶ 30, 32, 982 P.2d 79
(citations omitted).
¶ 45 Here, Mr. Montgomery was obligated to seek
an in camera review of Jessica's mental health
records before searching through them. Because he
did not follow proper procedures in subpoenaing the
records or requesting an in camera review, we affirm
the trial court's conclusion that the subpoenas must be
quashed.
II. ORDER TO WITHDRAW
[4] ¶ 46 Mr. Gonzales next argues that the trial
court's grant of the State's motion to quash and
accompanying ruling that Mr. Montgomery now had
a conflict of interest denied him his right to the
counsel of his choice. This issue is moot because the
trial court did not remove Mr. Montgomery. Rather,
the trial court responded to Mr. Montgomery's
unauthorized acquisition of the contents of Jessica's
therapy records by ordering him to write an apology
to the victim, questioning whether the trial could be
fair under the circumstances, and suggesting that he
had created a conflict that “call[ed] into question the
professional ethics of his continued representation of
the defendant.” Following this strong reprimand,
Mr. Montgomery voluntarily moved to withdraw.
The trial court granted the motion, and referred the
case to the Salt Lake Legal Defenders Association for
appointment of new counsel.
On appeal, Mr.
Gonzales suggests that “less drastic options” might
have been appropriate.
However, because Mr.
Gonzales did not offer these options at trial or even
object to the trial court's grant of Mr. Montgomery's
motion to withdraw, this issue is not properly before
us, and we do not review it. FN9
Page 11
FN9. Mr. Gonzales also argued that if we
were to determine that the records
reasonably contained exculpatory evidence,
then the trial court would have erred in
suggesting that a conflict had been created.
However, we need not address this issue
because it is irrelevant to the matter at hand
in light of Mr. Montgomery's voluntary
withdrawal of his services.
*888 III. RIGHT TO CROSS-EXAMINE
[5][6] ¶ 47 We now turn to Mr. Gonzales's claim that
the trial court erred when it denied his motion in
limine seeking leave to cross-examine Jessica and
Anjali about their prior juvenile adjudications for
shoplifting.
This question appears to be a
straightforward question of evidence, which is how
the trial court viewed it, and has embedded within it
is the constitutional question of whether the trial
court infringed Mr. Gonzales's right of confrontation
by denying him the opportunity to ask Jessica and
Anjali about their juvenile adjudications. However,
denial of the right to confront and cross-examine
witnesses presents a question of law which is
reviewed for correctness. Lander v. Indust. Comm'n
of Utah, 894 P.2d 552, 554 (Utah Ct.App.1995).
[7][8] ¶
48 The Sixth Amendment right to
confrontation “guarantees the right of an accused in a
criminal prosecution ‘to be confronted with the
witnesses against him.’ ” Davis v. Alaska, 415 U.S.
308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)
(quoting U.S. Const. amend.
VI).
Crossexamination is the tool that gives practical effect to
the right of confrontation. Id. Through its use, an
accused can test the believability and truthfulness of
a witness's testimony. Id. at 315-16, 94 S.Ct. 1105.
However, “the right of cross-examination is not
without limitation.” State v. Hackford, 737 P.2d 200,
203 (Utah 1987). For example, “the right to crossexamine ‘does not entail the right to harass, annoy, or
humiliate [the] witness on cross-examination, nor to
engage in repetitive questioning, nor to inquire into
matters which would expose the witness to danger of
physical harm.’ ” Id. (quoting State v. Chesnut, 621
P.2d 1228, 1233 (Utah 1980)). Likewise, Utah Rule
of Evidence 403 excludes relevant evidence “if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.”
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¶ 49 At trial, Mr. Gonzales made a motion in limine
seeking leave to cross-examine Jessica and Anjali
about their shoplifting adjudications. His motion
was primarily grounded in rule 609 of the Utah Rules
of Evidence, which governs the admissibility of prior
criminal convictions. Mr. Gonzales explained that
he sought to use the juvenile adjudications to counter
any statements that Jessica and Anjali might make in
support of their veracity. He intended to use their
shoplifting adjudications to refute these potential
claims to honesty.
¶ 50 Rule 609(a) permits the introduction of prior
convictions for the purpose of attacking the
credibility of a witness, but only if the conviction was
for a felony or a crime that involved dishonesty.
Utah R. Evid. 609(a).
¶ 51 Rule 609(d) governs the use of prior juvenile
adjudications to attack credibility. This section of
rule 609 begins with a general disapproval of the use
of prior juvenile adjudications. The rule qualifies its
rejection of adjudications when three conditions are
met: the witness against whom the adjudication is
offered cannot be the accused, the adjudication must
be for an offense that would be admissible if
committed by an adult, and the court must also be
“satisfied that admission in evidence is necessary for
a fair determination of the issue of guilt or
innocence.” Utah R. Evid. 609(d). FN10 We have
previously stated *889 that “[t]heft is not a crime
involving ‘dishonesty or false statement’ within the
meaning of rule 609(a)(2).” State v. Bruce, 779 P.2d
646, 656 (Utah 1989) (quoting United States v. Yeo,
739 F.2d 385, 387 (8th Cir.1984)).
Because
shoplifting is neither a felony nor a crime involving
dishonesty, the trial court correctly refused to allow
Mr. Gonzales to cross-examine Jessica and Anjali
about their prior shoplifting adjudications under rule
609.
FN10. The full language of rule 609 states:
(a) General rule.
For the purpose of
attacking the credibility of a witness,
(1) evidence that a witness other than the
accused has been convicted of a crime shall
be admitted, subject to Rule 403, if the
crime was punishable by death or
imprisonment in excess of one year under
the law under which the witness was
convicted, and evidence that an accused has
been convicted of such a crime shall be
admitted if the court determines that the
Page 12
probative value of admitting this evidence
outweighs its prejudicial effect to the
accused; and
(2) evidence that any witness has been
convicted of a crime shall be admitted if it
involved dishonesty or false statement,
regardless of the punishment.
(b) Time limit. Evidence of a conviction
under this rule is not admissible if a period
of more than ten years has elapsed since the
date of the conviction or of the release of the
witness from the confinement imposed for
that conviction, whichever is the later date,
unless the court determines, in the interests
of justice, that the probative value of the
conviction supported by specific facts and
circumstances substantially outweighs its
prejudicial effect. However, evidence of a
conviction more than ten years old as
calculated herein, is not admissible unless
the proponent gives to the adverse party
sufficient advance written notice of intent to
use such evidence to provide the adverse
party with a fair opportunity to contest the
use of such evidence.
(c) Effect of pardon, annulment, or
certificate of rehabilitation. Evidence of a
conviction is not admissible under this rule
if (1) the conviction has been the subject of
a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure
based on a finding of the rehabilitation of
the person convicted, and that person has not
been convicted of a subsequent crime which
was punishable by death or imprisonment in
excess of one year, or (2) the conviction has
been the subject of a pardon, annulment, or
other equivalent procedure based on a
finding of innocence.
(d) Juvenile adjudications.
Evidence of
juvenile adjudications is generally not
admissible under this rule. The court may,
however, in a criminal case allow evidence
of a juvenile adjudication of a witness other
than the accused if conviction of the offense
would be admissible to attack the credibility
of an adult and the court is satisfied that
admission in evidence is necessary for a fair
determination of the issue of guilt or
innocence.
(e) Pendency of appeal. The pendency of
an appeal therefrom does not render
evidence of a conviction inadmissible.
Evidence of the pendency of an appeal is
admissible.
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
Utah R. Evid. 609.
[9] ¶ 52 Mr. Gonzales attempted to widen the
spectrum of admissible juvenile adjudications beyond
those permitted by rule 609(d) by invoking Davis v.
Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347
(1974). There, the United States Supreme Court
permitted a juvenile witness to be cross-examined
about his past adjudications when they were
demonstrably relevant to show the juvenile's bias,
prejudice, or motive to lie. Davis, 415 U.S. at 320,
94 S.Ct. 1105. Read in the manner preferred by Mr.
Gonzales, Davis would entirely do away with rule
609's linkage between impeachment for credibility
and criminal conduct associated with dishonesty,
thereby broadening the permissible use of prior
juvenile adjudications beyond the use of prior
convictions for adults.
¶
53 However, as the trial court implicitly
recognized, Davis did not revolutionize the use of
juvenile adjudications as Mr. Gonzales would have
us believe. There are several reasons for this. First,
it is implausible to believe that by paring away a
portion of the confidentiality traditionally afforded
juvenile proceedings to accommodate the Sixth
Amendment right to confrontation, the Supreme
Court intended to bring about the incongruous result
of making juvenile adjudications easier to admit than
adult convictions. Although Davis did not set out a
test to measure whether a juvenile adjudication has a
nexus to bias, prejudice, or motive to lie, no mere
assertion of linkage will suffice. A closer look at the
Davis facts underscores this point.
¶ 54 The prosecution's key witness in Davis was a
juvenile who identified Mr. Davis as the man who
had committed a burglary. Id. at 310, 94 S.Ct. 1105.
Both at the time of the offense and at the time of trial,
the witness was on probation following two
adjudications, both for burglary. Id. at 310-11, 94
S.Ct. 1105.
The prosecutor sought a protective
order, which the trial court granted, preventing the
defense from asking the witness about the
adjudications. Id. At trial, defense counsel's crossexamination of the witness was as follows:
Q. Were you upset at all by the fact that this safe was
found on your property?
A. No, sir.
Q. Did you feel that they might in some way suspect
you of this?
A. No.
Q. Did you feel uncomfortable about this though?
A. No, not really.
Q. The fact that a safe was found on your property?
Page 13
A. No.
*890 Q. Did you suspect for a moment that the police
might somehow think that you were involved in this?
A. I thought they might ask a few questions is all.
Q. Did that thought ever enter your mind that youthat the police might think that you were somehow
connected with this?
A. No, it didn't really bother me, no.
Q. Well, but....
A. I mean, you know, it didn't-it didn't come into my
mind as worrying me, you know.
Q. That really wasn't-wasn't my question, Mr. Green.
Did you think that-not whether it worried you so
much or not, but did you feel that there was a
possibility that the police might somehow think that
you had something to do with this, that they might
have that in their mind, not that you....
A. That came across my mind, yes, sir.
Q. That did cross your mind?
A. Yes.
Q. So as I understand it you went down to the-you
drove in with the police in-in their car from mile 25,
Glenn Highway down to the city police station?
A. Yes, sir.
Q. And then went into the investigators' room with
Investigator Gray and Investigator Weaver?
A. Yeah.
Q. And they started asking you questions about-about
the incident, is that correct?
A. Yeah.
Q. Had you ever been questioned like that before by
any law enforcement officers?
A. No.
Id. at 312-13, 94 S.Ct. 1105.
¶ 55 The Supreme Court found that the witness's
answers were almost certainly untrue in light of his
burglary adjudications, but were uttered without risk
because the juvenile knew he was immune from
questions that would require him to disclose them.
Id. at 314, 94 S.Ct. 1105. It is easy to understand
how, faced with a situation in which a key witness
had uttered obvious falsehoods with impunity, the
Supreme Court found its way clear to restore fairness
to Mr. Davis's trial by requiring the witness to endure
the full rigor of cross-examination.
The Court
concluded that not only was Mr. Davis deprived of an
opportunity to present meaningfully his defense
theory, but that, perhaps worse, the jury may have
erroneously interpreted Mr. Davis's accusatory crossexamination of the witness as a gratuitous and
baseless attack on his credibility. Id. at 317-18, 94
S.Ct. 1105.
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
¶ 56 The Davis court took pains to explain that its
holding did not open the door to the use of juvenile
adjudications to attack generally the credibility of a
witness. For his part, even Mr. Davis acknowledged
that his right to confrontation was not so potent as to
overpower entirely the long standing restrictions on
the admissibility of juvenile adjudications. That an
adequate foundation be laid to show that a witness's
testimony was the product of bias, prejudice, or a
motive to lie is the essential element that must be
present before the proscriptions against admitting
juvenile adjudications can be overcome. Deciding
the quantity and quality of foundational evidence a
defendant must present before a court may admit a
witness's juvenile adjudication poses a more
challenging question, one that the Supreme Court did
not directly answer.
¶ 57 In this case, the trial court denied Mr.
Gonzales's request to allow the cross-examination
under Davis, stating that in Davis, the adjudications
were relevant to the matter at hand, whereas here,
they were not. At the time Mr. Gonzales moved for
permission to cross-examine the women about their
adjudications, only opening statements had been
presented. Defense counsel raised the theory that
Jessica didn't want her mother to marry Mr. Gonzales
and this is why she fabricated the allegation against
Mr. Gonzales as grounds for permitting the crossexamination.
Defense counsel did not, however,
connect the women's adjudications to bias, prejudice,
or motive to lie, either during opening arguments or
in her argument to the trial court. In contrast to Mr.
Davis, who insisted he did not wish to use the
witness's juvenile adjudications simply to attack the
*891 witness's credibility, Mr. Gonzales's only stated
purpose was to make a broadside attack on Jessica
and Anjali's credibility.
¶ 58 On appeal, Mr. Gonzales attempts to shore up
the relevance of Jessica and Anjali's adjudications
and to align his case more closely to Davis. He
argues to us, for the first time, that both women had
personal animus toward him because he allowed
them to stay in detention overnight following their
shoplifting arrests. Whatever foundational merit this
suggestion of motive to lie may have, the details of
this substantially fact-dependent issue appear
nowhere in the trial record, and we decline to conduct
our own evaluation of it.
¶ 59 Mr. Gonzales further argues that Jessica and
Anjali's adjudications are relevant because they show
that the women had motive to lie in the hopes of
pleasing law enforcement and thereby receiving more
Page 14
favorable treatment from the State in their own cases.
Mr. Gonzales thus ties the shoplifting adjudications
directly to bias, and argues that he ought to be able to
cross-examine the women about their adjudications
in order to demonstrate the cause of their bias. We
reject this argument, recognizing that the introduction
of Jessica and Anjali's juvenile adjudications for this
reason would invite the introduction of the
adjudication of any witness who, at the time his
testimony was sought, was under the supervision of
the court or was in some way eligible to extract some
benefit in return for testimony favorable to the
prosecution. This standard would fall well short of
the degree of foundation necessary to justify the
admission of juvenile adjudications.
¶
60 Mr. Gonzales couples this Davis-based
argument to Utah Rule of Evidence 608(c), a rule not
invoked until this appeal. Rule 608(c) states: “Bias,
prejudice, or any motive to misrepresent may be
shown to impeach the witness either by examination
of the witness or by evidence otherwise adduced.”
Utah R. Evid. 608(c). Mr. Gonzales did not raise this
issue directly at trial as a justification for crossexamining the young women about their
adjudications.FN11 In fact, when the trial court sought
Mr. Gonzales's authority for his position, he
specifically stated that he relied on rule 609 and no
other rule.
FN11. The State argues that Mr. Gonzales
failed to preserve the bias argument entirely
and it is therefore waived. However, it is
clear from the record that, although Mr.
Gonzales stated he relied on rule 609 and
had no other bases, he did raise the issues of
bias by pointing to Davis. We address the
argument, but reject it on different grounds.
¶ 61 We reject Mr. Gonzales's argument, both as to
rule 608 and Davis, because although he hinted at the
question of bias by raising Davis, he failed to state
any basis to believe that the women were biased
against him. He did not present to the trial court any
foundational evidence of bias that could be subjected
to a Davis test.
The trial court never had the
opportunity to rule on the question that is now before
us and ruled correctly on the question it did confront.
Because Mr. Gonzales failed to preserve this claim at
trial, and in the absence of a demonstration of plain
error or exceptional circumstances, we do not address
its merits on appeal. State v. Labrum, 925 P.2d 937,
939 (Utah 1996).
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125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
¶ 62 We conclude that rule 609 did not allow for the
admission of cross-examination concerning the
young women's shoplifting adjudications. We also
conclude that Mr. Gonzales failed to preserve his rule
608 claim and to develop his Davis argument in a
manner that would allow for the testimony to be
admitted.
Therefore, Mr. Gonzales's Sixth
Amendment right to confrontation was not violated.
We affirm the rulings of the trial court.
IV. INEFFECTIVE ASSISTANCE
[10] ¶ 63 Next, Mr. Gonzales seeks reversal of his
conviction because his trial counsel, Ms. Miller, was
ineffective in two ways: first, she “opened the door”
to prior bad acts, and second, she withdrew an
objection to irrelevant prejudicial evidence being
proffered by the State.
The trial court did not
address this issue directly.
However, criminal
defendants may raise ineffective assistance of
counsel claims on direct appeal when, as here, they
are represented by new counsel, and “the record is
adequate.” State v. Litherland, 2000 UT 76, ¶ 16, 12
P.3d 92. Accordingly,*892 we take up the merits of
this claim.
¶ 64 To test an attorney's performance, we rely on
the United States Supreme Court's two-part test
established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
To prevail on an ineffective assistance of counsel
claim under the Strickland test, “a defendant must
show (1) that counsel's performance was so deficient
as to fall below an objective standard of
reasonableness and (2) that but for counsel's deficient
performance there is a reasonable probability that the
outcome of the trial would have been different.”
State v. Nelson-Waggoner, 2004 UT 29, ¶ 27, 94
P.3d 186 (quoting State v. Montoya, 2004 UT 5, ¶
23, 84 P.3d 1183) (other quotation marks omitted).
A. Mr. Gonzales's Attorney Was Not Ineffective When
She Opened the Door to Inadmissible Prior Bad Acts
[11] ¶ 65 Mr. Gonzales first argues that Ms. Miller
was ineffective when she opened the door for
questioning about past accusations made against Mr.
Gonzales by Jessica. Ms. Miller asked Mr. Gonzales
if he had ever been “accused” of sexual assault. He
responded that he had not. On cross-examination,
the State drew testimony from Mr. Gonzales that he
had in fact been previously accused by Jessica of
Page 15
sexual assault but had never been charged with this
crime.FN12 On re-direct examination, Ms. Miller
asked if he had ever been charged or convicted of
sexual assault. Mr. Gonzales argues now that by
inadvertently asking if he had been accused, as
opposed to limiting her question to whether or not he
had been charged or convicted, Ms. Miller opened
the door for the State to ask him questions about prior
accusations of sexual assault, and that this line of
questioning by the State severely prejudiced him and
ultimately prompted the jury to convict. At the close
of trial, Ms. Miller moved for a mistrial based on her
own ineffectiveness. She argued that she had erred
in using the term “accused,” and meant to ask only
about charges or convictions. She contended that
she never intended to open the door for the
prosecution to ask about Jessica's previous
accusations. The trial court denied the motion.
FN12. Before doing so, the State asked for
permission from the trial court to pursue this
line of questioning. The State admitted that
Ms. Miller had made a mistake and
acknowledged that she had intended only to
ask about charges and convictions.
However, the State argued that it was
entitled to capitalize on the error once it was
made.
The trial court allowed the
questioning.
¶
66 We review Ms. Miller's actions under
Strickland, and conclude that her line of questioning,
although possibly harmful to Mr. Gonzales, was
neither objectively unreasonable nor so deficient that
the outcome of the trial would have been different.
¶ 67 It is clear from the record that Ms. Miller
mistakenly used the term “accused” in asking Mr.
Gonzales about previous episodes involving sexual
assault. She had been clear before trial that she
hoped Jessica's previous accusations would not be
admitted, and she was clear during a bench
conference that she intended to limit her questions to
past charges or convictions. Even the prosecutor
admitted that Ms. Miller had inadvertently used the
term “accuse.”
¶ 68 This error enabled the prosecution to attack as
untrue Mr. Gonzales's response that he had never
been accused of sexual assault and to inquire after the
details of Jessica's past accusations against him.
However, we do not think the outcome would have
been different but for the mistake for two reasons:
first, Ms. Miller was given the opportunity to
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
rehabilitate Mr. Gonzales to the best of her ability,
and second, the evidence regarding Jessica's past
accusations was not otherwise inadmissible.
We
address each in turn.
¶ 69 First, Ms. Miller was given the opportunity to
rehabilitate Mr. Gonzales, and did so in a manner that
effectively diminished the importance of the past
accusations. She asked him specifically what the
allegations and the outcomes of those allegations
were. In his response, he stated that he and Ms.
Snodgrass had discussed the accusations with Jessica,
and although Jessica's accusations temporarily
derailed the engagement, they had concluded she was
lying and put it behind*893 them. Twice he stated
that Jessica had lied about the allegations. Although
both parties assume that it was indeed harmful to Mr.
Gonzales's credibility that he had previously been
accused of sexual assault, he capitalized on the
opportunity to attack Jessica's credibility and turned
the disclosure of the accusations to his advantage by
pointing out that her own mother believed she lied
about the past incident.
¶ 70 Next, the evidence concerned previous wrongs
or bad acts. Previous wrongs are inadmissible under
rule 404(b) for the purposes of showing character, but
are admissible for the purposes of showing “proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.” Utah R. Evid. 404(b). Here, the State
argues that the past accusations should have been
admissible in order to show the reason that Jessica
had chosen to not report the attempted rape to her
mother: namely, that she had previously told her
mother that Mr. Gonzales had inappropriately
touched her, and her mother had not done anything
about it, and for this reason, Jessica chose to disclose
the rape allegation to Anjali, rather than to Ms.
Snodgrass. This information was discussed during
Jessica's testimony. Because the rules of evidence
would not prevent Jessica from discussing these
matters, any harm done to Mr. Gonzales's testimony
is mitigated by the fact that it might have arisen
anyway.
¶ 71 We conclude that although Ms. Miller may have
asked an unintended question, any harm done would
not have changed the outcome of the trial.
The
evidence was likely admissible in any event and Ms.
Miller effectively rehabilitated Mr. Gonzales. We
therefore reject Mr. Gonzales's claim of ineffective
assistance of counsel relating to this incident.
Page 16
B. Mr. Gonzales's Attorney Was Not Ineffective When
She Withdrew Her Objection to Irrelevant
Prejudicial Evidence
[12][13][14][15] ¶ 72 Mr. Gonzales next argues that
Ms. Miller rendered ineffective assistance when she
withdrew her objection to the State's introduction of
evidence that Mr. Gonzales was in arrears on his
child support payments.
He argues that this
information was not relevant and was unfairly
prejudicial.
In analyzing a defendant's complaints about counsel,
this Court usually gives great deference to counsel's
trial decisions, and mistakes in trial strategy or tactics
do not render counsel's performance ineffective.
Generally, an attorney's performance will be held
ineffective only when there is no tactical or strategic
justification for his conduct of the trial.
State v. Colonna, 766 P.2d 1062, 1066 (Utah 1988).
“[I]n making such an analysis, this court will not
second-guess trial counsel's legitimate strategic
choices.” State v. Callahan, 866 P.2d 590, 593 (Utah
1993) (internal citation omitted). Here, Ms. Miller
objected to the statement regarding child support
arrears on the basis of lack of foundation. After
being provided with a document by the State, she
withdrew her objection and did not renew it based on
any other grounds. Because Ms. Miller may have
felt that the objection was futile and chose not to
object for strategic reasons (such as not drawing
attention to this unfortunate information), we will not
question her strategy.
¶ 73 The second prong of the Strickland test requires
Mr. Gonzales to show that but for the action, the
results of the proceedings would have been different.
Although Mr. Gonzales has suggested to us that his
credibility was harmed by the introduction of this
evidence, he has been unable to convince us that but
for these mistakes, the jury would have reached a
different result.
V. CUMULATIVE ERROR
[16][17] ¶ 74 Mr. Gonzales finally argues that all the
errors in this case cumulatively warrant reversal
under the cumulative error doctrine. “Under the
cumulative error doctrine, we will reverse only if ‘the
cumulative effect of the several errors undermines
our confidence ... that a fair trial was had.’ ” State v.
Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (quoting State v.
Dunn, 850 P.2d 1201, 1229 (Utah 1993)). If the
claims are found on appeal to not constitute error, or
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
125 P.3d 878
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
(Cite as: 125 P.3d 878)
the errors are found to be so minor as to result in no
harm, the doctrine will not be applied. Id. at ¶ 15.
The cumulative error doctrine does not *894 apply to
this case. We affirm the rulings of the trial court and
thus conclude that there are no errors warranting
reversal.
CONCLUSION
¶ 75 In conclusion, we affirm the trial court's rulings
that Mr. Gonzales's subpoena of Jessica's mental
health records from UNI should be quashed and that
Mr. Gonzales was not entitled to cross-examine
Jessica and Anjali about their previous juvenile
adjudications. The issue of choice of counsel is
moot because Mr. Montgomery voluntarily withdrew
as Mr. Gonzales's counsel. We also conclude that
Ms. Miller's assistance, although containing errors,
was not harmful and thus was not ineffective.
Finally, we conclude that the errors Mr. Gonzales
alleges occurred in this case do not amount to a
cumulative error requiring reversal.
¶ 76 Chief Justice DURHAM, Associate Chief
Justice WILKINS, Justice DURRANT, and Justice
PARRISH concur in Justice NEHRING's opinion.
Utah,2005.
State v. Gonzales
125 P.3d 878, 2005 UT 72, 538 Utah Adv. Rep. 25
END OF DOCUMENT
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 17
UTAH RESOURCES
AGENCY
Attorney General’s
Office
Utah Office of Crime
Victim Reparations
Utah Department of
Corrections, Victim
Services
Utah Department of
Human Health (includes
child support recovery,
mental health, adult
protective services &
social services)
Utah Domestic Violence
Council
Utah State Bar
Association
Utah State Board of
Pardons
Domestic Violence
Assistance
CONTACT INFORMATION
Victim Services Unit
Phone: (801) 281-1206
350 East 500 South, Suite 200
Salt Lake City, UT. 84111
rbgordon@utah.gov (Ron Gordon, Director)
Phone: (800) 621-7444
Website: http://www.crimevictim.utah.gov/
Phone: (801) 545-5899
Website:
http://www.cr.ex.state.ut.us/community/victimservices/index.html
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Phone: (801) 261-6464
ACES - Salt Lake City Office
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Utah – Resources
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Phone: (435) 843-1645 or (800) 833-5515
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Phone: (435) 882-6888, or (435) 843-3429
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First District Juvenile Court
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Second District Juvenile Court
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Davis County Attorney's Office
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Utah – Resources
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Third District Juvenile Court
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Fourth District Juvenile Court
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Fifth District Juvenile Court
40 N. 100 East
Cedar City, UT 84720
Phone: (435) 865-5391
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Sixth District Juvenile Court
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Phone: (435) 644-4525 or toll free (866) 896-2754
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Victim Coordinator (Carbon, Emery Counties)
Seventh District Juvenile Court
149 East 100 South
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Seventh District Juvenile Court
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48 West Young Street
Morgan, UT. 84701
Phone: (435) 845-4006
Salt Lake County Sheriff’s Office
Victim Advocate Program
3365 South 900 West
Salt Lake City, UT. 84119
Phone: (801) 743-5860 or (801) 743-5861
Midvale City Police Department
Victim Advocate Program
7912 South Main Street
Midvale UT. 84047
Phone: (801) 256-2505
Murray City Police
Victim Advocate Program
5025 South State Street
Murray, UT. 84107
Phone: (801) 284-4203 or (801) 284-4201
Taylorsville City Police
Victim Advocate Program
2600 West Taylorsville Blvd.
Taylorsville, UT. 84118
Phone: (801) 955-2067
Salt Lake City
Victim Advocate Program
320 East 200 South
Salt Lake City, UT. 84111
Phone: (801) 799-3756
Utah – Resources
Page 422
South Jordan Police Department
Victim Advocate Program
1600 West Towne Center
South Jordan, UT. 84095
Phone: (801) 254-4708, ext. 1216
Sandy City Police Department
Victim Advocate Program
10000 South Centennial Parkway
Sandy, UT. 84070
Phone: (801) 568-7283, (801) 568-6059 or (801) 568-6082
Website:
http://www.sandy.utah.gov/policedepartment.victimassistance.html
South Salt Lake Police Department
Victim Advocate Program
2835 South Main
South Salt Lake City, UT. 84115
Phone: (801) 412-3660
West Jordan Public Safety Department
West Jordan Victim Advocate
8000 South 1700 West
West Jordan, UT. 84088
Phone: (801) 566-6511
San Juan County
Sanpete County
Summit County
West Valley City Attorney’s Office
Victim Advocate Program
3375 South Market Street
West Valley, UT. 84119
Phone: (801) 963-3223
San Juan County Sheriff’s Office
Victim Advocate Program
P.O. Box 788
Monticello, UT. 84535
Phone: (435) 587-2237
Sanpete County Attorney’s Office
Victim Services
160 North Main Street
Manti, UT. 84642
Phone: (435) 851-1430 or (435) 835-2191
Summit County Attorney’s Office
Victim Assistance Program
6300 North Silver Creek Road
Park City, UT. 84098
Phone: (435) 615-3850
Utah – Resources
Page 423
Tooele County
Uintah County
Utah County
Tooele City Police Department
Victim Advocate Program
323 North Main
Tooele, UT. 84074
Phone: (435) 882-8900
Tooele County Attorney’s Office
Victim Services
47 South Main Street
Tooele, UT. 84074
Phone: (435) 843-3120, or (435) 843-3429
Vernal Police Department
Victim Advocate Program
437 East Main Street
Vernal, UT. 84087
Phone: (435) 790-1524
Uintah County Attorney’s Office
Victim Services
152 East 100 North
Vernal, UT. 84078
Phone: (435) 781-5439
Alpine/Highland Police Department
Victim Advocate Program
20 North Main
Alpine, UT. 84004
Phone: (801) 756-9800
American Fork Police Department
75 East 80 North
American Fork, UT. 84003
Phone: (801) 763-3020
Lehi City
Victim Advocate Program
580 West State Street
Lehi, UT. 84043
Phone: (801) 768-7110
Orem Department of Public Safety
Victim Assistance Program
95 East Center
Orem, UT. 84057
Phone: (801) 229-7128
Utah – Resources
Page 424
Pleasant Grove Police Department
87 North 100 East
Pleasant Grove, UT. 84062
Phone: (801) 785-3506
Provo City Police Department
Victim Advocate Program
351 West Center Street
Provo, UT. 84603
Phone: (801) 852-6375 or (801) 852-6280
South Utah County Victim Advocate
439 West Utah Avenue
Payson, UT. 84651
Phone: (801) 465-5224
Springville Police Department
Victim Advocate Program
45 South Main
Springville, UT. 84663
Phone: (801) 489-8364 (ask for advocate)
Wasatch County
Washington County
Utah County Sheriff’s Office
Victim Assistance Program
3075 North Main
Spanish Fork, UT. 84660
Phone: (801) 851-8364
Wasatch County Attorney’s Office
Victim Assistance Program
55 South 500 East
Heber, UT. 84032
Phone: (435) 628-2408
St. George Police Department
Victim/Witness Program
200 East 265 North
St. George, UT. 84770
Phone: (435) 628-2408
Washington County Sheriff’s Office
Victim Advocate Program
750 South 5400 West
Hurricane, UT. 84737
Phone: (435) 656-6519
Utah – Resources
Page 425
Weber County
Mohave County Attorney’s Office
Victim/Witness Advocate Program
P.O. Box 102
Hurricane, UT. 84737
Phone: (928) 8480
Weber County Attorney’s Office
Victim Assistance Program
2380 Washington Blvd., Suite 230
Ogden, UT. 84401
Phone: (801) 399-8377
Utah – Resources
Page 426
Presentation Objectives
ENFORCING RIGHTS TO
HELP VICTIMS BE
SURVIVORS
THE
THE ULTIMATE
ULTIMATE training
training Experience
Experience
Victim Witnesses
By: Heidi Nestel
• Provide overview of the development of victims’ rights;
• Outline victims’ rights in Utah – law enforcement/
corrections, prosecution office and victim advocate
responsibilities;
• Develop ideas for balancing the scales of justice for
victims;
• Resources and collaboration techniques.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
Overview of the
history of
victims’ Rights
QUESTION:
In which year did the first state pass a Bill of
Rights for victims?
A.
1920
C.
SECTION 1
History of Victim Rights
History of Victim Rights
• Historical protections for defendants (not the
“VICTIM JUSTICE SYSTEM.”)
• In 1980, a few hundred state laws
addressed victims’ rights & services.
• Today, every state has law – there are over 28,000 laws.
• 33 states have constitutional mandates
CORRECT!
1980
The Tribe Has
Spoken
B.
1964
D.
1994
SECTION 1
History of Victim Rights
History of Victim Rights
• FEDERAL INITIATIVES:
- 1982 Fed. Victim & Witness Protection Act;
- 1990 Crime Control Act;
- 1990 Victims’ Rights & Restitution Act;
- 1994 Violent Crime Control & Law Enforcement Act;
- 1996 Megan’s Law;
- 1997 Victims’ Rights Clarification Act;
- 1998 Final Report from President’s Task Force
on Victims of Crime.
- 2004 Justice for All Act
1
SECTION 1
History of Victim Rights
History of Victim Rights
APPLICATION TO NATIVE AMERICAN VICTIMS
• More than 550 tribes are federally recognized.
•Tribe-specific victims’ rights materials found for only
60 tribes – none found in Utah.
*Federal Crime Victims Rights Act or state laws may
apply.
*Victims of Crimes on reservations do qualify for
Crime Victim Reparations (R270-1-27. Nontraditional
Cultural Services.)
Resources: Tribal Law and Policy Institute
& VictimLaw.com
VICTIMS’ RIGHTS
IN UTAH
SECTION 2
Victim’s Rights in Utah
Utah State Constitution:
Victim’s Rights in Utah
Dignity
Notice
Participation
Declaration of Rights of Crime Victims
Article 1, Section 28
Rights Include:
1. Treated with fairness, respect, & dignity,
free from harassment.
2. Upon request, be informed, present &
heard at important hearings.
3. To submit and have information
considered at sentencing.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
Utah State Constitution:
Declaration of Rights of Crime Victims
Article 1, Section 28
Definition:
Fairness: means treating the crime victim
reasonably, even handedly & impartially.
Dignity: means treating the crime victim with
worthiness, honor & esteem.
Respect: means treating the crime victim
with regard and value.
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
QUESTION:
What is not a Right afforded to crime victims?
CORRECT!
A.
To be heard at
The Tribe Has
trial.
Spoken
B.
Employer
Intercession
C.
Secure waiting
area.
D.
Speedy Trial
2
Utah State Code –
Section 77-37
Utah Victims’
Rights Cont.
ALL CRIMINAL JUSTICE AGENCIES SHALL ENSURE
VICTIMS HAVE A RIGHT TO:
• Be informed of threats
• Informed & assisted through process
• Clear explanation of proceedings
• Secure waiting area
• Restitution and/or Reparations
• Have all personal property returned
Employer intercession services
Speedy trial and disposition
Timely notice of proceedings (prosecution)
HIV testing for victims of sexual offenses
compel defendant to test (law enforcement)
• To be present & heard at important hearings
•
•
•
•
Remember: NOTICE & PARTICIPATION
SECTION 3
Enforcement of Rights
Enforcement of Rights
VICTIMS’ RIGHTS COMMITTEES
Enforcement of
VICTIMS’ RIGHTS
•Established in each judicial district.
•Process:
File a complaint
Option for public or private hearing
Committee may publish findings
•Can “investigate” any allegation of victim
mistreatment by criminal justice officials.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
QUESTION:
A REMEDY FOR A VIOLATED RIGHT
IS. . .
A.
Monetary
Damages
B.
C.
Attorney’s Fees
D.
CORRECT!
Injunctive Relief
The Tribe Has
Spoken
Reversal of plea
conviction
SECTION 3
Enforcement of Rights
Enforcement of Rights
LEGAL RELIEF
• LIMITED!!!
• Only Injunctive Relief possible
- No monetary award including
attorney’s fees
- Must prove willful and wanton
failure to perform duties
• Tooele example: taken to the Utah Supreme Court.
3
SECTION 3
Enforcement of Rights
Enforcement of Rights
UTAH CRIME VICTIM LEGAL CLINIC
Legal representation – at last!!
Priority Issues:
Protecting Private Records
Speedy Trial Rights
Child Victim Rights
Restitution/Reparations
Juvenile Court Rights
Professional duties &
responsibilities:
Law Enforcement
Prosecutors
Advocates
Law Enforcement &
Domestic Violence
New Developments
• Victim Restitution Act – Preserve Assets
• State v. Gonzales (victim notified of
subpoenas)
• Change to Rules of Criminal Procedure –
Subpoena Victims’ Records
Law Enforcement:
Domestic Violence
Law Enforcement &
Domestic Violence
A. Officers to take all reasonable means to protect victim
including: (77-36-2.1)
B. Officers to give written notice of rights to victims
including: (77-36-2.1)
• Take action to provide safety
1. Statement as to how to obtain a protective
order from appropriate agency;
2. A list of shelters, services and resources along
with telephone numbers;
3. Information regarding conditions for release
after arrest.
• Confiscate weapons
• Make arrangements for emergency shelter
• Provide protection during property removal
• Arrange, facilitate, or provide medical care
• Facilitate or provide notice to victims of rights
4
Law Enforcement &
Child victims
Law Enforcement:
Child victims/witness
Prosecutorial duties &
responsibilities:
Notice
SECTION 4
Notice Requirements
Notice Requirements
Utah Code: 77-38
- Notice required only in FELONY cases
(adult and juvenile)
- Must provide initial notice 7 days after Criminal
Information filed.
•Must inform of charges filed;
•Must explain rights of victims;
•Must explain option to receive further notice
- Children are not responsible for the inappropriate
behavior of adults; Those interviewing children shall
not imply or make allegations implying this
responsibility.
- Children have the right to have interviews kept to a
minimum.
- Law enforcement (and prosecutors) have a duty to
ensure child victims are informed of community
resources.
- Please list all children (names and ages) where
domestic violence occurs.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
QUESTION:
Victims are entitled to notice of criminal
proceedings in. . .
A.
All District Court
Cases
B.
Misdemeanor and
Felony cases
C.
All juvenile
cases
D.
Felony cases
The requested
Tribe Has
when
Spoken
CORRECT!
SECTION 4
Notice requirements
Notice requirements
•Victims’ obligations:
–Must elect to receive notice & exercise rights;
–Must provide current address & telephone.
•Reasonable manner of notice:
–Telephonically, electronically, orally, letter or form.
•Board of Pardons & Parole:
–Law Enforcement & Prosecutor’s offices must forward
request.
•Representative sample of victims.
5
SECTION 4
To be present & heard
To be present & heard
SECTION 4
To be present & heard
• Prosecutor’s offices are expected to help facilitate a
• Prosecutor’s offices are expected to help facilitate a
•Right not absolute:
•Right not absolute:
•Ways to exercise rights: orally, written, audio-taped,
•Ways to exercise rights: orally, written, audio-taped,
victim’s participation in the Criminal Justice System.
–Unless called as a witness, no right to be heard at
preliminary hearing or trial;
–Court may punish disruptive conduct;
–Court may limit victim’s statement;
–Court may appoint representative in cases of multiple
victims (5 or more victims).
video-taped, statement in Presentence Report.
Victim Advocates duties &
responsibilities:
An EMERGING
PROFESSION
To be present & heard
victim’s participation in the Criminal Justice System.
–Unless called as a witness, no right to be heard at
preliminary hearing or trial;
–Court may punish disruptive conduct;
–Court may limit victim’s statement;
–Court may appoint representative in cases of multiple
victims (5 or more victims).
video-taped, statement in Presentence Report.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
QUESTION:
Victim Advocacy developed through. . .
CORRECT!
A.
Statutory
Mandates
B.
Practice & grass
roots
The efforts
Tribe Has
Spoken
C.
Administrative
Edict and Rules
D.
A Constitutional
Amendment
SECTION 5
Victim Advocates’ Roles
•
To serve as a liaison between the victim and the
criminal justice system:
- Provide Information;
- Keep victims & professionals updated;
- Facilitate communication;
- Explain Process;
- Give referrals/know community resources;
- Give training to professionals;
So what’s the
message?
Collaboration!!!
6
Collaboration
Conclusions
Don’t second guess – ask questions
Don’t complain – solve the problem
Clearly defined expectations
Understand and inform victims of their rights;
Diligently adhere to victim’s rights;
Recognize that victimization can bring trauma &
greatly effect how a victim responds to you and the system;
Collaborate – don’t second guess other professionals;
Be cautious in your communicating with victims;
Know resources and contact numbers to assist victims.
TRIBAL COUNCIL
VOTE TO STAY ON THE ISLAND
VOTES
VOTES LEFT
LEFT
VOTE TO STAY ON THE ISLAND
QUESTION:
The Most Important victim right which needs
to be enforced is. . .
A.
C.
CORRECT!
The right to
protect therapist
The Tribe Has
records
Spoken
CORRECT!
The right to be
heard at
The Tribe Has
sentencing
Spoken
B.
D.
CORRECT!
The right to be
notified of
The Tribe Has
hearings.
Spoken
CORRECT!
The right to
speedy & final
The Tribe Has
disposition.
Spoken
Let us make sure that we give our victims
the right to be heard—not in some
dispassionate way, but in a courtroom if
they want to be heard, so that people can
know what it’s like to be a victim. Let us
give them an opportunity to participate, to
be there, and to hold the criminal justice
system, at every level, accountable.
-- Janet Reno, U.S. Attorney General
New York City Candlelight Vigil
April 25, 1993
Advanced Victim Academy
SECTION 3
Enforcement of Rights
November 30 – December 1
Weber State University
($100 registration – 100 participant limit)
UTAH CRIME VICTIM LEGAL CLINIC
Victims’ Rights
Protecting Victims Privacy
Restitution – orders and enforcing
Cacey Yeates: (801) 238-2360
Enforcement of Rights
Heidi Nestel – (801) 721-8321
heidi@utahvictimsclinic. org
This project is supported by Grant No. 2002-VF-GX-K004,
awarded by the Office for Victims of Crime (OVC), Office
of Justice Programs, U.S. Department of Justice. Points of
view in this document and the accompanying presentation
are those of the authors and do not necessarily represent the
official position or policies of the U.S. Department of Justice.
7
THANK YOU
8
Appendix 2
UCVLC Goals (Detailed)
Parent Project (NCVLI) Goals:
1.
2.
3.
4.
Provide effective legal representation of crime victims
Recruit pro bono attorneys and law students to represent crime victims
Educate the legal profession about victims’ rights
Develop a network of victims’ services
UCVLC Goals for NCVLI Grant:
Goal 1: Ensure enforcement of crime victim rights, in criminal cases, through pro bono
legal representation in the trial and appellate courts [rights enforcement component]
- 2005-2006 Objectives:
o Objective 1: Provide legal representation in criminal cases, including: in-court
legal advocacy; preparing and filing legal memoranda; preparing victims for
giving testimony; and providing victim service referrals
Strategy:
• Solicit client referrals by promoting the Clinic’s services to law
enforcement, prosecutors, victim advocate groups and community
outreach.
o Publish a brochure
o Be included in the Utah’s Victims’ Right video currently in
production
o Clinic director will seek more opportunities to promote the
Clinic’s services and successes
o Interact more with the media
Distribute press releases
Connect victims with reporters
• Establish an intake and screening process to handle potential
clients as they contact the Clinic.
• Promote the clinic’s services, solicit client referrals, conduct intake
and case screening.
• Once a case is accepted, the attorney assigned meets with the
client, files legal memoranda when necessary, and makes in-court
motions.
• Provide skillful negotiation with prosecutors, defense attorneys and
court personnel.
•
-
Upon an adverse decision or exclusion of the victim by the court,
appeal the decision and hope for positive precedent advancing
victim’s rights.
Provide follow-up and resource referrals to all victim clients.
•
2006-2007 Sub-goals:
o Sub-goal 1: At least 60 victims will be referred to the Legal Clinic and receive
services
Objective A: Promote Legal Clinic’s services throughout the State—via
media exposure, literature distribution, web-site development and personal
contact with victim advocacy programs and local criminal justice
professionals (i.e., law enforcement, prosecutors and judges).
• Strategies:
o Develop two press releases within 12 months
o Publish and distribute 500 program brochures throughout
the state
o Develop and maintain a website with general program
information, goals and priority issues defined, links to Utah
Victims’ Constitutional and statutory rights
o Participate in two trainings (regional or state-wide) which
will promote program services
o Complete an intake form and needs assessment on each
client referred to Clinic
o Provide information on local resources victims can access.
o Sub-goal 2: At least 30 crime victims will receive legal representation in the trial
and appellate court
Objective A: Project staff will establish a respectful and productive
relationship with other criminal justice professionals.
• Strategy:
o Communicate and correspond with criminal justice
professionals on behalf of clients
Objective B: Each qualifying victim will receive free legal
representation—including client consultations, notification of case status,
motions filed and made on their behalf and in-court support.
• Strategies:
o File legal pleadings
o Make in-court motions
o Upon request or necessity, meet with victim clients
o Provide in-court support
Objective C: Adverse legal decisions which violate a client victim’s right
will be appealed.
• Strategy:
o File appellate briefs and prepare for oral argument when
applicable
o Sub-goal 3: Undertake and accomplish a project for at least two of the clinic’s
priority issues
Objective A: Each priority issue will be analyzed and a plan developed to
educate, enforce or advance the right associated with the issue (e.g.,
developing a restitution handbook for victims; or, developing model
speedy trial policies for different criminal justice agencies to adopt.)
• Strategies:
o Brainstorm project ideas for each priority issue
o Narrow down projects for at least two priority issues
o Solicit the help of relevant organizations and individuals
based on project need
o Execute each project
o Solicit feedback upon project completion
Goal 2: Ensure enforcement of crime victim rights, in criminal cases, through pro bono
legal representation in the trial and appellate courts [pro bono component]
- 2005-2006 Objectives:
o Objective A: Recruit, train and supervise at least four (4) law students from the
University of Utah and/or Brigham Young University law schools.
Strategies:
• Make a presentation (e.g., through a symposium or speaking in one
of criminal law or clinic classes) to explain victims’ rights and the
Clinic’s purpose and services
• Advertise openings and rely on referrals from Criminal Law
professors
• Train by compiling a manual with victims’ rights laws and the
Clinic’s goals and procedures
• Supervise the work of the intern and fill out necessary paperwork
so that the student could get credit for the work
o Objective B: Recruit, train and supervise at least five (5) pro bono attorneys along
the Wasatch Front (Utah, Salt Lake, Davis, Weber and Cache counties)
Strategies:
• Hand-pick qualified and experienced attorneys
• Offer free CLE training
• Provide support as cases are assigned to the attorneys
- 2006-2007 Sub-goals:
o Sub-goal 1: Law students will contribute 125 hours toward the Clinic’s goals and
objectives.
Objective A: Teach law students about the rights which are afforded crime
victims in Utah and about the victims’ rights movement in general; and,
provide law students with skill-based training on how to effectively
advocate for and work with crime victims—especially those victims who
have been traumatized by the crime or feel “re-victimized” by the system.
• Strategies:
o Work with law school clinic/intern coordinators to identify
opportunities to address students about victims’ rights or
promote the Legal Clinic’s services
o Contact law school student organizations and explore
collaborative events which will satisfy this goal
o Work with both law schools’ pro bono programs to recruit
law student interns
o Develop and disburse recruiting materials
Objective B: Allow students to provide direct services to crime victims
and be supervised by Clinic staff.
• Strategies:
o Accept applications and interview prospective interns
o Develop a plan with each student as they join the Clinic to
provide a well-rounded experience for them and a helpful
service to the Legal Clinic
o Assign students cases as they arise and are appropriate for
the students’ knowledge and skill
Objective C: Assign students to develop and work on projects for the
Clinic’s priority issues.
• Strategies:
o Accept applications and interview prospective interns
o Develop a plan with each student as they join the Clinic to
provide a well-rounded experience for them and a helpful
service to the Legal Clinic
o Assign students cases as they arise and are appropriate for
the students’ knowledge and skill
o Sub-goal 2: At least one attorney from each of the eight judicial districts will be
recruited, trained, and willing to assist crime victims pro bono.
Objective A: Recruit at least eight attorneys, one from each judicial
district, to serve Clinic victim clients.
• Strategies:
o Contact victim service providers, across the state, and
compile a list of potential pro bono attorneys
o Make initial contact by phone and explain the project’s
purpose, goals and services
o Ask the attorney for a preliminary commitment and send
out written information
Objective B: Provide training materials and consult with pro bono
attorneys on victims’ rights issues.
• Strategies:
o Survey potential pro bono attorneys on what training
information they would like (e.g., written materials, oneon-one training, CLE training)
o Based on feedback, accommodate feasible training requests
o Develop forms and pleadings which will assist the pro bono
attorney in representing Clinic clients;
Objective C: Supervise the work of pro bono attorneys on Clinic cases.
• Strategies:
o Screen cases for pro bono assignment and prepare case
packet for assigned attorney
o Provide follow-up assistance and monitor case progression
and services rendered to client
o Solicit feedback from attorneys and clients as to the quality
and extent of service provided and ways the Clinic could
better assist the attorneys
Goal 3: Further the enforcement of victims’ rights by educating criminal justice
participants about crime victim rights.
- 2005-2006 Objectives:
o Objective A: Educate law students at the University of Utah and Brigham Young
University about victims’ rights in criminal law cases.
Strategies:
• Make contact with the local law schools’ deans or clinical directors
to discuss possible education and recruiting opportunities
• Conduct a mini-symposium which would draw students interested
in criminal justice and victims’ rights
• Conduct a two-hour training at each law school (via PowerPoint
presentation or victim panel)
• Design an educational event at the law school designed to attract
students to volunteer to serve the Legal Clinic
• Respond to requests for additional trainings by the law school
o Objective B: Educate criminal justice professionals about victims’ rights and legal
advocacy through the Clinic program.
Strategies:
• Cast a wide net in contacting prosecuting agencies, local bar
associations and state-training organizations—e.g., Utah
Prosecution Council
• Promote the project and get involved in their training curriculum
those agencies
• Develop several professional PowerPoint presentations, tailored to
• Train judges and respond to requests for training by other criminal
justice professionals.
- 2006-2007 Sub-goals:
o Sub-goal 1: The general legal profession and allied criminal justice professionals
will have increased awareness about victims’ rights and the clinic’s resources.
Objective A: Write and submit an article about victims’ rights to be
published in the Utah State Bar, Law School Journal or other widely
distributed publication.
• Strategies:
o Contact the editor of the Utah Bar Journal to find out if
having an article published is feasible and what must be
submitted in what time frame
o If the Bar journal is not an option, then approach other
publications (e.g., the Utah Prosecution Council’s
newsletter)
o Approach criminal justice leaders (e.g., Judge Paul Cassell
or the chair of the State-wide Association for Prosecutors)
and find out if they will collaborate on writing and
publishing an article focusing on victims’ rights
o Research and draft the article for publication
Objective B: Set up an educational display board, including information
about victims’ rights and Clinic services, at four state-wide criminal
justice trainings (e.g., the Utah Victim Assistance Academy and/or the
Annual Utah Prosecutors’ Training).
• Strategies:
o Create a display board presentation—including general
victims’ rights information and literature on the Legal
Clinic’s goals, purpose and services
o Approach the organizers of state-wide and local trainings to
inquire if a display can be posted at upcoming trainings
o Go to trainings to set up display and “man” the display
during breaks and develop networking opportunities to
personally explain the information contained thereon.
Objective C: Contact local bars and schedule victims’ rights training.
o Sub-goal 2: Three-hundred criminal justice professionals will receive training on
victims’ rights and information on the clinic’s goals and services.
Objective A: Train at least 150 victim advocates state-wide on how they
can assist victims in exercising their rights and fully participate in the
criminal justice and juvenile justice system.
• Strategies:
o Train participants at the Annual Crime Victims’
Conference on how to help victims enforce their rights
(April 2006)
o Contact organizers for the Utah Victim Assistance
Academy to explore upcoming training opportunities
o Modify or create PowerPoint presentations tailored to
participant audience
o Modify or create appropriate written handouts for trainings
o Conduct trainings
o Solicit participant feedback and adapt future trainings
based on comments made in evaluations
Objective B: Educate at least 25 prosecutors about how to get victims to
cooperate in criminal cases through respect, communication and
protecting the victim’s rights.
• Strategies:
o Contact organizers for the Utah Prosecution Council to
explore upcoming training opportunities
o Modify or create PowerPoint presentations tailored to
participant audience
o Modify or create appropriate written handouts for trainings
o Conduct trainings
o Solicit participant feedback and adapt future trainings
based on comments made in evaluations
Objective C: Organize and participate in law school events designed to
heightened students awareness of victims’ rights issues and the dynamics
of victimization.
• Strategies:
o Contact law school student organizations and offer to host a
lunch-time forum for students – maybe skilled based or
specific topic (e.g., domestic violence for the Women’s
Law Forum)
o Promote the training through fliers and incentives (e.g., free
lunch).
Objective D: Ensure that 125 law enforcement and/or corrections officers
are trained on victims’ rights issues, how to effectively work with victims
and what mandates they have in protecting victims’ rights.
• Strategies:
o Contact organizers for the Sheriffs’ and Law Enforcement
Association to explore upcoming training opportunities
o Modify or create PowerPoint presentations tailored to
participant audience
o Modify or create appropriate written handouts for trainings
o Conduct trainings
o Solicit participant feedback and adapt future trainings
based on comments made in evaluations
Goal 4: Develop in Utah a network of victims’ services.
- 2005-2006 Sub-goals:
o Sub-goal 1: Further the enforcement of rights by networking with victim
advocacy programs
Objective A: Network and collaborate with victim advocacy partners on
behalf of victim clients.
• Strategies:
o Develop a formal collaboration plans
o Send out an initial project announcement so that advocacy
programs around the state would be familiar with the
Clinic’s services
o Become a trainer at a state-wide training—i.e., the Annual
Crime Victims’ Conference and the Utah Victim
Assistance Academy
o Offer general advice and legal interpretation on victims’
rights law to inquiring advocacy programs
-
o Sub-goal 2: Foster promising practices in working with and protecting the legal
rights of crime victims
Objective A: Collaborate with Utah Victims’ Rights Council to identify
trends in victims’ needs and provide advice for potential legislative
initiatives & court rule changes
• Strategy:
o Collaborate and work closely with Utah’s Council for
Crime Victims and the eight judicial districts’ Victims’
Rights Committees to identify trends, address specific
victim complaints and develop priority issue strategies
(e.g., identify what legal issues need to be addressed;
confer about local attorneys who may be recruited to do pro
bono work; refer victim clients, etc.).
Objective B: Collaborate and share program information, successes and
barriers with other pilot project states and prospective projects in nonfunded states
• Strategy:
o Share information and learn as much as possible from other
legal clinics, around the nation, who are experiencing
similar obstacles and successes
o Sub-goal 3: Have established procedures, criteria, materials, and protocols to
guide Clinic development and operation
Objective A: Develop Clinic brochure, act as a clearinghouse for victim
services brochures and rights information and develop new brochures to
fill gaps in available printed information.
• Strategy:
o Establish a logo
o Produce informational materials which would explain the
Clinic’s purpose, goals and offered services
o Compile information from agencies who serve victims so
that clients could be referred to same and so the Clinic
could identify gaps in available information to victims.
2006-2007 Sub-goals:
o Sub-goal 1: At least three new partners will be added to the Clinic’s collaboration
plan.
Objective A: Solicit input from existing partners about new groups with
which to collaborate.
• Strategy:
o Seek input from already-partnering agencies and advisory
board members (Board of Directors) as to possible new
partners
Objective B: Approach, recruit and develop a plan with three new partners
(e.g., Parents of Murdered Children; MADD; the Domestic Violence
Shelters Network, etc.)
• Strategies:
o Contact potential partners
o Explain the Clinic’s purpose, goals and services
o Once committed, work with new partner to develop a plan
of collaboration (either formal or informal)
o Evaluate new partnership interaction semi-annually and
make adjustments to the relationship as necessary.
o Sub-goal 2: Requests for information from collaborative partners and referral of
victim clients to the Legal Clinic will increase 300% in the next sub-grant year.
Objective A: Inform partners and advocacy agencies state-wide as to the
Legal Clinic’s services and process for referral.
• Strategy:
o Target existing victim advocate agencies and correspond
with same, reminding them of the Clinic’s existence and
availability to assist crime victims
Objective B: Provide timely response to inquiries about victims’ rights or
Clinic services.
• Strategy:
o Upon request for information or contact regarding a new
case referral, the Project Director or victim advocate will
promptly follow-up on requests and provide clear and
frequent communication with partner
Objective C: Provide appropriate follow-up to specific client cases in
which the Clinic and partner are collaborating or which was originally
referred by a partner.
o Sub-goal 3: The Legal Clinic will collaborate with at least two partners to provide
relevant specific training to their staff or constituency about victims’ rights and
Clinic services.
Objective A: Accept requests from partners for training or legal research.
• Strategies:
o In communicating (sending mass mailings, updating
letters), open an invitation for agencies to request training
o Target specific partners for training based on geographic
region, number of victims served and need for specialized
training
Objective B: Training will be conducted & feedback solicited on other
opportunities to assist.
• Strategies:
o Conduct the training semi-annually and solicit participant
feedback
o Adjustments for future training will be made based on
feedback
UCVLC Goals for VOCA Grant:
1. Victims will feel supported, informed, and empowered to participate in the criminal
justice system
a. Complete intake forms and conduct a needs assessment for all victims contacting
the legal clinic.
i. Provide trained and immediate assistance to crime victims (i.e. crisis
intervention)
ii. Develop intake form for project use
iii. Identify victims, make contact, and complete project intake forms
iv. Conduct a needs assessment and offer and refer victim to services
v. Enter victim information into database
vi. Strategize (Advocate and Director) on follow-up with each victim (accept
or decline case)
b. Inform, support, and advocate for victims in the criminal justice system
i. Notify victims of critical hearings, continuances, and other criminal justice
proceedings
ii. Serve as a liaison between victim, Clinic attorney, and prosecutor, and
prepare victim mentally and emotionally for court
iii. Accompany victims to court and receive and submit Victim Impact
Statements
c. Thoroughly advocate for restitution claims and help victims receive reparations.
i. Develop a Financial Impact Statement (“FIS”) for victims to fill out
ii. Identify victims entitled to restitution and reparations; send FIS; record
and submit returned statements; follow-up
iii. Develop restitution brochure and answer victim questions
iv. Help fill out compensation forms; obtain police reports and follow up with
CVR claims officers
v. Assist victims in answering questions about compiling and submitting
restitution claims
vi. When necessary, advocate for restitution claim on behalf of victim
2. Volunteer attorneys and law students will be trained on victims’ rights and be
scheduled to represent crime victims.
d. Recruit pro bono attorneys and law students to represent crime victims
i. Identify attorneys in each judicial district who would be interested in
representing crime victims
1. Identify them by talking to victim advocates, prosecutors, victims’
rights committee members
ii. Meet with clinic advisors at each law school to discuss project needs and
identify potential law student volunteers
iii. Personally contact potential volunteer recruits to explain Clinic goals and
types of cases
iv. Obtain contact and personal information on volunteer recruit to send
project information and sign up agreements
v. Provide follow-up information and support for recruited volunteers
e. Develop a training curriculum for volunteer attorneys and law students
i. Identify training topics and establish a training outline (including training
materials, presenters, etc.)
ii. Develop training and resource materials
iii. Establish training dates (either individual or group training events)
iv. Facilitate training logistics (e.g. facility, agenda, refreshments, sound
system, equipment, etc.)
v. Conduct training
f. Schedule volunteer attorneys and law students to represent crime victims or
provide legal research for the clinic.
i. As criminal cases come to the Clinic, identify cases in which a pro bono
attorney could represent the crime victim
ii. Contact pro bono attorney / law student and get commitment to represent
iii. Mail out case file, including case summary, victim contact information,
pro bono representation agreement, and other relevant documentation to
volunteer
iv. Track hearing dates and inform volunteer and victim of same
v. Provide follow-up victim support to volunteer attorney
vi. Facilitate communication between the volunteer attorney and the Clinic
director
vii. Facilitate communication between the volunteer attorney and victim client