How We Can Help in the Criminal Case

Historically, victims have been treated as mere witnesses with no real rights. In recent years, however, most states (including Maryland and the District of Columbia) have enacted statutes and constitutional amendments providing victims with enforceable legal rights. We can help with all aspects of asserting these rights.

As a victim-survivor, you have seven categories of basic rights (click on the right to find out more about each of these rights):

1. The right to be informed about key events in the case
2. The right to be present at certain hearings and other proceedings
3. The right to be heard at sentencing and in other hearings relating to the release of the offender (pretrial or post-conviction)
4. The right to restitution
5. The right to protection from the offender and others
6. The right to privacy
7. The right to access certain information

1. The right to be informed about key hearings or other proceedings such as the trial, sentencing, bail review hearings, parole hearings and other proceedings that may lead to the perpetrator’s release from custody:
   • Many states have automated victim notification and have dramatically improved methods of notification.
   • You must take certain actions to ensure you request notifications or you may not be notified of all the proceedings that are critical to your case. At a minimum, you must complete a victim notification request form, and keep your address and contact information current.
   • In addition, even if you follow all the steps, you may not be notified of all the important events in your case. Certain last-minute proceedings are not subject to automated notification and court staff may not always enter the data necessary to ensure you are notified of those proceedings. These types of events are often the most critical—such as plea acceptance hearings (where an agreement between the state and defendant is accepted by the court), and reconsiderations of sentencing (where a judge may reduce an offender’s sentence).
   • We deal with this problem by entering our appearance in the criminal case as your attorney, thereby requiring the court to notify us of all proceedings. Although this method is not fool-proof, failure to provide notice under these circumstances may give rise to an appeal and courts are therefore more likely to place victim attorneys on notice.
2. The right to be present at trial, sentencing and other hearings and proceedings:
   • Historically, victims had no right to attend the trial and victims were routinely excluded from the criminal trial and other key proceedings under the “rule on witnesses,” which prohibits witnesses from hearing the testimony of the other witnesses. Indeed, criminal defense attorneys often placed victims on their witness list, with no expectation of calling the victim, just so the victim would be excluded from trial.
   • In the vast majority of states, you now have the right to be present at trial and other key proceedings. Most states (and the District of Columbia) have enacted exceptions to the rule on witnesses which give you, as the victim (or victim representative), the right to be present at the trial and at other key proceedings.
   • Laws vary as to which proceedings you may attend. Some states do not allow victims to attend parole hearings, for example. In addition, drunk driving victims often do not have the right to attend motor vehicle hearings to determine whether a drunk driver’s driving privileges should be suspended or revoked.
   • In addition, defense attorneys have tried to prevent victims from engaging in any conduct that might let the jury know who the victim or the victim’s representative is. The rules vary considerably about whether victims are permitted to wear any “identifying” items (such tee shirts or buttons with a loved one’s image) or to engage in any “identifying conduct” (such as crying during testimony). While we agree that victims, like everyone else, must conform their behavior to demonstrate respect for the court, we will not permit defense lawyers to place unreasonable restrictions on victims and victim representatives. We have successfully argued that the victim and victim’s representative should be held to the same standard as the defendant and his or her family.
   • In cases involving large numbers of victims (9/11, Oklahoma City bombing), etc., victims groups were successful in setting up accommodations such as closed-circuit television, so the survivors could be “present” in court. In addition, we routinely work with prosecutors to shield our clients from graphic testimony or exhibits and to shield victims from interacting with the defendant and his or her supporters.
3. The right to be heard at certain proceedings including pre-release hearings and at sentencing:
   • Victims of crime in most states are permitted to give a victim impact statement about how the crime has impacted your life at the criminal sentencing. The statement can be in writing, oral, or both. In our experience, victim impact statements and victim impact testimony make a difference in sentencing and survivors often find that giving voice to their pain is helpful in bringing about healing. We work closely with our clients to help them craft written and oral statements that are both persuasive and healing.
   • Two questions survivors almost always ask have given rise to extensive litigation.
     • First, can you tell the judge what you think the sentence should be? The United States Supreme Court has held that victims are free to give their opinion about sentencing in all cases, except for death penalty cases. Some states (in statutes, constitutions, or case law), however, prohibit victims from giving their opinion.
     • Second, does the defense have the right to cross examine you on your victim impact testimony? In most states, the defense can cross examine victims only as to any factual assertions the victim makes. A skilled attorney can help you avoid any testimony on which cross examination is possible.
   • You may also have the right to be heard at proceedings other than sentencing:
     • The most common such proceedings have to do with the release of a criminal defendant (pretrial) or offender (post-conviction).
     • Pretrial, you may have the right to attend and be heard at bail review hearings where you can seek to prevent the defendant from being released pending trial.
     • Post-conviction, you may have the right to attend and be heard at reconsideration proceedings (where the offender is seeking a reduction in sentence) and at parole hearings (where the offender is seeking early release from prison).
4. The right to seek a judgment of restitution against the offender:
   • A judgment of restitution is an amount that the judge awards to you, the victim, to compel the offender to pay you back for your “out-of-pocket losses.”
     • While different restitution statutes allow compensation for different kinds of losses, the statutes are designed to be limited to the types of losses that are most easily proved such as lost wages, funeral bills, medical bills, etc.
     • Restitution generally does not include pain and suffering.
     • Further, unlike in most civil actions, restitution does not allow you to recover any losses for which you were compensated by another source—like insurance.
   • In our view, restitution is the victim’s right that is most often abused and, accordingly, we ask you keep the following in mind:
     • Prosecutors, judges and defense lawyers generally do not like restitution because they believe victim compensation is a “civil matter.” Restitution is, however, the only way most victims recover any money from offenders. Restitution is important because, for the vast majority of victims, an award of restitution is your only hope of recovering any money from the offender personally, as opposed to the offender’s insurance company or a responsible third party.
     • Many survivors do not want to seek restitution because they believe it is too limited. But, the law of restitution is expanding to cover more victim losses. While restitution is technically limited to “out-of-pocket losses,” (it does not cover pain and suffering), we have obtained large judgments of restitution for past and future losses victims suffer and we routinely seek to expand the restitution law to more fairly compensate victims for the true financial impacts they suffer.
     • Victims generally do not need to file a separate suit against offenders because restitution gives you a “super judgment.” As soon as the judge makes an award of restitution at sentencing, the restitution award can be reduced to a civil judgment that operates in the exact same manner as a civil judgment you would obtain if you sued the offender in civil court—with one important difference—the restitution judgment is generally non-dischargeable in bankruptcy. So, at the very least, the judgment will stay on the offender’s credit record for many years (usually more than 10 with the option to renew) or until the judgment is paid.
     • Restitution is easier than a civil claim. The restitution laws relax evidentiary standards to make it easier for victims to present proof of losses. For example, medical bills and statements are generally acceptable in the restitution context, where stricter proof may be required in civil cases.
     • You have the right to collect restitution yourself. Many prosecutors and judges are reluctant to award restitution because most states have a poor track record of collecting restitution. In many states, victims have the right to take collection actions like any other creditor. In fact, most states place victims very high in the line of creditors and make it easier for victims to seize property, garnish wages, etc. We can help you with these collection efforts.
5. The right to protection:
   In some cases, it is vital that you take steps to prohibit the criminal perpetrator from having contact with you or your family. The various legally mechanisms by which this is done are generally referred to as “no contact orders,” which can take several forms.
   • Pretrial, most defendants who are released from custody pending trial must post a bond and, in the proceeding in which they are released, the court imposes certain conditions on their release. Where possible, you should request a no contact order as a condition of release. If the perpetrator has contact with you, his or her bond will be revoked and he or she may be held pending trial. It is possible to modify the bond/release conditions after the perpetrator has been released. We can help with that.
   • Post-trial, as long as defendant pleads guilty or is found guilty by a judge or jury, the court can impose a post-trial no contact order. This is generally accomplished by making the no contact order a condition of probation or supervision. If the offender violates the no contact he or she (at least in theory) could be sent back to jail or could be incarcerated for the first time.
   • Civil protective orders. While less effective than criminal conditions of release, you can seek a civil protective order to prevent contact from a perpetrator. This may be the only option for victims whose case is never brought to trial.
6. The right to privacy:
   Most states (and the federal government) have passed statutes designed to protect victim privacy. Victims also have privacy interests under case law (or common law) and under the U.S. Constitution. Victim privacy is increasingly under attack by creative defense attorneys seeking to make the trial about the victim as opposed to the perpetrator. Here are some of the ways victim privacy is challenged.
   • Releasing the identity of child-victims and adult victims of sexual assault.
     • Most states prohibit public disclosure of victim information yet compliance with these rules is often in the breach. Lawyers routinely file documents containing victim’s names and identifying information, which are often reported by the media (or at least posted to the Internet). Our goal is to prevent any disclosure of victim identity and, if it does occur, to take immediate action to limit the scope of the disclosure.
   • Protecting the victim’s Internet-related private informat ion.
     • The recent trend toward harassing victims by seeking social media information is illustrated by the Facebook profile of Trayvon Martin and Google search history (Jennifer Bennett) cases.
       • In the Trayvon Martin case, defense attorneys successfully obtained a broad range of the shooting victim’s social media (Facebook) records in addition to school records and other items that appear to be of little or no relevance to the homicide.
       • Jennifer Bennett was repeatedly beaten, raped and choked by her Match.com date. The defense does not dispute that the attack occurred but they nonetheless sought and obtained her Facebook activity, her personal email, her personal laptop and her Google search queries.
     • Working with prosecutors, we resist such efforts work hard to protect all our clients’ private information.
   • Chipping away at rape shield laws:
     • Rape shield laws are statutes and related rules that prohibit defendants from introducing evidence relating to a sexual assault victim’s sexual history to rebut allegations of rape.
     • These laws were passed by legislatures and courts that recognized defense lawyers were using sexual history discovery and trial testimony to intimidate victims and prevent them from testifying.
     • In a disturbing national trend, courts are recognizing so many exceptions to the rape shield law that the laws have been all but erased from the books. Sexual assault victims need strong, independent advocates to resist efforts to obtain and admit evidence of sexual history.
   • Media intrusion
     • In this 24/7 news cycle world, the media have become increasingly aggressive with victims of crime. Many victims have been forced to deal with media trespassing on their property, following them around, and generally intruding on their privacy and seclusion. We work closely with our clients to develop strategies to prevent such intrusion.
     • The Internet explosion brought about an increase in the public appetite for gruesome photographs and details.
       • For example, in the well-known “Porsche girl lawsuit” in California, Christos Catsouras, sued the California Highway Patrol for releasing to the media gruesome crash scene photographs depicting the violent death of his 18-year-old daughter. In other high-profile cases, victims have sued media outlets directly for publishing disturbing images.
     • We have worked with survivors in many high-profile cases and have experience managing the media to prevent these types of intrusions.
7. The right to access certain information about your case:
   • Many jurisdictions recognize that crime victims have the right to access certain materials relating to their case that is stronger than the right of the public or media to such information.
     • For example, in many jurisdictions, victims have the right to access police reports, autopsy reports and other key case-related documents that may not be available to the public at large.
   • However, the laws relating to victim access are complex and victims are often required to get a lawyer to obtain the information they seek. We have a great deal of experience helping victims get the information they seek.

We invite you to contact us or call our office at 410.385.2225 or 800.385.2243 for a complimentary consultation to see how we can make a difference for you.