Brown & Little, P.L.C. » Arizona Cases, Victim's Rights » More on Victim Interviews

More on Victim Interviews

I started responding to some comments on this post, but I ended up writing way too much for one little comment. No harm in putting up another post, right?

Anyway, to give you some background (for those of you who don’t like reading blog comments), I brought up in a comment that A.R.S. § 13-4433(B) says “the defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office.” Andrew Becke asked: “is there a way to initiate contact with the victim through a motion to the court, thus requiring the prosecutor to respond in a pleading that the victim doesn’t want to talk? That might enhance their desire to be honest.”

My answer would be that there are a few things a defense attorney can do to intitiate victim contact, but they aren’t particularly great options. If you file a motion that requires a hearing in which the victim will need to be a witness, the victim isn’t insulated from being required to appear and testify. Of course, you can’t file a frivolous motion just to get a crack at the victim on the witness stand, and the scope of your examination will be limited. Someone would have to initiate contact with the victim, but the prosecutor wouldn’t have to aver in his or her response that the victim doesn’t want to talk. It would just give you the victim, albeit for a limited purpose.

A better motion that would initiate victim contact and require a prosecutor to say he or she has spoken to the victim is based on an exception (sort of) to A.R.S. § 13-4433(B) involving a victim’s credibility. In State v. Riggs, the Arizona Supreme Court said that “A.R.S. § 13-4433 neither authorizes nor precludes the cross-examination of a victim on the victim’s refusal to grant a pretrial interview. Admission of evidence of refusal is governed by the rules of relevancy. The state constitution confers no blanket right upon a victim to refuse to testify concerning the fact of refusal, and the federal constitution confers no blanket right upon defendants to inquire into the fact of refusal.”

So let’s say I think the victim is biased. I can’t prove that, by itself, his or her refusal to submit to an interview is relevant to bias, and I can’t find out more about his or her potential bias as it relates to his or her refusal to submit to an interview unless I do an interview. There’s something pretty unfair about that situation. I think a reasonable court would find that argument compelling and grant me a limited interview to determine whether the victim’s refusal to do an interview shows bias. I could file a motion requesting that interview on those grounds.

The problem is that, in State ex rel. Romley v. Hutt, Arizona’s Division One Court of Appeals vacated the trial court’s order for a pretrial inquiry of the victim regarding bias, interest or hostility. I think the opinion was terribly written, and luckily, the defendant’s arguments weren’t quite in line with what I would argue (though they aren’t entirely clear from the opinion). Also, the trial court in that case gave the defendant’s attorney permission to go a lot further than would be allowed under any reasonable interpretation of the case law. There’s a decent argument that ordering a simple victim interview for limited purposes wouldn’t be forbidden under Hutt.

If I file a motion distinguishing Hutt and asking for a pretrial interview or deposition of some sort, the prosecutor would have to respond with something acknowledging that the victim refused to speak with me. Unfortunately, the prosecutor would probably just talk to the victim after receiving my motion and convince him or her not to do an interview. It wouldn’t do much to keep the prosecutor honest, but I’d at least guarantee the prosecutor would ask the victim. I could start filing a motion like that regularly, but I think it would be a lot of work for minimal results.

The other comment that got me thinking was from an understandably shocked Bobby G. Frederick, who noted: “that is insane. Violation of due process, right to confrontation? Declaratory judgment action?”

There have been plenty of challenges to that statute. Defense attorneys have made all kinds of well-reasoned, well-supported arguments, but Arizona courts seem to love the victim-interview statute and its counterpart in our rules of criminal procedure. Although at least one court has noted that victims are often important, crucial, and even critical witnesses and that it’s no doubt sound practice for lawyers to interview witnesses before trial, Arizona courts claim a victim’s right to decline an interview is absolute. They claim confrontation clause rights don’t apply. Due process can give a defendant access to certain information about a victim, but it won’t give a defendant a pretrial victim interview.

The only successful challenges seem to expand the scope of the refusal law. For instance, the part of the statute denying peace officers status as victims was declared unconstitutional because its conflicts with the definition of “victim” in the Arizona Constitution. Now, a defendant’s attorney can’t even initiate contact with an officer-victim.

Arizonans should be ashamed that they’ve created a system where a defense attorney must file clever motions to do something essential to a proper defense. We shouldn’t have to think outside the box just to keep prosecutors honest. Arizona’s courts shouldn’t eagerly use our constitution to harm defendants while ignoring it (as well the US Constitution) when it might help a defendant. The saddest thing is that these are just a couple of the many ways Arizona’s victims’ rights laws create injustice.

Filed under: Arizona Cases, Victim's Rights · Tags: , , , , , , , , , ,

3 Responses to "More on Victim Interviews"

  1. KENNE GLEASON says:

    Matt,
    It is complicated just to getto the truth, especially if youre client is innocent. I have had enough of poor excuses from police agencies not following mandatory policy and proceedure.
    My issue for debate and advice is;
    I being a husband was the recipiant of a assault from my former wife in 04/08. I would have loved the application of remaining in the victim status,even that was never an intention. Briefly i will paint the picture.
    My former wife and I had an argument over sneakers,all at her prodding,(chuck taylors for gods sake). So the morning starts off rough, just an argument with her slice of nasty spread over it. I defer and dont take the bike ride up to Starbucks, I maintain a few things around the home, then go golfing.
    I return home with dinner, house empty, I start looking around , computer gone,2 cell phones gone, calendar and receipts torn out of binder. I go up stairs, wedding ring gone, My thought, shes been mad all day,
    I decide to see if shes at mothers, sisters, no luck. enter back home, shes home , but a different person, tried to talk w/ her no dice, stubborn latina. I nquire about items missing, denial of all questions etc.
    I went to the garage to look in vehicle for items,but she is rite on me invading my personal space. I ask her to make space please. I head to the back of the vehicle, whamwhamwhamwham on my back, i asked what is going on,again i get sratched by $100.00 nails on my arm, scar to this day.
    I decide to leave house I fear there is something up.
    I make my way over to the local PD, file domestic assault charges, have photos taken of 2 areas of injury.
    next thing I know she is filing OOP, with out telling judge about assault she committed nite before, from that day my life has been taken from me.
    why would PD not follow proceedure, whether arrest or supervisor discretion. I was assaulted and I have been denied all due process, its discrimination as well, victim they chant but only for women not men

  2. Matt Brown says:

    To ask those questions, I’d have to deal with the whole victim credibility problem I discussed in the post. If I don’t get a pretrial interview or have other evidence, I won’t be able to show it’s relevant. I imagine those questions wouldn’t be allowed in 99% of cases. I’d also likely draw all kinds of other sustainable objections.

  3. Bryan says:

    How about this.

    Before trial, make a written request to talk with the victim. Request denied.

    Later, the victim is testifies for prosecution.

    Your turn. You ask “did you talk with the prosecutor about your testimony before today”, and perhaps a few more questions along that line. (no problem here in California). Assume the witness answers truthfully, yes.

    As part of this sequence of questions you ask, “did the prosecutor ask whether you would be willing to talk with the defense (at their expense?)?”

    If yes, did the prosecutor in any way try to discourage you from doing so? What’s he got to hide?

    If no, the witness undermines the prosecutor’s credibility in front of the judge.

    But even better, save this ruse when there are multiple witnesses. If they all say no, you can probably get the prosecutor in trouble.

    Of course, you might be burning some bridges, but are you any worse off?

    What say you?

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