The victim in one of my domestic violence cases has recanted. She is very eager to tell everyone, myself included, that she lied about what happened and wants the prosecutor to dismiss the charges. I know for a fact she told the prosecutor she wanted absolutely nothing to do with the case and was not willing to participate in any way. The letter I sent to the prosecutor reminding him of his obligations under Brady and Kyles demanded, among many other things, interviews with all of the prosecution’s witnesses. The victim, of course, is one of them.

Keeping in mind the fact I know the victim told the prosecution she would not cooperate with them or participate in the case because she wanted the charges dropped, consider the following sentence:

Note; [the victim] wishes not to be interviewed.

That appeared in the prosecutor’s written response to my letter. I think it’s seriously misleading, if not an outright lie. Your thoughts?

When I later met with my client, he was irritated by the court’s ruling, but not for the reasons I expected. His question was, “if they’re so worried about the victim, why did they make him my cellmate?” My eyes grew big, and at first, I didn’t believe him. Later on, I found out that, sure enough, the victim had indeed been picked up by the county sheriff, booked, and placed in a cell with my client. It’s a good thing that client was such an easy-going guy.

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.

I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a bar complaint waiting to happen. If the matter goes to trial, I don’t normally use my cross-examination time, my first opportunity to question the victim, to find out whether he or she was told I wanted to do an interview. Maybe I should.

I don’t think it’s possible to overstate the advantage the prosecution can gain by preventing defense attorneys from interviewing victims. Most of the time, there are no written statements from victims. You generally have only a vague idea about what they’re going to say. You have no clue how believable they will be. You won’t hear the little inconsistencies in their stories until you get to trial, so it creates a lot of unnecessary pressure. It may be that you end up having little if anything to work with, or the state’s case could unravel altogether. When the only evidence against a defendant is going to be the testimony of victims, it can be extremely difficult to assess the strength of the state’s case prior to trial.

Prosecutors have a lot to gain by not asking victims about doing a defense interview. There’s no good way to make sure a prosecutor hasn’t lied about asking them. I had one case where my client swore the victim moved to Kansas, and the prosecutor kept swearing she had contacted the victim. She kept telling me my client should take the plea because the victim would show up for trial. Trial came around, and there was no victim. Case dismissed. I’m pretty sure that prosecutor was lying to me, and she probably wasn’t the first one. I don’t think I’m being unreasonable by not trusting prosecutors to do something that might ruin their case and that I have no way of showing they didn’t do.