What Is Marsy’s Law and What Does It Provide a Victim?
The California Legislature in Sacramento amended the California Constitution to add Article 1, § 28(b) to address these concerns, which include a fundamental right to be treated with fairness, respect for his or her privacy and dignity and be free of intimidation and harassment throughout the criminal process. This includes if the case is a juvenile proceeding.
Most courthouses (but not all) then have a “Victim’s Rights Advocate,” often a paralegal, who then advises the victim of her or his rights under § 28(b) and ensures the provisions of the law are available to victims.
The provisions are comprehensive, but some of the most meaningful ones are:
- Regarding bail for the accused, the judge is supposed to consider the safety of the victim and the victim’s family in fixing the amount of bail and release conditions of the accused. As a defense attorney representing the accused, we are particularly sensitive to this provision because judges often approach this as only as whether bail should be denied and this is not what the provision instructs;
- Regarding charges, to confer with the prosecuting agency, upon request, about the charges filed, the determination whether to extradite the suspect and, upon request (again) to be notified of any pre-trial plea bargain or resolution of the case;
- Regarding physical protection, to be “reasonably protected from the defendant and persons acting on behalf of defendant.” We have seen this provision to include the stationing of a police car outside the home of the victim once our client was released;
- Regarding medical or counselling records, to prevent the disclosure of confidential information or records (i.e. medical or counseling records in a domestic violence or sexual assault case) to the defendant, the defendant’s attorney or any other person acting on behalf of defendant (such as an expert witness), which could be used to locate or harass the victim or the victim’s family;
- Concerning intimidation, to refuse an interview, a deposition or discovery request by defendant, his or her attorney or any other person acting on behalf of defendant (i.e. a private investigator) and to set reasonable conditions upon the conduct of any such interview or deposition to which the victim consents;
- Regarding being in court, to receive reasonable notice of all public proceedings, including delinquency proceedings, upon request, and of all parole or other post-conviction release proceedings, and to be present at all such proceedings;
- To be heard, upon request, as any proceeding involving a post-arrest release decision (i.e. a bail hearing), plea, sentencing, post-conviction release decision or any proceeding in which the safety of the victim is at issue;
- To a speedy trial and a prompt and final conclusion of the case and any post-judgement related proceedings (i.e. restitution);
- To be able to give information to the probation department conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family;
- To receive, upon request, the pre-sentence report when available to the defendant; and
- To be informed, upon request, of the conviction, sentence, place and time of incarceration, as well as the scheduled release date of the defendant, as well as the escape of defendant from custody.
- To restitution;
- To the return of property when no longer needed as evidence in the case; and
- To be informed of all parole procedures, to participate in the parole process, to provide information to the parole agency to be considered before any parole decision is reached and to be notified, upon request, of the parole or other release of the defendant.