CASES OF INTEREST

United States v. Eberhard, No. 05-3431-cr(L), 2008 WL 1930935 (2d Cir. May 5, 2008).
Defendant appealed his sentence, arguing, inter alia, that the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, which was enacted between the time he pled guilty and was sentenced, resulted in the court hearing from victims and imposing a sentence longer than he had agreed to in his plea agreement. Defendant contended this violated his rights under both the Ex Post Facto and Due Process Clauses. The court affirmed, noting that sentencing courts had access to victim statements long before the CVRA was enacted and that “a law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause.” The court further rejected defendant’s argument that the victims’ impact statements allowed the government to circumvent defendant’s plea agreement by advancing legal arguments through “victim-surrogates,” noting that nothing in the plea contract prevented the government from submitting victim impact testimony, and that “the victims' pleas for a harsh sentence were incidental to presentation of facts.”

United States v. Edwards, No. 06-11643, 2008 WL 1932136 (11th Cir. May 5, 2008).
Defendant appealed his conviction and sentence, arguing, inter alia, that that the trial court violated his Fifth Amendment right to a fair trial and his Sixth Amendment right of confrontation when it denied his motion to sequester victim-witnesses pursuant to federal Rule 615. On appeal defendant asserted that Rule 615 was constitutionally based and therefore the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, upon which the trial court relied, was an insufficient basis for denying the motion. Applying and abuse of discretion standard, the court affirmed the trial court’s denial, stating that defendant’s “argument fails for one simple reason: A criminal defendant has no constitutional right to exclude witnesses from the courtroom.”

Maryland v. Baby,2008 Md. LEXIS 190 (Md. Apr. 16, 2008).
The Maryland Court of Appeals held: (1) that if a woman withdraws consent to vaginal intercourse post-penetration, the continuation of intercourse through force or threat of force may constitute rape; (2) that a trial court errs when it responds to jury questions regarding post-penetration withdrawal of consent with only an instruction to review previously provided instructions on the elements of first degree rape; (3) and that such an error is not harmless. The Baby court further suggested that, on remand, the trial court subject Rape Trauma Syndrome evidence to the Frye-Reed analysis, which is the standard Maryland uses when evaluating the validity of controversial new scientific techniques.

Commonwealth v. Murungu, 879 N.E.2d 99 (Mass. 2008).
Defendant appealed her conviction as a youthful offender of statutory rape, claiming that the trial court erred in allowing someone other than the very first person to whom the victim spoke about the assault to testify as a substitute “first complaint” witness. The court affirmed the judgment, holding that although the trial judge committed error by allowing two witnesses to testify as the first complainant witness, the error was not prejudicial and was not an abuse of discretion. In reaching its decision, the court noted two exceptions to the first complaint rule: first, where the encounter that the victim has with the first person does not constitute a complaint (e.g. the victim expresses to that person unhappiness, feeling upset or other similar feelings, but does not actually state that she has been sexually assaulted). Second, where there is such a complaint, but the listener has an obvious bias or motive to minimize or distort the victim's remarks. The court found that these exceptions permitted the Commonwealth the opportunity to rebut the suggestion that the victim’s silence was indicative of the fabrication of rape and allowed for someone other than the first complaint witness to testify as to the victim's description of a sexual assault. The National Crime Victim Law Institute was co-amici with the Victim Rights Law Center and nine other organizations advocating for victims’ legal rights in this case.

T.R. v. Boy Scouts of America, No. S054071, 2008 WL 660648 (Or. 2008).
Plaintiff, a minor who was sexually abused by a police officer, brought a Section 1983 claim against the city employing the officer. The city moved for a directed verdict on statute of limitations grounds, arguing that the plaintiff’s claim accrued when the abuse occurred. Plaintiff argued that the statute of limitations did not begin to run until he knew that the city had a role in his injury, and that the issue of accrual was for the jury to decide. The trial court agreed, and the jury found plaintiff’s claim to be timely. The court of appeals reversed; the supreme court then reversed the appeals court. In reaching its conclusion, the supreme court applied the discovery accrual rule and noted that plaintiff was only required to conduct an investigation into the city’s role that a reasonable person in his circumstances (as a minor) would conduct. The court found that the question of whether the police officer’s abuse should have alerted plaintiff to the possibility that the city played a causal role in the abuse, and whether investigation by the plaintiff would have disclosed the city's role, were issues for jury, and held that the trial court did not err in denying the city’s motion for directed verdict.

C.C.H. v. Philadelphia Phillies, Inc., No. 4 EAP 2007, 2008 WL 433534 (Pa. Feb. 19, 2008).
In a civil case against the Philadelphia Phillies and several individual defendants, the trial court held that despite the fact that a minor’s consent to sexual assault was not available as a defense in a criminal case, it could properly be raised as a defense in the civil case. NCVLI joined with 30 other co-amici in the filing of a brief to the appellate court, arguing that consent by a minor is an inappropriate defense in a civil case. The appellate court agreed with amici, reversing the lower courts and holding that, “where the victim is less than 13 years of age, evidence of the victim’s consent to sexual contact, like in criminal proceedings, is not an available defense in determining a defendant’s civil liability.”

In re Brock, No. 08-1086, 2008 WL 268923 (4th Cir. Jan. 31, 2008).
The victim of a criminal assault petitioned the Court of Appeals for a writ of mandamus pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, after the district court denied the victim’s requests for access to portions of defendants’ presentence reports (PSRs) and to be heard on the proper calculation of the sentencing guidelines. The victim sought portions of the PSRs to meaningfully effectuate his rights to “be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding” and to “be treated with fairness and with respect for dignity and privacy.” The court held that the trial court did not abuse its discretion in denying the victim access to the PSRs as the victim was provided ample information concerning the applicable Sentencing Guidelines, the victim did not have a right to challenge the calculation of the Guidelines, and the victim was reasonably heard and treated fairly when the trial court considered his victim impact statement.

Schneider v. State, No. 5D07-204, 2008 WL 194935 (Fla. Dist. Ct. App. Jan. 25, 2008).
Defendant appealed a restitution order which included monies for legal and accounting fees incurred by the victims in defending against a pretrial discovery request for their tax records. Defendant argued such costs were not causally related to the offense; the State argued that the fees were similar to restitution for “investigative costs for the purpose of discovery and documentation of the crime,” which Florida courts had previously upheld. Noting that the tax records were not privileged, the court reversed the restitution order, holding that “the expenses were not caused either directly or indirectly by the offense,” but instead were “voluntarily incurred in the course of discovery in the criminal case.” The dissent, noting that the victims retained private counsel at the recommendation of the state, and that they “had every right and a legitimate need to hire outside counsel,” concluded that the fees were indirectly caused by defendant’s theft. The dissent went on to state, “But for the defendant’s offense and her fishing expedition in defense thereof, the costs of reviewing the tax records and defending against the release of the improperly subpoenaed material would not have been incurred.”

United States v. Duncan, No. 05-80025, 2007 WL 4591865 (E.D. Mich. Dec. 28, 2007).
In a death penalty case, defendant filed a “Motion for Discovery of Any Evidence that Might Rebut or Refute Victim Worth or Victim Impact Evidence,” arguing that once the government introduces victim impact evidence, the victim's character and “worth” becomes relevant to his sentence such that he is constitutionally entitled to discover any evidence that would provide a basis for cross-examination, impeachment, or rebuttal. Over the government’s objection, the court granted defendant’s motion, finding: “evidence that could be helpful to defendant on the issue of punishment includes victim worth evidence; it is Brady material that must be disclosed.” In reaching its decision the court did not cite to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, which provides directly to victims the right to reasonably be heard at sentencing, but did opine, "victim impact evidence supports an improper, irrelevant focus in a death penalty case” and that “the victim’s character should have nothing to do with that decision.”

Edens et al. v. Oregon Board of Parole Marion County, Case Nos. 07C22594 &07C22595.
Petitions for writ of mandamus were brought by both the victim and the prosecuting attorney, asking that the Board of Parole be directed to vacate its orders reducing the criminal defendant’s prison term and authorizing his release. The court issued the writ, finding numerous violations of victims’ rights. Among the court’s findings, a finding that the notice failed to meet the 30-day statutory requirement, and this inadequacy resulted in failure to afford the victim “adequate opportunity to prepare for the hearing, and to obtain counsel.” The court further held that the Board’s administrative rule limiting time allocated to victim testimony to three minutes violated the victim’s statutory rights, even where, as here, it was not enforced; the court noted that rule itself “has a chilling effect on the full exercise o the victim’s rights and is unnecessarily intimidating.” The court further found that there is a “right to a statement by the decision maker of the reasons for the decision reached,” and noted that this too had been violated. The court then directed the Board to “conduct an entirely new parole consideration hearing where the victim is given adequate notice and full opportunity to participate.”

In re Sue Antrobus and Ken Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008).

Petitioners filed for a petition for writ of mandamus under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, seeking that their murdered daughter be recognized as a victim of the defendant in the underlying criminal action who had sold a firearm to the juvenile shooter. Disagreeing with both the Second and Ninth Circuits’ conclusions that mandamus review under the CVRA be undertaken pursuant to normal appellate review, the court applied “traditional mandamus standards.” Noting that the CVRA defines a crime victim as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the district of Columbia,” the court recited the district court’s conclusions that the daughter, while a victim of the shooting, was not a victim of the gun sale because the shooting was “independent, intervening cause” of her death. The court then held that the district court did not clearly err in this conclusion. In a concurring decision, Justice Tymkovich stated “the district court and the government erred in failing to permit the Antrobuses reasonable access to evidence which could support their claim. With this information, the Antrobuses may have been able to demonstrate the requisite causal connection between [the] crime and Ms. Quinn’s murder.”

United States v. Hunter, No. 2:07CR307DAK (D. Utah. Jan. 3, 2008).
The parents of a deceased victim sought an order recognizing them as representatives of a crime victim under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(e), in the case proceeding against the defendant who illegally sold a gun to the juvenile who shot their 28-year old daughter. The parents sought to exercise the right of their deceased daughter to make an in-court victim impact statement at sentencing. Noting that the CVRA defines a crime victim as “a person directly and proximately harmed as a result of the commission of a Federal offense,” the court agreed that the parents “undoubtedly qualify to be representatives for their deceased daughter under the CVRA,” but found that the nexus between sale of the firearm and the shooting was too “factually and temporally attenuated” to fit the definition. The court held that because the deceased daughter was not a crime victim under the CVRA, the parents could not exercise rights as a crime victim representative.

Pro bono counsel for the parents is seeking mandamus review in the Tenth Circuit.

United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007).
Defendant, convicted of voluntary manslaughter of his three-month old daughter, appealed the restitution order that required him to pay for the victim’s future lost income. Defendant argued: 1) the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, does not allow for the inclusion of future lost income in restitution orders; 2) an order for future lost income is improper because it is speculative; and 3) an order of this kind, if appropriate, must be based on gender and race-based statistics and because the trial court failed to incorporate these the order was impermissible. The court affirmed the order, holding that the plain language of the MVRA allows restitution orders to include future lost income, and that the trial court exercised its “abundant discretion” when it crafted a restitution order including the victim’s future lost income using “well-recognized industry standards and norms.” The court further held that the trial court was within its discretion in rejecting application of gender and racial distinctions.

State v. Stravato, Nos. 2005-101-CA, 2004-315-CA, 2007 WL 4270884 (R.I. Dec. 7, 2007).
Defendant appealed his conviction on three counts of child molestation, arguing, inter alia, that the state’s nondisclosure of the victim impact statement, which was authored before trial, was a deliberate violation of Rhode Island’s discovery rule, warranting reversal. Noting that Rhode Island had adopted one of the most liberal discovery rules, the court agreed with defendant, vacating the conviction and remanding for a new trial. In reaching this conclusion the court rejected the state’s argument that it did not need to disclose the statement because it did not contain any information not otherwise disclosed, noting that “[t]he fact that the state did not act in bad faith, or that the defense may have received the same information through other means, is not determinative.”

People v. Superior Court of Riverside County, No. E041331, 2007 WL 2852596 (Cal. Ct. App. October 3, 2007).
Defendant pleaded guilty to vehicular manslaughter after colliding with a motorcycle, killing the driver and severely injuring the passenger, the driver’s wife. At sentencing, the court heard from the deceased victim’s family, and sentenced defendant to 2 years in prison. Soon thereafter, the court recalled the case for resentencing, indicating that it had reconsidered its ruling, and was inclined to grant probation instead of incarceration. At resentencing, the court refused to allow the victims to speak, and imposed probation. The state petitioned the court of appeals to vacate the resentencing, and to compel the trial court to permit the victims to speak at a new sentencing. The court of appeals denied the writ, holding that a victim does not have a right to speak at a resentencing where he or she had an opportunity to speak at the prior sentencing; the state was unable to establish that victims had new information to present; and the information that would be presented related to the trial court’s decision to impose a new sentence not to defendant.

The State is seeking review of this decision in the California Supreme Court, and NCVLI is submitting an amicus letter in support of the petition for review, arguing that the case should be reviewed to ensure that victims’ participatory right to speak at sentencing is upheld.

For more information, please visit California's court website.

United States v. Saltsman, No. 07-CR-641, 2007 WL 4232985 (E.D.N.Y. Nov. 27, 2007).
In a securities fraud case, the court authorized notice by publication for a class of victims estimated to be in the “tens of thousands.” The court noted that while the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(a)(2), affords victims the right to “reasonable, accurate, and timely notice” of public court proceedings, it also provides, that in cases involving multiple victims, the court can “fashion a reasonable procedure to give effect to [the CVRA] that does not unduly complicate or prolong proceedings.” Recognizing its independent obligation to “ensure rights are afforded,” and that “victims’ rights under the CVRA begin well before a conviction,” the court found that notice by publication, where publication directs victims to a website maintained by the government with hyperlinks to updates on the case, was a reasonable procedure that would not unduly complicate or prolong the proceedings.

People v. Giordano, No. S138382, 2007 WL 4147029 (Cal. Nov. 26, 2007).
The California Supreme Court ruled that restitution to homicide survivors can include the deceased victim's future lost wages. In Giordano, the Defendant was convicted of vehicular manslaughter and seven months after his sentencing was ordered to pay $161,711.65 to the victim's spouse. Defendant, abandoned his lower court claim the sentencing court lost jurisdiction seven months after his sentencing, but maintained the California Penal Code did not authorize restitution for a decedent's future lost wages. The Court held California Penal Code § 1202.4, which requires restitution be "any economic loss" as a result of the commission of the crime, included the amount of lost economic support incurred due to a criminal act that resulted in the death of his or her spouse. Additionally, the Court held the sentencing court did not abuse its discretion in determining restitution in the amount of $161,711.65.

State v. Murtagh, Nos. S-11988, S-12007, 2007 WL 3121660 (Alaska Oct. 26, 2007).
Criminal defense attorneys and a defense investigator, on behalf of themselves and their present and future clients, challenged as unconstitutional, certain aspects of Alaska’s Victims’ Rights Act that regulated criminal defense representatives’ conduct with respect to pretrial interviews of victims and witnesses. Specifically challenged were provisions requiring that defense representatives: 1) tell the victim that he or she need not talk with the representative, and tell the victim that he or she may have a prosecuting attorney present during the interview; 2) make the statements described above before electronically recording an interview with a victim or witness, and also state that the interview will be electronically recorded; and 3) adhere to additional constraints where the accusation involved a sexual offense. Analyzing the provisions under Equal Protection and Due Process, and weighing these against the purposes of the Victims’ Rights Act, the court held that while there was no Equal Protection violation, the provisions, as written, violated procedural due process. The court concluded that the provisions “unjustifiably interfere with defense investigation” by presenting a risk of suppressing sources of evidence that otherwise would be available to defendant.

State v. Fowlkes, No. 17835, 2007 WL 2471797 (Conn. Sept. 11, 2007).
Defendant pled guilty under the Alford doctrine (a doctrine that allows a defendant to consent to being punished without having to admit guilt) and was sentenced to a period of incarceration and probation. After defendant began serving his sentence, the state filed, and the trial court granted, a motion to modify the terms of defendant’s probation to include restitution to the victim. On appeal, defendant argued that the trial court lacked jurisdiction to modify the terms of his probation as the court could only issue an order of probation, which includes restitution, at the time it imposed the original sentence. The court affirmed the trial court, holding that while the sentencing court could not take any action affecting defendant’s sentence after defendant began serving his sentence, the inclusion of restitution as a term of probation was not punitive in nature and, therefore, did not affect defendant’s sentence.

Doe v. Hammond, No. 07-1496 (JDB), 2007 WL 2398576 (Aug. 22, 2007 D. D.C.).
British Airways entered into a plea agreement with the government pursuant to which the government provided immunity to the company and most of its employees for a number of antitrust violations. Several employees named in the plea agreement were exempted from the immunity grant. Some of those exempted employees sought an injunction to prohibit defendants from naming them in the plea agreement, arguing that such public disclosure “effectively label[ed] them unindicted co-conspirators.” The court denied plaintiffs’ application after finding that nothing in the plea agreement identified plaintiffs as co-conspirators or subjects of criminal investigation. The court further noted, in dicta, that one of the “significant public interests” supporting “full disclosure of the plea agreement” was “the victims’ right of access to the terms of a plea agreement under the Crime Victims’ Rights Act.” [18 U.S.C. § 3771].

State v. Lord, No. 77472-2 (Wash. August 30, 2007)
The Washington State Supreme Court held spectators wearing a button portraying the murder victim’s image did not violate defendant’s constitutional right to a fair trial or the presumption of innocence. Important to the court’s decision was that the spectators were private citizens, the buttons contained the victim’s picture with no words, and the jury was instructed, “the only evidence you are to consider consists of testimony of witnesses and exhibits admitted into evidence.” In affirming defendant’s murder conviction the Court stated, “spectators signs of affiliation - - here through buttons showing a victim’s picture - - do not automatically present an unacceptable risk of impermissible factors coming into play.” (citations omitted)

United States v. Citgo Petroleum Corp. et. al, No. C-06-564 (S.D. Tex. Aug. 8, 2007).
The government moved the court to unseal its submission to the United States Probation Office in Aid of Sentencing, arguing that disclosure was necessary: 1) to comply with the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771; and 2) to counter certain publications of the defendant. In denying the motion, the court noted that while the government’s motion did not seek disclosure of a presentence report, because the submission contained similar information, resort to precedent governing disclosure of presentence reports was appropriate. Relying on Fifth Circuit precedent establishing a “longstanding practice of treating presentence investigation reports as confidential and not public documents,” that does not allow disclosure to third parties without a showing of a compelling, particularlized need for disclosure, the court held that the requisite showing had not been made. The court went on to note that while the CVRA confers a duty upon the government to make best efforts to notify crime victims, it does not require disclosure of presentence reports or other documents.

In Re Jane Doe, No. 07-1705 (4th Cir. August 9, 2007).
Defendant, the Purdue Frederick Company, entered into a negotiated plea with the United States that required defendant to plead guilty to one count of felony misbranding of a prescription drug for fraudulently marketing OxyContin as less addictive than other pain medication on the market. Defendant also agreed to pay $600 million in fines, penalties, and restitution to the United States Government. At the plea and sentencing hearing a victim objected to the plea, claiming that she had a right to restitution under subsection (a)(6) of the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, because she had become addicted to OxyContin as the result of defendant’s misbranding. The trial court rejected her claim and accepted the plea, reasoning that determining restitution owed to a potentially large class of OxyContin users would “unduly complicate and prolong the sentencing process.” The victim petitioned the Fourth Circuit for a writ of mandamus under the CVRA. In an unpublished decision, the Fourth Circuit denied the petition, concluding that petitioner could not demonstrate that she was legally entitled to restitution because the CVRA did not create an independent right to restitution but “merely protects the right to receive restitution that is provided for elsewhere,” and she was unable to establish that her injuries were “directly and proximately” caused by defendant’s misbranding as required to qualify for restitution under the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. In a concurring opinion, Judge King indicated that he thought the court had overreached because there was no need to resolve the issue of whether petitioner qualified as a victim; instead, he would have denied the petition on the narrow grounds that even assuming petitioner was a victim, there is no legal basis for mandatory restitution.

State v. Means, Case No. A-21-06, 2007 WL 2003893 (N.J. July 11, 2007).
Upon being notified by the prosecutor that the plea offer had been made to defendant without notifying the child-victim's father, the trial court vacated the plea. A second plea agreement was then entered, which was not as favorable for defendant. On certification to the New Jersey Supreme Court, defendant argued that neither the Victim’s Rights Amendment, nor any other law, authorized the state to withdraw from the plea agreement, and that such withdrawal violated his rights to due process and fundamental fairness. The court held that the trial court was not authorized to set aside the plea agreement based solely on the prosecutor's failure to notify the victims prior to entering into the plea agreement; the court went on, however, to note that “constitutional considerations of both the defendant and the victims must be weighed” at the time of plea and that to properly weigh the concerns, the trial court needed to know if the victims had an objection to the plea agreement and what that objection was. The court then opined that rather than vacating the plea, the trial court “should have postponed sentencing to allow the prosecutor time to notify the victims of the terms of the plea agreement, receive and evaluate the victims’ comments, and inform them of their right to speak at sentencing.” The court reasoned that this procedure would have allowed the trial court to be in a better position to decide whether to continue to accept the terms of the plea agreement or to inform defendant that the plea would be rejected in the interest of justice.

Lapointe v. State, No. PD-1100-06, 2007 WL 1217340 (Tex. Crim. App. Apr. 25, 2007).
Defendant appealed the trial court’s decision to conduct in camera hearings of the victim and a nurse examiner to determine admissibility of the victim’s prior sexual history without the State or defense present. The Court of Appeals remanded the matter for retrospective in camera hearings that permitted the parties to be present and question the witnesses. In this discretionary appeal the Court affirmed the Court of Appeals, holding that Texas Rule of Evidence 412(c) required adversarial in camera hearings and found that the retrospective hearings were an appropriate cure for the trial court error. The Court did not address the victim’s constitutional rights to be treated with fairness and with respect for the victim’s dignity and privacy and to be protected from the accused in relation to the Rule 412(c) when ruling that adversarial hearings are required.

United States v. Sacane, ___ F. Supp. 2d ___, 2007 WL 951666 (D. Conn. March 28, 2007).
Defendant, a former investment adviser, pleaded guilty to a financial fraud related offense. Pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), victim, defendant’s former employer, moved the trial court to order defendant to provide fuller financial disclosure of his personal assets so the court would “have an accurate picture of the assets available for purposes of setting a payment schedule” at the scheduled restitution hearing. Denying victim’s motion, the court held that the CVRA does not grant victims a right to discover financial information from a defendant. In reaching its conclusion the court analogized the request to a victim’s request for access to a presentence report, and noted that courts have held that a victim does not have a right to obtain information contained in a presentence report. The court went on to state that “if [the victim] believes that additional financial disclosures are necessary, than pursuant to the CVRA, [the victim] may enlist the assistance of the government” to discover the information.

Oregon v. David O. Burleson M.D., Oregon Supreme Court No. S054377
On May 3, 2006, the State of Oregon charged Portland anesthesiologist David Burleson with two counts of Sexual Abuse I, based on Burleson’s stipulation to the Oregon Board of Medical Examiners that he inappropriately touched numerous sedated patients over a five year period. During subsequent grand jury proceedings, a properly subpoenaed witness refused to comply with the grand jury’s order to provide certain information regarding Burleson’s misconduct, including possible identifying information regarding the victims. The prosecutor requested that the court hold the witness in remedial contempt for failing to comply with the order. Despite finding that the witness’s knowledge about certain unnamed victims was “relevant” to the grand jury’s investigation and “not privileged,” the trial court refused to hold the witness in contempt, concluding that disclosure would be “clearly contrary to the public interest” because it might cause unnamed victims to “forgo necessary medical care” if they learned that Burleson had assaulted them.

The State of Oregon filed a petition with the Oregon Supreme Court for a writ of mandamus directing the trial court to enforce the grand jury subpoena. On March 28, 2007, the National Crime Victim Law Institute and the Oregon Trial Lawyers Association, as co-amici, filed an amicus curiae brief with the Oregon Supreme Court in support of the state’s petition, arguing that the trial court exceeded its authority by: 1) refusing to enforce a valid grand jury subpoena for relevant, non-privileged information; and 2) ignoring the unnamed victims’ constitutional, statutory, and rule-based rights to bodily integrity, to participate in criminal justice proceedings, and to pursue civil remedies. At the heart of amici’s argument: the trial court ignored Oregon’s clear law and public policy, and instead, under the guise of considering the “public interest,” crafted an unsupportable policy based upon antiquated and paternalistic assumptions about women and crime victims to justify its refusal to enforce the grand jury’s valid order.

People v. Giles ___ P.3d ___, 2007 WL 635716 (Cal. March 5, 2007).
On September 29, 2002, Dwayne Giles shot his unarmed ex-girlfriend six times. At trial, defendant claimed self-defense. The prosecution introduced evidence of a statement made by the deceased victim to the police several weeks before the murder about an assault on her by the defendant. The jury convicted defendant of murder.

Defendant sought to reverse his conviction, arguing that his confrontation clause rights were violated when the trial court admitted the deceased victim's statements about the prior incident. The Court of Appeals upheld the conviction, holding that, pursuant to the doctrine of forfeiture by wrongdoing, defendant forfeited his right to cross-examine the victim when he killed her.

Defendant appealed to the California Supreme Court, arguing that the forfeiture by wrongdoing doctrine only applies where a defendant kills a witness with the specific intent of preventing that witness from testifying. The California Supreme Court upheld the defendant's conviction, holding that forfeiture by wrongdoing applies to cases where the murder itself is the same act that silenced the witness. Quoting the Court of Appeals, the court stated:

Forfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts. A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness's unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.

Giles, 2007 WL at *10 (citation omitted).
The National Crime Victim Law Institute submitted an amicus curiae brief to California Supreme Court arguing that a crime victim's voice is a necessary element of a fair and just criminal proceeding, and that where a victim is unavailable as a direct consequence of the defendant's wrongdoing, the defendant has forfeited his Sixth Amendment right to confrontation.