Tcl - Victims' Rights and Defendants' Rights: Is There a Conflict? - April 2007 - Judges' Corner

• Publication year: 2007
• Pages: 45
• Citation: Vol. 36 No. 4 Pg. 45

36 Colo.Law. 45 Colorado Lawyer 2007.

2007, April, Pg. 45. TCL - Victims' Rights and Defendants' Rights: Is There a Conflict? - April 2007 - Judges' Corner

The Colorado Lawyer
April 2007
Vol. 36, No. 4 [Page 45]

Departments
Judges' Corner

Victims' Rights and Defendants' Rights: Is There a Conflict?

by Ethan D. Feldman, Meghan P. Saleebay

Hon. Ethan D. Feldman has been an Arapahoe County Court judge for fifteen years - (303) 798-0270 ethan.feldman@judicial.state.co.us. Prior to his appointment he spent six years as a prosecutor in the Arapahoe District Attorney's Office and twelve years in private practice Meghan P. Saleebey is the Victim Rights Specialist for the Colorado Division of Criminal Justice and currently is completing her final semester at the University of Denver Sturm College of Law - (303) 239-4497, meghan.saleebey@cdps.state.co.us.

Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this column, please e-mail Judges' Corner Coorindating Editor Hon. Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.

The Dilemma

Your client is in custody, charged with committing a felony assault. Bond was set at his first appearance and the case was set for a preliminary hearing. You show up in court for the preliminary hearing and you and the district attorney (DA) negotiate a settlement of the case: the client will waive preliminary hearing; plead guilty to a reduced charge (misdemeanor assault); and receive two years of probation with some amount of jail as a condition of probation, as determined by the judge. Your client accepts the deal, so you fill out the Rule 11 advisement form and review it with your client. The two of you then step to the lectern before the judge:

Judge (to the DA): Have the People complied with the Victim Rights Act?

DA: No, Your Honor. We notified the victim of the court date but did not ask him to come to court because we were going to present the evidence through the detective. We weren't expecting to cut a deal today.

Judge: Sorry, I can't accept the disposition until I am assured that there has been Victim Rights Act compliance. We'll set this over one week so the DA can comply.

You: Your Honor, might we at least argue for a bond reduction so my client doesn't have to sit in jail while the DA contacts the victim?

Judge: Sorry again - the court cannot hear a bond modification motion unless there is Victim Rights compliance.

Your client

(under his breath): Whose side is this judge on, anyway? Don't I have some rights, too?

Overview of the Victim Rights Act

In 1984, the Colorado General Assembly enacted rudimentary victim rights legislation, which was commonly referred to as the "Victim Bill of Rights." This was statutory and not constitutional, and victim rights advocates were concerned that victims needed constitutional protection. Thus, in the 1992 General Election, Colorado voters overwhelmingly approved an amendment to the Colorado Constitution concerning the rights of crime victims. This amendment became effective January 14, 1993, and was enshrined as Article II, § 16a, of the Colorado Bill of Rights, in the same constitutional neighborhood as the rights traditionally thought of as "the rights of the accused."

Is it possible for these constitutional neighbors to peacefully coexist? Does careful observation of one necessarily diminish the other? The search for answers begins with a basic understanding of the laws on victims' rights in Colorado. The text of the constitutional amendment reads as follows:

Article II, Section 16a. Rights of crime victims. Any person who is a victim of a criminal act, or such person's designee, legal guardian, or surviving immediate family members if such person is deceased, shall have the right to be heard when relevant, informed, and present at all critical stages of the criminal justice process. All terminology including the term "critical stages", shall be defined by...