Discussion of Victims' Rights and Due Process in Criminal Proceedings

Page 28 of 52 2005 B.Y.U.L. Rev. 835, *882 victims be treated with fairness. This is a broad provision intended to be broadly construed and to give victims a right to due process. As Senator Kyl has stated, The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they are in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process. 7°? [*883] Clearly, Congress intended to afford crime victims a broad right to due process in criminal proceedings. Due process, of course, uncontroversially includes a right to be heard. 7!° Thus, victims should be heard before the court makes a transfer decision. Concluding that victims have a right to be heard on transfer decision does not mean, of course, that they will dictate the transfer decision. In some cases, the defendant will be able to establish sufficiently pervasive prejudice in a particular community to entitle him to a change of venue to protect his constitutional rights. *!! But the limited point here is that victims may provide an important perspective that the judge ought to consider in reaching a decision. Moreover, even if the judge decides to transfer a case, the victims may have valuable information for the judge on where to transfer the case to (e.g., to an adjacent state rather than a distant one). 212 a capital case decided by the New Jersey Supreme Court. In Timmendequas, the trial judge imported a jury from a distant community rather than force the family of a murdered young girl to travel to another district. Construing New Jersey state law provisions similar to the CVRA's, the New Jersey Supreme Court explained that the trial judge properly considered the views of the victim's family: An illustration of the general approach of the proposed rule comes from State v. Timmendequas, Over the past decade, both nationwide and in New Jersey, a significant amount of legislation has been passed implementing increased levels of protection for victims of crime. Specifically, in New Jersey, the Legislature enacted the "Crime Victim's Bill of Rights." That amendment marked the culmination of the Legislature's efforts to increase the participation of crime victims in the criminal justice system. [*884] The purpose of the Victim's Rights Amendment was to "enhance and protect the necessary role of crime victims and witnesses in the criminal justice process. In furtherance of [that goal], the improved treatment of these persons should be assured through the establishment of specific rights." One of the enumerated rights guaranteed for victims is "to have inconveniences associated with participation in the criminal justice process mimimized to the fullest extent possible." ... The [trial] court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim's family into 209 150 Cong. Rec. $10,910-11 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphases added). 210° Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (acknowledging that "the fundamental requisite of due process of law is the opportunity to be heard" (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914))). 211 See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961) (holding that prisoner should have been granted change of venue where pre-trial publicity caused prejudice). But cf. Fletcher, supra note 155, at 252 (calling for abolition of a defendant's right to change venue because it "is, in effect, to accord the defense a whole peremptory challenge against the entire community"). 212 737 A.2d 55 (N.J. 1999). DAVID SCHOEN HOUSE_OVERSIGHT_017742