“Marsy’s Law” didn’t invent victim’s rights in Kentucky.
The rights of crime victims had long been part of state law before the General Assembly passed a “Marsy’s Law” bill and voters ratified the constitutional amendment in 2020.
But what Marsy’s Law did was make crime victim’s rights part of the state constitution, giving them more weight. Now, victims of crime have a guaranteed right to be heard in court, to be notified of hearings involving the person charged with victimizing them, and to have a more active role in the court process.
Court officials are still working out how the law is actually applied in courtrooms, and there are questions from Daviess County judges about when the law conflicts with rights granted defendants by the U.S. Constitution. Those questions will likely have to be settled by the state Court of Appeals and the Kentucky Supreme Court.
“The good thing about this is it creates a way for the victim to be involved or have a say,” said Daviess Circuit Judge Lisa Payne Jones.
Previously, victims of crime were not required to be contacted about proceedings, such as bond hearings for the defendant.
“I had a family member who was a victim of an assault, and the case got dismissed and they never had a say,” Jones said. Marsy’s Law “definitely improves that situation,” Jones said.
“Marsy’s Law” provides victims with 12 rights that are enforceable in court.
For example, the victim has the right to be informed of, and be present at, all hearings in their case, has a right to be heard on issues such as bond or probation, has the right to be informed of any release of the defendant in the case, or if the defendant escapes, and the right to be informed of those rights.
The responsibility to inform victims of proceedings falls on courts and prosecutors.
Commonwealth’s Attorney Bruce Kuegel said the constitutional amendment requires prosecutors to make attempts to contact victims, but said that’s not always easy.
For example, people who are homeless can be hard to notify, Kuegel said. Also, people who move are difficult to track.
The COVID-19 pandemic, in some cases, has made notifying victims more difficult, Kuegel said. When courts closed last year, hearings and trials had to be rescheduled.
“COVID has not been a friend of Marsy’s Law compliance, because cases have been continued longer than we thought they would be,” Kuegel said.
For example, a victim may have been renting an apartment, but moved before their case could be resolved.
“They have moved on,” Kuegel said.
Jones said the right to be notified could result in delays in cases, if a victim can’t be notified, or doesn’t respond.
“I think where part of it becomes problematic is, where do you get the victim’s contact information and say, ‘do you want to be involved?’ ” Jones said. If a victim can’t or hasn’t been contacted, proceedings that should be quick, such as bond hearings, could be delayed, Jones said.
“It seems to be, in some cases, unfair to the defendant to leave them in jail for weeks … because no one has bothered to consult with the victim yet,” Jones said.
While judges can rule on bond without a victim’s input, waiting to hear from a victim “can delay things somewhat,” Jones said.
Kuegel said his office collects contact information about victims and has contacted victims on social media to inform them about hearings.
“We are trying to make sure victims are notified,” Kuegel said. “…It’s an added level of work for us. It becomes a real challenge when you have a case involving multiple victims or victims’ families.”
Daviess Circuit Judge Jay Wethington said the victim’s right to be present at proceedings can be problematic if there is more than one victim.
At trial, witnesses are kept separated before they testify, which means witnesses are ordered out of the courtroom before they are called to the stand.
“Where courts run into problems of interpretation is applying it to two different victims,” Wethington said. “If one (victim) is testifying, is the other allowed in the courtroom?”
That becomes an issue because, potentially, it allows a victim to hear the testimony of another witness and alter the testimony he or she will give later in trial.
“We don’t want them to hear testimony we believe will be different before they give their own,” said B. Scott West, deputy public advocate for the Department of Public Advocacy. The DPA is the public defender agency for the state.
West said DPA is training its attorneys to argue for the separation of witnesses in cases where the attorney believes it is important.
“Marsy’s Law doesn’t make (the victim’s) rights superior” to the defendant, West said.
“We train our attorneys to call upon the judge … to not have a blanket rule” automatically allowing all victims in the courtroom, West said.
Wethington said, “Courts have ruled the constitutional amendment of Marsy’s Law does not supersede a defendant’s right to a fair trial. In application, I think it’s prudent to keep one (victim) out of the courtroom while the other is testifying.”
Marsy’s Law applies to victims of crime. But West said the term “victim” itself raises legal issues, because it prejudices jurors against the defendant.
For example, West said, if a fight results in an assault charge, but the ‘victim’ was the initial aggressor, calling that person the ‘victim’ means “you’re no longer presuming (the defendant) to be innocent.”
Also, Jones said, while the victim can be heard during proceedings, there’s a question of where the victim’s right to speak gets into areas that would normally only be heard at trial, or would be subject to cross-examination by the defense.
“We’ve encountered issues of, ‘do you let people start talking about the case? Are we having a mini trial before the trial?’ ” Jones said.
While Marsy’s Law gives victims the right to be heard at all stages of a court proceeding, it does not take away the power of attorneys to resolve a case as they believe best.
“This is the right to be involved in their cases and be informed as far as pleas,” Kuegel said. “They can stand before the court and say, ‘I think this person, instead of getting five years, should get 10.’ ” The law gives victims “the right to say, ‘I don’t agree with the prosecutor,’ ” Kuegel said.
But the prosecution has the power to resolve a case even if a victim disagrees, Kuegel said.
Wethington said Marsy’s Law does give victim’s rights, but nothing it does can be construed as taking away the rights of defendants.
“What a lot of people, constitutional scholars, know is that states are free to give their citizens more rights, like Marsy’s Law,” Wethington said. “But they can’t give them any less rights than (are in) the U.S. Constitution.”
How the rights of victims and the rights of defendants are both balanced is a matter for the higher courts to decide.
“The Supreme Court is going to have to tell us what the parameters of Marsy’s Law are,” Jones said.
James Mayse, 270-691-7303, [email protected], Twitter: @JamesMayse