ACLU Challenges Constitutionality of Arizona Victims’ Rights Law

July 28, 2017 Posted in Violent Crimes

On May 8, 2017, ACLU of Arizona filed a complaint in federal district court challenging the constitutionality of A.R.S. § 13-4433(B) and (C) known as the Arizona Victims’ Rights Law. The information below comes from the complaint.

A.R.S. § 13-4401(19) defines “victim”:

“Victim” means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person’s spouse, parent, child, grandparent, or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person’s spouse, parent, child, grandparent, sibling, or other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.” Originally found on http://www.azleg.gov/ars/13/04401.htm

A.R.S. § 13-4433(B) states:

“The defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office. The prosecutor’s office shall promptly inform the victim of the defendant’s request for an interview and shall advise the victim of the victim’s right to refuse the interview.”

A.R.S. § 13-4433(C) states:

“The prosecutor shall not be required to forward any correspondence from the defendant, the defendant’s attorney or an agent of the defendant to the victim or the victim’s representative.” Read all victim’s rights at http://www.azleg.gov/ars/13/04433.htm

These laws are unique to Arizona. While the goal of protecting victims from potential defense harassment and intimidation is admirable, the laws actually prevent defense attorneys from interviewing victims since few victims consent to defense interviews once the prosecutor informs them that they have the right to refuse them. Many crimes pit the defendant’s credibility against the victim’s; sex offenses are serious crimes where it’s often the defendant’s word against the victim’s. The laws force defense attorneys to literally interview the victims when they cross-examine them at trial.

The United States Supreme Court has deemed it imperative that a defense attorney in a capital case at the very least reach out and attempt to make contact with all witnesses in the case in Wiggins v. Smith, 539 U.S. 510 (2003). As the ACLU argued in the complaint:

“40. In a capital case, the defense team’s duty to investigate often includes making overtures to the family of the deceased in an effort to understand whether they desire the death penalty for the perpetrator or would be satisfied with a lesser sentence, such as life imprisonment without parole. Victim impact testimony is often critical to the jury’s determination of the appropriate sentence in a capital case and if defense counsel can persuade the victim’s family not to desire the death penalty, it can literally save the life of a defendant. In addition, prosecutors will sometimes acquiesce to the wishes of the victim’s family and drop their demand for death. A.R.S. § 13-4433(B) prevents the defense team from engaging in these efforts. Read more at http://tucson.com/news/local/crime/criminal-defense-attorneys-seek-changes-to-arizona-s-victims-bill/article_fe1e4a59-51b8-5d4f-800a-391fc00abc30.html

41. In capital cases where a relative of the defendant is the victim, often the best sources of evidence regarding mitigation critical to saving a defendant’s life is found with the defendant’s family, which is also the victim’s family. A.R.S. § 13-4433(B) precludes the Plaintiffs from speaking to those crucial witnesses except by using the prosecutor as an intermediary”

The Plaintiffs, Arizona Attorneys for Criminal Justice and individuals adversely affected by the laws, argued that A.R.S. § 13-4433(B) violates their First Amendment right to attempt to speak to witnesses who are defined as “victims” without the compulsion to use a government go-between and that A.R.S. § 13-4433(B) is unconstitutionally overbroad since it eliminates all speech of any kind between them and victims.

If you are charged with a crime, you need an experienced defense attorney (Like Gary Rohlwing) who knows how to effectively represent you in spite of the Arizona Victims’ Rights Law. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free initial consultation. Call the Law Offices of Gary L. Rohlwing for a free initial case consultation at (623) 937-1692.

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