State Victim Notification and Consultation Rights Prior to Criminal Charges

Page 28 of 31 104 J. Crim. L. & Criminology 59, *99 advise the victim about any plea negotiations. 734 Interestingly, however, the Hawaii legislature defined "major developments" as "arrest or release of the suspect by the police, case deferral by the police, referral to the prosecutor by the police, rejection of the case by the prosecutor, preliminary hearing date, grand jury date, trial and sentencing dates, and the disposition of the case." 234 The usage of the term "case" and the plain language of the provisions demonstrate that victims in the State of Hawaii are entitled to a notification right and a possible consultation right long before formal charges are filed. [*100] Other states also expressly extend rights before the filing of charges. Colorado guarantees rights at "all critical stages of the criminal justice process[,]" which includes both the filing of charges and the decision to not file charges. 73° In Missouri, victims have the right: on charged cases or submitted cases where no charge decision has yet been made, to be informed by the prosecuting attorney of the status of the case and of the availability [of different forms of compensation and assistance] and of any final decision by the prosecuting attorney not to file charges. 77° In New Jersey, officials typically send a letter informing the victim "that the case has been referred to the prosecutors' office and explains and offers the services available from the country office of victim-witness advocacy." 737 Subsequent letters to the victim ensure that the victim has notice of a series of decisions long before indictment, 73% and the office actively solicits information in order to "help the prosecutor's office decide whether or not to prosecute a case." 73? Along a similar vein, the Massachusetts legislature included a provision that makes it clear that nothing should prevent a prosecutor from providing victim services to persons injured by the commission of a crime, even though a complaint or indictment has not yet been issued, 24° In addition to extending rights before the filing of charges, several states require consultation before the prosecutor reaches a plea agreement with the defendant. For example, Idaho's statute provides that a victim must be given an opportunity "to communicate with the prosecution in criminal or juvenile offenses, and be advised of any proposed plea agreement by the prosecuting attorney prior to entering into a plea agreement in criminal or juvenile offenses involving crimes of violence, sex 8 Under Arizona law, the "rights and duties that are established by this chapter arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offence against a victim.” Ariz. Rev. Stat. Ann. § 13-4402(A) (2010) (emphasis added). 229 Ariz. Rev. Stat. Ann. § 13-4419(A) (2010). 230 See Ariz. Rev. Stat. Ann. § 13-4402.01(A). 231 Tt appears, however, that the criminal proceeding may have been parallel to the civil forfeiture proceeding. See State v. Lee, 245 P.3d 919, 923-24 (Ariz. Ct. App. 2011). 232 Haw. Rev. Stat. Ann. § 801D-4(a)(1) (LexisNexis 2007). 233 See id. 234 Td. § 801D-2. 5 Colo. Const. art. II, § 16a; Cole. Rev. Stat. § 24-4.1-302(1) (2013). But see Colo. Rev. Stat. § 24-4.1-302.5()(f) (2012) (limiting conferral right, in particular, to later stages of a criminal proceeding). Despite these limitations on the conferral right, victims retain the ability to be heard at any hearing involving a plea. See id. § 24-4.1-302.5. 236 Mo. Ann. Stat. § 595.209(10) (West 2011). 237 Office of Victim-Witness Advocacy, N.J. Dep't of Law & Pub. Safety, A Crime Victim's Guide to the Criminal Justice System 4 (2d ed. 1997); see also N.J. Const. art. I, § 22. Compare /8 U.S.C. § 3771] (2012), with N.J. Stat. Ann. § 52:4B-36 (West 2009). In addition to the rights similar to the federal legislation, New Jersey law provides for the right "to be advised of case progress and final disposition and to confer with the prosecutor's representative so that the victim may be kept adequately informed ... ." Id. § 52:4B-36(k). DAVID SCHOEN HOUSE_OVERSIGHT_017631