Legal analysis of victim‑rights and venue transfer provisions

Page 46 of 78 2007 Utah L. Rev. 861, *925 community. 37? The provision is designed to secure a trial within the same political community ("the state") in which the 373 victim would likely reside. The Supreme Court's decisions on right of public access to trials bolsters the understanding of the Article II's provision to protect the community interest. In cases such as Richmond Newspapers, Inc. v. Virginia, the Court has held that implicit in the First Amendment is a guarantee of the public's right to attend trials. 3”4 Compelling victims’ interests underlie this guarantee. As the Court has explained, "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct." 37> And as Justice Blackmun has emphasized, "The victim of the crime, the family of the victim, [and] others who have suffered similarly, ... . have an interest in observing the course of a prosecution." 37° Victims are vitally interested in observing criminal trials because society has withdrawn "both from the victim and the vigilante the enforcement of criminal laws, but [it] cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution." 377 For purposes of this Article, it is not necessary to definitively trace how victims' constitutional interests play out against a defendant's right to avoid a prejudicial trial. The very limited point here is merely that victims should be heard on any transfer, so that a judge can make a fully informed decision. Even if the judge determines to transfer a case, the victim may have valuable information for the judge on where to transfer the case (for example, to an adjacent district or state [*926] rather than a distant one) or how to impanel an unbiased jury (for example, importing a jury rather than exporting the trial). 376 An illustration of the general approach of the proposed rule comes from the leading case of State v. Timmendequas, 37? decided by the New Jersey Supreme Court. In Timmendequas, the trial judge imported a jury from a distant community to hear a capital case rather than forcing the family of a murdered young girl to travel to another district. 78° 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: 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. 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 mmimized to the fullest extent possible." 372 See also Drew L. Kershen, Vicinage, 29 Okla. L. Rev. 801 (1976). See generally Cassell, Proposed Amendments, supra note 4, at 880-84; Steven A. Engel, The Public's Vicinage Right: A Constitutional Argument, 75 N.Y.U.L. Rev. 1658 (2000). 373 See United States v. Bishop, 76 F. Supp. 866, 868 (D. Or. 1948). 374 448 U.S. 555, 575-76 (1980). 375 Press-Enter. Co. v. Superior Court, 464 U.S. 501, 509 (1984). 376 Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., concurring in part and dissenting in part). 3 x 7 Richmond Newspapers, 448 U.S. at 571. 3 x 8 See generally Beloof, Cassell & Twist, supra note 6, at 392-99 (reviewing caselaw on the victim's interest in venue decisions). 379-737 A.2d 55 (N.J. 1999), cert. denied, 534 U.S. 858 (2001). 380 Id. at 64-69. DAVID SCHOEN HOUSE_OVERSIGHT_017681