By Nancy Tung
The criminal justice system can seem complex and downright nonsensical. There’s a whole set of legal vernacular — like “preliminary hearing” — that otherwise has no meaning in real life. And your case can be dismissed without your knowledge.
For victims, this can be maddening and even inflict more trauma. But it’s not supposed to be this way. In California, we have a Victim’s Bill of Rights. It was passed by voters in 2008 as a state constitutional amendment called Marsy’s Law.
Marsy’s Law contains 17 rights that victims have in the criminal justice system. Stop Crime SF wants all victims to know their rights. Although there are rights not covered in this post, here are some of the most important aspects of Marsy’s Law:
Freedom From Harassment
Marsy’s Law promises the right to be “treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.” Victims often feel like they are being victimized a second time when a defense investigator won’t leave them alone.
Knowing your rights is imperative in these situations. Crime victims also have a right to be “reasonably protected” from the defendant and their agents. Without a court order, neither the defense nor the prosecution can force a victim to do anything. That includes voluntarily talking to them. Always ask for identification if contacted by someone in person or by phone. A victim has a right to make an informed decision whether to talk to someone or not.
Marsy’s Law originated from circumstances surrounding the 1983 murder of Marsalee (Marsy) Nicholas. According to the Marsy’s Law website, a week after Marsy’s death, her mother and brother were confronted by her ex-boyfriend/murderer, not knowing he had been released on bail. Now, under Marsy’s Law, victims and their families have a right to have their safety considered in a judge’s decision on bail and release.
The Right To Information — By Request
The best way to protect your rights is to inform the prosecutor from the outset that you wish to be informed of all proceedings under Marsy’s Law.
Some victims might be able to rely on a diligent prosecutor to inform them of developments in the case. But many victims never find out if they don’t request to be informed. Under Marsy’s Law, victims have the right to confer with a prosecutor at certain stages of the case upon request. And, a victim has the right to be informed prior to a plea deal only upon request. Likewise, the right to be heard at all public proceedings, such as a defendant’s release or sentencing, is a right that has meaning only if the victim requests to be heard.
If you have been a victim of crime, you do not need to wait for the prosecutor to contact you. Being proactive and initiating contact with the prosecuting agency will help ensure you can assert your rights and also signal to the prosecutor that you are interested in seeing the case prosecuted.
The Right To A Speedy Trial
Marsy’s Law gives victims the right to a “speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.”
Criminal courts tend to be overcrowded and the priority for cases can often be manipulated by the defense, particularly in San Francisco. The defense might not assert a right to a speedy trial if the defendant is out of custody. Likewise, in cases where delaying a case makes it weaker for the prosecution, a defense attorney would be content to let the case languish. If there is a likely state prison sentence, a defendant may delay sentencing so as to spend more time in the local county jail than a distant prison.
All of these delays can wreak havoc on a victim’s psyche. They can exacerbate feeling unsafe, and prolong anxiety over testifying. Delays might force victims to take multiple days off from work or school only to find out that a hearing is not going to occur.
While not a perfect solution, a victim’s right to a speedy trial and prompt resolution of a case can mitigate the delay. If the prosecutor doesn’t assert the right for you, a victim can go to a hearing and tell the judge in open court they want a speedy trial. This should be done in consultation with the prosecutor, since there may be evidentiary or strategic reasons why moving the case at breakneck speed may not be advantageous to the case.
Marsy's Law applies to all crimes whether felony or misdemeanor, violent or nonviolent. Marsy’s Law applies to an auto burglary just as it would to a home invasion robbery.
The police and prosecutors should be informing victims so they know about their Marsy’s Law rights, but that doesn’t always happen.The bottom line is that victims have rights, too. Just as defendants are famously informed of the right to remain silent and to have an attorney, victims must also be informed of their rights. Only then can victims be empowered to protect their interests in the criminal justice system.
Nancy Tung was as assistant district attorney in San Francisco from 2006 to 2017. She is currently a prosecutor in Alameda County and lives in San Francisco. Tung also serves on the Stop Crime SF board of directors. The views in her blog posts are her own and not of her employer or the Stop Crime SF board.