Colorado Criminal Law – Representing Victims and Witnesses in Criminal Court and Proceedings – The Rights of Victims and Witnesses
Often the alleged victim in a domestic violence case feels as if her or his call to the police for assistance should NEVER have resulted in a criminal case. Colorado’s mandatory arrest policy flies in the face of what the 911 caller intended. In other cases, the wishes of true victims of crime feel railroaded in that their interests and opinions are ignored – or worse – misrepresented.
The Steinberg Colorado Criminal Defense Law Firm represents victims and non-victims wishing to get charges dropped. This article addresses all aspects of victim representation.
The Role of a Defense Lawyer in Representing Alleged Victims and Witnesses
Criminal defense lawyers are sometimes called upon to represent witnesses and victims in criminal prosecutions. This often entails assisting the prosecution, a role that is uncomfortable to many defense lawyers.
However, the role makes sense. Defense lawyers know the process and the players in it and can guide victims and witnesses through it. We know which cases prosecutors and agents are likely to prosecute and how vigorously.
Prosecutors represent the interests of the citizenry at large, and those interests often diverge from a victim’s. For example, imprisonment might be the best deterrent, but it does nothing to make a victim financially whole. Also, for a prosecutor the case is one among many to be processed and probably compromised, but not to the victim. Finally, prosecutors sometimes treat witnesses as a tool in their case, rather than as individuals to whom the process is an inconvenience and embarrassment.
Recent victims’ rights statutes obligate prosecutors to protect victims and to notify them of court proceedings and enable victims to be heard at important proceedings such as bail hearings, pleas and sentencing. Colorado’s statute is known as the Victim’s Bill of Rights.
Colorado Victim’s “Bill of Rights”
In 1992, Colorado passed a constitutional amendment that provides crime victims with certain and specific rights. The principal of the Amendment is to ensure that the justice system provide victims with rights that are pursued and enforced with the same diligence as those rights guaranteed to criminal defendants with the understanding that victims of crime, through no fault of their own, suffer physical, emotional and financial loss. Their lives are irrevocably changed, as are the lives of their family and friends.
Here is the Colorado Victim’s Bill of Rights Law:
The Constitution of the State of Colorado and the laws of this state guarantee rights to the victims of the following crimes:
• Murder in the first or second degree
• Criminally negligent homicide
• Vehicular homicide
• Assault in the first, second or third degree
• Vehicular assault
• First or second degree kidnapping
• Sexual assault
• Unlawful sexual contact
• Sexual assault on a child
• Sexual assault on a child by one in a position of trust
• Sexual assault on a client by a psychotherapist
• Robbery, Aggravated Robbery & Aggravated Robbery of controlled substances
• Incest and Aggravated Incest
• Child abuse
• Sexual exploitation of children
• Certain crimes against at-risk adults or at-risk juveniles
• Domestic Violence crimes
• A bias-motivated crime
• Careless driving that results in the death of another person
• Failure to stop at the scene of an accident where the accident results in the death of another person
• Any criminal attempt, criminal conspiracy, criminal solicitation, accessory to a crime involving any of the crimes specified in this subsection
• Retaliation against or tampering with a witness or victim, Intimidating a witness or a victim and Aggravated Intimidation of a witness or a victim
• Indecent exposure
• Violation of a protection order issued under section 18-1-1001, C.R.S.
(If the victim is deceased or incapacitated, these rights are guaranteed to the victim’s spouse, parent, child, sibling, grandparent, significant other or other lawful representative.)
Victims of the crimes listed above have the right to:
• Treatment with fairness, respect and dignity.
• Information on all charges filed and assurance of swift and fair resolution of the proceeding.
• Input into decisions regarding plea bargains and to be present and have input at sentencing and parole hearings.
• Information regarding restitution or civil remedies.
• Release of property within five (5) days after the case is settled and the property is no longer needed as evidence.
• Be informed about what steps can be taken if he or she is subjected to intimidation or harassment.
• Assistance with employment problems resulting from being the victim of a crime.
• Notification of all case dispositions, including appeals.
• Timely notification of all court dates.
• Secured waiting area when available.
• Information regarding community resources and other information that will assist recovery.
• Notification of any change in the status or the release from custody of the accused.
After a person is convicted of a crime against a victim and upon the written request of that victim, state or local correctional authorities will notify the victim of:
• The institution where the person is incarcerated or otherwise being held.
• The projected release date of the person.
• Any release of the person including furlough, work release or community corrections in advance of release.
• Date and location of scheduled parole hearings.
• Any escape of the person from a correctional facility or program.
• Any release or discharge from confinement of the person and conditions of that release.
• The death of the person while in a correctional facility or program.
In addition, upon request of the victim, correctional officials will keep confidential addresses, phone numbers, and places of employment or other personal information of the victim or the victim’s immediate family.
These statutes sometimes place the prosecutor in a conflict between the interests of the public and the government on one side and the victim on the other. The solution is independent counsel for the victim.
Vigorous advocacy for the victim also might benefit the defendant. Sanctions such as full and immediate restitution and agreement to civil protective orders further the victim’s interests, and the defendant might have incentive to pursue them if they are presented as alternatives to prosecution or incarceration.
The Defense Lawyer Should Be Certain that the Witness is “Just a Witness”
Individuals or entities who seem to be victims might turn out to be targets of prosecution. This means the prosecutor and investigating agents may be hiding their true intent as to how the alleged witness is viewed.
The lawyer should determine – as much as possible – how law enforcement views the witness. Are they hesitant. Do they seem to be holding back information?
Your Lawyer Can Help Explain the Process to You
One of the most helpful services a lawyer can perform for a victim or witness is to explain how the criminal process works and its timetable. The lawyer should not assume any knowledge on the client’s part, no matter how sophisticated. The legal process is complex and your lawyer should explain the process from start to finish, with emphasis on the client’s role at each step:
The Pre-Charging Investigation Representation
Your lawyer would accompany you when you are interviewed by the police. They usually do not record the interview, and there will not be a court reporter. The lawyer is present when you should share all you know about the offense.
If charges result and the case goes to trial, the defendant may receive a report of the interview in discovery, and you would be cross-examined on inconsistencies between the interview and his testimony. Your lawyer can assist you in preparing for that event.
The arrest, initial appearance and setting of bail
Preliminary Hearing or Grand Jury. Defendants almost always lose at the preliminary hearing or indictment stage, but this does not mean that the case will end soon.
Formal arraignment, pre-trial conferences and discovery and motion practice. There are a number of court appearances dealing with legal issues, and that, for the most part, these do not affect the victim or witness.
Informal investigation by the defense. The defense may attempt to interview any potential witnesses. The witness will have to decide whether or not to cooperate with such efforts
Plea bargaining. If the witness is also a victim, the prosecutor is required to consult the victim before agreeing to any plea bargain. Plea bargaining is not an open, on-the-record process. It takes place in informal discussions on the phone, in offices, and in courthouse hallways. Victims do not have a direct opportunity to attend.
Trial. A victim should understand the mechanics of a trial: the sequence of jury selection, openings, examinations and closings. Also the lawyer should explain witness sequestration and the inevitable postponements, delays and waiting. Also a defendant cannot be forced to testify, so the jury and the victim may never hear his or her story.
The presentence investigation. After conviction, but before sentence, the victim can provide the presentencing investigator with information on the impact of the crime and any restitution. This will be reported in a psir or presentence report which the parties, but not the public, will review and upon which the judge will rely at the sentencing hearing.
Deciding Whether to Go to the Police
If the person represented has been victimized. Is there a requirement that he or she go to the police?
Two threshold issues need to be addressed:
The lawyer should make certain that there is absolutely no risk of criminal exposure. ensure your client is just a witness.
Whether the witness is skirting with being charged – depending on the role they may – or may not – have played in a case.
A criminal prosecution may result in harm even if he or she was uninvolved in ANY of the defendant’s wrongdoing. For example, the witness may be the an estranged spouse who depends on the wrongdoer for support. Incarceration may end that support, – anger under these circumstances toward the defendant may have clouded the victim’s judgment in either calling the police or in making a statement to the police that may have been untrue.
Also, innocent spouses may find that jointly held properties acquired after the offense are not safe from forfeiture because the forfeiture statutes exempt only bona fide purchasers for value, and spouses and family members usually are not considered purchasers for value no matter their bona fides ( good faith purchase ) otherwise.
Even if these concerns do not apply, turning over the matter to the prosecuting authorities still may not be in the victim’s best interests:
Criminal remedies are quite modest. Prosecutors and judges often compromise restitution awards to avoid protracted hearings on the issue.
Criminal prosecutions are public, and the defense is entitled to investigate witnesses’ and victims’ backgrounds and cross-examine them vigorously in an attempt to undermine their credibility. The victim’s involvement might become especially traumatic in a minor alleged sexual touching or harassment case, but public exposure of even a business’ victimization by an employee might become more embarrassing to the victim in the long run.
Taking the case to the criminal authorities might diminish the chances of obtaining restitution. A person charged with a crime will dedicate what financial resources he has to defending his liberty, leaving little to make a victim whole. A private civil action might address the victim’s needs more appropriately, especially in the case of an economic crime. There is also the possibility of an aquittal after a criminal trial.
Consider the prosecuting authorities’ policies on civil settlements. Sometimes local prosecutors will dismiss a charge if the restitution satisfies the victim.
Other jurisdictions, in particular federal prosecutors, have a policy that defendants should not be able to buy their way out of prosecution. Once the office commits to prosecuting, it will rarely dismiss charges in exchange for restitution.
The victim CANNOT THREATEN A PROSECUTION in order to elicit a financial settlement. Using a threat of prosecution to induce restitution may constitute the a crime similar to extortion under the laws of Colorado even if the accusation is well-founded.
The Case Should Be Packaged for the Prosecution
If the victim ultimately decides to contact the police, there are steps the lawyer can take to see that the case is prosecuted vigorously.
To increase the likelihood that the police and prosecutor will pursue the victim’s case vigorously, the lawyer can:
Interview witnesses, including the perpetrator, and record them or dictate memoranda capturing the interview.
Do a MORE THOROUGH records check on the perpetrator, including criminal records, bankruptcy, judgments, UCC filings. Trace his assets.
Collect and index the important documents.
Organize all this in a binder with a summary explaining how the enclosed evidence establishes the elements of the offense the victim wants to see prosecuted.
Calculate the possible sentences under the applicable sentencing statutes and guidelines. Prosecutors are more likely to take a case if it will result in a serious sentence.
LAWYERS CAN ACT TO PROTECT THE WITNESS – VICTIM
A Lawyer Can Assist in Obtaining Police Protection and Bail Recommendations
The lawyer can spell out in great detail to the police and prosecutor all concerns the victim has about the threat the defendant might pose to the victim’s safety as early in the process as possible so that they can address those concerns in their bail recommendation.
Pursue an after-hours contact person should the victim be threatened or harassed. law enforcement has an obligation to listen and accommodate the victim’s concerns.
Some victims’ rights statutes confer on the victim the right for the victim to address the court in person at a bail hearing.
If your the victim wants to appear and make a statement, the lawyer can assist the victim to prepare the statement nd prepare the victim for any questions the judge or the defense may ask.
The focus her is on the proceeding’s purpose, which is to determine detention or conditions of release, not issues such as restitution or punishment.
Filing Motions to Quash the Subpoena
The parties may subpoena the witness to testify in a trial that the witness may want to avoid.
Prosecutors usually try to avoid side issues that might confuse the jury or distract it from the defendant’s guilt. In contrast, defendants might try to subpoena witnesses to create just such diversions or to fix blame on the witness.
If your lawyer perceives that the witness is being called for some irrelevant purpose, he can move to quash the subpoena.
Motions to quash must be filed with the Court sufficiently in advance of the time for the testimony that is sought so that the judge will have time to consider it, but not with so much notice that the opposing party will have time to concoct new reasons for your client’s testimony. Even a judge busy with a trial will indulge such a motion if he or she senses that the party is trying to muddy and protract the trial with collateral issues.
If the witness does not want to testify, it is best to keep the party from speaking with the witness and to avoid the opposing party from previewing the witness’s testimony. No one wants to call a witness not knowing what he or she will say. If there is some basis for it, it might be a good idea to suggest to the party’s lawyer that the witness may have harmful testimony to offer that might come out during trial if called.
Subpoenas for documents – sometimes referred to as SDT’s must specifically identify the documents to be produced, and, absent a court order, the subpoena cannot order production any time prior to the testimony.
Representation of Colorado Whistleblowers
If the witness provides information against an employer, especially concerning fraud on the government, whistleblower statutes may protect him from retaliation and even entitle him to remuneration.
A Colorado Criminal Defense Lawyer Can Well Serve As Liaison With the Police and Prosecutor
Many witnesses become frustrated by the criminal justice system: they show up for hearings that have been cancelled, and they suffer prolonged waits for those hearings and trials which do take place.
The lawyer is in a position to ask the police and prosecutor to contact the lawyer when anything significant occurs in the investigation or case so the lawyer can investigate the matter and then communicate it to the witness (e.g., the arrest of the defendant, court hearings and postponements, trial, plea and sentencing dates).
Tke lawyer can serve as a liaison with the witness. If the lawyer can demonstrate to the prosecutor or the defense that the witness can be produced promptly and on short notice, the prosecutor is more likely to give you a specific time and date for the court appearance rather than making the witness sit around through days of other witnesses’ testimony.
Defense Access to the Witness
Usually, if you are either a victim or a prosecution witness, you may not wish to speak to the defense lawyer. This is YOUR decision. The lawyer cannot influence that decision but can explain your rights as a witness. Lawyers must encourage ALL WITNESSES to cooperate in the interests of justice… but then make it clear – it is their decision in the final analysis.
The defense attorney in the case will interview the witness as would a government lawyer would. That is, the interview will focus on exculpatory statements and memorialize inconsistencies in a report slanted to make the witness seem as unreliable as possible. The interview will be used to make the witness look bad on the witness stand and in the eyes of the prosecutor.
The witness’s lawyer will preview, in the witness’s words the testimony for the defense. Prosecutors can be stingy in sharing their evidence, especially witness statements. A witness’s lawyer may describe his client’s expected testimony in order to persuade the defense lawyer to strike a deal in the case rather than going to trial.
What the witness tells his lawyer is clearly protected by the attorney-client privilege. However, what the lawyer tells the prosecution, even in the witness’s presence, is not privileged.
The witness’s lawyer will contact the defense attorney and instruct him to direct all subpoenas and requests for interviews to the witness’s law form. The lawyer will warn his client that the defense lawyer or a defense investigator may contact him and only him directly.
The witness will be assured that such efforts are not illegal, but should anyone contact the witness, the witness should say nothing and have the authority or the defense lawyer contact the witness’s law firm.
Subpoenas (from either the defense or prosecution) cannot command the witness to appear or produce documents anytime before the trial or hearing date for that purpose. If your client receives a subpoena commanding pre-trial production of documents or his appearance at a lawyer’s office not at a hearing or trial, call the lawyer and explain that unless the court orders such early production or appearance, your client will not comply. Send a letter memorializing the conversation. If the lawyer persists, move to quash.
On the other hand, you may choose to produce documents to the defense before trial to avoid your client’s appearance or delay at trial.
After a case is concluded and the defendant imprisoned, you should see that your client is protected upon the defendant’s release.
The prison has an obligation to provide notice of release or escape, and you can make your client’s position known to the parole board.?
REPRESENTING THE VICTIM AT SENTENCING
Three Rights at Sentencing
The victim has at least three rights at sentencing:
To be heard.
To see that conditions are imposed to protect the witness from the defendant
To obtain restitution.
Most sentencing decisions are made well before the actual sentencing hearings, on the basis of the presentence report and objections and other materials which the parties submit to the judge.
Therefore, to protect the victim – the lawyer should confer with the probation officer and prosecutor before sentencing and make written submissions to them and the court stating the victim’s position.
The Right to Be Heard
A crime victim has a right to be heard.
The victim has a right not only to submit written victim impact statements, but to address the court orally at sentencing.
This includes the right to argue for sentencing enhancements that the prosecution has agreed to forego.
The Victim Can Oppose No Contest Pleas
A criminal conviction by plea or verdict may have collateral estoppel effect in civil litigation arising from the same transactions; at the minimum, a plea constitutes strong evidence that that the defendant under oath admitted the essential elements of the offense. However, a conviction by plea of nolo contendere may not have such an effect.
The victim can oppose the acceptance of a no contest plea, both by conferring with the prosecutor and appearing in court to voice objections to the judge.
RESTITUTION AND OTHER COMPENSATION
A crime victim has a right to restitution.
Furthermore, both the probation officer and prosecutor have an obligation to provide the victim an opportunity to state his position on loss and restitution.
Nevertheless, the victim’s lawyer should take the initiative. The prosecutor’s goal often is more to end the case then to protract it with investigation and litigation over damages. The lawyer calculate the loss, including all consequential damages and interest.
Prosecutors often seize and forfeit all assets derived from or traceable to the crime. The lawyer can facilitate the restoration by responding promptly and fully to any requests for loss information and persistently making the victim’s position known.
The victim also have a right to submit a separate affidavit or victim impact statement on loss.
Reviewing the Colorado Presentence Report
The victim has the right to review the presentence report and the recommendation regarding restitution. The court will rely on the report in arriving at a restitution figure, so the lawyer will want to know its bottom line. If the presentence report is unsatisfactory, the lawyer will want to voice the objection to its calculation of the loss the defendant caused to the victim.
You can sidestep this issue by asking the probation officer and prosecutor to share with you not the report itself but part of its contents (e.g., the calculations and conclusion on restitution and the defendant’s ability to pay).
Converting A Colorado Criminal Restitution Order to an Executable Civil Judgment
Most defendants do not have the ability to pay full restitution immediately. The sentence may permit them to pay it over time, often as a condition of probation, parole or supervised release.
The criminal judgment may expire with the end of the supervision term, but Colorado criminal statutes authorize the victim to convert the criminal judgment into a civil judgment and execute it accordingly.
The victim named in the restitution order and the prosecutor can request that the clerk enter a judgment based on the restitution order. The lawyer can assist and see that it gets recorded and entered as a lien on the defendant’s property.
The restitution order requires the defendant to notify the court and prosecutor of any change in circumstances that might affect his ability to pay restitution and likewise requires the prosecutor to notify the victim of the change.