A Victim’s Guide to the Criminal Justice System€¦ · information to everyone but the defense...

A Victim’s Guideto the Criminal

Justice System

VCRC_GuideToCriminalJusticeSystem2015_v2.indd 1 2/4/2016 12:41:03 PM

Victims’ Legal Resource Center (VLRC)About UsThe Victims’ Legal Resource Center (VLRC) is located on theMcGeorge School of Law campus in Sacramento, California. We educate victims and their families, victim service providers, and other victim advocates on:

} Victims’ legal rights,

} Victims’ compensation,

} Restitution,

} Civil suits, and

} Additional rights of domestic violence and abuse victims (including elders, children, and people with disabilities).

We also offer:

} Technical assistance and legal research to victim service providers, and

} Free “Know Your Rights” presentations to community groups.

We operate 1-800-VICTIMS – the statewide, toll-free hotline that gives confidential information and referrals to victims, their families, victim service providers, and victim advocates. The hotline is staffed by McGeorge law students and supervised by lawyers.


Section Topics Page Number

Section 1

Marsy’s Law and the Crime Victim .............................. 1

Section 2

Initial Police Contact ................................................. 9

Section 3

Filing Criminal Charges .............................................. 15

Section 4

First Court Appearance ............................................. 19

Section 5

Pre-Trial .................................................................. 25

Section 6

Trial........................................................................ 29

Section 7

Sentencing .............................................................. 33

Section 8

Post Sentencing ....................................................... 39

Section 9

Resources For Victims of Crime .................................. 43

Table of Contents


Victims’ Legal Resource Center l 1

Section 1

Marsy’s Law and the

CriMe ViCtiM


2 l Victims’ Legal Resource Center



What is Marsy’s Law?

} On November 5, 2008, Marsy’s law, also known as the Victims’ Bill of Rights, was enacted with the passage of Proposition 9.

} This law provides crime victims with 17 rights in the California Constitution.

Who is a Crime Victim?

} Marsy’s Law defines a crime victim as “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.”

} Under Marsy’s Law, a close family member, guardian, and legal representative are also considered a victim, sharing all the rights and protections given to the direct victim.

“The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern.”- Cal.Const. Art. I, § 28(b)(13)(C)



What are your Marsy’s Law Rights?

1 FAIRNESS AND RESPECT

Victims have 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.

2 REASONABLE PROTECTION

Victims have the right to be reasonably protected from the defendant and persons acting on behalf of the defendant.

3 CONSIDERATIONS OF VICTIM SAFETY IN BAIL PROCESS

Victims have the right to have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.

4 CONFIDENTIAL INFORMATION

Victims have the right to prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which discloses confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.



5 REFUSE INTERVIEW WITH THE DEFENSE

Victims have the right to refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.

6 REASONABLE NOTICE & CONFERENCE WITH PROSECUTION

Victims have the right, upon request, to reasonable notice of and to reasonably confer with the prosecuting agency, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.

7 NOTICE OF AND PRESENCE AT PUBLIC PROCEEDINGS

Victims have the right, upon request, to reasonable notice of all public proceedings, including delinquency proceedings, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.

8 HEARD AT ANY PUBLIC PROCEEDING

Victims have the right, upon request, to be heard, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.

9 SPEEDY TRIAL & PROMPT CONCLUSION OF CASE

Victims have the right to a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.



10 PROVIDE INFORMATION TO PROBATION DEPARTMENT

Victims have the right to provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.

11 RECEIVE PRE-SENTENCE REPORT

Victims have the right, upon request, to receive the pre-sentence report when available to the defendant, except for those portions made confidential by law.

12 INFORMED OF CONVICTION, SENTENCE, INCARCERATION, RELEASE, AND/OR ESCAPE

Victims have the right, upon request, to be informed of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.

13 SEEK AND SECURE RESTITUTION

Victims have the right to restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.

Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.

All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.



14 PROMPT RETURN OF PROPERTY

Victims have the right to the prompt return of property when no longer needed as evidence.

15 INFORMED AND INVOLVED WITH PAROLE PROCESS

Victims have the right, upon request, to be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, of the parole or other release of the offender.

16 CONSIDERATION OF VICTIM SAFETY IN PAROLE DECISION

Victims have the right to have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made.

17 INFORMED ABOUT VICTIMS’ RIGHTS

Victims have the right to be informed of the rights enumerated above.



Marsy’sLaw

Right #

STOP! } Look out for this icon above to be informed of your Marsy’s Law Rights as you navigate through each stage of the Criminal Justice System.

} Refer back to Section 1 of this booklet for each corresponding Marsy’s Law Right #.

} If the victim feels as though his/her rights are being violated, he/she may contact the National Crime Victim Bar Association and hire a victims’ rights attorney to help enforce those rights: 1-202-467-8700.



Section 2

initiaLPoLiCe

ContaCt



Investigation Process:

} Victims should file a report regarding any criminal activity, including, but not limited to:

- Arson - Assault/Battery - Burglary - Carjacking - Child Abuse - Child Pornography - Cyber Crime/Revenge Porn - Domestic Violence - Drunk Driving - Elder Abuse - Fraud - Harassment - Hate Crime - Homicide/Shooting - Human Trafficking - Identity Theft - Kidnapping - Rape/Sexual Assault - Robbery - Stalking - Theft - Vandalism - Vehicle Collisions

} Victims should contact the police, even if the offender is not present.

} Police will respond to the scene of a reported incident to determine if a crime was committed.

} During this process, the police will interview potential witnesses and the victim, and will also collect any evidence.

} Victims may request to have police reports amended to include information that may have been forgotten or mistakenly given.

} If the police determine that a crime has been committed, they will either arrest the offender at the scene of the crime or arrest the offender later with an arrest warrant from the District Attorney’s Office.

Marsy’sLaw

1, 2, 4, 17



Checklist of Information to Give to the Police:

� Description or names of anyone involved in the crime (including physical characteristics, height, weight, gender, race, hair color, eye color, age, identifying marks/scars/tattoos/missing teeth, clothing, smell, direction of flight).

� Description or names of anyone who witnessed the crime.

� Registration/license number of any vehicles that were at the scene of the crime.

� Detailed chronological series of events.

� Any communication from the offender(s).

� Descriptions, identifying marks, or serial numbers of any stolen or damaged property.



Common Issues of Concern at this Stage:

Will My Information be a Part of the Public Record?

Some of the information obtained during the investigation process will become public record. The right to privacy under Marsy’s law provides victims with a right to keep their contact information private.

If the case proceeds, Marsy’s law prevents disclosure of the victims’ information to everyone but the defense attorney. However, the victim has the right to refuse the defense team’s request for interview.Cal. Const. Art. 1 § (b)(1), Penal Code § 841.5.

Do I have the Right to Receive a Copy of the Police Report?

The victim may have the right to information contained in the police report in their case.

Generally, certain information contained in the police report is part of the public record. This includes information about the description of the person arrested and the circumstances of the arrest. The victim has the right to any information that is classified as public record, and also has rights to additional information as listed in California Government Code § 6254(f). Law enforcement is required to “disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of parties involved in the incident, the statements of all witnesses, other than confidential informants.”

Exceptions to information in the public record include the portion of the investigative file that reflects the analysis or conclusion of the investigative officer, or any information that would endanger the safety of the person involved in an investigation or the successful completion of the investigation or a related investigation. Cal. Gov’t Code § 6254(f). If a victim is denied access to information about his or her case, the victim can request that the court review this decision.

Police Reports are forwarded to the District Attorney’s office for possible filing of criminal charges.



Section 3

FiLingCriMinaL Charges



Overview of Filing Criminal Charges

CRIME INCIDENT

POLICE INVESTIGATION

DISTRICT ATTORNEY’S OFFICE

} In criminal matters, the District Attorney (“DA”) determines whether there is sufficient evidence to prove that a crime has occurred

} If the DA finds that there is not sufficient evidence, no charges will be filed and the accused person is released

} If the DA finds that there is enough evidence, charges are filed in the form of a complaint

FELONYThe defendant can be charged with a felony, which is a more serious crime, punishable by a fine and/or death or imprisonment, exceeding 1 year

MISDEMEANORThe defendant can be charged with a misdemeanor, which is a less serious crime, punishable by a fine and/or imprisonment, not to exceed 1 year

Marsy’sLaw

1 - 6, 17



Resources for Victims at this Stage

Victim Witness Assistance Center

Each California county has a center (usually within the DA’s office) that provides victims with a Victims’ Advocate, who can help victims: find counseling, housing, prepare for court, apply for compensation, and help obtain protection.

California Victim Compensation Program (CalVCP)

} CalVCP is a program that helps reimburse victims of violent crime for certain crime-related expenses

} Victims have the right to apply for reimbursement for losses such as: medical, funeral, relocation, income loss, and more

} Even if the DA is not able to file charges, victims may still be compensated for their loss if they qualify

} To apply for CalVCP: 1-800-777-9229 or http://vcgcb.ca.gov/victims/

} Note: the victim cannot receive restitution from the offender and reimbursement from CalVCP for the same expense; CalVCP will need to be reimbursed if this happens

Special Note on the Civil Justice System

} In additional to the Criminal Justice process, the victim has the option of filing a civil suit against the offender

} In a civil suit, the victim files a lawsuit against the offender to determine whether he/she is liable for the injuries sustained as a result of the crime

} The court does not determine guilt or innocence, they determine liability and can award the victim monetary damages to make the victim whole again (pain and suffering)



Section 4

First Court aPPearanCe



Overview of the First Court Appearance

DEFENDANT ENTERS PLEA

INITIAL APPEARANCE/ARRAIGNMENT

} This is the offender’s (now defendant) first appearance in court, where he/she is informed of the charges being filed against him/her

} This must occur within 48 hours upon arrest

} The defendant will either have a court appointed public defender or a hired private attorney

} The DA will serve the defendant with the complaint

Note:

} It is common for the DA to offer the defendant a reduced sentence in exchange for a guilty/no contest plea

} Only about 5% of cases reach the trial stage

NO CONTESTIf the defendant pleads no contest, he/she is admitting to the truth of the facts but not to the guilt

“No contest” pleas are treated the same as “guilty pleas”

NOT GUILTYIf the defendant pleads not guilty, the court will proceed to trial

GUILTYIf the defendant pleads guilty, he/she will be convicted and the court will proceed directly to sentencing (no later than 6 days from conviction) Marsy’s

Law1- 8, 17



Custody Status of the Defendant

IN CUSTODYThe court may require the defendant to serve his/her sentence in a county jail or state prison

HOME DETENTIONThe court may allow the defendant to serve his/her sentence under home detention/electronic monitoring

The device is often supervised by the Sheriff’s Department

The defendant is responsible for device costs

WORK RELEASEThe court may allow the defendant to serve his/her sentence doing a work release/community service program

The program is often supervised by the Sheriff’s Department

The defendant is responsible for program costsMarsy’s

Law1- 14, 17

GUILTY/NO CONTEST PLEA



Custody Status of the Defendant

NOT GUILTY PLEA

REMAND TO CUSTODYThe court may require the defendant to remain in county jail during the trial without a bail amount

RELEASE ON OWN RECOGNIZANCEThe court may release the defendant awaiting trial, without requiring him/her to make the bail payment

The defendant must promise to appear for all upcoming proceedings

A failure to appear will result in an arrest warrant

BAILThe court may hold the defendant in county jail awaiting trial, unless the defendant can pay the amount set for bail

Marsy’sLaw

1- 14, 17

Factors the Court Considers when Determining Custody Status

} Severity of the crime(s)

} Impact on the victim(s)

} Ties to the community

} Criminal history of the defendant

} The defendant’s flight risk

} The risk of danger to the victim and the community



Section 5

Pre-triaL



Proceedings That May Occur Before Trial

Must be set within 30 days of arraignment or not guilty plea (whichever is later). Note: It is common for the defendant to waive his/her right to a speedy trial and continue the trial date for a later time.

The prosecution and defense exchange non-privileged information related to a party’s claim or defense. Note: This may also include unfavorable information for both sides.

Prior to trial, the judge views the evidence to determine if there is probable cause to believe that the defendant committed the charged crime.

Each party can file motions prior to the trial, such as Motion to Compel Testimony or Motion to Suppress Evidence. Pre-trial motions will be heard and decided in front of a judge prior to trial. Both sides can present witnesses and other forms of evidence. Note: Winning or losing a pre-trial motion does not mean an automatic win or loss for the case.

The DA may still offer a plea agreement to the defendant up until the verdict is read.

Trial Date

Discovery

Preliminary Hearing

Pre-Trial Motions

Plea Agreements

Marsy’sLaw

1- 14, 17



Section 6

triaL



Overview of the Trial Process

BENCH TRIALIf the defendant waives his/her right to a jury trial, then the trial will occur before a single judge

NOTE: Role of the Victim AdvocateThe Victim Advocate (generally from the DA’s Office) provides court accompaniment, transportation, notification, protection, crisis intervention, and more for victims and witnesses throughout the trial.

NOT GUILTY PLEA

JURY TRIALThe defendant has a right to a trial by 12 of his/her peers

Voir Dire: both the prosecution and the defense select and dismiss members of the jury pool after questioning

HUNG JURYIf not all 12 jurors agree to the defendant’s guilt or innocence, the jury is deadlocked and the judge will declare a mistrial

The DA decides whether to retry or dismiss the case, or re-negotiate with the defense

NOT GUILTY VERDICT

If the judge/jury finds the defendant not guilty, the defendant is acquitted of the charges

The DA cannot appeal/retry the case

The arrest and acquittal will appear on the defendant’s criminal record

APPEALOnly the defendant can appeal this verdict

TRIAL PROCEEDINGS1. Both sides will present opening statements

2. Both sides will present tangible evidence and testimony

3. Both sides have a right to cross examine witnesses and make objections on the record

4. Both sides will present closing arguments

GUILTY VERDICTThe judge/jury announces that they find the defendant guilty of all or part of the charges

Marsy’sLaw

1- 14, 17



Section 7

sentenCing



Sentencing Components

Fine

} The defendant may be ordered to pay a fine, which goes to the state, not the victim.

Restitution

} If the victim suffered a direct or economic loss, the defendant will be ordered to pay restitution for those losses.

} Victims have the right to seek and secure restitution from their offenders.

} Payments from incarcerated defendants will be regulated through the probation department (county jail) or CA Department of Corrections and Rehabilitations (state prison).

} Please see our “A Victim’s Guide to Restitution” for more information on seeking and securing criminal restitution orders.



Methods of Incarceration

COUNTY JAILThe defendant may be sentenced to jail if he/she is serving a short sentence (typically less than 1 year)

PROBATION• Defendant may be

released early from county jail on probation, and must comply with certain conditions and restrictions

• Violation of a probation term may result in incarceration

• It is common for mandatory informal probation to be attached to plea agreements

STATE PRISONThe defendant may be sentenced to prison if he/she is serving a longer sentence. Prison serves as a long-term confinement for those who have been convicted of serious crimes

PAROLE

• Defendant may be released early from state prison on parole, and must comply with certain conditions and restrictions

• Violation of a parole term may result in incarceration

Marsy’sLaw

1- 17



Recent Legislation

Under this new realignment, newly-convicted low-level offenders without current or prior serious, violent or sexual offenses will serve their sentence county jail instead of state prison.

Convicted offenders currently serving a sentence in state prison for a “realigned crime” who would normally be supervised by state parole agents upon release will not be supervised under Post Release Community Supervision (PRCS).

Note: No inmates that were in state prison at the time of this enactment were transferred to county jail or released early.

Under this initiative, misdemeanor penalties are mandatory for certain non-serious and non-violent drug and theft offenses that were once considered felonies. These crimes include: grand theft, shoplifting, receiving stolen property, check forgery/writing bad checks, and drug possession.

Note: This legislation is retroactive and can change prior Proposition 47 eligible felonies into misdemeanors.

Note: If an offender has been convicted of homicide, sexual assault, or a serious and/or violent offense punishable by life imprisonment or death, proposition 47 will not apply to his/her current charge.

Assembly Bill 109

PROPOSITION 47



Section 8

Post-sentenCing



Post-Sentencing Procedures

} An appeal is when the defendant asks The Court of Appeals, a higher court, to decide if he/she received a fair trial.

} Any defendant found guilty of a felony has the right to ask for an appeal within 60 days after sentencing.

} The defendant may not request a new trial.

} The defendant can only appeal if: (1) there was not enough evidence to justify the verdict, or (2) there were mistakes of law made during or before the trial.

} The appeal will be presented to a panel of judges, without any witnesses or jury.

} Victims have the right to be present and notified of all hearings, and receive a copy of the judge’s decision.

} The judges can affirm, modify, or reverse the conviction.

} Both the defendant and the prosecution can appeal to the Supreme Court to challenge the Court of Appeal’s decision.

} CA Attorney General’s Office - Victim Services Unit serves as the Victims’ Advocate at this stage: 1-877-433-9069.

} Victims may start the restitution collection any time after the defendant is ordered to pay a specified amount to a specified person.

} If the defendant is sentenced to state prison, California Department of Corrections and Rehabilitation, CDCR, will start the collection on the victim’s behalf: 1-877-256-6877.

} If the defendant is sentenced to county jail, or is released from custody, the victim may need to enforce the restitution order through the civil process by way of a lien, wage garnishment, or bank levy.

} Please see our “A Victim’s Guide to Restitution” for more information on seeking and securing criminal restitution orders.

APPEAL

RESTITUTION



Section 9

resourCes For

ViCtiMs oF CriMe



California Attorney General’s Office – Victims Services UnitVictim Services Unit provides support, information, and assistance to victims at every stage of the criminal appeals process.

Phone: 1-877-433-9069Website: https://oag.ca.gov/victimservices

California Department of Corrections and Rehabilitation (CDCR):CDCR – Office of Victim & Survivor Rights & Services provides assistance to victims after the defendant has been incarcerated. They can assist victims with obtaining restitution, requesting notification about custody/parole hearings, and writing impact statements.

Phone: 1-877-256-6877Website: http://www.cdcr.ca.gov/

California Victims Compensation Program (CalVCP)CalVCP is a program that helps reimburse victims of violent crime for certain crime-related expenses. Victims have the right to apply for reimbursement for losses such as: medical, funeral, relocation, income loss, and more.

Phone: 1-800-777-9229Website: https://www.ftb.ca.gov/

California Safe at HomeThe California Secretary of State, Safe at Home Program provides confidential P.O. Box addresses to victims of domestic violence/stalking to help victims maintain privacy and anonymity.

Phone: 1-877-322-5227 Website: http://www.sos.ca.gov/registries/safe-home/



National Center for Victims of Crime The National Center for Victims of Crime is a nonprofit organization that advocates for victims’ rights, trains professionals who work with victims, and serves as a trusted source of information on victims’ issues. The National Center is an advocacy organization committed to and works on behalf of crime victims and their families to advance victims’ rights and help victims of crime rebuild their lives.

Phone: 1-844-LAW-HELP (529-4357)Website: https://www.victimsofcrime.org/

Victims’ Legal Resource Center (VLRC)VLRC is mandated by state law to provide victims of crime with information about their rights as a victim and to provide them with local resources based on their needs. We give assistance finding local resources, such as: counseling, shelters, advocacy, and more.

Phone: 1-800-842-VICTIMS (842-8467)Email: [email protected]: http://www.1800victims.org/

Victim/Witness Assistance CenterThese Centers provide comprehensive services to victims of crime. Center Advocates assist victims in many ways, including helping victims navigate through the criminal justice system and keeping victims informed about their case status. Call the VLRC to find your local Victim Witness Assistance Center.

Victim Information and Notification Everyday - VINEVictim Information and Network Everyday provides victims with notifications regarding a defendant’s custody status.

Phone: 1-877-411-5588 Website: https://www.vinelink.com/vinelink/nitMap.do



Notes


Other VLRC Publications Include:

Cyberbullying

A Guide to Victims Services

Help for Victims of Crime in California

Help for Victims with Disabilities

Help for Victims of Domestic Violence

Help for Victims of Elder Abuse

A Victim’s Guide to Restitution

Victims’ Rights in CA—Marsy’s Law

Order free materials for yourself, friends, family, or organization by

visiting www.1800VICTIMS.org

1-800-VICTIMS(842-8467)[email protected]

This publication was supported by Grant No. 2014-VA-GX-0063 awarded by the Office for Victims of Crime, U.S. Department of Justice through the California Governor’s Office of Emergency Services (Cal OES). The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and not necessarily those of Cal

OES or U.S. Department of Justice.Published 2015


A Victim’s Guide to the Criminal Justice System€¦ · information to everyone but the defense...

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