Marsy’s Law Art. 1, § 16, Florida Constitution Rights of Accused and Victims

1. Marsy’s LawArt. 1, §16, Florida ConstitutionRights of Accused and Victims Dawn M. Buff Assistant State Attorney 12th Judicial Circuit Manatee County dbuff@sao12.org

2. Who is affected? • LEOs • Prosecutors • Jails • Judges • Probation • DJJ • Prison • Parole Boards • Clemency Board • Property & Evidence • Clerk’s Office

3. How? Notification of Rights Notification of hearings (including parole/release/sentence reductions) Right to be heard in hearings Accountability for length of time to resolve trials/appeals Protecting confidentiality of victim in records Redacting of Information Awareness of where victim information is located Notifying other agencies of the assertion of Marsy’s law rights Interaction of victim’s rights with defendant’s rights Financial burden Time burden

4. HISTORY: Who is Marsy and why is she in our constitution?

5. History of Marsy’s Law Marsalee “Marsy” Nicholas, was a senior at UC Santa Barbara when she was stalked and murdered by an ex-boyfriend in California in 1983. Just a week after the murder, her mother and brother ran into her killer while he was out on bail. They felt that the killer stared them down during the encounter. They did not know he had been released on bail.

6. History of Marsy’s Law The suspect was later convicted and sentenced to life in prison. He died in prison while serving his sentence.

7. The Victims’ Rights Movement • The Amendments in the Bill of Rights in the US Constitution were enacted to protect the accused, not victims. • Speedy trial • Confrontation of witnesses • Right not to be compelled to be a witness against one’s self • Right to counsel

8. The Victims’ Rights Movement The victim’s rights movement started in the 1970’s. It gained momentum in the 1980’s with the campaign by the mother of Sharon Tate (who was killed by Manson followers). Tate’s mother lobbied in California for victim impact statements. The victims' rights movement has led to things like victim impact statements and sex-offender registries.

9. History of Marsy’s Law Marsy’s brother, Henry Nicholas, is the co-founder of Broadcom Corp. which makes products for wireless and broadband communication. $$$$$ Henry Nicholas began a campaign to pass Marsy’s Law in California. Marsy's Law was first passed by California voters in 2008 as an amendment to the California Constitution and certain statutes.

10. History of Marsy’s Law In 2009, Henry Nicholas formed Marsy's Law for All, aimed at getting Marsy’s Law added to the constitution in all states and Ultimately passing an Amendment to the United States Constitution to protect the rights of victims nationwide.

11. Marsy’s Law Nationwide

12. Marsy’s Law in Florida Art. 1 § 16, Florida ConstitutionRights of Accused and Victims

13. Marsy’s Law in Florida What did it change?

14. What we had Previously we had many statutes concerning various aspects of victims rights and One small provision in the constitution. Marsy’s Law added most of the statutory protections to the State Constitution, many with additional protections. The previous statutory schemes were not removed.

15. Previous language in Constitution re: victims Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

16. Current Language Art. 1, § 16, Florida ConstitutionRights of Accused and Victims

17. Art. 1 § 16 (a) Rights of the accused in criminal prosecutions Note: this section was unchanged by Marsy’s Law Upon demand, the accused shall be: Informed of the nature and cause of the accusation Furnished a copy of the charges Have the right to compulsory process for witnesses The right to confront at trial adverse witnesses

18. Art. 1 § 16 (a) Rights of the accused in criminal prosecutions To be heard by in person, by counsel, or both To have a speedy and public trial by an impartial jury in county where crime was committed. If county is not known, venue may be charged in two or more counties conjunctively and proof of venue in “that area” is sufficient, but accused can choose which county for trial before “pleading.”

19. Art. 1 § 16 (a) Rights of the accused in criminal prosecutions Notice that many of these rights are the same as provided in the U.S. Constitution and its amendments. However, U.S Constitution does not address victims’ rights.

20. Supremacy Clause The U.S. Constitution and Federal Laws are the supreme law of the land. The States cannot make laws which conflict with the U.S. Constitution and its laws. For example, States cannot enact a law which requires a defendant to testify in his own defense. If the State Constitution conflicts with the U.S. Constitution, the U.S. Constitution is supreme,

21. Supremacy Clause On the State level, the State constitution is supreme over state statutes. The legislature cannot enact statutes which conflict with the State constitution. (Or if enacted and challenged, they will be found unconstitutional).

22. Supremacy Clause &Marsy’s Law By putting Marsy’s law in the State Constitution, the voters have put victims’ rights on par with defendants’ rights. Caveat: to the extent it does not conflict with the U.S. Constitution.

23. Art. 1 § 16(b): Victims’ RightsPhilosophy as stated in Constitution • To preserve and protect the right of crime victims to • achieve justice, • Ensure a meaningful role throughout the criminal and juvenile justice systems • Ensure that crime victims’ rights and interests are respected and protected in a manner • No less vigorous than protections afforded to the accused • No longer says to the extent it conflicts with the defendant’s rights.

24. Art. 1 §16: Victims of adults & juveniles treated similarly The rights apply to victims in adult court and in juvenile court. Constitutional provisions uses the terms defendant (adult) and delinquent (juvenile) as well as Sentencing (adult) and adjudication (juvenile)

25. Art. 1 § 16 (e): Definition of Victim • Victim means a person who • suffers direct or threatened physical, psychological, or financial harm • as a result of the commission of a crime • Includes • victim’s lawful representative • Parent/guardian of minor • Next of kin in homicide • Unless there is a showing that such person’s interest is actually/potentially in conflict with the interests of the victim.

26. Art. 1 § 16 (b):Victims’ Rights Begins at the time of victimization

27. Art. 1 § 16(b)(1):Victims’ Rights The right to due process The right to be treated with fairness The right to be treated with respect for the victim’s dignity

28. Due Process A term which has been with us since the Magna Carta, but has eluded a definition for just as long.

29. Art. 1 § 16(b)(2):Victims’ Rights The right to be free from: Intimidation Harassment Abuse

30. Art. 1 § 16(b)(2):Victims’ Rights Keep in mind that one of the concerns of Marsy’sfamily was that the Defendant was out of jail and encountered them and stared them down in public. This section takes on great importance, as Marsy’s law allows victims the right to keep private any information which could be used to locate or harass them or their family.

31. Art. 1 § 16(b)(3):Victims’ Rights The right, within the judicial process, to be reasonably protected from the accused And any person acting on behalf of the accused. This does not create a special relationship between LEA and victim for purposes of lawsuit or any other obligation.

32. Art. 1 § 16(b)(3):Victims’ Rights What about when the Defendant’s attorney or investigator makes contact with the victim? Can this be precluded if perceived as harassment? Are there any federal constitutional provisions with which this would interfere?

33. Art. 1 § 16(b)(4):Bail The right to have the safety and welfare of the victim and the victim’s family considered: when setting bail including setting pre-trial release conditions which protect the safety and welfare of the victim/victim’s family

34. Bail:What the U.S. Constitution Says 8th Amendment prohibits excessive bail

35. Bail:What the Florida Constitution says Fla. Const. art. I, § 14

36. Fla. Const. art. I, § 14Re: Pre-trial release (bail) Unless charged with a capital offense or an offense punishable by life imprisonment ANDthe proof of guilt is evident or the presumption is great, every person charged with a crime . . . shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. (requires a motion/hearing)

37. Rules of Criminal Procedure mirror the FL Constitution Fla. R. Cr. Procedure 3.131 Pre-Trial Release (Bail)

38. Pre-Trial ReleaseFla. R. Cr. Procedure 3.131 Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrialrelease on reasonable conditions.

39. Pre-Trial Release 3.131No Contact Provision As a condition of pretrialrelease, . . . the defendant shall refrain from any contact of any type with the victim, except through . . . Discovery . . . .

40. Pre-Trial Release 3.131No Contact Provision Upon motion by the defendant when bail is set, or upon later motion . . . the court may modify the condition precluding victim contact if good cause is shown and the interests of justice so require. The victim shall be permitted to be heard at any proceeding in which such modification is considered, and the state attorney shall notify the victim of the provisions of this subdivision and of the pendency of any such proceeding.

41. Pre-Trial DetentionFla. R. Cr. Procedure 3.131 Same as in Florida Constitution If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

42. Text of Marsy’s Law cont’dArt. 1 § 16 (b)(5) Note: This section does not say “upon request.” The right to prevent disclosure of information or of records which could be used to locate or harass the victim/victim’s family or Which would disclose confidential or privileged information of the victim (does not include family in this part)

43. What is Identifying Information? Depending on the circumstances of the crime, that could mean anything from addresses of where crimes occurred to the identities of perpetrators, in domestic violence cases at least.

44. What can be used to locate the victim or victim’s family? Name? Address? Phone number? DOB? Photo? School?

45. Competing Constitutional Right Public Records in the Constitution

46. Sunshine Law in the ConstitutionFla. Const. art. I, § 24 (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.

47. Text of Marsy’s Law cont’d: Art. 1 § 16 (b)(6)aVictims’ Rights Upon Request: The right to reasonable, accurate, and timely notice of: All public proceedings re: the criminal conduct such as trial, plea, or sentencing Any proceeding in which the rights of the victim are implicated

48. Notice Under Marsy’s Law • 960.001(1)(b)(3) addresses notice upon release from jail, but what about notice of arrest for on warrant? • Phone contact? • Personal contact? • By whom? • Warrants?/Zone Deputy? • Contact by door hanger? • By whom? • Contact by letter/postcard? • Contact by email/text?

49. Notice Under Marsy’s Law How do you document the efforts you have made? Where do you document? Whose duty is it to document?

50. 960.001 Victim’s Rights Brochure A victim of a crime shall be provided with a victim’s rights information card or brochure containing essential information concerning the rights of a victim and services available to a victim as required by state law.