In November voters will cast their ballots on a constitutional amendment the supporters of which have dubbed “Marsy’s Law.” It hasn’t been assigned an official number by the Secretary of State’s office, but as I look at the line up of measures qualified for the ballot so far it seems to me we’ll likely be calling this thing Measure 3.
You can read the full text of this complicated measure here. In a nutshell, the language to be added to our state constitution seeks to provide further protections for the alleged victims of crimes. There many ways in which the measure does that, many of them problematic, but one aspect of the measure which has gotten a lot of attention is one that would give the alleged victims the right, enshrined right in the state constitution, to “refuse an interview, deposition or other discovery request made by the defendant, the defendant’s attorney, or any person acting on behalf of defendant.”
Supporters of Marsy’s Law have used a lot of harsh language to defend this language, suggesting that defense attorneys seeking to interview or depose an alleged victim have “revictimized” them. But a case in process in Grand Forks illustrates why the Marsy’s Law supporters have it all wrong.
The attorney for James Patrick Whalen, a 41 year old man accused of having sex with a student over the age of 15 while working as a biology teacher Grand Forks Central High, has been trying to subpoena the alleged victim in order to schedule a deposition. The prosecution in the case has filed a motion to deny the subpoena using the same sort of language the Marsy’s Law folks use:
Another recent development is a motion from the prosecution to quash a motion the defense issued to subpoena the victim. The subpoena, which was served to the victim July 13, would subject the victim to discovery deposition, according to court documents. The victim, in a letter to the defense, said she was unwilling to appear for a deposition without a subpoena.
But in a motion filed July 21, the state argued the court must protect a juvenile victim from repeated or lengthy interviews based on the Child Victim and Witness Fair Treatment Standards Act, adding that law applies to depositions or other discovery proceedings.
The act “suggests that repeated interviews of child victims is inherently traumatic,” prosecutors said in the motion, adding the defendant does not have a pre-trial right to confrontation.
“The right to confrontation ‘is a trial right,'” prosecutors argued citing U.S. Supreme Court cases. “In fact, ‘a state’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accuser in court.'”
There are two points to make here.
First, this illustrates one of the many reasons why Marsy’s Law is unnecessary. There are already protections in place to prevent defense attorneys from using things like depositions to harass or intimidate alleged victims. The victims can refuse to be deposed, and if a defense attorney wants to subpoena them to compel cooperation the prosecution can object and a judge makes the decision.
That, to me, seems like a properly rigorous procedure which balances the interests of the victim and the interests of the accused. Marsy’s Law would destroy that balance by allowing alleged victims to veto any interview or deposition with the defense.
Second, it’s ridiculous to argue that the right of the accused to confront witnesses against them is only a trial right. The 6th amendment makes no such distinctions, and I’d point out that in this case the alleged victim has been interviewed for five hours by school officials and law enforcement agents. While the prosecution argues that juveniles are protected from “repeated or lengthy interviews,” I’d point out that all the interviews so far have been conducted by the side trying to put Mr. Whalen in jail.
It seems ridiculous to me that the prosecution can interview the alleged victim for hours and then argue, when the defense requests their turn, that the alleged victim has been interviewed too much.
This illustrates the danger in going overboard in our efforts to protect the alleged victims in these cases. Having sympathy for the victims of crimes is understandable, but there is a reason the right to confrontation is included as a right in the U.S. Constitution. Without it it’s too easy to give in to sympathy and deny the accused and their counsel the ability to mount a vigorous defense.