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The Utah Supreme Court Holds that Crime Victims Can Intervene in Criminal Cases to Protect Their Rights
The Court agrees with my argument that crime victims can become "limited-purpose parties" in criminal proceedings to protect their interests, such as an interest in the confidentiality of mental health counseling records.
Today the Utah Supreme Court handed down an important victory for crime victims, holding that crime victims can become "limited-purpose parties" in criminal prosecutions when their rights are at issue. The Court ruled that a child sexual assault victim was entitled to be heard regarding any release of her confidential mental health counseling records to a criminal defendant. The decision is an important one for crime victims' rights here in Utah and even nationally, as it recognizes that crime victims can formally intervene in criminal cases to protect their interests.
The case involves defendant David M. Chadwick, who was charged with sexually abusing F.L. when she was a child. Chadwick requested that the trial court conduct an in camera review of F.L.'s therapy records and release certain information arguably relevant to his defense. The trial court granted Chadwick's request and conducted the review, after which it issued several orders quoting relevant excerpts from the records. The trial court then sealed the remaining records. Chadwick proceeded to trial and was convicted of sexual abusing F.L. while she was a child.
Chadwick then appealed to the court of appeals and challenged the adequacy of the trial court's in camera review. On its own motion, the court of appeals unsealed F.L.'s counseling records, allowing Chadwick's attorney to use those records in his opening appellate brief. In response, F.L. filed a motion asking the court of appeals to reseal her records and strike all references to the confidential materials in Chadwick's brief. The court granted F.L.'s request, instructing Chadwick to file a revised brief without references to the records.
Chadwick filed the revised brief as instructed but also challenged the court of appeals' decision to reseal F.L.'s therapy records. Chadwick asked that the court to release those records to his attorney or, in the alternative, conduct a new in camera review of the records.
The Utah Crime Victim's Legal Clinic and I then filed a motion for F.L., asking that she be allowed to intervene in Chadwick's appeal as a limited-purpose party to protect her privacy interests. F.L. sought to assert her privacy right stemming from the Utah Constitution's Victims' Rights Amendment, which guarantees crime victims that they will be treated with "fairness, dignity, and respect." Utah Const., art. I, sec. 28. F.L. also sought to assert her privilege under Utah Rule of Evidence 506(b), which creates a privilege in mental health counseling records.
Rather than grant her motion to intervene, the court of appeals construed F.L.'s motion as seeking merely to file an amicus brief. We then filed a petition for an extraordinary writ in the Utah Supreme Court, asking it to direct the court of appeals to allow F.L. to intervene in the criminal proceedings concerning release of her records.
Following an oral argument in April, today the Supreme Court granted our petition for extraordinary relief. The Court agreed with our argument that the court of appeals erred by restricting F.L. "merely to kibitz from the sidelines about what is happening to her records." Instead. F.L. (like other privilege holders) was entitled to be heard immediately in court proceedings regarding her confidential records―and she was entitled to immediate protection of her rights by the Supreme Court. If F.L. were required to wait until after a final decision to appeal the denial of her motion to intervene, her confidential records might be released to Chadwick without her being able to assert her privacy interests. The Court explained that "in the extraordinary writ context, compelling a party to turn over what is alleged to constitute privileged information has the potential to result in irreparable injury, and appellate courts cannot always unring the bell once the information has been released."
More broadly, the Utah Supreme Court explained the circumstances in which crime victims can participate in criminal proceedings. The Court noted that, although a crime victim is not entitled to participate in all stages of criminal proceedings or for all purposes, that conclusion "does not eliminate the possibility that a victim may qualify as 'a limited-purpose party'" with standing to assert specific rights. The Supreme Court held that, as a general matter, "if the law gives crime victims the ability to proactively assert a right or seek a remedy, then they may enforce those specific rights as limited-purpose parties in criminal proceedings." Accordingly, the Court reversed the court of appeals decision declining to allow F.L. to intervene and remanded with instructions that the F.L. be allowed to participate in Chadwick's appeal on issues regarding the release of her records.
The Utah Supreme Court's decision is an important one for crime victims' rights here in Utah and has broader implications. By recognizing that crime victims have the right be heard in criminal proceedings affecting their rights, the Court has ensured that victims will have a voice in the the criminal justice process. As crime victims rights continue to expand here in Utah and nationally, this recognition will help ensure that crime victims' enactments are not merely hortatory but instead are enforceable.
Crime victims may not be parties to criminal cases. But they can have important rights at stake in those cases―and should be heard in defense of those rights.
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In the other direction, the Supreme Judicial Court of Massachusetts allowed a witness to get interlocutory review of a judge’s order finding her not competent to testify. Ruby McDonough, petitioner, 457 Mass. 512 (2010). Formally, the court dismissed the witness’ petition for lack of standing. But on remand the trial judge was ordered to comply with a new rule announced in the opinion, so the result was exactly the same as if the petition had been granted.
Interesting. This was a witness and not a party? What was the justiciable right the SJC recognized?
Query whether this foreshadows interlocutory appeals by expert witnesses who are excluded under Daubert-type rulings?
The reasoning is apparently that disability rights get special protection. But in the future it would be up to the prosecution to appeal an order excluding testimony.
I wonder if this will eventually be extended to allow victims have a say in the prosecution more generally, such as what charges to file, what evidence to bring, etc; something closer to victim prosecution. Partners in anti-crime, so to speak.
Mainly I think of cases where it sure looks like a vote-minded prosecutor has decided to not file any charges against a popular or politically powerful suspect. Current examples are the rash of gang thefts from stores where the DA has made it clear he will not prosecute “shoplifting”, or the numerous BLM riots. There was that case from a year or so ago, the black man chased down, cornered, and shot by three white men who claimed he was a neighborhood burglar, and the local DA declined to prosecute; I think the state had to bring in a special prosecutor to get any action.
There are many risks in victim-influenced prosecution. One of them is the jury pool’s general view that prosecutors are independent and prefer to bring strong cases. I’ve watched mock jurors persuade each other that “she wouldn’t have been indicted unless she did it”–which is horrifying for other reasons but demonstrates the credibility most DAs bring to trial. I believe public awareness that an indictment could have been victim-driven will reduce conviction rates even for strong cases.
This is not to take away from your examples, where politically motivated DAs chose to overlook serious crime.
“Mainly I think of cases where it sure looks like a vote-minded prosecutor has decided to not file any charges against a popular or politically powerful suspect.”
That can just as easily go the other way with a vote-minded prosecutor bringing highly questionable charges against an unpopular suspect.
As an interpretive matter, I think it’s a stretch to get from “treated with fairness, dignity, and respect” to must be allowed as a party to the case.
As a policy matter, I don’t think prosecutors need any more help in being able to exclude potentially exculpatory evidence. The in camera review was the right process to make sure the defense got relevant information without getting anything else.
re: “The in-camera review was the right process…”
That sounds intuitive but remember that the actual issue was raised here because the attorney was challenging the adequacy of that first in-camera review. Unsealing the record enough for the attorney to make that argument is quite reasonable.
From what I can see, the mistake was in completely unsealing the record rather than just granting access to the attorney. The appeals court’s mistake was compounded by requiring (allowing?) the unredacted brief by the same attorney.
I have the same reaction here that I have to each of Prof. Cassell’s posts, which is that using the term “crime victim” in context of a criminal trial begs the question, and is therefore immensely prejudicial.
There is no doubt that the government (say by the indictment) alleges that F.L. was the victim of a crime, of which Chadwick is the perpetrator. But a trial court granting F.L. rights based on this amounts to the judge determining before the end of trial one of the key questions for the fact-finder: whether a crime took place at all. After all, if no crime has happened then the person is not a crime victim — the allegations in the indictment notwithstanding.
Now in this particular case the trial court did find Chadwick guilty of victimizing F.L. and it thus makes sense to refer to F.L. as his “victim” in certain circumstances. But Chadwick is appealing his conviction, so the appellate court should not presume so, and laws should not permit it to consider F.L. supposed status as a “crime victim”. I am not necessarily unhappy about the outcome in this case: I think everyone’s mental health records should be shielded, and everyone should be permitted to intervene, but I am uncomfortable when “crime victim” status is used when the guilt of the defendant is under consideration.
By the way I have no problem giving “crime victims” (as alleged in the indictment) rights against the prosectuor — after all the prosecutor must believe they are victims. But giving them rights in the trial court, or especially against the defendant, is fundamentally incompatible with the presumption of innocence. Suppose that a putative “crime victim” petitions the trial court to enforce trial rights — is the defendant supposed to respond to the motion by affirmatively proving that the person is not a crime victim? That is not the usual burden of proof in a criminal trial! And how is the judge supposed to determine, at that stage of the proceeding, whether the claimant really is a crime victim? Can the judge insist that the prosecution puts up its case-in-chief so that they understand the evidence on this point?
The style guide for Massachusetts courts says to use “complainant” if there has not been a conviction, i.e. during interlocutory appeals of pretrial decisions, and “victim” on appeal from a conviction.
John – I’m trying to locate the style guide reference you mention here from Massachusetts. Would you be able to send a copy to me? Or a citation? Thanks!