Washington Supreme Court Allows a Crime Victim to Intervene in a Criminal Appeal

Washington's highest court properly recognizes that crime victims can have interests at stake in appellate proceedings in criminal cases.

Last week, a divided Washington Supreme Court properly recognized that crime victims can, in appropriate cases, intervene in a criminal appeal brought by a criminal defendant. The Court joins other courts in recognizing that limited-purpose party standing is appropriate for victims when they have interests directly at stake in the appeal.

The case involved a defendant appealing his criminal conviction for second-degree murder, with a finding that it was a crime of domestic violence. In the trial court, the defendant moved to subpoena the medical records of the decedent victim. The mother of the victim (representing the victim's interests) intervened and objected. The defendant did not object to the mother's intervention at the trial court and, in fact, agreed that she had the right to oppose his motions. The trial court denied the defendant's motions to obtain the records, and he was convicted. His challenge to the conviction reached Washington's appellate courts, and the Washington Court of Appeals allowed the mother to intervene to oppose access to her daughter's medical records.

The Washington Supreme Court affirmed the decision allowing the intervention:

[Defendant] argues that on appeal he now faces two respondents and, in effect, "'two prosecutors.'" However, this is no different from the situation at the trial court level. Moreover, it is incorrect to characterize [the mother] as a second prosecutor. Instead, [the mother's] role in the appeal is limited in the same manner as it was in the trial court: the only issue she may address is whether [defendant] should be allowed access to her daughter's health care records. Justice Gordon McCloud makes a similar argument in the dissent, pointing out that it is the prosecutor who decides whether to bring an action and, if so, how that action is pursued. That is correct. The prosecutor's ability to decide strategy is not affected by our holding. Instead, our holding provides the Court of Appeals with the discretion to allow a person to continue seeking to protect health care records on appeal when they were allowed to do so at the trial level.

The dissent acknowledges that [the mother] could have brought a separate civil lawsuit to quash any attempt by [the  defendant] to subpoena her daughter's health care records and that she had the right to appeal any adverse ruling. The dissent fails to explain the functional difference to [defendant] if [the mother] had brought a civil action that quashed any subpoenas issued by the court in the criminal action. Justice Gordon McCloud suggests that the civil action would only determine whether the health care records are confidential, which she concedes is not a debatable question—they are. Justice Gordon McCloud likewise assumes that the court in the civil action would not consider the reasons Mr. Thompson is seeking those records. On the contrary, a court faced with a motion to quash must consider all the arguments as to why the subpoena should be issued, together with all arguments against the issuance of the subpoena.

The decision allowing intervention by a crime victim with interests at stake makes considerable sense, and is in line with other decisions by courts facing similar issues. For example, in my home state of Utah, the Utah Supreme Court has recognized  the right of a victim to seek restitution—and appeal if restitution is denied. The Utah Supreme Court held that

As an initial matter, we concede a general point advanced by [the defendant]: The traditional parties to a criminal proceeding are the prosecution and the defense, and a crime victim  is not that kind of party; a victim is not entitled to participate at all stages of the  proceedings or for all purposes. But that does not eliminate the possibility that a victim may qualify as a limited-purpose party—with standing to assert a claim for restitution. And we conclude that crime victims possess that status under our law.

The right of crime victims to effectively enforce rights with on-going criminal proceedings is one of the most significant changes in criminal justice in America over the last several decades, as I have chronicled in my recent article on the crime victims' rights movement. Washington's decision last week is another illustration of that important trend.