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Proposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 online

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Online LibraryUnited States. Congress. House. Committee on the JProposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 → online text (page 15 of 24)
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Mr. Hyde. I agree. It's like unfunded mandates. Everything has
a priority. God help the poor personal injury case that doesn't have
some urgency to it.

Mr. Becerra.

Mr. Becerra. Thank you, Mr. Chairman. Let me direct this to
Ms. Semel and to Ms. Greenlee. How do you address the concern
of those who say that even in States where we have these victims'
bill of rights within their constitution or even the Federal statutes
that we nave to protect victims, what you find is that you have
prosecutors who are very leery of allowing victims to exercise those
rights because ultimately they are very concerned that if they gain
a conviction, the defendant might appeal on constitutional grounds,
and say that those statutes or State constitutional provisions that
were used to allow victims to participate, ultimately denied the de-
fendant a fair trial. So on constitutional grounds, the defendant —
U.S. constitutional grounds, the defendant now seeks to appeal the
conviction and overturn it.

Ms. Greenlee. We have had 5 years of experience with our State
statutes. There has yet to be any appeal along that line taken, in
Pennsylvania.

Mr. Becerra. That isn't that we won't have it. But give me a
better argument than it hasn't happened yet.

Ms. Greenlee. Well I think 5 years of experience would indicate
that that is probably not going to happen, especially since



161

Mr. Scott. Is that the defendants?

Ms. Greenlee. No. That defendants have not made any kind of
appeal that they were denied due process for fair trial because vic-
tims' rights, as embodied in our statutes, were upheld.

Mr. Becerra. Actually, the gentleman from Virginia brings up a
good point. What if the victim were to try to appeal?

Ms. Greenlee. Pardon me?

Mr. Becerra. What if the victim were to later try to appeal,
claiming that there was either coercion or intimidation on the part
of the prosecution to not exert his or her rights or wasn't fully in-
formed of his or her rights, and now seeks to appeal the conviction?
I doubt that would be the case.

Ms. Greenlee. There is no such provision in any statutes for the
victim to appeal the verdict.

Mr. Becerra. That gets back to the whole issue of the remedy.
There is really no clear remedy that can be provided.

But let me focus on just the defendant ultimately appealing. I
know you are telling me it has not happened, but certainly that's
not enough for us to decide whether or not we should pass laws be-
cause it yet hasn't happened. What if it should happen? How do
you deal with that situation where someone decides to appeal be-
cause he or she as a defendant claims that the conviction resulted
from the victim's participation and ultimately denied that defend-
ant a fair trial until the U.S. Constitution?

Ms. Semel. It already has happened in a sense. One can take a
look I think at the Norris case, which is cited in the NACDL's writ-
ten testimony, the situation where victims' rights advocates were
wearing buttons and expressing themselves in a highly emotional
manner in the course of a trial. The court became very concerned
about the influence and the impact of that emotional and passion-
ate expression on the trier of fact, on the jury. Ultimately, the con-
viction had to be reversed.

But the concern would be, and the court was emphatic in its con-
cern, about whether or not that defendant in that circus atmos-
phere received a fair trial. Consider Leo Frank, who was convicted
as a result of a lynch mob mentality, anti-Semitic mentality in At-
lanta, and ultimately was lynched. So we know these things hap-
pen.

If we give the victim a coequal position in the courtroom, I think
we may very very well tie the hands of judges to control the pro-
ceedings in an appropriate fashion so that at the inception, when
the focus is on, is this accused person guilty of a crime beyond a
reasonable doubt, the court will not be able to enforce the mecha-
nism that will ensure at the end of the day that that trial was fair.
That really is in the interest of all of us.

So I think we have to be very very concerned about interfering
with the judicial ability to control the trial proceedings and ending
up in a situation where a defendant can say yes indfeed, this was
a trial that ran amuck. We are better off, again, with statutory
changes which give judges the power to control their proceedings
in an appropriate manner.

Mr. Hyde. The gentlelady from Texas.

Ms. Jackson Lee. Mr. Chairman, thank you very much. I would
like to state the obvious, which is that I thank all of the parties



162

in this panel, and I apologize for not hearing your testimony. There
are dual hearings going on, one of which engages in another sin,
if you will, is the denial and elimination of affirmative action.

But we realize that in the course of trying to justify the rights
of citizens, there is a tension, the defense, the prosecution, and vic-
tim. Part of the value of a system of justice that we have is that
tension continues to pull either away from each other or it provides
the normal knocking. We hope that in this process in the hearing
that we're having todav, that we can find the appropriate balance.

I do think it is valuable to have the protections enunciated in the
Constitution for those who have been accused. Although many of
us now are maybe filled with apprehension, because of the enor-
mous rise in crime that we have had in this century, it still should
be recognized that the value of the Constitution that we support
gives all citizens a fair right to face his or her accuser, but as well
to be defended and to be ensured to be protected against unreason-
able search and seizure, and of course the right to not incriminate
one's self

At the same time, I would like to offer that there are an enor-
mous litany of tragedies and stories about victims. I think the
Oklahoma City scenario comes to mind because it's so large with
respect to the number of victims, and of course the enormity of
their plight and what they would represent being in the courtroom.

But I would ask Ms. Semel from California, who represents those
who clearly are part of upholding the Constitution and providing
us with our rights, how you have interacted with the constitutional
provision in California. I know you represent vast numbers of de-
fense lawyers, but because you are personally in California, tell me
how that works and what you have seen practically in the court-
room or what you have heard practically in the courtroom as that
particular constitutional amendment is played out in California.

Ms. Semel. I think I said earlier, and I would fairly describe it
as a sea-change in perception, in attitude. I think it is fair to say
that the good news is that there is, and not really I would say as
a result of constitutional amendment, but as a result of statutory
change and increased sensitivity and training of prosecutors and
law enforcement, there is a fairly systematic relationship between
witnesses and alleged victims in criminal cases. But I don't believe
this has anything to do with constitutional amendment. I think it
has to do with a movement, a visibility.

That ultimately is all to the good, in the sense that I venture to
say that individuals who are victims and witnesses in California
feel a greater sense of being informed and aware and involved at
various stages of the proceedings. But I also see some serious
downsides. I mentioned earlier that I have grave concerns about
what has happened to the presumption of innocence as a result of
the presence of victims' advocacy groups, at bail hearings, and at
all stages of the proceedings, not just at sentencing when someone
has been convicted.

I think we in California, and I think about the Polly Klaas case
as an example, run a grave, grave risk of convicting people before
they are put on trial. So therefore, I am highly highly, skeptical
and concerned about shifting, and undermining, the presumption of
innocence and burden of proof I think that on a pragmatic basis.



163

the kinds of needs that victims have to be treated sensitively, to
be informed, and to participate certainly once an individual has
been convicted, can be accommodated and accomplished, and have
been in California, by statute, without the need for a change in our
fundamental constitutional rights.

Ms. Jackson Lee. May I have a similar, just general response
from Ms. Greenlee? As you are making your response, if the chair-
man would indulge me to have you make your response. I empha-
size the tension that we're facing here between justifying or at
least affirming the rights of victims, and as well, upholding the
constitutional protections.

I hope, Mr. Chairman, as we deliberate, and earlier we were told
that this is a work in progress. I hope the victims will help me un-
derstand as we move toward trying to design something that an-
swers many of these concerns, to distinguish between a protest and
victims' presence who are a part of victims' groups versus the vic-
tims who are particularly relevant to the case in point.

I would have great concern to masses of individuals not related
to the proceedings damaging the prosecution's ability to prosecute,
and a defense ability to defend, so that if we have a guilty party,
it can be upheld. You know, I would be very concerned. I'm not
sure if that is what you have said. I certainly think that it is rea-
sonable to have people advocate their positions globally. But when
you have court proceeding, I would be very concerned that what
we're talking about in terms of emphasizing the victim. In my
mind, the victim is the one that is related to the incident at the
time.

Ms. Greenlee, can you tell me clearly how if you have had any
encountering with either constitutional amendments or statutes on
the State level, and how it interacts with your defense perspective.

Ms. Greenlee. Actually, the comment that ran through my mind
was that California seems to always be first with all the wild and
weird things that happen in the world. We have not seen in Phila-
delphia, and probably not in the rest of Pennsylvania, which is a
fairly rural State, any victim advocacy groups that have been so
apparent in courtrooms in terms of trying to influence the actions
that go on and to influence the fact finder.

We have no prohibition against victims or victims' families being
in courtroom during trial. The only time would be in terms of the
exercise of judicial discretion in terms of sequestration if that were
called for or requested and granted by the court in terms of any
witness to the case who might be requested to leave the courtroom.
But we have a family of victims, always especially pronounced
when it's a matter that involves the police, who usually ring the
courtroom in terms of trying to influence the jury in a way towards
the prosecution.

So other than — I can only speak to our experience. I don't know
of any complaints, serious complaints that I'm aware of that protec-
tion of victims' rights is in any way not being seen to by the broad
statutes that we have in Pennsylvania.

Ms. Jackson Lee. Thank you. Thank you, Mr. Chairman.

Mr. Hyde. Thank you, Ms. Jackson Lee. Does Mr. Watt have any
questions?



164

Mr. Watt. Mr. Chairman, I appreciate the offer, but I think I've
been in and out, and I've heard the testimony. I won't be redun-
dant and ask any questions. I'll just look intently at the witness
statements. I appreciate the witnesses being here.

Mr. Hyde. Thank you very much. Well, this has been an excel-
lent panel really. You have made a great contribution to our under-
standing of what we're getting into. It has, as I say, it's made a
great contribution.

I think the most salient thing I heard was Mrs. Roper, who said
that victims are not going to cooperate any more if they are treated
like things and pieces of evidence, and not human beings who are
the object of the injustice of which they complain. I think when
people stop cooperating with law enforcement, our whole justice
system collapses.

So we must look at the victims with a little more respect and a
little more consideration, and understand that the Constitution and
the Bill of Rights belongs to them as much as the accused, even
though we've been more explicit heretofore in the Constitution
about the accused rights. But we the people, in order to form a
more perfect union, established justice. That means the victim, the
victim, who has been assaulted one way or the other. So they have
an important role to play. Concededly we have to be careful not to
obstruct justice by improvident and overweening language in an
amendment. But that there should be an amendment to equal vic-
tims with the accused, I am convinced. How we formulate that so
as to accomplish what we want to accomplish, nothing more but
nothing less, we all have to think about and work on. Your con-
tribution has been considerable. Thank you very much.

The meeting is recessed until 3, when we have our final witness.

[Recess.]

Mr. Hyde. The committee will come to order. Our final witness
is John Schmidt, the Associate Attorney General of the United
States. He has served in that position since July 1994. Before that,
he served as the Clinton administration's chief negotiator to the
Uruguay Round world trade talks.

Before joining the administration, Mr. Schmidt was in the pri-
vate practice of law, and was active in civic affairs in my home city
of Chicago, for which Chicago is all the better.

I am glad to have you here today. We look forward to your testi-
mony on behalf of the Department of Justice.

STATEMENT OF JOHN R. SCHMIDT, ASSOCIATE ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE

Mr. Schmidt. Thank you, Mr. Chairman. I am delighted to be
here. I first of all want to thank you for your leadership on this
issue. Thank you for scheduling this hearing. I particularly want
to thank you as a personal matter for reconvening this afternoon
so that I could be here personally. This is an issue that a lot of us
in the Justice Department have spent a lot of time dealing with.
But it's something that I have come to believe very strongly in my-
self. So on this first occasion when we've been able to present the
views of the administration since the president announced his sup-
port for a victims' right constitutional amendment, I had very



165

much wanted to be here myself. I appreciate your having accommo-
dated that scheduling.

I'll be very brief. We've submitted a full written statement. I
think that one of the strengths of the victims' rights amendment
is that although it is enormously important, it is fundamentally
simple and straight forward. I don't think it requires an enormous
amount of explanation or complicated discussion in order to have
an understanding of what it is that we are attempting to achieve.

As you know, tne president announced his support lor a victims'
rights constitutional amendment. He announced that not only in
general terms, but he identified specifically rights that he believed
should be guaranteed in that amendment: the right to be notified
of court proceedings, the right to attend, the right to be heard if
present prior to a decision on bail or on the acceptance of a plea
or on sentencing, a similar right to receive notice and to attend and
to be heard at parole hearings, the right to restitution from the de-
fendant, the right to reasonable protection against the defendant
during the pretrial period, the right to be notified in the event the
defendant is convicted and then is ultimately released from jail or
escapes, and the right to be notified of those basic rights.

The President also identified what we characterized as caution-
ary principles that we thought were important to be reflected in
the language of an amendment. One was that we not do anything
that would interfere with our ability to effectively prosecute crimi-
nal cases. The second was that we not do something that would ex-
pose local governments or local officials to monetary damages. A
third was that we not do something that could conceivably result
in the reversal of convictions.

The President did not endorse specific language. His conclusion
was that putting out a competing text was not the way to go. But
he directed the Justice Department and lawyers from the White
House Counsel's Office to work together with those who have been
supportive of these amendments — ^yourself. Senators Kyi and Fein-
stein, advocacy groups, others in the Congress — and seek to see if
we could reach a consensus on a precise form of amendment that
we could all support and go forward with.

I am happy to say that, as you know, those discussions have al-
ready begun. We have had some discussions with you and members
of your staff, and with Senators Kyi and Feinstein and with mem-
bers of their staff's, and with others in the Congress. I think we
have already begun to see in the revised draftis that have been cir-
culated recently some reflection of some of our comments and com-
ments being made by others.

I think that all of us who have been in those discussions are ap-
proaching it on the basis that this is a constitutional amendment
that we are drafting. It is something where there should be no
pride of authorship. There should be no reluctance to take lan-
guage because it's somebody else's language. There should be no re-
luctance to change things as we go along with this process.

This is not an ordinary statute where we're going to be able to
come back in a year or two and change it. If we go forward with
this it will ultimately become part of the Constitution. So I think
we've all approached it, and I think everyone has to approach it on
the basis tnat we have to do everything possible to get it right. I



166

think in the discussions that we've had so far we've been optimistic
that everyone is proceeding in that spirit.

Let me take just 2 minutes and explain why I have come to be-
lieve we need a victims' rights constitutional amendment. To me,
there have always been two questions. Should victims have these
rights? Second, do we need a constitutional amendment in order to
guarantee them? I think for most people, the first question is easier
than the second.

On the first question, we're talking about rights that I think
have come to represent a very broad consensus view in this country
about rights that victims of crime ought to have. That's a consen-
sus that has really been educated over the recent decades by vic-
tims and by victims' advocates. I think these are rights that a lot
of people are surprised to find they are not already guaranteed. I
think when people are victims of crime they are really startled to
find that the proceeding, the whole court process, might go forward
without them ever knowing about it. I think they are startled to
find that someone who had say, assaulted them, could be released
from prison without them being told about it.

So I think we're talking about rights that reflect a broad consen-
sus. I think that is an important fact when we talk about a con-
stitutional amendment. I don't think we're talking about something
here where we have a 51-49 majority that might shift tomorrow
with respect to these rights. I think these are basic rights. I think
there is a broad consensus that they ought to be respected.

That still leaves you with the second question, which is do we
need a constitutional amendment in order to protect them? That is
inevitably a harder question because none of us amends the Con-
stitution lightly. We can't amend it lightly. It's an enormously com-
plicated process. We will never do it unless there is a very compel-
ling case that these are fundamental rights that can only be
achieved through a Federal constitutional amendment.

My own view is that the case for that, for saying that only by
a constitutional amendment will we achieve these rights, is an ex-
tremely compelling and persuasive one. It has to do in apart with
the fact that it is only through a Federal constitutional amendment
that we will achieve a basic degree of consistency in the definition
of fundamental rights applicable to the whole range of criminal
proceedings, Federal and State, throughout this country. Without
a Federal constitutional amendment, we will inevitably have a
patchwork. We will not have a situation where you can say what
it seems to me we ought to be able to say: If you assault somebody
and get arrested, you know you will have certain basic rights as
a defendant. You ought to be able to go anywhere in this country
and, if you are a victim of crime, know that you will have certain
basic rights guaranteed to you. That is something that can only be
achieved through a Federal constitutional amendment. Only the
Federal Constitution can speak authoritatively over the whole
range of criminal proceedings, Federal and State.

There is a further point. I think even if we could wave a magic
wand and miraculously pass an identical statute in every State or
even an identical State constitutional amendment in every State,
I think the fact is that we would not have achieved, and we would
not achieve, the kind of recognition of these basic rights that is



167

needed. I think a major reason for that is that we have come to
look to the Federal Constitution for the definition of basic rights in
the criminal process.

I think this discussion would unquestionably be different and the
case for a constitutional victims' rights amendment would be dif-
ferent if we didn't have the sixth amendment. If we had not chosen
to define explicitly in the Federal Constitution a set of rights for
defendants, I think it would be different. With respect to the
States, if the Supreme Court had not chosen to apply that specific
set of Federal rights to the States through the incorporation doc-
trine, it would be different. But we have made that choice. I think
it was the right choice.

The result of that is or that we have a set of specific rights guar-
anteed to defendants in the Federal Constitution. Unless and until
we grant a similar explicit set of rights to victims in the Federal
Constitution, I think it's clear we will not achieve the kind of uni-
versal recognition of those rights that we need. For one thing, as
long as the defendants' rights are in the Constitution and victims'
rights are not, any whiff of conflict between the two will always be
resolved in favor of the defendants' rights. That in fact happens
today around the country.

But even apart from issues where there is an actual conflict, I
think even when there is no conflict, the fact is that courts look to
the Federal Constitution for the definition of basic rights. We're
talking about literally hundreds of thousands of proceedings, tens
of thousands of courtrooms, thousands of jurisdictions. Today they
look to the Federal Constitution, and they find defendants' rights.
They are generally respected. I think the fact is unless and until
they look to the Federal Constitution and find a similar set of guar-
antees for victims' rights those victims' rights will not be similarly
respected.

So in the end, to me, the two questions become one. If you be-
lieve victims have these rights, should have these rights, I am con-
vinced that as a practical matter we will never achieve their con-
sistent nationwide recognition unless we put those rights into the
Federal Constitution.

Let me stop with that. I would be glad to answer questions. Let
me just reiterate that we look forward to a continuing process of
working with Members from both sides of the aisle. This is obvi-
ously something that transcends partisanship. It transcends ordi-
nary legislative process. It's something where, as I said before,
we're talking about the Constitution. I do believe if we do it right
we can all leave a legacy that will be important to victims of crime
and future generations and can be beneficial to the entire criminal
justice system.

[The prepared statement of Mr. Schmidt follows:]

Prepared Statement of John R. Schmidt, Associate Attorney General,
Department of Justice

Mr. Chairman, Mr. Conyers and Members of the Committee, I appreciate the op-
portunity to present the views of the Administration on amending the Constitution
of the Unitea States to establish fundamental rights for victims of violent crime. I
particularly appreciate your reconvening the Committee hearing so that I could ap-
pear here in person today.

I know each of you snares with the President and the Attorney General a pro-
found respect and reverence for the Constitution. Its creation was the result of the


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Online LibraryUnited States. Congress. House. Committee on the JProposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 → online text (page 15 of 24)