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United States. Congress. House. Committee on the J.

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 6 of 24)
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read into it. But the point is, that that's a separate type of issue.
I'm on your side on that, but this amendment does not help
produce that result.

And speedy trial. That bothers me. We have the sanction now on
speedy trial on the prosecutor, that he must within x number of
days Dring a prosecution or suffer the case to be thrown out. Now
the prosecution can ask for a delay based on the unavailability of
a witness, a witness who is hospitalized or whatever, to defeat that
time restriction. How will it work on the other side? What sanction
would there be if a speedy trial isn't given to the victim of a crime?
Who would be punished, the judge or the prosecutor? Who would
be punished? A quick answer to that.

Mrs. Roper. It would create a parallel right, but the court would
still have the ability to decide, just as they decide when the defense
asks for a continuation. It just recognizes that if a victim doesn't
have a right to a speedy trial, memories fade, people get discour-
aged, they don't cooperate with the system.

I want to make one other point about your reference to the dif-
ference in the language of the two proposed amendments, and that
in fact, it would not be a remedy because it calls for cause, good
cause being established. The difference in placing a victims' rights
within our Constitution is that they have standing, legal standing
to even test the law. Maybe not always get the results we want,
but to be able to test the law just as an accused person may test
the law today.

I think we need to ask ourselves why the rights of an accused
person or a convicted offender works. Its because the Constitution
requires it. In my case, my husband and I were excluded from the
trial because we were subpoenaed as witnesses. Now we had no
evidentiary material to bring to the case, but because in 1982 no
one questioned the rule on witnesses, it was automatically invoked.
The judge never even addressed whether there was good cause for
our exclusion. This was a typical abuse of the sequestration rule,



37

when the rule on witnesses would apply to anyone who was sub-
poenaed, whether they had any basis for exclusion or not.

Mr. Hyde. The gentleman's time has expired. Mr. Berman. Do
you have any questions?

Mr. Berman. No.

Mr. Hyde. Mr. Coble.

Mr. Coble. I thank the chairman. I thank you all for being here,
Mr. Hodgin, in particular, from Jamestown. I think you live in my
district, although Jamestown is located in two congressional dis-
tricts now.

Chairman Hyde previously said, and I will reiterate your words,
Mr. Chairman. This testimony had indeed been moving and com-
pelling.

Mr. Hodgin, in the case of your sons, were Buncombe and Guil-
ford Counties the two counties involved?

Mr. HoDGEN. That is correct, sir.

Mr. Coble. If I recall, you said you were not displeased with the
way it was handled by the "officials"?

Mr. Hodgin. No. I was very pleased in my case.

Mr. Coble. Mrs. Roper, you said earlier that many people sug-
gested we don't tinker with the Constitution. I agree. But if people
don't believe in doing that, and I am one who does not believe in
rushing to change the Constitution each change the Supreme Court
may hand down an opinion that doesn't strike my fancy. But I
think this is an issue where revisiting the Constitution is justified,
because I think victims for too long have been ignored.

We have gone to great extremes to protect the rights of the crimi-
nal, the wrongdoer. I have no quarrel with that. But I do have
quarrel with the fact that victims, as you all have so convincingly
told us today, are out in the anteroom, or maybe not even in the
courtroom or the courthouse for that matter. You are off way out
yonder while "justice" is being handed down by the powers that be.

I think one of the problems, and I'm thinking aloud now for the
benefit of the panel, may be for you go to trial and you get a judge
and a district attorney who may want to move the clarious cal-
endar. So he calls the parties up to the table. Well let's go for a
lesser crime and get this over with. That is no way for justice to
be dispensed, in mv opinion. Mrs. Roper, as you said, the criminal
justice system has Become more criminal than just.

What sort of sentences, Mr. Hodgin, were awarded to the mur-
derers of your two sons?

Mr. Hodgin. In Buncombe County, Representative Coble, there
was one individual involved. He was convicted of first degree mur-
der. He received a life sentence which would enable him to be eligi-
ble for parole in 20 years.

In the High Point case in the six individuals, there were two
tried for first degree murder and convicted. Both received life sen-
tences. The remaining four had plea bargains for lesser sentences
in return for testifying against the main two.

Mr. Coble. Mr. Chairman, you know many folks may say well
here we are trying to federalize another law because there are
State remedies available. But I have been told, and I think cor-
rectly so, you all have implied this, that in many instances, if a
State district attorney or a State solicitor or prosecutor fails to



38

carry forward as required by the particular statute, victims have
no right to address that matter.

You said, Ms. Long-Wagner, in response I think to the gentleman
from Michigan, you are permitted to share your views with the pa-
role commission in written form or perhaps by telephonically. But
that's not nearly so convincing as having you there eyeball to eye-
ball, looking these commissioners in the eye.

Mr. Chairman, I think this has been a very worthwhile hearing.
I have done more talking than questioning. But I am just reviewing
what you all said. Since my yellow light illuminates, do you all
want to add anything quickly before the chairman muzzles me?

Ms. Long-Wagner. Excuse me. I have one comment. This goes
back to the other comment about the HIV testing. One thing I have
to say about this for you today is this amendment is not etched in
stone yet. So I am asking you to put that in there.

Mr. Coble. Well, I really thank you all for coming.

Mr. Chairman, Mr. Hodgin very wisely I think made a distinc-
tion between the two resolutions. I don't mean to speak for the
chairman, but I don't think we're wedded to either of these two ver-
sions at this point. Are we, Mr. Chairman?

Mr. Hyde. No, sir. The amendment, the draft of the amendment
is really a work in progress. It is constantly being revised with the
Justice Department and with our Senate colleagues. Our final
product I think will be something we can all be proud of. Your tes-
timony will add greatly to it.

Mr. Coble. Mr. Hodgin, I thank you for noticing that.

Mr. Hyde. Mrs. Roper wants to say something.

Mrs. Roper. I just wanted to underscore something that Con-
gressman Gekas mentioned earlier. I would be the first to applaud
the progress made by the Federal Government and the various
States in enacting legislation. But I also want to stress what Sen-
ator Feinstein said, that they represent a patchwork of rights.
What this amendment does is establish a national standard.

Mr. Hyde. Mrs. Roper, when the rights of the defendant are in
the Constitution, the rights of the victim ought to be in the Con-
stitution and have equal dignity. There is more to a trial than just
the defendant. There is justice. So I have no problem with that. I
think the other arguments are really specious.

Mr. CoBiJC. Mr. Chairman, I thank you, and I thank the panel.
For the panel's benefits, our chairman sees red when that red light
illuminates, so I'm going to back off.

Thank you, Mr. Chairman.

Mr. Hyde. The gentleman from Virginia, Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman. I want to thank the wit-
nesses, because it's testimony like this that reminds us of our re-
sponsibilities as to what we're doing and the effect it has on people.

Listening to the stories, it's obvious that during your proceed-
ings, you were mistreated. I have concerns similar to the gen-
tleman from Pennsylvania as to whether a constitutional amend-
ment is necessary to deal with them or whether or not they can be
dealt with statute. For example, in the question of the HIV test,
the gentleman from California pointed out that there ought to be
no prohibition against testing after conviction. The problem with
HIV is that by the time the conviction has come along, the nature



39

of the disease and the treatment is you've missed a lot of oppor-
tunity for treatment. You need to know immediately. There you
have a very serious conflict of someone that's been accused, not
convicted, and your need to know as early as possible. Virginia has
dealt with this where you can have a very early hearing to deter-
mine probable cause. You can get the accused tested at that point.
Your test at three months and what not is useless, because if
you've been infected, it wouldn't show up in three months.
Ms. Long-Wagner. That's what they told me actually.
Mr. Scott. So you've got to wait 6 months for your test to show
anything. You need to know from the assailant what his test
shows. That's information you need. By statute, we were able to
balance those competing interests, without having to wait for a
conviction. • i mi-

Likewise, there are other rights that have been dealt with. Ihe
idea that you can yank the family out of the courtroom because all
of the witnesses are excluded so they can't tailor their testimony
as you go along, a lot of defense lawyers in Virginia would sub-
poena the entire family to get them out of the courtroom. You can't
do that anymore by statute. People don't have, as in your case, evi-
dentiary information to present. You can't be tricked out of the
courtroom on that ploy. So you've been able to deal with that on
statute. .

The question that arises, and I think Mrs. Roper, you mdicated
it, is what happens when the victim's rights and the defendant's
rights clash. You indicated if the victim is on statute and the de-
fendant is on constitutional grounds, the constitutional will trump
the victim. Is it your suggestion that the defendant's rights not be
able to trump the victim's rights if they are both constitutionally
orotected?

Mrs. Roper. No. It is not our understanding. By creating parallel
rights in our Constitution for a victim as well as an accused per-
son, we allow the system to test that right. As I indicated earlier,
clearly there are certain times when the victim will lose. But right
now, they don't even have an opportunity to test the law because
under our Constitution, we don't exist.

I am always reminded of this need by looking at the words
etched in our Supreme Court facade: "equal justice under the law."
It doesn't include us victims.

Mr. Scott. Well, is it your suggestion that certain defendants
rights would be trumped by victim's rights? For example, the right
to double jeopardy? If a victim has not been appropriately con-
cluded, could you trump his right to double jeopardy if he was not
convicted the first go round? , v •

Mrs. Roper. Under a constitutional amendment, perhaps the vic-
tim would have advance information to in fact appeal to the court
before it became an issue that would surround double jeopardy. If
they had an opportunity to ask the court to enforce their rights as
the trial proceeded, it wouldn't become an issue on which the de-
fendant would be placed in jeopardy for a second time.

Clearly we need statutes to cover other situations. But a con-
stitutional amendment for crime victims is really focused on the
primary issues, information, presence, and the right to be heard.
Mr. Hyde. Taking them out of the status of non persons.



40

Mrs. Roper. Absolutely.

Mr. Hyde. Thank you, Mr. Scott.

Mr. Scott. Mr. Hodgins.

Mr. Hyde. Surely.

Mr. HODGIN. Just a comment. We as victims need the full power
of constitutional protection just as the defendants have now. The
only problem with statutory protection is that that can change
every time the legislature reconvenes. That is no long-term protec-
tion.

Mr. Hyde. Mr. Hodgin, if I may interrupt Mr. Scott's questioning
period. Some things don't lend themselves to constitutional expres-
sion. The Constitution by its nature is a statement of principles.
When you get into the nitty gritty, it is not appropriate to put them
in the Constitution.

Now the requirement for an HIV test. Boy if there's anything
that cries out for a remedy it's that situation. I am not convinced
it should be in the Constitution, but there sure ought to be one
firm, clear, unequivocal Federal statute with penalties for anybody
who doesn't obey it.

Ms. Long-Wagner. I'll accept that from you. OK?

Mr. Hyde. We have to be mindful of how we draft this so it's con-
stitutional language and not open to negative interpretations by
the court.

The gentleman from Florida, Mr. Canady.

Mr. Canady. Thank you, Mr. Chairman. I want to thank each of
the witnesses for their testimony. It was very moving and very
helpful testimony. I want to thank the chairman for his leadership
on this issue. I think that this is a critical issue for us to address
here in the Judiciary Committee. I think it's an issue that needs
to be addressed at the Federal level. As a member of the Florida
Legislature back in the 1980's, I was the sponsor of an amendment
to the Florida Constitution which was submitted to the people of
Florida on the issue of victims' rights. I believe they voted on that
in 1988 in Florida. More than 70 percent of the people of Florida
voted in favor of the proposed amendment to the Florida Constitu-
tion protecting the rights of crime victims. I think that's really rep-
resentative of public sentiment on this issue throughout the coun-
try. I think it's high time we addressed it here in Washington. I
thank the witnesses for their input, which has been very helpful,
and Mr. Hyde for his leadership.

Mr. Hyde. Thank you, Mr. Canady.

Mr. Becerra.

Mr. Becerra. Thank you, Mr. Chairman. Let me also thank the
witnesses for their time and coming and providing their testimony.
I think every State has recognized the need to provide victims with
rights when we have proceedings that are meant to try to find the
guilty party. So I think many of the things that have come out I
think are very helpful.

I am one who has some concern that we may get to the point of
making our proceedings a bit too complicated for the accused. I
hope we can always try to resist that. In fact, I appreciate very
much that the chairman has submitted his second H.J. Res. 173,
to try to address some of those particular concerns.



41

Let me if I may, ask a particular question of the witnesses. I
apologize if you may have been asked this and answered. What are
your thoughts of how we reconcile the whole issue of a victim who
is also called as a witness and there is some reason for you to be
called as a witness, but not a significant reason. You will not deter-
mine the outcome of guilt or innocence, but there may be some rea-
son to have you there. So the defense attorney or prosecutor can
make the case that you are a necessary witness, or necessary can
be defined in different ways.

How do you deal with that, where the defense says well, or the
prosecution says, well we don't want that individual who is a vic-
tim to be present, to be able to listen to the testimony, fashion his
or her statements when he or she gets up on the witness stand.
How do you deal with it when you get into that real grey area of
whether or not that victim is actually necessary as a witness, and
maybe the defense or the prosecution is playing a game of actually
subpoenaing you as a witness to keep you out of the courtroom.

Mrs. Roper. If I may answer. With all due respect, I think we
wrongly assume that the mere presence of a victim or some survi-
vor is going to mean that their testimony will become tainted,
when we never question that same result occurring when the de-
fendant can hear everyone's testimony.

As someone who advocates and assists victims in courtrooms
every day I see victims who understand their role very well. They
are intimidated by the process. They know they must not do cer-
tain things. They must not shed a tear. All of those things. So to
suggest that their mere presence would somehow be a violation of
the defendant's rights is inaccurate.

But in the question of subpoenaed witnesses, we can and must
accommodate good cause. In Maryland, the victim is presumed to
have the right to remain in the courtroom, even if they have testi-
fied. The court has to establish good cause for some conflict of their
presence. We can accommodate them by calling them to be the first
witnesses. But we shouldn't allow the law on witnesses to be
abused. As you indicated, historically defense attorneys have sub-
poenaed families of homicide victims, never intending to call them
as witnesses, but simply to exclude them from the most important
event of their lives.

Mr. Becerra. So, Mrs. Roper, I understand you then to be sup-
portive of the language in H.J. Res. 173, which provides the good
cause provision in it?

Mrs. Roper. I think this is a work in progress. I think we need
to look at it very very closely.

Mr. Becerra. OK I appreciate your comments. Anyone else in-
terested?

Ms. Long-Wagner. I think she answered it very well. So I have
no extra comment on this.

Mr. Becerra. Tell me what your impression is, and again, to
anyone on the panel, what your impression is of the influence that
a victim can have on a judge or a jury when it comes to sentencing.
How helpful is it and how hurtful in the eyes of the defendant
might it be?

Mrs. Roper. The victim's voice is just that. It's neither a man-
date or a veto. It's a piece of information. Just as the court is re-



42

quired to know everything about a criminal defendant, and now a
convicted offender, we also need to know about the consequences
of the crime, because every crime is different.

As I indicated in my testimony, it's not about the character of the
victim, but the consequences of the crime.

Mr. Becerra. Anyone else?

Mr. HoDGiN. A defendant has every right to have all kinds of
character witnesses. He can have his minister, his teachers that he
hasn't seen in 20 years. They clean him up. They give him a hair-
cut. They put on fresh clothes. This is all designed to intimidate
the judge and the jury. Why should the victim be treated any less?

Mr. Becerra. Your sense again, anyone, and Mr. Chairman, this
will be the last question. Your sense of if we don't do this, if we
don't have a constitutional amendment, what will be the effects
over the next 5 or 10 years? What are we looking at in terms of
real effects to America?

Mrs. Roper. Victims will continue to be treated like second-class
citizens. Every day victims and survivors tell me of their reluctance
to cooperate with the system. They say, "Why should I care? Why
should I cooperate? Who cares about me?" When they take off from
work for repeated continuations on a trial, when they are shut out
of the courtroom and are outside somewhere, they say, "Why
should I bother?" That was the conclusion of the President's Task
Force in 1982.

More than 50 percent of the victims said that they would not re-
port a second crime, because in that process, they were injured to
a greater degree than the original criminal offender. That is a sad
and tragic commentary on our system of justice.

Mr. Hyde. The gentleman's time has expired. The gentleman
from California, Mr. Bono.

Mr. Bono. Thank you, Mr. Chairman. It appears that I don't un-
derstand the law the way many of the members here do. It appears
to me that you probably didn't until these crimes occurred. You
have all educated yourselves very well and have a much greater
understanding of the law than you did before these things oc-
curred.

I am guessing, but I would assume that you thought you had cer-
tain rights. Then when you went into court, where you were as-
tounded to find out that the limitations that you did have as vic-
tims. Therefore, you were angry enough to try to do something
about it.

I commend you for that. I think it so important that victims do
that, because you don't have the value of the technical knowledge
that the legal system has until you have experienced it. Having the
knowledge that you have displayed today is wonderful.

I just want to say that I totally agree with you. It appears to me
that the overall statement is we want a level playing field. You
don't want to demean anybody's rights or take away anybody's
rights, but you at least want equal rights. I think that is so impor-
tant to pursue, I am so pleased that you are.

I basically operate on logic. When you tell me that you were
raped and you can't test the raper for HIV, I can't imagine why on
God's Earth a law like that would exist. But apparently it does,



43

which is staggering. Why you can't you be at a trial in which you
were the victim, because somebody pulled a trick on you?

Sometimes when I observe courts, I see the games that go on. To
many different degrees, they are rather disgusting and unfortu-
nate. But they occur. You are doin^ something about that.

I just want to say to you that this member will do anything I can
to help you in your quest. Please pursue your quest so that you at
least get an equal playing field. If you need more, I am available
to do whatever I can to get an equal playing field. That's fair for
anybody to ask. The notion that the underdog has to be the victim
is appalling and makes me sick, frankly. So I congratulate you and
I am very impressed by the knowledge that you have acquired. I
hope you pursue that. I just want to let you know that you can cer-
tainly depend on me to do whatever I can to help you in this at-
tempt. Thank you.

Mrs. Roper. We thank you all for listening to us. But Mr. Bono
has identified a fatal mistake we all make, confusing logic and rea-
son with the law. Every day I am in courtrooms and unfortunately,
with all respect to the players, very often the judge will direct the
clerk to get the Maryland statutes and hand them to me to identify
the victims' rights and if they apply in this case.

Mr. Hyde. Many times the law isn't so bad, it's the interpreta-
tion that the law is given by some of our enlightened courts.

Mrs. Roper. And this amendment will allow us to test it.

Mr. Hyde. The gentlelady from Texas, Ms. Jackson Lee.

Ms. Jackson Lee. Thank you very much, Mr. Chairman. I thank
you for these hearings on an age-old consistently human problem
of people being victims. I would imagine the act upon or by the
brothers Cain and Able, first characterized or defined what is to be
an unwilling victim.

Mr. Chairman, I would like to submit for the record my opening
statement, and would ask for that submission.

Mr. Hyde. Without objection, so ordered.

[The prepared statement of Ms. Jackson Lee follows:]

Prepared Statement of Hon. Sheila Jackson Lee, a Representative in
Congress from the State of Texas

Thank you, Mr. Chairman. This hearing today involves an issue that is important
to millions of Americans. There is no question that a significant number of Ameri-
cans can identify a family member, friend or acquaintance who has been the victim
of a crime. Over the last decade, the friends and families of crime victims have orga-
nized themselves and have become very vocal on ensuring that criminal defendants
are adequately punished for their crimes.

The purpose of this hearing, which is to examine two proposed constitutional
amendments relating to the rights of victims, signals that the victims rights move-
ment has truly arrived. Nevertheless, amending the Constitution is a serious under-
taking that requires reflection and careful deliberation.

Since 1787, there have been numerous attempts to amend the Constitution. Most
attempts have been unsuccessful. There have only been 27 amendments to the Con-
stitution in 209 years of its existence. The framers of the Constitution were wise
enough to craft exacting requirements for amending the Constitution two-thirds ma-
jority of both the House and the Senate, and ratification by three-fourths of the
states or the convening of a constitutional convention by 38 states.

As members of the Judiciary Committee, we have an obligation to take seriously
the views of those Americans who believe the rights of victims are so fundamental
that such rights deserve to be enshrined in our Constitution. Crime is a major prob-
lem in our society and we have spent considerable time during the 104th Congress
debating and considering legislation to prevent crime, improve law enforcement and



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 6 of 24)