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Crime victims have gained an unprecedented edge in the criminal justice system and are on their way to becoming third parties in court proceedings with privileges they were never intended to have, legal experts are warning. A current proposal to amend the Federal Rules of Criminal Procedure gives victims more than a dozen additional rights in the courts, including the right to their own attorney at various proceedings; the right to be heard and represented at any hearing affecting their rights, including bail, sentencing and plea hearings; and the right to review pre-sentencing reports. The proposal has drawn skepticism from many in the legal profession — including judges, lawyers and law professors — who are concerned about making victims third, independent parties in the criminal justice process. The proposal’s public comment period ended on Feb. 15. Adding to the debate, many in the legal profession believe that the victims’ rights movement has given prosecutors more leeway in the courts, allowing them to use unwarranted tactics such as putting a grieving relative on the stand when it’s not necessary or introducing inflammatory evidence just to arouse jurors. As a result, they charge, the courts are seeing more sympathy-based verdicts and sentences, rather than decisions based on facts. “It’s dangerous. And what concerns me most is that we are now on some level making the victim sort of one-third of the process: There’s the defendant. There’s the government, and then there’s the victim. Well, the victim and the government are aligned, so you now have two-thirds versus one-third,” said Edward Ohlbaum, director of trial advocacy and clinical legal education at Temple University James E. Beasley School of Law. “What they ultimately want is to make the victim a third party … . There’s no dispute that that would introduce a major change in the current system, and it would disturb the present balance in the courtroom,” Ohlbaum said. Greater voice needed? But victims deserve a greater voice in the court process, countered Paul Cassell, a federal judge and law professor at the University of Utah who introduced the latest proposal to amend the Federal Rules of Criminal Procedure and guarantee victims more rights. Cassell said it is not his intent to make victims “third parties” in proceedings, but rather to make them “independent participants” with guaranteed rights and protections. “What’s at stake is whether victims are going to be participants in the criminal justice process, or remain outsiders to the system,” Cassell said. “The victim ought to have the right to participate in the system where they have relevant information to provide judges, or legitimate interests that are at stake.” Cassell noted that the 2004 Crime Victims Rights Act mandated that victims be participants in the criminal justice process. In order for judges to implement that mandate, he said, they need to amend the Federal Rules of Criminal Procedure, which is what they use when trying to find out how to implement a law. Richard Tallman, a 9th U.S. Circuit Court of Appeals judge who is on the advisory committee considering the proposal, said the 2004 act poses a delicate balancing act for the courts. “I do think that he is advocating a coequal treatment of victims as parties,” Tallman said. “That is frankly an issue that the courts are going to have to wrestle with … . Courts are going to have to decide in terms of balancing the respective interest of victims, defendants and the United States as the prosecutor.” But in the eyes of criminal defense lawyers, elevating victims to the status of a third party puts defendants on the losing end of the stick. “It’s our opinion that whenever you give someone else rights in the criminal justice process, by definition they will come at the expense of the defendant,” argued attorney Peter Goldberger, who last month testified before Tallman at a victims’ rights hearing on behalf of the National Association of Criminal Defense lawyers. Goldberger believes that victims’ rights advocates are “trying to hijack the rule-making process.” Meanwhile, victims are also gaining an unfair advantage in the courtroom, said Barry Boss, a former federal public defender who is a co-chairman of the American Bar Association Section of Criminal Justice’s sentencing committee. “From victim-impact statements to signs and buttons, victims and their families are playing an increasingly active role in criminal cases,” Boss said. “I think prosecutors and judges are tending to tilt the balance more in favor of the victim’s rights than the defendant’s rights, and I think that this is extremely problematic.” What has especially irked defense lawyers in recent years is the aggressive manner in which prosecutors allegedly have been targeting jurors’ emotions. Prosecutors, they claim, are using emotional testimony and inflammatory evidence to arouse jurors, and judges are letting them get away with it. Defense lawyers, however, are fighting back. In Nebraska last month, one appealed to the U.S. Supreme Court over a case in which prosecutors put a crying mother on the stand to identify her daughter’s bloodied body in a photo before the jury. The defense objected, arguing that a doctor had already identified the body, but the court allowed the testimony anyway. The Supreme Court recently denied certiorari. Nebraska v. Iromuanya, No. CR04-339 (Lancaster Co., Neb., Dist. Ct.). In Oklahoma last year, a defense lawyer convinced an appeals court to reverse a death penalty sentence after finding that the prosecutor used “graphic and potentially inflammatory evidence,” such as crime-scene pictures, to arouse passion in the jury. Mitchell v. State of Oklahoma, 136 P.3d 671 (Okla. Crim. App. 2006). And in Texas, a defense lawyer in 2005 challenged a prosecutor’s dramatic re-enactment of the stabbing death of a husband — on the couple’s actual bloodstained bed — alleging the tactic was prejudicial and played to the jurors’ emotions. An intermediate-level appellate court, however, upheld the re-enactment. Wright v. State of Texas (Texas App.-Houston [14th Dist.]). On the flip side, the Texas high appellate criminal court reversed a life sentence in 2002 over the playing of a 17-minute video montage of pictures depicting the murder victim’s life, set to music from the movie Titanic. The court held the prosecutor’s video-playing tactic was prejudicial. Salazar v. State of Texas, 90 S.W.3d 330 (Texas Crim. App.). Burden of proof Paul Logli, immediate past president of the National District Attorneys Association, defended the use of victims’ testimony by prosecutors. “There’s nothing wrong with letting the jury know that the victim had a family, and that the mother had to identify the body,” Logli said. “We’re not trying to sneak anything in there.” Logli, who is the district attorney in Winnebago County, Ill., said his prosecutors routinely put grieving parents on the stand. “Do I want as part of our case the fact that a grieving mother had to come down to the coroner’s office and identify the child who was killed in a gang shooting crossfire? Absolutely. And I don’t think it’s overly impassioned to do that,” Logli said. “Are we trying to influence the jury? Yes, we are, because we have something called ‘burden of proof beyond a reasonable doubt.’ “ But attorney Michael Rips challenged the practice of using a relative to identify a body for a jury when an identification has already been made. “The big problem is there’s an increased use of this perverse device for prejudicing the jury, and the courts are absolutely allowing it,” Rips said. “Prosecutors have seen the effectiveness of victim-impact statements at the sentencing stage, so the next, perverse logical step has been, ‘Let’s try to sneak that same testimony in the guilt and innocence phase.’ . . . They bring on a mother to identify the victim. They wheel out a big screen and start flashing pictures of the victim on the operating table, at which point the case is over.” Toby Shook, a former prosecutor in Dallas for 23 years, said appealing to the jury’s emotions is all part of a prosecutor’s job. “You’re not doing your job as prosecutor if you don’t do that,” said Shook. Shook said that, for years as a prosecutor in Texas, when handling murder cases, he would routinely put up a picture of the victim in the courtroom — either a graduation photo or a picture of a parent with their kids — and he would make sure the jury could see it during the entire trial. A defense lawyer would occasionally flip it over. He’d pop it back up — a tactic that he admits was aimed at tapping into the jury’s emotions. “I wanted the jury to know that this was a real person,” Shook said.

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