Often, I am contacted by a crime victim or a surviving family member who will share their experiences with our state’s criminal courts. As their story unfolds, the frustration is palpable. The broken dreams and loss of innocence caused by the perpetrator is augmented by their devastation that justice is often elusive at best, and a fiction to many.
Their hopes that a conviction would lift them to a place where they might begin healing have been dashed. The common thread in their complaints revolves around the system’s failures: the lack of notice of court dates; the failure of the state to provide, where possible, witness protection services; the inability to speak directly with the prosecutor handling their case; the learning after the fact of a prosecutor’s plea offer.
At the end of our conversation, the question always comes: “I cannot fathom another victim going through what I have. How, if at all, can we fix this?” These complaints are not new nor are they uncommon. However, the solution seems elusive. But here’s one suggestion that might help – a change to the Connecticut’s Rules of Professional Conduct.
Connecticut’s Constitution has provided crime victims with 10 enumerated rights:
1) The right to be treated with fairness and respect throughout the criminal justice process.
2) The right to timely disposition of the case following arrest of the accused, provided no right of the accused is abridged.
3) The right to be reasonably protected from the accused throughout the criminal justice process.
4) The right to notification of court proceedings.
5) The right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person’s testimony would be materially affected if such person hears other testimony.
6) The right to communicate with the prosecution.
7) The right to object to or support any plea agreement entered into by the accused and the prosecution and to make a statement to the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the accused.
8) The right to make a statement to the court at sentencing;
9) The right to restitution which shall be enforceable in the same manner as any other cause of action or as otherwise provided by law.
10) The right to information about the arrest, conviction, sentence, imprisonment and release of the accused.
For the most part, rights 1 through 9 begin and end with the state prosecutor, who is in the best position to assure that the crime victim or surviving family member rights’ are, in fact, upheld.
The Rules of Professional Conduct is a roadmap on the ethical guidelines and expectations for attorneys. One area where the rules need updating is in the responsibilities of prosecutors. Specifically, the responsibility prosecutors have toward crime victims. Rule 3.8 lays out the responsibilities of the state prosecutor. It directs a prosecutor to ensure a defendant’s rights are not abridged, to prosecute only when there’s probable cause, and to prevent extrajudicial statements from being made by the prosecutor or staff. The comments accompanying the rule, however, seem point to a more robust role in the criminal justice system. Specifically, the comments state: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” The language continues by directing the prosecutor to take steps to prevent the violation of a defendant’s rights. And if the prosecutor is in the best position to protect a defendant’s rights, I would argue he or she is in the best postion to protect the rights of crime victims as well.
For example, a state’s attorney is the only individual who can screen and certify a witness (both a traditional witness and a crime victim) into the state’s Witness Protection Program. Furthermore, the prosecutor is one of few individuals (along with bail bonds persons and defense attorneys) who can advocate for or against bail or conditions of release in court. Therefore, the prosecutor is in the best position to facilitate and advocate for the crime victim’s right to be reasonably protected from the offender.
Rule 3.8 also states that the prosecutor is responsible for makng the defendant aware of his or her rights, including the availability of counsel for indigent defendants. Specifically, Rule 3.8(2) states that the prosecutor shall, “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” Thus it makes perfect sense that the prosecutor, likewise, should ensure that crime victims are aware of their rights and the mechanisms available to assert and protect those rights.
And so it seems appropriate with the advancement of crime victims’ rights both nationally and within Connecticut that the Judicial Branch’s Rules Committee would take a gander at Rule 3.8 and subsequent comments and expand the list of a prosecutor’s responsibilities.
This idea is nothing new. The American Bar Association has spelled much of this out in “Prosecutor Standard 3-3.2, Relations with Victims and Prospective Witnesses,” which lays out responsibilities of the prosecutor in regards to crime victims and witnesses. Specifically the rule directs prosecutors to provide a victim with case information, advice and afford protections when needed and notice of scheduling changes.
It is clearly time to update Connecticut’s Rule 3.8, for what else would it mean for a prosecutor to be the “mister of justice” if that justice benefits only a defendant and not the victim of a crime?
Michelle Cruz, a former Massachusetts prosecutor and Connecticut State Victim Advocate, is now a private practice attorney in Hartford.