A Proposed Ohio Constitutional Amendment is Not the Way to Protect the Interests of Crime Victims in the Criminal Justice System.


Pending in the Ohio election on November 7, 2017, is what is being called “Issue 1,” also known as Marsy’s Law (named after a college student killed in California in 1983).  It is Ohio’s version of a law being pursued in multiple states nationwide.  The Issue provides for an amendment to the Ohio Constitution that gives “crime victims” great protections and privileges in the criminal justice system, over and above what is currently provided for under Ohio (and Federal) law.

There is great debate about that Issue – a lot of which is because of the apparent simplicity and appeal of the presentation – protection of the rights of crime victims, as opposed to what are sometimes perceived (or represented) as too many rights for “criminals” – even though the opposing person is supposed to be innocent until proven guilty.  Who can be against victims of crime?

Good as the intentions might be, there are substantial flaws in Issue 1, and it is opposed by major participants in the criminal justice system – both prosecutors and defense lawyers (a rare occasion that both sides are on the same side). It shifts Constitutional law from a 200+ year successful practice to something unnecessary and unwieldly and maybe even harmful to victims and to others.

First, “victim” is the term commonly used to describe anyone who accuses someone of a crime.  But there are at least two kinds of persons who are in that group.  One may be a bank that was robbed, an insurance company alleging they paid money to someone who lied, or a person beat up, robbed, whose home was broke into, or worse.

But there is also a group of “victims” that include neighbors complaining about insults or offenses over fences and property rights; former business partners who think the other took money they shouldn’t have; drivers in car accidents; teachers vs. students and students vs. teachers, employers against employees, parents against their children, estranged spouses and roommates and life partners or people just dating; and others.  They may or may not have been actually hurt, because to be a “victim” they must only accuse, and then have, in the eyes of police or prosecutors only a probable cause of any crime and possible suspect.  If the person was actually hurt, they still may or may not have accused the correct person, and sometimes for entirely appropriate reasons – flawed memories, imperfect views of strangers’ faces, or other reasons. Sometimes accusations against innocent people are just misunderstandings, innocent mistakes.

But there are also worse “victims”: outright liars, who make things up, sometimes to hurt people, sometimes just to get an advantage in some other dispute and use the criminal justice system to do it, whether it is over a contract, a job, or a boundary line, for example.  For some people it is over worst kind of disputes, over marriages and children, and the “victims” make accusations from the most trivial to the most horrendous, from theft or assault or abuse of them or a child, to get an advantage in a divorce of a custody fight, or to just get back at someone, or sometimes for sympathy, to get themselves out of some trouble, or just for drama.

Certainly people who have been injured, assaulted, stolen from, or worse, when involved in the criminal justice process have been through and are going through some of the most emotional and traumatic events of their lives.  But Issue 1 does not make a distinction between the “quality” or character of the “victim” or the merits of the accusation – or who should be called the “alleged victim” – they are only “alleged,” because under current law the person they accuse is merely a defendant, presumed to be innocent.  But to a great extent Issue 1 reverses that presumption, and equates a person who merely accuses someone of something with the person who may be fighting for their life and their freedom, and need all the resources possible to defend themselves, sometimes from outright false accusations.  Under current law (in Ohio) there are Rules and Statutes that provide for the method of determining the truth (or lack of sufficient truth) to prove those accusations.  Those who are accusers have access to information and other protections under current law.  They have assigned to them special “advocates” by the prosecutors’ offices to be their voice and their source for information.  They can go to any hearing they want.  They are as entitled to Due Process of Law as anyone else is.

In addition, the current criminal justice system – which is still viewed as the best in the world, that people from other countries come to study – have other processes in place that make it the best.  At its heart, the criminal justice system is supposed to be a search for truth, and therefore justice.  The United States and Ohio Constitutions provide for Due Process of Law, meaning that everyone has a right to be notified of any proceeding that affects their interests, to be heard in that proceeding, and to be heard by an impartial decider.

In addition, there are police and prosecutors and judges who have been trained, are experienced, and who have sworn to uphold justice and search for the truth.  They are balanced with defense attorneys who are also trained, experienced, and who have taken a similar oath, and who have a Constitutional obligation to their client – a person accused but who may be actually innocent, to advocate for the application of the Constitution to the process used against them.  Just look up the actual statistics of persons who have been accused or even convicted of the most heinous crimes, and subsequently determined to be completely innocent.  All this works, to the best of human ability, to achieve that justice.

But Issue 1 turns that upside down.  It gives constitutional protection to whoever is merely accusing someone of a crime. It applies before a person is found guilty of anything.  It applies to turn over large parts of the process that police, prosecutors, judges, and defense attorneys are sworn to protect and preserve due process and justice, to persons who are going through maybe the most traumatic events in their lives, at a time they are maybe at their most vulnerable, least objective, and have an absolute, and sometimes emotionally justified motive, not to seek the truth or justice, but revenge.  These people are sometimes those who have suffered terrible trauma.  But sometimes they are the next “Jerry Springer” contestant, someone seeking their 15 minutes or You Tube moments, or someone who has an unnecessary and uncontrollable need for drama in their lives, or someone out for some other worse reason to “get” someone.  The irrationality of some of these persons is demonstrated in high profile cases, where the accusers or even families of the accusers or victims advocate for convictions, no matter whether the person accused did anything or not.  It may not be wrong, but those persons are not always in the frame of mind to be making decisions about truth and justice, much less telling police, prosecutors, or judges how to do their jobs.  Issue 1 turns a large part of that over to them, and on the grounds that the real victims of crime are deserving of more protections than what some people think they already have.

The Justice System is not supposed to be the slave of passion, emotion, drama, or revenge.  But Issue 1 may very well make it that.  The courthouse can be turned into the next talk show episode.  These problems are why major organizations who are dedicated to justice are opposing it.

In fact, those who remember being a victim may think, when I was going through that, I would have liked it to be different.  By the same token, when you, or a close friend or family member are accused, maybe falsely, you do not want to know that their accuser, maybe a bitter neighbor, a former spouse or significant other, or a complete stranger who is merely mistaken about their accusation, is running the prosecution, and telling the court system what to do, even in part.  That is what Issue 1 may well do.

These and other reasons for the opposition to Issue 1 are reported by:

Ohio State Bar Association (professional association of attorneys on all sides of the legal spectrum):

https://www.ohiobar.org/Pages/OSBA-2017-Election-Day-info.aspx

Ohio Prosecuting Attorney’s Association (the statewide organization of attorneys who prosecute those accused of crimes):

http://www.ohiopa.org/pressroom.html

Ohio Public Defender’s Office (the state office for attorneys who defend those accused of crimes who are determined to not be able to afford private attorneys):

http://opd.ohio.gov/Policy-Outreach/Policy-Outreach/Issue-1-Marsys-Law

Ohio Association of Criminal Defense Lawyers (statewide organization of private attorneys and public defenders who defend persons accused of crimes):

https://www.cincinnati.com/story/news/politics/2017/10/09/election-2017-what-ohio-issue-1-aka-marsys-law/688598001/

Ohio American Civil Liberties Union (organization dedicated to advocating for protection of all constitutional rights):

http://www.acluohio.org/archives/press-releases/aclu-of-ohio-opposes-issue-1

Other positions and arguments regarding the Issue can also be found at:

https://www.sos.state.oh.us/globalassets/ballotboard/2017/1-against.pdf

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only.  Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed.  Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations.  Internet reading is never a substitute for an actual consultation with a competent lawyer.  More information about my practice and background can be found at:

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

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