Senate Judiciary Committee Holds Hearing on Victims of Crime Constitutional Amendment

DURBIN:

I'll try to make my statement even briefer. I thank both you and Senator Feinstein for your good faith effort to take this work product and to make it much more compact. It still raises some fundamental questions and I believe Senator Leahy has addressed. Because I think what we all agree on is that victims should have a right to be notified, to be informed, and to be present. Now we have a competing right too, and that would be the rights of the accused. With the presumption of innocence, with the establishment of constitutional protections, does this amendment pre-empt or take away any of the rights of the accused in America? I think that is a legitimate threshold question. If the answer is yes, which rights are now removed from criminal defendants? Senator Feingold and I have both offered amendments to this constitutional amendment at various times over the last several years that would say, nothing herein shall deny the rights of the accused under the constitution. Both times those amendments have been defeated in the judiciary committee. Which certainly raises the question, if not the presumption, that we are pre-empting the rights of the accused defendant. If we are doing so, let's do it honestly. Let's be open about it. When the Department of Justice comes to testify, I am going to ask Professor Ben Early my question, just which rights of the criminal defendants are we going to remove or restrict or hamper by protecting the rights of victims? If there are none, then we should say it straight out. If there are some, let's also be very explicit about it. We also have a question here, which I raised about the earlier version of this amendment, which gets down to some basics. Who are victims? It was easy to find the victim of an assault, to identify that person, and to say, that is the protected person. But in the case of a murder, who is the victim? Is it the mother and father of the victim who died? Is it the brother and sister? Who will it be? How many people will have rights vested by this constitutional amendment? There is also a question about a lawful representative of the victim. Another undefined term here which also is going to raise some questions about the responsibility of the state to notify the lawful representatives of the victims and the victims themselves of their constitutional rights. So many questions have been raised by it. I will close by saying, I start with the same presumption that I start with any constitutional amendment. There is a reason why, in the history of the United States of America, we have amended this constitution so rarely. It is because we assume that the constitution and the amendments, particularly the Bill of Rights, have stood the test of time and we should never be so presumptuous as to believe that we can take a roller to a Rembrandt and make it look a little better. We ought to start with the presumption that if we can do it by statute, we should do it by statute, and not by constitutional amendment. And that of course is my concern as we go into this debate. Thank you, Mr. Chairman.

DURBIN:

Thank you very much.

Professor Dinh, let me go back to that Section One and read it. "The rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them, are hereby established."

I read that differently. I think it is a presumption that we can give rights to victims without endangering or limiting the rights of the accused.

But it doesn't say expressly the following: "No rights vested in victims under this amendment shall be at the cost or at the expense of the rights of the accused."

DURBIN:

Wouldn't that be a clearer statement of what you say is, in fact, the meaning or intent of this amendment?

DINH:

I do not know what the exact intent of the amendment is, but I do know that the meaning is, I think, quite clear on the face of the amendment. Section 1 states forth the overall principle that the rights can be reconciled and both sets of rights can be protected. There's no question that the introduction of a third player, if you will, into the criminal justice system that is currently dominated by the prosecutor and the criminal defendant's interest. The introduction of crime victims as a full partner in this enterprise would have significant impact, would prompt significant adjustment in that criminal justice system. I think that the admission of such an equal player, a first class citizen if you will, into this community of criminal justice would prompt significant development of the law by courts seeking to adjust the criminal justice system in order to protect fully the rights of victims. That's why I think that the nuance (ph) provision that is in the last sentence of Section 2 that allows for a court to make proper accommodations for substantial interest in administration of justice is more of a clearly precise (inaudible) approach, rather than a broad sort (ph) approach to the adjustment that would have to be made...

DURBIN:

Let's try to be specific then. Let's get down to specific instances. Because I think one of the—I read through this, where this statute a federal statute, involving crime victims' rights, it would pass 100 to nothing, or close to it on the floor of the Senate. But since we're talking about a constitutional amendment, there is and should be closer scrutiny to the exact words that are used. In my mind, the one element here that raises more concern than others, is the element of the rights not to be excluded from public proceedings, reasonably to be heard, so forth and so on. And the public proceedings, of course, refer back to any public proceeding involving a crime. So I take it that what we're speaking of is the rights of victims to be present at the trial, the trial of the defendant, whether they are going to testify or not. And that I think raises some questions that need to be resolved.

Now, let me go to the end of that Section 2. It says that these rights shall not be restricted, except—so the exceptions clause which you referred to in your statements says the courts can make exceptions to the rights of the victims to be at the trial if they find a substantial interest in public safety or the administration of criminal justice, or by compelling necessity. What's the difference between a substantial interest and compelling necessity?

DINH:

Senator, that is a very good question. As you know, compelling necessity is a phrase that was used in the previous version of the Crime Victims Rights Amendment, SJ Rev.3 (ph) of the 106th Congress. It is a very high standard for exceptions, that is, I think a derivative of some of the Supreme Court cases with respect to executives' power, especially in times of danger to the national security. The phrase substantial interest is one that is derivative from the intermediate scrutiny standard of the Supreme Court...

DURBIN:

So, it would be a lower standard?

DINH:

It would be a lower standard in terms of strength. It only has to be substantial interest rather than a compelling necessity. So where, as I read this, where the interest is one that touches upon public safety or the administration of criminal justice, it needs only be substantial for the court to accommodate it, and by restricting (inaudible)...

DURBIN:

Let me ask you this question. I think in answer to Senator Feinstein you said this, but I want to make certain it's clear. Is it your belief that the phrase, the administration of criminal justice, which is the basis for an exception for the right of a victim to be present at trial would include a consideration by the court as to whether the presence of the victim would in any way diminish or deny the rights of the criminally accused?

DINH:

Senator, let me answer that a little bit more completely by recounting a phrase that I see every single day when I come in to see the Attorney Generally, right outside in his office in the rotunda is a quote that says, "the United States wins its point whenever justice is done its citizens." So, yes, I do believe that justice is done when criminal victims are fully represented in the criminal justice system and defendants' rights are fully protected. I do think that the system and administration of criminal justice have to accommodate not only the interest of the United States in prosecuting the guilty and exonerating the innocent, but also the rights of victims to be present and the rights of criminal defendants to have a fair trial.

DURBIN:

So, if I might Mr. Chairman, I just have two questions. They're important to me and I hope that we can have a few minutes to answer them. Let's get to a specific situation. Let's assume that a judge—and this constitutional amendment is on the books—a judge takes a look at the prospect of bringing into the courtroom a group of victims, who could be the families of the person actually the victim of violent crime, or actual victims themselves, and the judge believes that the presence of those victims in the courtroom would somehow impede the constitutional right guaranteed to an impartial jury. The judge believes that their presence in the courtroom might do that. Do you believe that they have established in Section 2 the grounds for that judge to say the constitutional rights of the victims do not supersede the substantial interest of the accused to an impartial jury and, therefore, I will restrict the victims from the courtroom.

DINH:

I do not think I can venture a specific answer to your particular hypothetical. But, I do think that under the language of the amendment, a judge can consider a substantial interest in the proper administration of justice. And, it may very well be that how he conducts his courtroom includes such a substantial interest. Without going into the prognostication of how this amendment would be interpreted and how judges would decide cases in particular instances, I do think there is sufficient flexibility within the amendment to afford a judge the opportunity to control his courtroom to best protect the interest of the criminal defendant and the rights of criminal defendants and for a prosecutor to make decisions in order to advance interest of prosecution.

DURBIN:

But you wouldn't quarrel with the conclusion that if the exception relates to the administration of justice, and we have I think come to a conclusion, that includes the rights of the accused, that certainly would relate to constitutional protections, specific constitutional protections have in America, such as the right to an impartial jury.

DINH:

I think that would be the right, the administration of criminal justice includes fairness to criminal defendants and fundamental protection of rights guaranteed in the Constitution. But, in any event, where there are constitutional rights that may be intentioned, and where line has to be drawn, that is a task that is traditionally established by courts according to standards that are well-established in the constitutional law doctrines. I think this particular sentence affords further guidance along the lines you suggest...

DURBIN:

My last question is this. Let me take you from what I think is an easier conclusion to what, I think, is a little more contentious one. That is the fact that we have sequestered witnesses from trials, historically, because we believe that they'll go to school on other witnesses, that they'll pick up information that was testified to and they'll repeat it as their own, whether they're conscious of that or not. So, it's been a standard of evidence that unless you are a party to a case or have a statuatory right to be present, that you are excluded from a courtroom until you are called to testify. Now, we're in a situation with victims, and possibly victims' families. Is the same basic standard going to apply? Do you believe the substantial interest exception under the administration of criminal justice allows a judge to determine that the presence of victims or victims' family in the courtroom might, in some way, reduce the likelihood that they will be credible witnesses and, therefore, should be excluded?

DINH:

The short answer to your question, Senator, is I do not know. I do know that under the current system, under Federal Rule of Evidence 6-15 (ph) there is discretion for a judge to make such kind of determination. I also know that in the Crime Victims Clarification Act of 1997, after the Timothy McVeigh (ph) issue that the Chairman had raised and Senator Feinstein had raised, Congress spoke (ph) specifically to the rights of victims in those circumstances. Both of these, of course, are statuatory in nature, for the Federal Rule of Evidence is pursuant to the laws of Congress to adopt it. Those, and so is the Clarification Act of 1997. Those you are free to amend, interpret, and legislate as you see fit. I think that the specific application of this amendment as it relates to future cases should impact is, I think, for the court to judicate finally.

DURBIN:

My last question if I might Mr. Chairman. Section 1 begins with the rights of victims of violent crime. As you testify today, s it your belief that the term violent crime is crime as defined by both federal and state statute.

DINH:

Yes. The amendment would be an amendment to the Constitution. Under Article 6 of the Constitutions, the Supremacy (ph) clause, it would apply to state officials just as well as it was to...

DURBIN:

In my state of Illinois, the definition of violent crime is different that the federal standard. So, if someone is guilty of a violent crime in Illinios by state definition that doesn't meet the standard by federal definition, which standard will apply to the phrase, "the rights of victims of violent crime"?

DINH:

The crimes of violence are somewhat variously defined within 18 USD (ph), the federal code, and as you know, variously defined in various statutes around the country also. Because this will be a constitutional amendment, the words "violent crime" will be of constitutional dimension.

I would imagine the courts, in interpreting the scope of that right and the meaning of the adjective violent would be informed by the various legislative enactments that are (inaudible), but I think the definition itself will be one of constitutional import that does not admit of either federal or state legislative definition, but may be both or neither.

DURBIN:

Thank you Mr. Chairman for your patience.