1. Victim’s Rights Janine Robben, Oregon Crime Victims Law Center

2. SB 233 (enacted 2009), now codified as Oregon Revising Statute 147.500 et seq. What it does: Establishes procedures to prevent victims’ rights from being violated in first place Establishes procedure for making claims of violation of rights Establishes procedure for analyzing claims of violation of rights and determining whether to grant/not grant proposed relief Gives victim appellate remedy

3. SB 233 cont… What it does NOT do: Create any additional Constitutional rights Change any existing Constitutional rights

4. Differences between Oregon Constitution and ORS 147.500 et seq.

5. Purpose Constitution: “To ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal proceedings...” Or. Const. art. I, § 42 (1). ORS 147.500 et seq.: Creates procedures for crime victims to assert their constitutional rights and for prosecutors to provide notice and information to court and victims. Requires courts to obtain information pertaining to victims’ rights at certain critical stages of the proceedings.

6. “Victim” Constitution: “Victim” means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime, and in the case of a victim who is a minor, the legal guardian of the minor. Or. Const. art. I, § 42 (6)(c). ORS: “Victim” means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological; or physical harm as a result of the crime alleged in the criminal proceeding and, in the case of a victim who is a minor, the legal guardian of the minor. ORS 147.500(1)(13).

7. Standing Constitution: “A victim may assert a claim for a right established in this section in a pending case, by a mandamus proceeding if not case is pending or as otherwise provided by law.” Or. Const. art. I § 42 (3)(b). “Every victim … shall have remedy by due course of law for violation of a right established in this section.” Or. Const. art. I §§ 42(3)(a), 43(5)(a) ORS: “A victim may assert a claim under sections 1 to 19 of this 2009 Act personally, through an attorney or through an authorized prosecuting attorney.” ORS 147.500(2)(1).

8. Applicable Proceedings Constitution: Right to present and informed of “... any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing….” Or. Const. art. I, § 42 (1)(a). (“Critical stage” is not defined.) ORS: Certain procedural rights apply to “Critical stages of the proceeding.” “Critical stage” is defined. ORS 147.500(5)(a)-(m). NOTE: “Critical stage” does not include arraignment.

9. Applicable Proceedings cont. Constitution: “The right to be consulted, upon request, regarding plea negotiations involving any violent felonies….” Or. Const. art. I, § 42 (1)(f). ORS: “In any case involving a defendant charged with a violent felony: (a) if the victim requests, the prosecuting attorney shall make reasonable efforts to consult the victim regarding plea discussions before making a final plea agreement.” ORS 147.512(2). NOTE: SB 233 repealed ORS 135.406, which required the judge to ask – before accepting a plea – whether the victim had requested to be notified and consulted regarding plea negotiations and, if so, whether the victim agrees/disagrees with the plea agreement and the reason.

10. Making, Analyzing and Appealing an ORS 147.500 et seq. Claim 1.Specific Kinds of Claims or Issues 2.All Other Claims for Violation of Victim’s Oregon Constitutional Rights 3.Loss of Remedies 4.Appealing ORS 147.500 et seq. Orders

11. A. Claim concerning pre- determination of right A victim or prosecuting attorney who seeks pre- determination of an issue involving a victim’s Constitutional rights that will impact the conduct of trial shall file a motion within 35 days of the defendant’s arraignment or entry of plea, or “promptly” if the factual basis of the issue becomes known at later time and could not have reasonably been discovered earlier. ORS 147.522(1). The court shall conduct a hearing and rule as soon as practicable. ORS 147.522(4). See also ORS 147.530.

12. A. Claim concerning pre- determination of right… continued A defendant who seeks to challenge the designation of a person as a victim shall file a response to the victim’s claim of violation of rights or file a motion within seven days after the victim first exercises his rights unless the court allows a later filing. ORS 147.522(2)(a)-(b). The court shall conduct a hearing and rule as soon as practicable. The court may not allow the motion unless designating the person as victim violates the U.S. or Oregon Constitutions. ORS 147.522(4). See also ORS 147.530.

13. A. Claim concerning pre- determination of right… continued A defendant who seeks to object to a victim’s presence at trial shall file a motion within 35 days of his arraignment or “promptly” if the factual basis for the objection could not reasonably have been discovered sooner. ORS 147.522(2)(a)-(b). The court shall conduct a hearing and rule as soon as practicable. The court may not allow the motion unless the victim’s presence would violate the U.S. or Oregon Constitutions. ORS 147.522(4). See also ORS 147.530.

14. B. Claim concerning release decision The victim lacked notice of or opportunity to be heard at a hearing in which the defendant was released from custody or had his security amount reduced. ORS 147.508(1)(a). The victim must ask the court to reconsider its decision no later than seven days after the victim knew, or reasonably should have known, about the release decision. ORS 147.508(1)(b). The prosecuting attorney may ask the court to schedule a hearing to reconsider its release decision (discretionary). ORS 147.508(1).

15. C. Victim makes claim A victim’s right, under the Oregon Constitution, was violated. Or. Const. art. I, §§ 42, 43. The victim, using a prescribed form or in open court in the defendant’s and prosecuting attorney’s presence ORS 147.515(2)(a)-(b): – informs the court of the alleged violation within seven days of the date the victim knew, or reasonably should have known, of facts supporting the allegation (ORS 147.515(1)); and – describes the facts supporting the alleged violation and proposes a remedy. ORS 147.515(1)-(2).

16. D. Court does not find claim to be valid on its face The court shall enter a written order dismissing the victim’s claim (ORS 147.515(5)-(6)) that contains: – The reason(s) the claim was dismissed (ORS 147.515(5)(a)); and – The information that the victim has seven days from receipt of the order to file a claim correcting the deficiency identified by the court in denying the original claim. ORS 147.515(5)(b).

17. E. Court does find claim to be valid on its face If each person entitled to notice of the claim and a reasonable opportunity to be heard are present, the court shall hold a hearing “as soon as practicable.” ORS 147.517(4)(a). (If the hearing is not held immediately, the court may require the victim to complete the prescribed form. ORS 147.515(6). If any person entitled to notice and a reasonable opportunity to be heard is not present, the court shall issue an order to show cause. ORS 147.517(4)(b). By implication of ORS 147.530(5)(a), the hearing on this order may need to take place within seven days of the day the order was issued.

18. F. If court issues order to show cause pursuant to E., above The order shall include the following: – The date by which any responses to the victim’s claim must be submitted to the court (ORS 147.517(2)(a)); – The date on which a hearing on any timely responses will be held. ORS 147.517(2)(b). Copies of the victim’s prescribed form and the court’s order to show cause shall be provided, by the court, to the victim, the prosecuting attorney and the defendant. ORS 147.517(3). The victim, prosecuting attorney, defendant or any person against whom relief is requested may contest the claim by filing a timely response. ORS 147.517(4).

19. G. If timely response to show cause order is not filed The court shall: Make factual findings as supported by the record. ORS 147.520(1)(a). Determine whether these factual findings constitute a Constitutional right violation. ORS 147.520(2)(a).

20. G. If timely response to show cause order is not filed…continued Issue a written order (ORS 147.520(2)-(3)) that Finds that the victim’s rights have not been violated, denies relief and includes the reasons for denial (ORS 147.520(2)(b) and (3)); Finds that the victim’s rights have been violated, grants relief after giving due consideration to the victim’s proposed remedy and includes the reasons for granting relief (ORS 147.520(2) and (3)) or Finds that the victim’s rights have been violated but that the Oregon or U.S. Constitution prohibits all appropriate remedies or that the victim’s rights have been suspended and therefore denies relief. ORS 147.520(1)(c). (ORS 147.517(4)(b) says that the prosecuting attorney can file an ex parte affidavit setting forth good cause to suspend a victim’s Constitutional rights and that the court may do so if the court finds the prosecuting attorney has a good-faith belief that the criminal proceeding involves a minor victim or organized crime. If the court finds good cause to suspend the rights, the court shall then issue an order suspending the victim’s rights but not including the facts supporting the suspension.) Provide copies of the order to the victim, prosecuting attorney, defendant and any person against whom relief was ordered. ORS 147.520(4).

21. H. If timely response to show cause order is timely filed The court may reschedule any matter in the criminal proceeding that may directly impact, or be impacted by, a claim, a response or a motion filed under ORS 147.500 et.seq. Trial may only be delayed for 14 days unless the court finds good cause to expand this time period. ORS 147.525(1)-(4). The court shall: – Receive relevant evidence; – Determine that the victim is entitled to relief or that the victim is not entitled to relief or that the U.S. or Constitution prohibits all appropriate relief; – Issue a written order, including the reasons relief was granted or denied, within seven days of the day the show-cause order was issued unless the court finds good cause to issue the order later, or issue the order orally on the record, followed by a written order as soon as practicable; and – Provide copies of the order to the victim, prosecuting attorney, defendant and any person who filed a response or against whom relief was ordered. ORS 147.530.

22. A remedy under ORS 147.500 et. seq. is waived under the following circumstances: By a victim, if the victim had notice of a related claim and did not file a response under ORS 147.517(4) or participate in a hearing under ORS 147.530. ORS 147.533(1)(a). By any person after the time for filing a response to an order to show cause or a motion for a pre-trial determination has passed or former jeopardy has attached, unless a motion for new trial or in arrest of judgment has been granted. ORS 147.533(1)(b). These provisions do not apply to remedies that may be effectuated after the disposition of a criminal proceeding or the Oregon Constitutional rights to obtain information, receive prompt restitution or have a copy of a transcript. ORS 147.533(2)(a)-(d). These provisions also do not apply to remedies requested in a subsequent criminal proceeding after a state or federal court has granted a new trial or sentencing, provided that the remedy is not waived in the subsequent criminal proceeding. ORS 147.533(2)(e).

23. Appealing ORS 147.500 et. seq. Orders – if the defendant is appealing They must follow the usual statutory procedures. ORS 147.535(1)(b). Their right to petition for a writ of mandamus is not affected by ORS 147.500 et. seq. ORS 147.535(1)(c).

24. Appealing ORS 147.500 et. seq. Orders – if anyone else is appealing The Oregon Supreme Court, not the Oregon Court of Appeals, has original jurisdiction. ORS 147.535(2). The appellant has a right to have the order reviewed for certain classes of crimes but not for others. ORS 147.537(1) and.539(1). The appellant must file a notice of interlocutory appeal for certain classes of crimes and a petition for review for others. ORS 147.537(1) and.539(1). The Supreme Court must issue its decision within 21 days after the notice or petition was filed unless it determines otherwise. ORS 147.537(16) and.539(4). The trial court shall stay all matters that directly impact or are impacted by the order on appeal for 21 days from receipt of the notice of appeal or the issuance of an order granting review. The Supreme Court may extend, reduce or vacate the stay. ORS 147.542.

25. Prepared by the Oregon Crime Victims Law Center, April 2010 The Oregon Crime Victims Law Center receives subgrant funding through the National Crime Victim Law Institute under a grant from the Office of Victims of Crime, Office of Justice Programs, U.S. Department of Justice Grant No. 2002FGXK004. The points of view expressed in this brochure and on this website are the Center’s and do not necessarily represent the official position of the National Crime Victim Law Institute nor the U.S. Department of Justice. Moreover, this information is educational and intended for informational purposes only. It does not constitute legal advice, nor does it substitute for legal advice.

26. OREGON CRIME VICTIMS’ RIGHTS: AN OVERVIEW

27. IN STATE COURT If the defendant is an adult or a remanded juvenile being prosecuted in an Oregon state court, victims’ rights under the Oregon Constitution and statutes include the following. Note that all citations to House Bill (HB) 3634 apply only to a defendant who is charged with, or convicted of, a person felony or person Class A misdemeanor, Burglary I or certain additional sex crimes or an attempt, conspiracy or solicitation to commit a person felony or person Class A misdemeanor. HB 3634 1(2). HB 3634 became effective 2/24/10.

28. In State Court – Right to Notice To be informed of victims’ rights under the Oregon Constitution as soon as practicable (Or. Const. Art. I § 42(1)(g)); to be notified of the victims’ rights described in Sections 2 and 4 of HB 3634. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 3634 1(1)(a). To be notified in advance of any “critical stage” of the case that takes place in open court when the defendant will be present. (A victim must request this right from the district attorney or other prosecuting attorney in the case.) Or. Const. Art. I § 42(1)(a). To be notified if the defendant is being considered for an “early disposition” program. To be notified of any Psychiatric Security Review Board hearing and of the defendant’s conditional release, discharge, or escape. (A victim must request this right from the Psychiatric Security Review Board, (503) 229- 5596.)

29. In State Court – Right to Notice To be notified of a hearing on the defendant’s motion to set aside his conviction or arrest record. To be notified by the district attorney of rights concerning a defendant’s petition for post-conviction relief and of proceedings conducted by the Oregon Board of Parole and Post-Prison Supervision. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 1(1)(a). To receive reasonable, accurate and timely notice from the Attorney General when an appeal is taken. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 1(1)(b). To receive reasonable, accurate and timely notice from counsel for the state when a petition for post-conviction relief is filed. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 1(1)(c).

30. In State Court – Right to Presences and Participation To be present at any “critical stage” of the case that takes place in open court where the defendant will be present, and to be heard at any pretrial release hearing and at sentencing. Or. Const. Art. I § 42(1)(a). To provide statements for the pre-sentence investigation report. To reasonably express views at a probation or parole hearing, and to provide relevant information to the State Board of Parole and Post- Prison Supervision regarding the convicted person’s release on parole. To attend the proceeding or, at the victim’s discretion and with advance notice to the board, to attend by alternative means; to submit written and oral statements adequately and reasonably expressing any views and to request the participation of the district attorney of the county in which the offender was convicted (actual participation at DA’s discretion). HB 3634.

31. In State Court – Right to Presences and Participation To attend any public hearing related to the criminal proceeding that is conducted by an appellate court. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 3634 1(1)(d). To be heard, orally or in writing, at a post-conviction proceeding. HB 3634 2(2)(c). To make a statement at a hearing on the convicted person’s motion to set aside his conviction or arrest record.

32. In State Court – Legal Representation A victim may represent himself or be represented by an attorney, including one from the Oregon Crime Victims Law Center or a district attorney who has agreed to represent the victim in asserting his rights.

33. In State Court – Right to Protection To request testing of the defendant for HIV and other communicable diseases if the crime involved the transmission of body fluids and, under certain circumstances, to obtain a court order requiring the defendant to be tested. To have the victim’s personal identifying information not disclosed to the defendant by the defendant’s attorney without a court order, and to have the victim’s address and phone number not given to the defendant without a court order. (A victim must request this latter right.) To have decisions regarding the defendant’s pretrial release based on the victim’s reasonable protection. Or. Const. Art. I § 43(1)(b). To have the defendant prohibited from contacting the victim, directly or indirectly, while the defendant is on pre-trial release without a court order.

34. In State Court – Right to Protection To refuse to provide an interview or other information to the defendant or his attorney. Or. Const. Art. I § 42(1)(c). To obtain a court order preventing the disclosure of certain information. To be reasonably protected from any offender who is present at any appellate or post-conviction relief proceeding. (A victim must request this right from the district attorney before judgment of conviction is entered.) HB 3634 1(1)(e). To be reasonably protected from the offender during a proceeding before the State Board of Parole and Post-Prison Supervision. HB 3634 4(1)(a). To obtain information from a “public body” about the defendant’s criminal history, conviction, sentence, imprisonment, and/or future release date. (A victim must request this information.) Or. Const. Art. I § 43.

35. In State Court – Other Rights To have the case, including trial and sentencing, conducted with “all practicable speed.” HB 2874(a). To be taken into consideration when the dates for court appearances are set or reset. To have the victim’s schedule taken into account in scheduling a post-conviction relief proceeding. HB 3634 2(1)(a). To have the victim’s interests “strongly consider[ed]” by the court in deciding whether co-defendants should be tried jointly or separately. To be allowed to consult on plea negotiations in violent felony cases. (A victim must request this right from the prosecuting attorney.) Or. Const. Art. I § 42(1)(f).

36. In State Court – Other Rights To have the victim’s views considered regarding whether the criminal charge(s) against the defendant should be diverted. To obtain prompt restitution. Or. Const. Art. I § 42(1)(d). To inspect, prior to a post-conviction proceeding, any public record on which the disposition of the proceeding will be based; to consult with counsel for the state regarding the proceeding including, if applicable, notice of and opportunity to consult regarding a settlement agreement and to be informed by counsel for the state of the manner in which the petition was disposed. HB 3634 2(1)(b) and (d)-(e).

37. In State Court – Additional Rights Available to Victims of Sex Offenses To receive accurate and unbiased information about emergency contraception from a hospital and, upon request to the hospital, to receive emergency contraception immediately. To have certain evidence excluded at trial. To bar the use of media sound- and/or visual-recording equipment in courtroom proceedings. (A victim must request this right.) To limit the copying and/or distribution of information concerning sexual conduct.

38. In State Court – Additional Rights Available to Victims of DUII Offenses To obtain the same reports and information as a defendant/driver who was involved in a vehicle collision with the victim. ­(A victim must request this right.) To be notified of, present and heard at any hearing on the defendant/driver’s petition for diversion if the driver caused damage to the victim’s property.

39. In Juvenile Court NOTE: This list is not all-inclusive and is not intended to be legal advice or an agreement to provide legal advice or representation. If you have any questions about victims’ rights in an Oregon juvenile court, please contact the Oregon Crime Victims Law Center. If the offender is a juvenile whose case is being adjudicated in an Oregon state juvenile court, victims’ rights include the following:

40. In Juvenile Court – Right to Notice To be informed of victims’ rights under the Oregon Constitution as soon as practicable. Or. Const. Art. I § 42(1)(g) and (2). To be notified in advance of any detention hearing. (A victim must request this right.) To be notified in advance of any “critical stage” of the case that takes place in open court when the youth offender will be present. (A victim must request this right.) Or. Const. Art. I § 42(1)(a). To be notified of any Psychiatric Security Review Board hearings concerning the youth offender and of his conditional release, discharge, or escape. (A victim must request this right from the Psychiatric Security Review Board, (503) 229-5596.)

41. In Juvenile Court – Right to Presences and Participation To be present at any “critical stage” of the case that takes place in open court where the youth offender will be present, and to be heard at any pre-adjudication release hearing and at disposition. Or. Const. Art. I § 42(1)(a).

42. In Juvenile Court – Legal Representation A victim may represent them self or may be represented by an attorney, including one from the Oregon Crime Victims Law Center or a prosecuting attorney who has agreed to represent the victim in asserting their rights.

43. In Juvenile Court – Right to Protection To obtain an order that the youth offender submit to HIV testing in certain cases. (The victim must request this right.) To have the victim’s address and telephone number not be given to the youth offender without a court order. (The victim must request this right.) To have the youth offender prohibited from contacting the victim, directly or indirectly, while the offender is on pre- adjudication release without a court order. To refuse an interview or other information to the alleged youth offender or his attorney. Or. Const. Art. I § 42(1)(c).

44. In Juvenile Court – Right to Protection To have decisions regarding the alleged youth offender’s pre-adjudication release based on the victim’s reasonable protection. Or. Const. Art. I § 43(1)(b). To obtain a court order preventing the disclosure of certain information. To obtain information about the youth offender’s juvenile system history, adjudication, sentence, confinement and/or future release date, Or. Const. Art. I § 42(1)(b), and to be notified of the youth offender’s release from a youth correction facility. (A victim must request these rights.)

45. In Juvenile Court – Other Rights To have the case, including adjudication and disposition, conducted with “all practicable speed.” To be consulted regarding plea negotiations concerning an act that would constitute a violent felony if committed by an adult. (A victim must request this right.) To obtain prompt restitution. Or. Const. Art. I § 42(1)(d).

46. In Juvenile Court – Additional Rights Available to Victims of Sex Offenses To receive accurate and unbiased information about emergency contraception from a hospital and, upon request to the hospital, to receive emergency contraception immediately. To bar the use of media sound- and/or visual- recording equipment in courtroom proceedings. (A victim must request this right.) To limit the copying and/or distribution of information concerning sexual conduct.

47. In Juvenile Court – Additional Rights Available to Victims of DUII Offenses To obtain the same reports and information as the defendant/driver who was involved in a vehicle collision with the victim. (A victim must request this right.)

48. In Federal Court NOTE: This list is not all-inclusive and is not intended to be legal advice or an agreement to provide legal advice or representation. If you have any questions about victims’ rights in a federal court, please contact the Oregon Crime Victims Law Center. If the defendant is being prosecuted in federal court, a victim has the following rights under the Crime Victims’ Rights Act of 2004 (18 U.S.C. § 3771):

49. In Federal Court Right to Protection: To be reasonably protected from the defendant. Right to Notice: To reasonable, accurate, and timely notice of any public court or parole proceeding involving the crime or any release of or escape by the defendant. Right to Confer: To reasonably confer with the prosecuting attorney.

50. In Federal Court Right to Participation To not be excluded from any public court proceeding unless the court, after reviewing the evidence, determines that a victim’s testimony would be materially altered if the victim heard other testimony. To reasonably be heard at any public court proceeding involving the defendant’s release, plea or sentencing, or at any parole proceeding. Other Rights To proceedings free from unreasonable delay. To full and timely restitution as provided by law. To be treated with fairness and with respect for the victim’s dignity and privacy.

51. In Tribal Court NOTE: This list is not all-inclusive and is not intended to be legal advice or an agreement to provide legal advice or representation. If you have any questions about victims’ rights in a tribal court, please contact the Oregon Crime Victims Law Center. Jurisdiction of crimes involving Indian Country or tribal members can be complicated. The rights that apply to victims will depend on whether state, federal, or tribal law applies in the particular circumstances. However, if the case is being prosecuted in Oregon state court, victims have the rights listed above under “In State Court.” If the case is being prosecuted in a federal court, victims have the rights listed above under “In Federal Court.” If you have any questions about where your case is being prosecuted, please contact the Oregon Crime Victims Law Center at (503) 208-8160. The National Tribal Resource Center also has information about victims’ rights in cases involving crimes committed on tribal lands on its web site, www.ntjrc.org/legal/legallinks.asp?24.

52. Prepared by Oregon Crime Victims Rights Center April 2010 The Oregon Crime Victims Law Center receives subgrant funding through the National Crime Victim Law Institute under a grant from the Office of Victims of Crime, Office of Justice Programs, U.S. Department of Justice Grant No. 2002FGXK004. The points of view expressed in this brochure and on this website are the Center’s and do not necessarily represent the official position of the National Crime Victim Law Institute nor the U.S. Department of Justice. Moreover, this information is educational and intended for informational purposes only. It does not constitute legal advice, nor does it substitute for legal advice.