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  3. Arizona Victims’ Rights – A Shield or a Sword?

Arizona Victims’ Rights – A Shield or a Sword?

Dec 20, 2021 | Constitutional Law, Victims' Rights

Some laws, said to protect one problem or another, in reality may infringe upon our most basic rights. For example, in Tinker v. Des Moines, the issue was whether public school officials could ban students from wearing armbands to protest the war in Viet Nam. The U.S. Supreme Court held that absent disruption of the educational process (there was no evidence of disruption), the ban violated the students’ First Amendment right of freedom of speech. And in Near v. Minnesota, a law informally known as the “Minnesota gag law,” permitted judges to shut down newspapers that were determined to be obscene or slanderous. When a local paper published a series of articles which attacked certain public officials and accused one politician of being part of a conspiracy, a temporary restraining order was issued against the newspaper. The Supreme Court declared the law to be unconstitutional in violation of the Fourteenth Amendment, again involving freedom of speech.

Defendants’ Rights vs. Victims’ Rights

In addition to these decisions, there have been a host of rulings guaranteeing, under the United States Constitution, the right of criminal defendants to legal counsel and to a fair trial. They include, among many others, Miranda v. Arizona (advice required of right to remain silent), and Gideon v. Wainwright (right to counsel).

In Arizona, the victim’s rights law, A.R.S. 13-4433, pits the rights of crime victims against those of criminal defendants accused – but not convicted – of victimizing them. What it says, in essence, is that a “victim” may not be compelled to submit to an interview by the defendant (or the defendant’s attorney or agent) in a criminal case without the consent of the victim. This applies even when the victim is a witness to the alleged crime committed by the defendant.

Challenge to the “No Contact” Provisions of the Victims’ Rights Law

The rationale for the law is apparently to spare the victim from being harassed or emotionally harmed as the result of the interview. On the other hand, it appears to conflict with that portion of the Sixth Amendment which grants to every defendant in a criminal case the right to be confronted with the witnesses against him. It certainly places a defendant, who is innocent in the eyes of the law, at a disadvantage when it comes to examining the victim (witness) at trial.

While the court has already decided that the law does not on its face violate a criminal defendant’s right to due process, another challenge was filed by the ACLU. The current case is based primarily on the fact that the law constitutes a “prior restraint” on the First Amendment rights – freedom of speech – of defense attorneys, although behind this argument is the assertion that prosecutors are using the law as a sword (to prevent defense counsel from obtaining information), as opposed to a shield to protect victims. While a lower court had dismissed the case under the theory that the defense lawyers had no standing to challenge the law, that decision has been reversed by the United States Court of Appeals for the Ninth Circuit. The case now goes back to the trial court for a decision on its constitutionality.

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