Crime Victims Are Being Denied Due Process

Antonio R. Sarabia II May 6, 2021

Crime victims have California constitutional rights to be heard in criminal cases and to restitution for any losses caused by the crime. Cal. Const. Art. I, Section 28(b)(8), (13). These rights were put into the California Constitution by the voter proposition commonly referred to as Marsy’s Law. In view of these rights, it is not surprising that the California Supreme Court has made it clear that crime victims have due process rights. “One of the principal purposes of Marsy's Law is to provide victims ‘due process’ by affording them an opportunity to be heard in proceedings concerning the prosecution, punishment, and release of those who victimized them.” In re Vicks, 56 Cal. 4th 274, 309–10 (2013). An examination of how victims are advised in the criminal legal system in most counties, including Los Angeles County and Orange County, reveals that the due process rights of victims are routinely, and seriously, violated.

In most counties in California, victims are not advised in open court of their right to counsel. Many victims just assume that the prosecutor represents them. After all, the prosecutor represents the People. Victims are part of the People. In addition, prosecutors communicate regularly with victims. Prosecutors often need the support and testimony of victims to make their case. Prosecutors may protect victims from intrusions by defense counsel. Finally, prosecutors routinely help victims get restitution. All of these points make it logical for victims to assume they have representation. This assumption is nailed down by the failure of prosecutors to disclose, in writing, to victims that they do not represent victims and that victims are entitled to their own counsel.

Both of the constitutional rights, to be heard and to compensation, come into play in a due process analysis. The due process right to be heard is more than just the right to stand up and speak. In our legal system, in general, and in the context of victims in criminal cases, in particular, “Marsy's Law not only gives the victim the right to restitution but also to be heard through counsel.” People v. Smith, 198 Cal. App. 4th 415, 439 (2011).

Because victims are not entitled to appointed counsel, their situation is analogous to a party in a civil case. Victims have an important role to play in a court hearing: They may be present and heard. As in a civil case, victims may have a lot at stake: Crime victims are mandated to receive restitution which can be in the hundreds, thousands or hundreds of thousands of dollars. To understand a victim’s due process rights, it is instructive to consider how California has analyzed due process rights in civil cases — another context in which there is no right to free counsel.

Mendoza v. Small Claims Court of Los Angeles Judicial Dist., 49 Cal. 2d 668 (1958), was a challenge to the constitutionality of unlawful detainer proceedings which allowed eviction after a small claims court hearing at which the tenant did not have to have counsel. Under the applicable statute, the tenant could be deprived of a property right — occupancy — but had no right to counsel. A judge could determine the rights of the tenant even though the tenant was not represented. The judge did not need to advise the tenant that he or she had a right to counsel. The judge did not need to give the tenant an opportunity to engage counsel.

Mendoza held that this aspect of the unlawful detainer law was unconstitutional. “‘There can be little doubt but that in both civil and criminal cases the right to a hearing includes the right to appear by counsel, and that the arbitrary refusal of such right constitutes a deprivation of due process.’” 49 Cal. 2d at 673. Mendoza quoted from Powell v. Alabama, 287 U.S. 45, 68-69 (1932): “‘What, then does a hearing include? Historically and in practice, in our country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right.’” Both the U.S. and the California Supreme Courts have held that the right to be effectively heard requires the right — and awareness of the right — to have counsel.

Like the tenant in Mendoza, victims entitled to restitution have property rights at stake.

The only defense of the current failure to advise victims of their right to counsel rests on a card. The California attorney general (as well as other law enforcement agencies) publishes and sometimes provides victims a Marsy’s card. This card has a laundry list of 17 rights of victims. For example, the right to communicate with the Probation Department. None of the enumerated rights is the right to counsel. Underneath the laundry list is another half page of resources. Finally, at the very bottom of the card it states: “A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the above rights in any trial or appellate court with jurisdiction over the case as a matter of right.” This statement not only fails to clearly tell victims they have the right to counsel, it reinforces the view that the prosecutor may represent the victim.

Victims often receive a Marsy’s card from police right after they have been traumatized. It is not reasonable to expect one who has just been traumatized to absorb new information about an essential right. In addition, it may be many months, or years, from the time a victim receives the card until the victim is in court.

While a Marsy’s card has important virtues, it is not sufficient notice of the right to counsel because of its content and when and where it is given to victims.

It has been a decade since People v. Smith held that victims’ right to be heard means the right to be represented by counsel. Yet this due process right continues to be violated in the criminal courts.