Antonio R. Sarabia II Sept. 26, 2011

In November 2008, the people of California voted for a proposition known as Marsy's Law. This law expanded victims' right to restitution under the California Constitution and converted their statutory right to counsel into a constitutional right. California Constitution, Article I, Section 28(c)(1). This right is different from a defendant's right to counsel because a victim must pay for his or her attorney.

This new constitutional right to counsel, however, has been largely ignored. Because the law did not require giving victims notice of their right to counsel, that right was left out in the cold. The Marsy's Law page on the websites of the state's largest district attorney's offices - Los Angeles, San Francisco, San Diego and Orange County - show nothing about a victim's right to counsel.

What's posted on a website is one thing, but what is happening in the halls of courtroom buildings is another, more important concern. Unfortunately, it is a rare prosecutor who tells a victim that he or she is entitled to his or her own counsel. If a victim of multiple rapes meets with a prosecutor, she will never be told of her constitutional right to counsel. But if the defendant charged with those multiple rapes meets the same prosecutor, he or she will immediately tell the defendant of his right to counsel.

People v. Smith, case no. C062191, C063545 (3rd Dist. Aug. 12, 2011) is a wake-up call to prosecutors. In Smith, the victim's attorney took an active role in the restitution hearing and obtained a restitution order of more than $750,000. On appeal, the defendant argued that the restitution order should be reversed because the victim's counsel conducted the restitution hearing by both arguing and presenting evidence. Not surprisingly, the 3rd District Court of Appeal concluded that Marsy's Law means what it says: "[victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard."

The lesson of Smith is that victims have a right to active representation by an attorney. However, as with all rights, there is no value if you do not know you have it. Most victims have no idea they have the right to counsel - whether they will refuse to exercise this right is beside the point because that is their decision to make. At present, victims are notified of their right to receive the pre-sentence report, but not their right to have an attorney who can tell them what a pre-sentence report is! How then should victims learn of this right? It should fall on the shoulders of the state attorney general and district attorneys (and other prosecuting agencies) to tell victims of this valuable right.

It is one thing for victims to have a right to counsel, but another to need separate counsel. After all, prosecuting attorneys handle 99 percent of restitution, and they usually do a very good job. Why, then, would a victim want to exercise his or her right to independent counsel? While most victims do not need independent counsel, there are a number of reasons why some do.

First, perhaps a victim did not develop a relationship with the prosecutor; maybe they did not get along or perhaps there were multiple prosecutors. In this situation, there may be insufficient communication between the prosecutor and the victim for the victim to receive the rights and restitution to which he or she may be entitled. Second, a victim may be concerned about privacy or confidentiality. Victims seeking restitution for therapy are particularly likely to have this concern. Besides the right of privacy in Article I, Section 1 of the state Constitution, Marsy's Law added two more rights: Section 28(b)(1), the right "[t]o be treated with fairness and respect for his or her privacy" and Section 28(b)(4), the right "[t]o prevent the disclosure of confidential information."

But if a victim gives information to the prosecutor, the right of privacy and confidentiality may be lost because of the prosecutor's discovery obligations. The prosecutor must share most of the information with the defense. If that happens, the victim's constitutional rights are of scant solace. Because the prosecutor's office represents the people, there will never be an attorney-client privilege between a victim and the prosecutor. Victims who confide in the prosecutor can be put on the stand and asked to repeat everything they told the prosecutor and everything the prosecutor told them.

Third, a victim may want an attorney with special expertise in restitution. Complex restitution cases, with multiple separate categories of claims may benefit from the use of a specialist. A specialist can trim or expand claims to reflect the law. A specialist is also more likely to focus on restitution for future losses.

In psychological therapy cases, it is not unusual for defendants to subpoena the psychologist's files and the psychologist. While most prosecutors would know that such material should not be put in the public record, they might not know that the subpoena can be limited to bills and dates of treatment, even if restitution for therapy is being sought. Open court examination of the therapist can be limited to verification of provision of services and billing. People v. Garcia (2010) 185 Cal. App. 4th 1203, 1212 - 1213.

This is not to say that a specialist is better than a prosecutor in this situation. The focus is on the victim and what will most benefit him or her — and sometimes the better team will have both a prosecutor and a specialist on board.