Elements of Marsy’s Law:

In California the victim of a criminal offense per the California Constitution article I, § 28, section (b) provides victims with the following rights:

1.  To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.

This means the victim of the alleged offense is to have their personal information redacted or blacked out from view so the victim’s personal information such as addresses, social security, contact information, and other private information stays out of the hands of the accused. This right also affords the victim the right to have their voice heard and to be treated fairly and with respect by the Court, Prosecution, and defense counsel.

2. To be reasonably protected from the defendant and persons acting on behalf of the defendant.

This right affords the victim the right to be protected by the accused. As former prosecutors, we would always ask when appropriate if the victim would like a criminal protective order. This is very common in assault and domestic violence cases. A protective order is a court order that prohibits or limits the accused from having contact with the victim.

3. To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.

This right is aimed also at protecting the victim. The prosecution should always inform the victim of the stage in which the criminal case rests as well as when the next court date is so that the victim can make a statement if they so desire. Often times the victim can make a statement to the court or write out a statement and have the prosecution read that statement to the court when addressing bail. Then the court would hear from the victim and either set bail, or set terms, or conditions in which the accused would need to follow to be released from custody. As stated above, this is normally done with a protective order, mandatory classes as well as other terms the court deems appropriate.

4. To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.

This right is also aimed at protecting the victim’s information. This is commonly done by redacting personal information from the police reports and compliance. Often the prosecutor will list the victim as “John Doe or Jane Doe” to protect their identity.

5. To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.

This right aims at protecting the victim from harassment and demands from the defendant or the defendant’s attorney to provide a statement or documents. As criminal defense attorneys we will normally have our investigators reach out to the alleged victims and get statements or declarations. The victim’s cooperation is entirely voluntary and can be terminated at any time by the victim. We respect the victims’ rights and will inform them any communication is voluntary.  Unfortunately, some victims are not made aware of this and believe they must cooperate with the defendants attorneys request. As one can imagine, this can be a complicated issue. Having a Marsy’s Rights attorney at your side will make the process easier as the victim would have legal counsel protecting and informing them of their legal rights.

6. To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant and, upon request, to be notified of and informed before any pretrial disposition of the case.

This right is designed to keep the victim reasonably informed of what the defendant is charged with such as ( Felony Domestic Violence, Battery, Assault, etc) The prosecutors should also let the victim know of the next court date.  Unfortunately, sometimes the prosecution forgets to inform the victim which leads to the victim not knowing what the defendant is charged with or when the next court date is. This essentially keeps the victim in the dark and is unacceptable. Having an attorney at your side will alleviate this converse as the attorney can check with the court and the prosecution to see what the defendant is charged with as well as when the next court proceeding is to be held.

7. To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.

The prosecution must keep the victim(s) informed of the court date

8. To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which the right of the victim is at issue.

This allows the victim to be present as well as the opportunity to speak if so desired and applicable.

9. To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.

This is aimed at resolving the case within a reasonable time and not dragging out the case for no good reason. Often times victims of crimes follow a case for months and months. Essentially putting their lives on hold. This rule is aimed at resolving the case sooner than later.

10. To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.

This is aimed at allowing the victim or the victim’s family to be heard (if so desired) about the impact the crime had on them. This is very common in violent felony cases such as murder.

11. To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.

This allows the victim to be made aware of what the pre-sentencing report states as an indicator of what the court may sentence the accused to (time in prison, jail, fines, pronation, etc).

12. To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.

This allows the victim to be made aware of what the defendant was sentenced to. Such as how long the defendant will be in prison for, the length of probation ect. This is good for the victim to know for peace of mind as well as a sense of safety knowing the accused will be in custody for some time.

13. Victims Have a Right to restitution.

It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.

Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.

All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.

Restitution in a nutshell means to make the victim whole by having the accused pay for whatever damages they caused. For example, if the defendant broke a car window and was convicted that defendant would owe restitution to the victim who had their window broken. The provision aims to make the victim whole and reimburse or pay the victim for the damage caused by the defendant. This can get a little tricky and at times there are “Restitution hearings” where evidence is presented to determine the amount owed to the victim. Having a skilled attorney at your side during these hearings is a great tool. An attorney will be able to present arguments and evidence on their client’s behalf which to a non-attorney can be difficult considering the rules of court and evidence.

14. To the prompt return of property when no longer needed as evidence.

This rule is straightforward, essentially the victim is required to get their property back when it is no longer needed during the active case.

15. To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.

This rule is also aimed at having the victims’ voices heard during parole hearings. This occurs when someone is sent to prison and has a parole hearing to determine if the accused should be released and placed on parole. The victim needs to be aware of this hearing and if they so desire they can make a statement as to whether or not the defendant should be placed on parole.

16. To have the safety of the victim, the victim’s family and the general public considered before any parole or other post-judgment release decision is made.

This is another straightforward rule aimed at protecting the victim and the public. Say for example a murderer is about to be released, the victim(s) and the general public’s safety need to be considered before a decision is made. A very common example of this is the Charles Manson case.

17. To be informed of the rights enumerated in paragraphs (1) through (16).

This rule is a catch call reminds the government that the victim(s) need to be made aware of all the above-mentioned rules.