Marsy’s Law For North Dakota – Myths Vs. Facts

Marsy’s Law for North Dakota will guarantee victims of crime the constitutional right to be heard, to be notified and to be free from harassment. It was written by North Dakotans to synchronize with our existing statutory victims’ rights with input from local attorneys, law enforcement, victim advocates and other private citizens. The measure is very straightforward and every single point in it has legal precedent. We invite you to read the following information to dispel any myths or misinformation regarding this initiated constitutional measure.

Myth: The definition of victim in Marsy’s Law for North Dakota is too broad.

FACT: The definition of victim in Marsy’s Law for North Dakota is the same as the definition of victim in the statute. Therefore, it is no different than anything you are currently working under.

Myth: Elevating victims’ rights in ND is unnecessary because existing statutes are sufficient. There is no problem in North Dakota.

FACT: Marsy’s Law for North Dakota is necessary because even though victims’ rights are outlined in state law, they are too often overlooked, poorly communicated or even ignored. Additionally, the accused’s constitutional rights always outweigh a victim’s statutory rights.

There are several instances of issues in North Dakota, mainly stemming from a lack of communication between the various stages of criminal justice system and the victim or victims’ families. One instance involves a woman whose brother was murdered. She has requested notification regarding the trial process but has repeatedly been ignored. Under Marsy’s Law for North Dakota, she would have legal remedies as a result of her rights not being observed.

Through Marsy’s Law for North Dakota, communication to victims would be clearer and protected with remedies should they not be followed so that additional suffering is not endured.

Myth: There is no basis for Marsy’s Law for North Dakota. These would be new rights without legal precedent.

FACT: There is legal precedent for everything in Marsy’s Law for North Dakota and all the rights within exist either in North Dakota state statute, federal law or in other states’ laws. In fact, North Dakota is one of only 18 states that do not provide constitutional protections for victims’ rights. For example:

  • A crime victim has “[t]he right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding involving the crime or of any release or escape of the accused.” 18 U.S.C. §3771(a)(2)
  • A crime victim, upon request, has “the right to notification of court proceedings.” Tex. Const. art. I, §30(b)(1)
  • A crime victim has “[t]he right to not be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” 18 U.S.C. §3771(a)(3)
  • A crime victim, upon request, has “the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.” Tex. Const., art. I, §30(b)(2)
  • A crime victim has “[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.” 18 U.S.C. §3771(a)(4)
  • A crime victim has the right “[t]o be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing” and “any proceeding when any post-conviction release from confinement is being considered.” Ariz. Const. art. II, §2.1(A)(4), (9)
  • A crime victim has “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. §3771(a)(8)
  • A crime victim has “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process.” Tex. Const. art. I, §30(a)(1)

Myth: Further protecting victims’ rights will negatively affect accused criminals’ rights or even make things worse for victims.

FACT: Protecting victims’ rights does nothing to diminish the rights of the accused. Marsy’s Law will elevate victims’ right to the constitution to be on the same legal level as defendants’ rights. It ensures the right for victims to be heard, to be notified of proceedings, and to be free from harassment throughout the legal process. This in no way infringes on the existing constitutional rights of the accused. Just as courts have known how to afford both the media’s first amendment rights and defendant’s right to a fair trial – so too will a court know how to afford two state constitutional rights.

The rights to be heard or notified only apply if the victim chooses to exercise them. Not every victim will choose to exercise them.

Myth: Defendants will not be able to receive discovery.

FACT: Marsy’s Law for North Dakota shall not abrogate a defendant’s Sixth Amendment rights under the U.S. Constitution nor diminish the State’s disclosure obligations to a defendant. Defendants will have access to discovery from the police or the prosecution, just as they do now. There is no change in terms of police and prosecutors having access to victims for investigative interviews.

There is a misperception that defendants have a constitutional right to depose a witness – they do not. In fact, North Dakota is one of the most liberal states when it comes to a defendant’s access to a victim. The Supreme Court and Federal Courts have consistently recognized that defendants have no pretrial right to depose a nonparty (i.e., victims). Marsy’s Law for North Dakota’s recognition of a victim’s right to refuse a defendant’s deposition request is a recognition of the current federal constitutional landscape and would bring our state into line with the majority of other states.

A victim can, of course, consent to a deposition if he or she chooses. Marsy’s Law for North Dakota just gives that person a choice that is in line with defendants’ federal constitutional rights.

Myth: The victim will be able to prevent attorneys from getting medical records under Marsy’s Law as a confidential or privileged document.

FACT: Medical records are already privileged even without Marsy’s Law – the prosecution gets them because of limited waivers that will continue to apply.

Myth: Victims and their families have nothing at stake and therefore do not need to be considered in the legal process.

FACT: There would be no case if not for the victim, and in many instances, their personal safety or financial well-being are very much at stake as a result of proceedings. The victim’s right to be notified and heard throughout the legal process adds a key perspective and prevents re-victimization.

Historically, victims were the party to directly bring charges forward against the accused and therefore didn’t need constitutional protections guaranteeing their rights – there was no question they would be notified of proceedings, etc. As the legal system evolved to where it is today, the victim is no longer a party and they have lost those guarantees. Over the last 25-30 years, there have been efforts across the U.S. to protect such rights, just as the rights of the accused are protected. North Dakota is now one of only 18 states that do not offer such protections.

Myth: Victims should not have a right to be heard because their testimony is based on emotion and can be tainted by others’ testimony.

FACT: It is both false and disparaging to victims to assert that their only input on a case is emotional, not factual. Secondly, the right to be heard has nothing to do with testimony.  If a victim does testify, they can be put on the stand first to avoid any notion of being tainted by others’ testimony.

Myth: Victims will have too much say in the legal process.

FACT: Victims will have no more “say” in the legal process than they do now. But they will have an opportunity to provide a statement. The right to be heard and notified is not the right to control the process, nor to be believed. Judges have ample latitude to make decisions based on the facts, just as they do with all constitutional provisions. Additionally, victims can only be heard on what is relevant at the moment.  The rights do not change the evidentiary rules or tests that govern.  So, for instance, the right to be heard doesn’t mean that a victim gets to speak about restitution at a pretrial release hearing because it’s not relevant.

Myth: Victims will be guaranteed the right to testify at trial.

FACT: Marsy’s Law for North Dakota expressly provides the right for the victim to he heard; however, the initiative’s language makes it clear that victims are not guaranteed the opportunity to testify during a trial. The language states, “the right to be heard in any proceeding involving release, plea, sentencing, adjudication, disposition or parole, and any proceeding during which a right of the victim is implicated.” Specifically, Marsy’s Law for North Dakota does not make the victim a party to the case, it does not afford them the benefit or obligation of putting on evidence. Predominately victims will be heard pretrial and post-conviction because trial remains the province of State vs. Defendant. 

Myth: Marsy’s Law will clog the system as it pertains to non-violent small crimes or others who will want to be in constant communication with the prosecutor’s office.

FACT: Marsy’s Law for North Dakota applies to all criminal violations, but the victim has to “opt-in.” If victims do “opt-in,” then they are entered into the existing SAVIN system to given notifications on hearings, etc. This will not slow down the system.

Myth: Informing victims of their rights and of the process will slow down the judicial process, particularly in cases of small offenses.

FACT: Victims will be notified of their rights by receiving a Marsy’s Card, which outlines their rights, most often from police or other emergency responders. Victims who choose to opt-in and exercise their rights would be entered into the existing SAVIN system to receive notifications. Victims of “small offenses” will not likely opt-in.

Myth: The right to privacy will affect bail orders and make it impossible to comply without providing the victim’s address.

FACT: The victim would have the right to ask that their address not be included or to ask for a larger area of protection without disclosure of their address.  The existence of a right doesn’t mean that it takes over – the victim could decide their protection rights are of a higher priority than privacy rights, and if the only way for protection to exist is for their address to be disclosed, then they will have chosen which right to exercise.

Myth: The victim’s ability to assert and seek enforcement of their rights will open up a myriad of civil cases that include divorces, business partnership dissolutions, property claims, small claims, etc.

FACT: Not at all. Marsy’s Law for North Dakota is simply saying victims can enforce the rights enumerated in Marsy’s Law for North Dakota in court and get a remedy if one is available. The rights in Marsy’s Law for North Dakota only apply to criminal activity. This language is also very similar to that in ND Statute Section 12.1-34-04, which states “each prosecuting attorney is responsible for securing for victims and witnesses of crime the rights and services described in this chapter.” This is simply saying they can enforce these rights and any other victims’ rights North Dakota has given to victims. There is really no point in having the rights if they cannot enforce them.

Myth: Sheriffs will have to drive hundreds of miles to pick up victims and transport them in order to testify.

FACT: Absolutely nothing in Marsy’s Law for North Dakota implies this. The right to be present simply affords victims the opportunity to choose whether to be present; it does not obligate anyone to get them there.

Myth: This will open up the door to those who wish to falsely claim victimhood.

FACT: There is no more opportunity to falsely claim victimhood under Marsy’s Law for North Dakota than under current laws. There is absolutely no data to show increasing victims’ rights increases the instance of false victim claims and victims’ rights already have constitutional protection in 32 other states. If it were attempted, the court can make a finding that they are not victims and that would stop them from invoking any rights under Marsy’s Law for North Dakota.

Myth: Prosecutors will be exposed to professional conduct violations regarding discovery if they advise victims to not do a deposition or turn over documents.

FACT: It is never a violation to tell someone their rights.  If the prosecution tells a victim NOT to talk with someone or NOT to do an interview then, yes, that would be an ethics violation. However, if the prosecution explains to the victim that they have a right not to agree to a deposition and as the prosecution, they can’t tell the victim what to do, then that is fine.  Additionally, the defense has no existing right to the discovery directly from the victim. However, anything the victim has turned over to the prosecution would be discoverable.

Myth: There is no requirement for the victim to register on SAVIN to get notifications, so the onus is on the government and is too burdensome.

FACT: Marsy’s card will direct the victims that in order to enforce their rights and be notified, they must register with SAVIN. It will make clear that this is ND’s system for notifications. The infrastructure for notice is in place and most of the notice requirements are the same as what currently exist in statute, so there should not be a big shift.  Any additional notice will fit within the current infrastructure.

Myth: Prosecutors will open themselves up to additional disciplinary action from victims for failing to follow through on these rights.  

FACT: If the prosecution does something intentionally in violation of the law, then yes. If the prosecution makes an honest mistake, then no, that should not be an ethics violation. This would operate just like any other professional rule of conduct.  

Myth: This will be too costly to implement.

FACT: Marsy’s Law for ND will cost almost nothing to implement. The SAVIN notification system is already in place. In fact, greater awareness and expanded use of the SAVIN system could actually reduce the burden currently on victim advocates. The only costs would be minimal and focused on training for law enforcement and the printing of Marsy’s Cards.