Witness Representation and Resources for Domestic Violence Victims
When are witnesses in criminal trials given their own attorneys?
Generally, there is no need for a witness in a criminal trial to have their own attorney. If the prosecution intends to call several witnesses in support of their case against the defendant, it is generally assumed that the defendant’s attorney can make objections in a way that will not potentially harm the witness. Likewise, if the defense calls witnesses in support if its case, it is similarly assumed that the questions asked of the witnesses will not harm them.
Nevertheless, witnesses are sometimes entitled to their own attorneys. This most commonly occurs if there is a conflict of interest between the defendant and the witness. California Rule of Professional Conduct 1.7(b) states the following regarding conflicts of interest:
A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests.
(Rules of Professional Conduct, § 1.7(b).) The American Bar Association similarly states that a current conflict of interest exists where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (ABA Model Rules of Professional conduct, § 1.7(a)(2).)
Of importance here are both rules’ references to a representation being “materially limited” by responsibilities to a third person. In a scenario where a criminal defense attorney is asking questions of a material witness, and that witness refuses to answer because they do not want to incriminate themselves, there is a potential for a conflict of interest. More specifically, the defense attorney may feel as though they cannot freely ask questions of the witness, which in turn would lead to their relationship with their own client being hindered.
The solution often times is to allow the witness to have their own attorney. If the witness may incriminate themselves of having committed a crime, the judge of the court where the testimony is to occur will often appoint a lawyer from the Public Defender’s Office to represent the witness in deciding whether to testify or invoke his/her 5th Amendment privilege against self-incrimination.
What should I do if I have been called as a witness in a criminal trial, and I’m concerned that the questions I will be asked might be incriminating?
Under the Fifth Amendment to the United States Constitution, you have an absolute right to remain silent if you are asked incriminating questions. If you have any concerns that this could happen in the context of being called as a witness to a criminal trial, you should immediately notify the public defender or judge assigned to the case you’ve been called to testify at.
What resources are available to victims of domestic violence?
The rights and resources for victims of crimes in California can be found in the Victims’ Bill of Rights in the California Constitution and in California Penal Code sections 13835 through 13835.10.
What is the Victims’ Bill of Rights?
The Victims’ Bill of Rights, created under Marsy’s law, is enumerated in the California Constitution. (Cal. Const., art. I, § 28(b).) There are seventeen rights in total:
- 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.
- To be reasonably protected from the defendant and persons acting on behalf of the defendant.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 a right of the victim is at issue.
- To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
- 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.
- To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
- 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.
- 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.
- To the prompt return of property when no longer needed as evidence.
- 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.
- 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.
- To be informed of the rights enumerated in paragraphs (1) through (16).
(Cal. Const., art. I, § 28(b)(1)-(17).) As is evident from the text of these rules, some of them are considered “self-executing,” while others must be specifically requested.
What resources are available to victims of crime under the California Penal Code?
California Penal Code section 13835 established “the intent of the Legislature to provide services to meet the needs of both victims and witnesses of crime through the funding of local comprehensive centers for victim and witness assistance.” (Pen. Code, § 13835.) Consistent with this goal, funds from the Victim-Witness Assistance Fund are available to agencies that assist victims and witnesses to crimes if certain requirements are met. (Pen. Code, § 13835.2.)
Section 13835.5 outlines what are considered “comprehensive services” to be provided by agencies. (Pen. Code, § 13835.5.) The following victim services are considered mandatory:
- Crisis intervention, providing timely and comprehensive responses to the individual needs of victims.
- Emergency assistance, directly or indirectly providing food, housing, clothing, and, when necessary, cash.
- Resource and referral counseling to agencies within the community which are appropriate to meet the victim’s needs.
- Direct counseling of the victim on problems resulting from the crime.
- Assistance in the processing, filing, and verifying of claims filed by victims of crime pursuant to Article 1 (commencing with Section 13959) of Part 4 of Division 3 of Title 2 of the Government Code.
- Assistance in obtaining the return of a victim’s property held as evidence by law enforcement agencies, if requested.
- Orientation to the criminal justice system.
- Court escort.
- Presentations to and training of criminal justice system agencies.
- Public presentations and publicity.
- Monitoring appropriate court cases to keep victims and witnesses apprised of the progress and outcome of their case.
- Notification to friends, relatives, and employers of the occurrence of the crime and the victim’s condition, upon request of the victim.
- Notification to the employer of the victim or witness, if requested by the victim or witness, informing the employer that the employee was a victim of or witness to a crime and asking the employer to minimize any loss of pay or other benefits which may result because of the crime or the employee’s participation in the criminal justice system.
- Upon request of the victim, assisting in obtaining restitution for the victim, in ascertaining the victim’s economic loss, and in providing the probation department, district attorney, and court with information relevant to his or her losses prior to the imposition of sentence.
(Pen. Code, § 13835.5(a)(1)-(14).) By contrast, it is optional for an agency to provide the following services:
- Employer intervention.
- Creditor intervention.
- Child care.
- Notification to witnesses of any change in the court calendar.
- Funeral arrangements.
- Crime prevention information.
- Witness protection, including arranging for law enforcement protection or relocating witnesses in new residences.
- Assistance in obtaining temporary restraining orders.
- Provision of a waiting area during court proceedings separate from defendants and families and friends of defendants.
(Pen. Code, § 13835.5(b)(1)-(10).)