Crafting a Compromise

Several states have attempted to draft statutes that encourage courts to limit the application of sequestration rules. Wisconsin’s law states that exclusion of a victim to preserve a defendant’s right to a fair trial must be based on something more than the fact that the victim would be present during the testimony of other witnesses.¹⁶ Florida’s law requires the court to determine that the victim’s presence would be prejudicial; the victim cannot be excluded merely because he or she is subpoenaed to testify.¹⁷

Delaware and Wyoming require the defendant to show good cause to exclude the victim.¹⁸ In several other states, the court cannot exclude a victim unless it determines that the victim’s testimony “would be materially affected” if he or she were to hear the testimony of other witnesses.¹⁹ Virginia recently strengthened its law giving victims a right to attend, providing that a crime victim “shall not be excluded unless the court determines, in its discretion, the presence of the victim would substantially impair the conduct of a fair trial.”²⁰ [Emphasis added by author.]

In other states, courts are encouraged to craft compromises based on the context of a particular case. For example, North Carolina requires the court to “make every effort to permit the fullest attendance possible for the victim” without interfering with the defendant’s right to a fair trial.²¹ California’s statute provides detailed instructions to the court in this regard, stating that any order of sequestration must allow the victim to be present whenever possible. The party moving for the victim’s exclusion must demonstrate “a substantial probability that overriding interests will be prejudiced by the presence of the victim.”²² The statute gives examples of such “overriding interests,” including the defendant’s right to a fair trial and the protection of witnesses from harassment and physical harm. The court is required to consider reasonable alternatives to excluding the victim, and the victim must be heard at any hearing regarding exclusion. The court also must make specific factual findings that support any victim exclusion.²³

In many cases, accommodating the interests of both the defendant and the crime victim may be possible. Often, a crime victim has made pretrial statements, or has even been deposed, regarding the facts of the case. Such prior statements reduce the likelihood that victims/witnesses will alter their testimony, regardless of any intervening influence. If the victim/witness does give conflicting information while on the stand, defense counsel in the case could confront the victim with the earlier statement. The judge or jury then would have to consider any variation in such testimony when assessing the credibility of the victim. The Utah Supreme Court noted that “inconsistent statements of witnesses, whether they be by the actual victim or others, are in many cases simply a credibility factor that the finder of fact must weigh in determining the outcome.”²⁴ Alternatively, a victim could testify first and then remain in the courtroom for the duration of the proceedings.

Although a victim may have a right to be present in the courtroom and may even be exempted from the rule on witnesses, the victim’s right to attend is not absolute. The court retains discretion to control courtroom decorum. The judge can order a crime victim (or even a defendant) who is disruptive or violent to be removed from the courtroom.²⁵

Unlike some other victims’ rights, the right to attend criminal justice proceedings, especially the right to attend the trial, generally does not involve an administrative burden. Most often, the crime victim is a witness in the case and thus, to testify, will be notified of the date and time of proceedings. Victims generally have the right to be notified of all public court proceedings on request—even if they are not witnesses—so the right to attend proceedings does not imply an additional burden of notification. Rather, large-scale implementation of the victim’s right to attend appears to have been restricted by the presumption that allowing a victim/witness to remain in the courtroom violates the right of the defendant to a fair trial. As illustrated above, such a presumption may be unwarranted.