Current Issues

Sitting at the Counsel Table

Many victims want the right to sit at the counsel table with the prosecutor during proceedings. Only Alabama’s law affirmatively gives victims this right.²⁶ In contrast, Louisiana’s court rule specifically prohibits the victim from sitting at the counsel table.²⁷

Case law indicates courts generally do not allow victims to sit at the counsel table. In an Arkansas case, a conviction was overturned because the court found that allowing a robbery victim to sit at the counsel table during the trial may have unfairly prejudiced the defendant.²⁸ However, that same year, a California case found that allowing the victim to sit at the counsel table did not prejudice the defendant’s right to a fair trial. The court was careful to note that it did not intend, by its ruling, to condone seating victims at the counsel table.²⁹

Incarcerated Victims

Those who oppose giving crime victims a strong right to attend court proceedings often raise the issue of incarcerated crime victims. The crime may have taken place inside a correctional facility, or the victim may become incarcerated for another matter after the offense. A concern is that giving all crime victims a right to be present during criminal proceedings poses a security risk as incarcerated victims are transported to and from court.

Most states that have addressed this issue provide that the right to attend criminal proceedings does not apply to an incarcerated crime victim.³⁰ In contrast, Wisconsin expressly provides for the participation of incarcerated victims: “The court may require the victim to exercise his or her right . . . using telephone or live audiovisual means, if available, if the victim is under arrest, incarcerated, imprisoned or otherwise detained by any law enforcement agency, or is admitted or committed on an inpatient basis to a treatment facility . . . and the victim does not have a [representative] to exercise the victim’s right [to attend court proceedings].”³¹

Support Person

Crime victims may benefit from having a support person present during proceedings. The supportive presence of a trusted advocate or family member often enables a crime victim to exercise his or her right to be present during proceedings. Recognizing this, 11 states—Arkansas, California, Colorado, Delaware, Illinois, Iowa, Kentucky, Nevada, New Hampshire, Ohio, and Wisconsin—give crime victims a right to have an advocate or support person present during proceedings.³²

In some cases, supportive advocates or family members have been put on witness lists for the apparent sole purpose of excluding them from the trial or other proceedings. As a result, some states have attempted to restrict such tactics. For example, Oklahoma law provides that “when any family member is required to be a witness by a subpoena from the defense, there must be a showing that the witness can provide relevant testimony as to the guilt or innocence of the defendant before the witness may be excluded from the proceeding by invoking the rule to remove potential witnesses.”³³ New Hampshire similarly restricts abuses of the rule on witnesses to exclude support people: “If a victim/witness advocate is called as a witness, a party opposing such action may move for an order requiring the party desiring to use such testimony to show cause why such victim/witness advocate’s testimony is necessary. In no case shall a victim/witness advocate be sequestered unless the court finds and orders, based on the facts of the case, that failure to sequester would violate a defendant’s rights.”³⁴