Friday, December 31, 2010

Delays in Restitution Hearings May Violate the Victim’s Constitutional Right

One of the rights on the list in Marsy's Law is the right of a victim to a speedy outcome.
Article I §28(b)(9)  of the California Constitution gives victims the right to "a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings."  To determine how these rights work it is helpful to consider due process jurisprudence as applied to defendants based on the California Constitution. Because "[t]he test of a state constitutional speedy trial violation and a state constitutional due process violation converge." People v. Contreras (2009) 177 Cal. App. 4th 1296, 1305.  Speedy trial cases are helpful, particularly since victims have a speedy trial right.

The due process right and the right to a speedy trial are the rights to avoid harm caused by inappropriate delay. The cases have identified three specific kinds of harm: (a) prolonged imprisonment; (b) the anxiety of prolonged legal proceedings;  and (c) the loss of evidence caused by the delay. People v. Lowe (2007) 40 Cal. 4th 937, 943 - 944. The second category applies to victims - the right to be free of the anxiety of prolonged legal proceedings.   

To analyze a due process claim, a court balances harm against the reason for delay. "[R]egardless of whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay. Contreras, 177 Cal. App. 4th at 1305. How much harm is required for a due process violation is closely linked to the reason for the delay. "Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.” People v. Nelson (2008) 43 Cal. 4th 1242, 1255-1256.  This same analysis should apply to delays in restitution hearings which hurt victims. Some defendants purposely delay restitution hearings, a strategy which victims and the Court should address with the victim’s constitutional right to a prompt restitution hearing.