In January of this year, at the request of the Court of Appeal in People v. Smith, the Attorney General of California wrote that California victims have a constitutional right to counsel at a restitution hearing.
"Accordingly, Doe’s retained attorney properly sought and secured restitution for Doe in accordance with Doe’s constitutionally enumerated rights to be heard and to seek and secure restitution. (See Cal. Const., art. I, §28, subds. (b)(8) & (b)(13)(A).) The language of Article I, section 28, subdivision (c)(1) unambiguously authorizes such conduct. . ."
The Attorney General advocated that victims have a constitutional right to counsel. The Smith Court agreed: "[victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard."
It is clear that victims have a right to counsel. The burning question now is whether this is such an important right that victims should be told about it. To put it another way, do victims only get the right to counsel if they know about it and ask for it, or should all victims be told about this right? We are fortunate to have a rich jurisprudence on this issue.
The U.S. Supreme Court established that the right to counsel is a fundamental right.
"While the question has never been categorically determined by this court, a consideration of the nature of the right [to counsel] and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character." Powell v. Alabama (1932) 287 US 45, 67 - 68.
"The state decisions which refer to the matter, invariably recognize the right to the aid of counsel as fundamental in character." Id at 70.
Not only is the right to counsel a fundamental right, but it is also a critical right which enables one to understand and exercise their other rights.
"[W]ithout the aid of an attorney other protections which the law affords would often avail defendant little since it cannot be assumed that he is sufficiently articulate and adequately conversant with his constitutional and legal rights and his procedural duties to protect himself throughout the course of criminal proceedings."
People v. Mattson (1959) 51 Cal.2d 777, 789, rev’d on other grounds, People v. Taylor (2009) 47 Cal. 4th 850.
This is certainly true of many victims who cannot decipher the rights listed on a Marsy’s Law card without talking with an attorney - let alone know how to exercise those rights in court.
Last century the California Supreme Court made it crystal clear that we do not make participants in the criminal system guess at whether they have a fundamental right to counsel:
"Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it."
People v. Dorado (1965) 62 Cal. 2d 338, 351(footnote omitted); overruled on other grounds People v. Cahill (1993) 5 Cal. 4th 478.
It would be a sad anomaly to have a justice system which deprives a less informed rape victim - by not telling her of her fundamental constitutional right to counsel - while giving the benefit of advice about the right to counsel to the man accused of the rapes. Dorado makes it clear that such a policy would favor not only defendants over victims, but also well heeled victims over poor victims.
I believe the law is clear on this issue and that no more decisions or statutes are needed to determine whether a victim’s right to counsel should remain a secret from most victims - it should not and victims should be told in clear, simple language of this right.