Untangling Issue 1; the complex balance of the rights of the victim and the accused

COLUMBUS, Ohio (WDTN) – In just over two months, voters will decide if a portion of the state constitution dealing with crime victim’s rights should be repealed and replaced.

In 1994 Ohio voters passed Amendment 2, which detailed the rights victims of crime had.

Voters will decide in November, if they want to add to those rights by passing Issue 1, which would replace the amendment with many of the same rights while adding a handful.

Currently, victims of crime have the right to; fairness; dignity; respect; notification; information; protection; and to have a meaningful role in the process of prosecuting a crime against them.

Issue 1 seeks to add to those rights, the ability for victims to refuse to participate in interviews or depositions with defense attorneys or to provide them “other discovery requests.”

Director of the Crime Victim Justice Center, Elizabeth Well explains this provision is something that can already happen.

Currently, victims can refuse to provide these things, and then the defense would have to subpoena them and explain to a judge why they are relevant.

State Public Defender Tim Young opposes the measure and provides an example of what he feels defense attorneys should have access to; and why he’s against the new privacy right Issue 1 would create.

“We regularly have conflicting information about the reporting of a crime and then what’s posted on Facebook,” said Young. “We don’t want to go through this as a fishing expedition, but if somebody posts that they were deeply traumatized from this crime, and the very same night they’re out partying on Facebook photos, that’s essential information to be able to show a jury to make a fair decision about the facts of a case.”

According to Young, the problem is not with a lack of victim’s rights at all.

“Ohio has a great victim’s rights statute in terms of enumerating rights victims have, what’s not happening is enforcement of those rights,” said Young.

If there is one thing Young and Well agree on, it is that.

“Absolutely, the right to information is a big one that we see violated pretty routinely,” said Well.

Well says the problem is exacerbated by the inconsistency in where the enforcement happens or does not happen.

Different areas see different levels of enforcement; some of that is due to funding that is available but not being taken advantage of by prosecuting offices.

Meanwhile, Young voices concerns over another section of the proposed Issue; which provides victims the right to go to the appeals court and put the defendant’s trial on hold while they seek a ruling on if the victim’s rights were violated.

He says such action could violate a defendant’s right to a speedy trial.

“These are bill of rights moments from the founders of our government,” said Young.

And yet, Well says, many defendants waive their right to a speedy trial and some attorneys abuse that by dragging the case out for several years; which is why Issue 1 provides victims the same right, in essence, to a speedy trial.

Currently, there is no recourse for victims when provisions in Amendment 2 are ignored.

The only recourse Issue 1 provides to solve that problem is to go through the appeals court process.

Finally, Issue 1 provides victims of a crime access to restitution, something Amendment 2 does not provide.

Issue 1 is based on Marsy’s Law which passed in California in 2008. It is named after Marsy Nicholas who was murdered by an ex-boyfriend in 1983. Her brother Henry Nicholas is the driving financial force behind the measure in every state it has been introduced.

Since 2008, five states have ratified constitutional amendments based on Marsy’s Law. In Ohio, Nicholas has spent nearly $3 million on the campaign.

No Marsy’s Law style measures have been rejected by voters.

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