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[Utah Code Table of Contents]
[TITLE 77. Table of Contents]
77-38-1 Title.
This act shall be known and may be cited as the "Rights
of Crime Victims Act."
1994
77-38-2 Definitions.
For the purposes of this chapter and the Utah Constitution:
(1) "Abuse" means treating the crime victim in a manner so as to injure, damage, or disparage.
(2) "Dignity" means treating the crime victim with worthiness, honor, and esteem.
(3) "Fairness" means treating the crime victim reasonably, even-handedly, and impartially.
(4) "Harassment" means treating the crime victim in a persistently annoying manner.
(5) "Important criminal justice hearings" or "important juvenile justice hearings" means the following proceedings in felony criminal cases or cases involving a minor's conduct which would be a felony if committed by an adult:
(a) any preliminary hearing to determine probable cause;
(b) any court arraignment where practical;
(c) any court proceeding involving the disposition of charges against a defendant or minor or the delay of a previously scheduled trial date but not including any unanticipated proceeding to take an admission or a plea of guilty as charged to all charges previously filed or any plea taken at an initial appearance;
(d) any court proceeding to determine whether to release a defendant or minor and, if so, under what conditions release may occur, excluding any such release determination made at an initial appearance;
(e) any criminal or delinquency trial, excluding any actions at the trial that a court might take in camera, in chambers, or at a sidebar conference;
(f) any court proceeding to determine the disposition of a minor or sentence, fine, or restitution of a defendant or to modify any disposition of a minor or sentence, fine, or restitution of a defendant; and
(g) any public hearing concerning whether to grant a defendant or minor parole or other form of discretionary release from confinement.
(6) "Reliable information" means information worthy of confidence, including any information whose use at sentencing is permitted by the United States Constitution.
(7) "Representative of a victim" means a person who is designated by the victim or designated by the court and who represents the victim in the best interests of the victim.
(8) "Respect" means treating the crime victim with regard and value.
(9) (a) "Victim of a crime" means any natural person against whom the charged crime or conduct is alleged to have been perpetrated or attempted by the defendant or minor personally or as a party to the offense or conduct or, in the discretion of the court, against whom a related crime or act is alleged to have been perpetrated or attempted, unless the natural person is the accused or appears to be accountable or otherwise criminally responsible for or criminally involved in the crime or conduct or a crime or act arising from the same conduct, criminal episode, or plan as the crime is defined under the laws of this state.
(b) For purposes of the right to be present, "victim of a crime" does not mean any person who is in custody as a pretrial detainee, as a prisoner following conviction for an offense, or as a juvenile who has committed an act that would be an offense if committed by an adult, or who is in custody for mental or psychological treatment.
(c) For purposes of the right to be present and heard
at a public hearing as provided in Subsection
77-38-2
(5)(g) and the right to notice as provided in
Subsection
77-38-3
(7)(a), "victim of a crime" includes any victim
originally named in the allegation of criminal conduct who
is not a victim of the offense to which the defendant entered
a negotiated plea of guilty.
1997
77-38-3 Notification to victims - Initial notice, election to receive subsequent notices - Form of notice - Protected victim information.
(1) Within seven days of the filing of felony criminal charges against a defendant, the prosecuting agency shall provide an initial notice to reasonably identifiable and locatable victims of the crime contained in the charges, except as otherwise provided in this chapter.
(2) The initial notice to the victim of a crime shall provide information about electing to receive notice of subsequent important criminal justice hearings listed in Subsections 77-38-2 (5)(a) through (f) and rights under this chapter.
(3) The prosecuting agency shall provide notice to a victim of a crime for the important criminal justice hearings, provided in Subsections 77-38-2 (5)(a) through (f) which the victim has requested.
(4) (a) The responsible prosecuting agency may provide initial and subsequent notices in any reasonable manner, including telephonically, electronically, orally, or by means of a letter or form prepared for this purpose.
(b) In the event of an unforeseen important criminal justice hearing, listed in Subsections 77-38-2 (5)(a) through (f) for which a victim has requested notice, a good faith attempt to contact the victim by telephone shall be considered sufficient notice, provided that the prosecuting agency subsequently notifies the victim of the result of the proceeding.
(5) (a) The court shall take reasonable measures to ensure that its scheduling practices for the proceedings provided in Subsections 77-38-2 (5)(a) through (f) permit an opportunity for victims of crimes to be notified.
(b) The court shall also consider whether any notification system that it might use to provide notice of judicial proceedings to defendants could be used to provide notice of those same proceedings to victims of crimes.
(6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give notice to the responsible prosecuting agency of any motion for modification of any determination made at any of the important criminal justice hearings provided in Subsections 77-38-2 (5)(a) through (f) in advance of any requested court hearing or action so that the prosecuting agency may comply with its notification obligation.
(7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and Parole for the important criminal justice hearing provided in Subsection 77-38-2 (5)(g).
(b) The board may provide notice in any reasonable manner, including telephonically, electronically, orally, or by means of a letter or form prepared for this purpose.
(8) Prosecuting agencies and the Board of Pardons and Parole are required to give notice to a victim of a crime for the proceedings provided in Subsections 77-38-2 (5)(a) through (f) only where the victim has responded to the initial notice, requested notice of subsequent proceedings, and provided a current address and telephone number if applicable.
(9) (a) Law enforcement and criminal justice agencies shall refer any requests for notice or information about crime victim rights from victims to the responsible prosecuting agency.
(b) In a case in which the Board of Pardons and Parole is involved, the responsible prosecuting agency shall forward any request for notice that it has received from a victim to the Board of Pardons and Parole.
(10) In all cases where the number of victims exceeds ten, the responsible prosecuting agency may send any notices required under this chapter in its discretion to a representative sample of the victims.
(11) (a) A victim's address, telephone number, and victim impact statement maintained by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice Services, Department of Corrections, and Board of Pardons and Parole, for purposes of providing notice under this section, is classified as protected as provided in Subsection 63-2-304 (10).
(b) The victim's address, telephone number, and victim impact statement is available only to the following persons or entities in the performance of their duties:
(i) a law enforcement agency, including the prosecuting agency;
(ii) a victims' right committee as provided in Section 77-37-5 ;
(iii) a governmentally sponsored victim or witness program;
(iv) the Department of Corrections;
(v) Office of Crime Victims' Reparations;
(vi) Commission on Criminal and Juvenile Justice; and
(vii) the Board of Pardons and Parole.
(12) The notice provisions as provided in this section
do not apply to misdemeanors as provided in Section
77-38-5
and to important juvenile justice hearings
as provided in Section
77-38-2
.
2003
77-38-4 Right to be present and to be heard - Control of disruptive acts or irrelevant statements - Statements from persons in custody.
(1) The victim of a crime shall have the right to be present at the important criminal or juvenile justice hearings provided in Subsections 77-38-2 (5)(a) through (f), the right to be heard at the important criminal or juvenile justice hearings provided in Subsections 77-38-2 (5)(b), (c), (d), and (f), and, upon request to the judge hearing the matter, the right to be present and heard at the initial appearance of the person suspected of committing the conduct or criminal offense against the victim on issues relating to whether to release a defendant or minor and, if so, under what conditions release may occur.
(2) This chapter shall not confer any right to the victim of a crime to be heard:
(a) at any criminal trial, including the sentencing phase of a capital trial under Section 76-3-207 or at any preliminary hearing, unless called as a witness; and
(b) at any delinquency trial or at any preliminary hearing in a minor's case, unless called as a witness.
(3) The right of a victim or representative of a victim to be present at trial is subject to Rule 615 of the Utah Rules of Evidence.
(4) Nothing in this chapter shall deprive the court of the right to prevent or punish disruptive conduct nor give the victim of a crime the right to engage in disruptive conduct.
(5) The court shall have the right to limit any victim's statement to matters that are relevant to the proceeding.
(6) In all cases where the number of victims exceeds five, the court may limit the in-court oral statements it receives from victims in its discretion to a few representative statements.
(7) Except as otherwise provided in this section, a victim's right to be heard may be exercised at the victim's discretion in any appropriate fashion, including an oral, written, audiotaped, or videotaped statement or direct or indirect information that has been provided to be included in any presentence report.
(8) If the victim of a crime is a person who is in custody as a pretrial detainee, as a prisoner following conviction for an offense, or as a juvenile who has committed an act that would be an offense if committed by an adult, or who is in custody for mental or psychological treatment, the right to be heard under this chapter shall be exercised by submitting a written statement to the court.
(9) The court may exclude any oral statement from a victim on the grounds of the victim's incompetency as provided in Rule 601(a) of Utah Rules of Evidence.
(10) Except in juvenile court cases, the Constitution
may not be construed as limiting the existing rights of the
prosecution to introduce evidence in support of a capital
sentence.
1995
77-38-5 Application to felonies and misdemeanors of the declaration of the rights of crime victims.
The provisions of this chapter shall apply to:
(1) any felony filed in the courts of the state;
(2) to any class A and class B misdemeanor filed in the courts of the state; and
(3) to cases in the juvenile court as provided in Section
78-3a-115
.
1997
77-38-6 Victim's right to privacy.
(1) The victim of a crime has the right, at any court proceeding, including any juvenile court proceeding, not to testify regarding the victim's address, telephone number, place of employment, or other locating information unless the victim specifically consents or the court orders disclosure on finding that a compelling need exists to disclose the information. A court proceeding on whether to order disclosure shall be in camera.
(2) A defendant may not compel any witness to a crime,
at any court proceeding, including any juvenile court proceeding,
to testify regarding the witness's address, telephone number,
place of employment, or other locating information unless
the witness specifically consents or the court orders disclosure
on finding that a compelling need for the information exists.
A court proceeding on whether to order disclosure shall be
in camera.
1995
77-38-7 Victim's right to a speedy trial.
(1) In determining a date for any criminal trial or other important criminal or juvenile justice hearing, the court shall consider the interests of the victim of a crime to a speedy resolution of the charges under the same standards that govern a defendant's or minor's right to a speedy trial.
(2) The victim of a crime has the right to a speedy disposition of the charges free from unwarranted delay caused by or at the behest of the defendant or minor and to prompt and final conclusion of the case after the disposition or conviction and sentence, including prompt and final conclusion of all collateral attacks on dispositions or criminal judgments.
(3) (a) In ruling on any motion by a defendant or minor to continue a previously established trial or other important criminal or juvenile justice hearing, the court shall inquire into the circumstances requiring the delay and consider the interests of the victim of a crime to a speedy disposition of the case.
(b) If a continuance is granted, the court shall enter
in the record the specific reason for the continuance and
the procedures that have been taken to avoid further delays.
1995
77-38-8 Age-appropriate language at judicial proceedings - Advisor.
(1) In any criminal proceeding or juvenile court proceeding regarding or involving a child, examination and cross-examination of a victim or witness 13 years of age or younger shall be conducted in age-appropriate language.
(2) (a) The court may appoint an advisor to assist a witness 13 years of age or younger in understanding questions asked by counsel.
(b) The advisor is not required to be an attorney.
1995
77-38-9 Representative of victim - Court designation - Representation in cases involving minors - Photographs in homicide cases.
(1) (a) A victim of a crime may designate, with the approval of the court, a representative who may exercise the same rights that the victim is entitled to exercise under this chapter.
(b) Except as otherwise provided in this section, the victim may revoke the designation at any time.
(c) In cases where the designation is in question, the court may require that the designation of the representative be made in writing by the victim.
(2) In cases in which the victim is deceased or incapacitated, upon request from the victim's spouse, parent, child, or close friend, the court shall designate a representative or representatives of the victim to exercise the rights of a victim under this chapter on behalf of the victim. The responsible prosecuting agency may request a designation to the court.
(3) (a) If the victim is a minor, the court in its discretion may allow the minor to exercise the rights of a victim under this chapter or may allow the victim's parent or other immediate family member to act as a representative of the victim.
(b) The court may also, in its discretion, designate a person who is not a member of the immediate family to represent the interests of the minor.
(4) The representative of a victim of a crime shall not be:
(a) the accused or a person who appears to be accountable or otherwise criminally responsible for or criminally involved in the crime or conduct, a related crime or conduct, or a crime or act arising from the same conduct, criminal episode, or plan as the crime or conduct is defined under the laws of this state;
(b) a person in the custody of or under detention of federal, state, or local authorities; or
(c) a person whom the court in its discretion considers to be otherwise inappropriate.
(5) Any notices that are to be provided to a victim pursuant to this chapter shall be sent to the victim or the victim's lawful representative.
(6) On behalf of the victim, the prosecutor may assert any right to which the victim is entitled under this chapter, unless the victim requests otherwise or exercises his own rights.
(7) In any homicide prosecution, the prosecution may introduce
a photograph of the victim taken before the homicide to establish
that the victim was a human being, the identity of the victim,
and for other relevant purposes.
1995
77-38-10 Victim's discretion.
(1) (a) The victim may exercise any rights under this chapter at his discretion to be present and to be heard at a court proceeding, including a juvenile delinquency proceeding.
(b) The absence of the victim at the court proceeding does not preclude the court from conducting the proceeding.
(2) A victim shall not refuse to comply with an otherwise lawful subpoena under this chapter.
(3) A victim shall not prevent the prosecution from complying
with requests for information within a prosecutor's possession
and control under this chapter.
1995
77-38-11 Enforcement - Appellate Review - No right to money damages.
(1) If a person acting under color of state law willfully or wantonly fails to perform duties so that the rights in this chapter are not provided, an action for injunctive relief, including prospective injunctive relief, may be brought against the individual and the governmental entity that employs the individual.
(2) (a) The victim of a crime or representative of a victim of a crime, including any Victims' Rights Committee as defined in Section 77-37-5 may:
(i) bring an action for declaratory relief or for a writ of mandamus defining or enforcing the rights of victims and the obligations of government entities under this chapter; and
(ii) petition to file an amicus brief in any court in any case affecting crime victims.
(b) Adverse rulings on these actions or on a motion or request brought by a victim of a crime or a representative of a victim of a crime may be appealed under the rules governing appellate actions, provided that no appeal shall constitute grounds for delaying any criminal or juvenile proceeding.
(c) An appellate court shall review all such properly presented issues, including issues that are capable of repetition but would otherwise evade review.
(3) The failure to provide the rights in this chapter
or Title 77, Chapter 37, Victims Rights, shall not constitute
cause for a judgment against the state or any government
entity, or any individual employed by the state or any government
entity, for monetary damages, attorneys' fees, or the costs
of exercising any rights under this chapter.
1996
77-38-12 Construction of this chapter - No right to set aside conviction, adjudication, admission, or plea - Severability clause.
(1) All of the provisions contained in this chapter shall be construed to assist the victims of crime.
(2) This chapter may not be construed as creating a basis for dismissing any criminal charge or delinquency petition, vacating any adjudication or conviction, admission or plea of guilty or no contest, or for appellate, habeas corpus, except in juvenile cases, or other relief from a judgment in any criminal or delinquency case.
(3) This chapter may not be construed as creating any right of a victim to appointed counsel at state expense.
(4) All of the rights contained in this chapter shall be construed to conform to the Constitution of the United States.
(5) (a) In the event that any portion of this chapter is found to violate the Constitution of the United States, the remaining provisions of this chapter shall continue to operate in full force and effect.
(b) In the event that a particular application of any portion of this chapter is found to violate the Constitution of the United States, all other applications shall continue to operate in full force and effect.
(6) The enumeration of certain rights for crime victims
in this chapter shall not be construed to deny or disparage
other rights granted by the Utah Constitution or the Legislature
or retained by victims of crimes.
1995
77-38-13 Declaration of legislative authority.
It is the view of the Legislature that the provisions
of this chapter, and other provisions enacted simultaneously
with it, are substantive provisions within inherent legislative
authority. In the event that any of the provisions of this
chapter, and other provisions enacted simultaneously with
it, are interpreted to be procedural in nature, the Legislature
also intends to invoke its powers to modify procedural rules
under the Utah Constitution.
1994
77-38-14 Notice of expungement petition - Victim's right to object.
(1) The Department of Corrections or the Juvenile Probation Department shall prepare a document explaining the right of a victim or a victim's representative to object to a petition for expungement under Section 77-18-11 or 78-3a-905 and the procedures for obtaining notice of any such petition. The department or division shall also provide each trial court a copy of the document which has jurisdiction over delinquencies or criminal offenses subject to expungement.
(2) The prosecuting attorney in any case leading to a
conviction or an adjudication subject to expungement shall
provide a copy of the document to each person who would be
entitled to notice of a petition for expungement under Sections
77-18-11
and 78-3a-905.
1996
