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Understanding the Terms & Constitutional Implications of Marsy’s Law

On November 30, 1983, tragedy struck the family of an accomplished young woman named Marsalee (Marsy) Ann Nicholas. Marsy was brutally stalked and murdered by an ex-boyfriend that day, and while still reeling from the pain of this loss, Marsy’s mother was shockingly confronted by Marsy’s killer on the way home from Marsy’s funeral.

Marsy’s murderer had been released on bail a few days prior to Marsy’s funeral, but her family hadn’t been notified. The judicial oversights that resulted in this confrontation lead to a campaign for legal reform. Marsy’s family advocated for the enactment of state constitutional rights that would provide victims of crimes with rights equal to those afforded to the accused. These reformations became known as “Marsy’s Law,” which has been adopted in some form by 11 states.

Wisconsin Set to Vote on Marsy’s Law Amendment Next Week

On April 7, 2020, Wisconsin residents are scheduled to vote on whether to amend the Wisconsin Constitution to add a variation of Marsy’s Law. The difficulty with Wisconsin’s Marsy’s Law referendum is the proposed ballot’s simple take it or leave it language. Wisconsin voters are being asked to say yes or no to enacting the Constitutional Amendment Relating to Crime Victims’ Rights, but this amendment contains over a dozed proposed rights and changes to Wisconsin’s Constitution. Some of these proposed changes are already codified by Wisconsin’s crime victim’s rights bill, while others may conflict with your own federal and state constitutional protections. Understanding the terms, scope, and constitutional implications of Marsy’s Law is essential to making an informed decision on April 7.

The Actual Constitutional Amendments Proposed by Marsy’s Law

The full text of Wisconsin’s Marsy’s Law can be found in 2019 Senate Joint Resolution 2. It proposes adding the following victim’s rights to the Wisconsin Constitution:

To be treated with dignity, respect, and fairness
To privacy
To speedy proceedings
To attend all criminal proceedings upon request
To protection from the accused
To timely notification of all criminal proceedings
To confer with prosecutors upon request
To be heard in any proceedings that involve a victim’s rights such as release, sentencing, parole, expungement, or pardons
To provide a victim impact statement to the court
To have notice of the accused’s release, escape, or death
To refuse an interview, deposition, or to provide discovery and evidence to the accused or his or her attorney
To restitution for the effects of the crime and for assistance collecting restitution
To any legal compensation allowed by law v
To timely information about the status of the investigation and outcome of the case
To notice of these rights and all other rights provided to victims by federal or state law

A victim is defined as “any person against whom an act is committed that would constitute a crime,” or the spouse, parent, legal guardian, sibling, child, or housemate of the victim if he or she is deceased or emotionally unable to exercise his or her rights. The parents of a child victim may qualify as a victim, and the accused is disqualified from victim status. A victim is also permitted to enforce these rights in court, but these rights are not intended to supersede a defendant’s constitutional rights.

Potential Constitutional Conflicts between Marsy’s Law & Defendants’ Rights

The intent of Marsy’s law is to equalize the victim’s rights with those of the defendant. While the rights are not intended to supersede a defendant’s constitutional rights, there seem to be some major conflicts between the protections afforded by the Bill of Rights and the text of Marsy’s law. If the equal rights afforded to the victim and defendant are in conflict, which prevails? Some states have found it difficult to balance the two.

One of the primary concerns associated with Marsy’s law is the right victims have to refuse to provide the defendant with discovery. This means anyone who qualifies as a victim can refuse to provide the accused with potentially exonerating evidence or evidence necessary to raise a reasonable defense. This may include photographs, DNA evidence, video footage, access to social media accounts, or information necessary to get a clear picture of the crime. The unavailability of this evidence-gathering process can burden courts and actually slow the criminal justice process. It also seems to be in conflict with an accused’s right to confront his or her accuser and potentially the duty of prosecutors to turn over exonerating evidence to the defense.

The Scope of Wisconsin’s Current Crime Victim’s Bill of Rights

Wisconsin was the first state to enact a crime victim’s bill of rights. Contained in Chapter 950 of the Wisconsin Code, these statutes provide victims and witnesses of crimes in Wisconsin most of the same rights proposed by Marsy’s Law. These include the rights:

To dignity and fairness
To privacy
To have his or her interest considered during court proceedings
To provide victim impact statements
Not to be compelled to submit to pretrial depositions and interviews with the defendant or his/her attorney
To attend and be notified of parole hearings and court proceedings
To receive information from law enforcement agencies and prosecutors
To restitution and assistance in obtaining the same
To notification of the accused’s escape, release, and/or pardon

This act is already more comprehensive than the rights proposed by Marsy’s Law and contains additional protections for witnesses and child victims. The limitations to the act regard enforcement. A public official that fails to abide by and respect these rights may only be fined up to $1,000, and although the victim may assert these rights in court, they are not on even footing with the constitutional rights afforded to criminal defendants. Marsy’s Law would strengthen some of these protections by codifying them as constitutional rights in Wisconsin.

Speak to an Experienced Wisconsin Constitutional Criminal Procedure Attorney About the Implications of Marsy’s Law

On April 7, 2020, the ballot will simply ask voters whether “section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?” This sounds fair, but is it considering what’s on the line if the accused is convicted of a serious crime?

For questions about how Marsy’s Law has affected the criminal process in other states or for more information about making an informed decision on April 7, 2020, contact the experienced Wisconsin criminal defense lawyers at Hogan Eickhoff online or by calling (920) 450-9800 today!

Eric Eickhoff