Status of the Law

Thirty-nine states give crime victims the right to attend criminal justice proceedings, including trials. However, most of these states impose limitations on that right. The restrictions stem from concern that a victim’s right to attend proceedings may conflict with the rights of the accused. Thus, victims are often given a right to be present only “to the extent that it does not interfere with the rights of the accused”¹ or is “consistent with the rules of evidence.”²

The “rule on witnesses,” generally Rule 615 of a state’s Rules of Evidence, was developed to limit the possibility that a witness might be influenced by hearing the testimony of other witnesses or the arguments of counsel. Thus, to ensure a fair trial, witnesses are excluded—sequestered—from the criminal trial except during their testimony. This rule does not apply to a defendant, who is exempted as a party to the case.

Judges often apply the rule on witnesses by looking only at one side of the equation— protecting the interests of the defendant by excluding the prosecution’s witnesses. They fail to consider the legitimate interest of the victim of an offense—who often is also a witness in the case—in attending and observing the proceedings. In practice, defense counsel need only list victims and/or their family members as potential witnesses to have them excluded from the trial. As a result, this rule often allows victims and family members to be excluded even when they have little, or no, relevant testimony to offer.

Eight states—Alabama, Alaska, Arizona, Arkansas, New Hampshire, Oregon, South Carolina, and Utah—generally exempt crime victims from sequestration as witnesses. However, Arkansas, New Hampshire, South Carolina, and Utah still permit the court to exclude a victim when “necessary to protect the defendant’s right to a fair trial”³ or where “inconsistent with the constitutional and statutory rights of the accused”⁴ or similar language is used. Utah only exempts victims from the rule “where the prosecutor agrees with the victim’s presence.”⁵ Other states, including Idaho⁶ and New Mexico,⁷ do not exempt victims from the rule on witnesses despite a general right to be present as indicated by their statutes and constitutions.

Six other states—Louisiana, Maryland, Michigan, Nevada, South Dakota, and Washington—give crime victims a right to be present only after they have testified.⁸ Washington also gives victims a right to be scheduled to testify as early as possible to maximize their attendance at the trial.⁹

A few states in their statutes clearly give victims of crime a right to be present during proceedings and provide a specific exemption from the rule on witnesses. For example, Alaska provides victims with a clear statutory right “to be present during any proceeding in . . . the prosecution and sentencing of a defendant if the defendant has the right to be present, including being present during testimony even if the victim is likely to be called as a witness.”¹⁰ Alaska’s rule on witnesses, however, also allows victims choice when the court exempts “the victim of the alleged crime . . . during criminal . . . proceedings when the accused has the right to be present.”¹¹

When defense counsel objects to the presence of the victim/witness in the courtroom on the grounds that it violates the defendant’s constitutional right to a fair trial, judges and prosecutors sometimes err on the side of caution, excluding the victim from the courtroom or discouraging the victim from exercising his or her right to attend the trial. However, case law indicates that a defendant’s right to a fair trial is not necessarily compromised by a crime victim exercising the right to attend proceedings, even when the victim is a witness in the case. A defendant “must show more than the mere possibility that [the victim] conformed her testimony to that of the other witnesses” because the burden of proof is on the defendant to show he or she was denied a fair trial.¹²

Recently, the Arizona Supreme Court ruled that the state’s constitutional amendment on crime victims’ rights and the statutory and rule changes that implemented it “effectively removed the presumption of prejudice that we traditionally attached to a trial judge’s refusal to exclude a witness from the courtroom.”¹³ Thus, the court found that altering or limiting the defendant’s right to exclude witnesses did not violate constitutional due process.

Some courts have upheld the victim’s right to be present even where there was no explicit exemption from the rule on witnesses. For example, Wyoming law gives victims a right to remain in the courtroom unless the court rules that good cause requires exclusion. In one case, the Wyoming Supreme Court found that the trial court, after hearing the arguments of counsel, had properly balanced the defendant’s constitutional rights against the victim’s statutory rights and did not err in permitting the victim to remain in the courtroom during the testimony of another victim. During trial arguments about whether the victim should be allowed to remain in the courtroom, the prosecution noted that the victim had made a lengthy pretrial statement that was provided to the defense.¹⁴

Apart from traditional sequestration rationales, other arguments have been offered to justify the exclusion of victims/witnesses from a trial. When a victim has not previously identified the accused as the perpetrator, allowing the victim to be present in the courtroom and observe the defendant may influence in-court identification. Of course, the potential problem is substantially diminished when there is a pretrial identification.

In addition, the defense counsel may argue that the mere presence of the victim in the courtroom can prejudice the jury and interfere with the defendant’s right to a fair trial. However, courts have rejected this argument: “[T]here is nothing inherently prejudicial in the presence of the victim. The fact that a defendant may not want the reminder of the crime to be a real presence, we do not see of itself, as an interference with the defendant’s right to a fair trial.”¹⁵