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  1. #1

    Default What Rights Should be Given to Victim Witnesses

    My question involves civil rights in the State of: Hawaii

    1. Should victim-witness (VW) status be given substantive due process review to establish what constitutional rights, if any, are infringed by the government during criminal proceedings in
    which the VW is forced to put those rights at risk of violation?

    * I think this would need to happen BEFORE a criminal proceeding if there's to be any point, and the conclusions could be set down as law.

    2. Should VW's be afforded procedural due process during the course of a criminal proceeding when their rights are violated / at risk of violation?

    * I think the Mathews Test should be used here to determine if it's necessary to violate the VW's rights. This would mean giving the VW notice of a proposed deprivation of rights and then
    giving the VW a hearing to argue against the deprivation.

    Example of a VW deprivation that due process would fix:

    * VW's in Hawaii are subject to Evidence Rule 615, which completely bans the VW from the entire trial without due process (a chance to argue against the blanket order).
    * Members of the public and media have a constitutionally protected right to attend criminal trials. Thus, their exclusion can only be enforced after the judge provides... due process; notice,
    and a hearing.
    * VW's are apparently removed from the "public" and/or are stripped of their First Amendment rights, without due process.

    3. What would it look like if VW's were given substantive and procedural due process protection under the 14th Amendment, and what is the justification for thus far denying it?

    Here are a couple relevant local laws:

    HI Victim Bill of Rights.......................http://www.capitol.hawaii.gov/hrscur...0801D-0004.htm

    HI Witness Exclusion Rule 615............http://www.capitol.hawaii.gov/hrscur...-0001-0615.htm

  2. #2
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    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    Did you even bother to read the Constitution before coming up with this drivel?

  3. #3

    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    Yes I did.
    If the Constitution says that "all people" shall be given due process (the ability to protect their rights) why are victims/witnesses denied due process when their rights are clearly infringed and often violated during criminal proceedings?

    Here, I'll put it this way: What is the difference between a regular U.S. citizen and a victim/witness of crime?

  4. #4
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    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    You need to go back read a lot more.

    The public does not have a right to attend a trial. The defendant has a right to a public trial. The basis of that is to prevent a kangaroo court since both the trial itself and the court records are subject to public scrutiny thereby helping to protect
    the defendants rights.

    i have no idea what rights the victim/witness is being deprived of.

  5. #5

    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980).

    The Supreme Court did not base the above opinion on the 6th Amendment.

    Note: In order for a judge to close proceedings, the closure must be justified and narrowly-tailored. That is in deference to the public's right to attend.

    What should I read that would help me understand? I love to read.

  6. #6
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    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    Reading is not the issue. Comprehension is.

  7. #7

    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    You guys make it sound simple. If that's the case, please explain to me why victims/witnesses do not deserve due process when their rights are at stake. I have not gotten an answer, I've just been told that I'm wrong.

    Note: even illegal immigrants are entitled to due process review (in deportation cases) in most instances because the Courts decided that there was no reasonable basis to deprive immigrants of basic procedural fairness, despite the fact that they lack a citizen's full entitlement to every benefit under the Constitution.

    Does the 14th Amendment apply to the rights of victim-witnesses or not?

  8. #8
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    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    Quote Quoting LexNonScripta
    View Post
    The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980).

    The Supreme Court did not base the above opinion on the 6th Amendment.

    Note: In order for a judge to close proceedings, the closure must be justified and narrowly-tailored. That is in deference to the public's right to attend.

    What should I read that would help me understand? I love to read.
    So they have consisrantly upheld the press' right to access a trial yet we have a decision in 1980 you have based your statement on? Obviously I disagree with the opinion but I will acquiesce to your statement.

    You have not said what rights a witness/victim has have suffered.

    * VW's in Hawaii are subject to Evidence Rule 615, which completely bans the VW from the entire trial without due process (a chance to argue against the blanket order).
    That doesn't sound like the rule 615 I read.

    The issue has been addressed so while an individual may not appear to be given due process, the fact is the rule has been addressed in court and held valid. There is an acceptable basis for the rule.


    http://law.justia.com/codes/hawaii/2013/title-33/chapter-626/rule-615

    read the commentary.


  9. #9

    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    The most recent and relevant case (in HI) citing to Richmond Newspapers is Oahu Publications v Ahn, http://caselaw.findlaw.com/hi-suprem...t/1673205.html ("This case requires us to address the procedures that a court must undertake to protect the constitutional right of the public to attend criminal trials while also protecting a defendant's potentially countervailing constitutional right to a fair and impartial jury. Additionally, we address the procedures that a court is required to follow before denying public access to a transcript of a closed proceeding.").

    As to the rights violations endured by a victim-witness without due process, here are a few general examples, specific to Hawaii (but applicable in many other jurisdictions):

    1. HRE 615 makes exclusion of witnesses mandatory on motion of any party. Thus, a victim or surviving family member who is called as a witness is deprived of the public right to observe the trial, and because it is mandatory, there is no way for the witness to argue against it. The implications are far-reaching:

    A) a victim-witness cannot learn the facts surrounding his/her injury, thus inhibiting, if not totally eliminating, any ability to bring a civil suit relating to the criminal case. In essence, the State locks away critical evidence from a potential litigant, in violation of the right to petition under the First Amendment

    B) a victim-witness is barred under HRE 615 from obtaining court transcripts until the defendant has exhausted any appeals. This can go on for many years, further restricting any meaningful exercise of the civil right to seek redress under law, which is a Property right (seeking damages=property)

    C) a victim-witness is forbidden from speaking to anyone about the case under HRE 615, a prior-restraint that chills protected as well as unprotected speech; for example, ceasing to talk about a case when it centers around a missing person would likely inhibit otherwise totally lawful search efforts, like talking to other witnesses or reading public court transcripts.

    2. Because the victim-witness is banned from all proceedings, they cannot be made aware of other rights violations. Example: mother's underage daughter is sexually harassed by a defense attorney on the stand, but technically, the daughter is not allowed to tell anyone this happened to her, least of all her mother whom is also a witness. Attempting to bring an ethics complaint would reveal a violation of the exclusion order, which could in turn cause a mistrial (and further distress to a victim-witness)

    3. A victim-witness in Hawaii is given a statutory right to make a Victim Impact Statement, but deprived of the right to seek information. What meaning does a VIS have if content is so arbitrarily limited?

    To summarize: numerous First Amendment rights are infringed/destroyed without proper analysis under the 14th Amendment.

    The right to participate as a member of the public must be a liberty interest, and it just disappears once the government classifies a person as a witness. I'm not saying a witness' status shouldn't change as a result of their civic duty, but I don't think they should be totally stripped of constitutional protection or recognition.

    *I have other examples but they are personal and I'm not sure they belong here

  10. #10
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    Default Re: Should Victim-Witnesses Be Given Substantive and Procedural Due Process

    Guys, keep enabling this troll and we'll have 10 pages that don't accomplish anything.

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