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Do unchallengeable victim impact statements violate Confrontation Clause? 

By David Cmelik 

It is an apparent backlash to constitutional protections for criminal defendants. The rhetorical question is, of course, if they (meaning “the criminals”) have rights, why don’t we? The answer, often elusive in this context, is that under our novel system of jurisprudence, the accused is innocent until proven guilty so they aren’t criminals until and unless proven so. Moreover, to get to that point, the protections many, though not all, hold dear are necessary to ensure truth and justice. That, of course, is just so much drivel according to get-tough-on-crime types. Though there are no protections written into the US or Iowa Constitutions for the chief complaining witnesses in criminal prosecutions, the Iowa Legislature has passed a so-called Victims Bill of Rights located at Iowa Code Chapter 915. This statute is in keeping with a widespread national movement to honor the rights of crime victims. In Iowa, Victim “means a person who has suffered physical, emotional, or financial harm as the result of a public offense or a delinquent act, other than a simple misdemeanor, committed in this state.  ‘Victim’ also includes the immediate family members of a victim who died or was rendered incompetent as a result of the offense or who was under eighteen years of age at the time of the offense.” Iowa Code 915.10(3). Under Iowa law, victims may make an unchallenged speech at sentencing, with neither scientific foundation nor corroboration, to their mental and physical trauma as well as their financial loss in so-called victims’ rights statements without cross-examination. Though many states and federal courts have deemed victims’ rights statements valuable sources of information for the sentencing judge, there is a move afoot, following the landmark Crawford decision in 2004, to recognize that criminal defendants have a right to confront overly exuberant and hyperbolic victims rights statements at sentencing. The Legislature, driven by a political desire to appear tough on crime, has overridden the traditional function of the adversarial process of cross-examination and confrontation with the edict that, “[a] victim shall not be placed under oath and subjected to cross-examination at the sentencing hearing.” Justice Scalia has called the right to cross-examination the “greatest legal engine ever invented for the discovery of truth.” Protecting victim impact statements from cross-examination makes it less likely the record will be balanced or complete. Victim impact statements in Iowa may include: A. Itemization of any economic loss suffered by the victim as a result of the offense.
B. Identification of any physical injury suffered by the victim as a result of the offense with detail as to its seriousness and permanence.
C. Description of any change in the victim’s personal welfare or familial relationships as a result of the offense. D. Description of any request for psychological services initiated by the victim or the victim’s family as a result of the offense. E. Any other information related to the impact of the offense upon the victim.
Some, not all, civilian witnesses who consider themselves victims in criminal cases  are confused about the purpose of a victim impact statement. They sometimes proxy catharsis, or, the psychological venting of rage for therapeutic purposes, for the valuable information sought by sentencing judges. The purpose of a sentencing is not the therapy of a civilian witness. It is to provide the best individual, rehabilitative, and, yes, punitive remedy for the offense in question. Taking therapy into the courtroom has become bizarre and unhelpful.
I once had to sit through a victim impact statement that included the psychological damage endured because of a third degree burglary. The juvenile defendant had helped himself to some food and beverage in the refrigerator and found the keys to an unattended pickup truck. Naturally, he took it for a joyride. Ultimately, he pleaded guilty and the sentencing allowed for a victim impact statement from someone who was not even personally present during the crime. She was speaking on behalf of someone else: the family pet.  I can’t speak for everyone in the courtroom that day—but the judge didn’t cut her off. I have heard of instances where a now-retired jurist interrupted victim impact statements to redirect what was described as “off course.” Other times, victim impact statements unfairly prejudicial to a defendant can go unchecked—for example, when a victim alleges uncharged crimes or uncorroborated medical or psychological diagnoses. Since the “witness” is unsworn and there is no cross-examination, there’s no way to question the veracity of the statement. Moreover, the victims’ rights statute doesn’t require medical evidence although victims may, if they wish, provide it. Such records are protected by federal medical privacy statutes and Iowa Code Section 622.10. It would be nearly impossible to verify the truth or falsity of such a statement except by cross examination. There must be a mechanism to challenge such veracity. At present, in the State of Iowa, there is none. Some state courts, like Arkansas and North Carolina, have extended the right of confrontation to non-capital defendants when they are sentenced by juries. These courts have rejected the reasoning of  federal circuits relying on a 49-year old due process decision, Williams v. New York, as outdated and inapplicable to the Confrontation Clause question—especially now that the US Supreme Court has expanded such rights in light the Crawford decision. It is still an open question here whether the right to confront your accuser should extend to victim impact statements. Until an appeals court rules otherwise, victim impact statements are by statute insulated from the right of confrontation.

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