H. B. 2104
(By Delegate Rowan)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-11A-2, §61-11A-3 and §61-11A-6 of
the Code of West Virginia, 1931, as amended, all relating to
ensuring victims' rights to testify at sentencing in criminal
cases.
Be it enacted by the Legislature of West Virginia:
That §61-11A-2, §61-11A-3 and §61-11A-6 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person
who is a victim of a felony, the fiduciary of a deceased victim's
estate or a member of a deceased victim's immediate family.
(b) Prior to the imposition of sentence upon any defendant who
has been found guilty of a felony or has pleaded guilty or nolo contendere to any felony, the court shall permit the victim of the
crime to appear before the court for the purpose of making an oral
statement for the record if the victim notifies the court of his
or
her desire to make such a statement after receiving
the
notification provided in subsection (c) of this section. If the
victim
is not present at the time set for sentencing, or fails to
so notify the court, and has not submitted any written statement as
hereafter provided, the court shall ascertain on the record as to
whether the victim has been given the notice required by subsection
(c) of this section. If no meaningful notice has been given to the
victim, the court shall postpone sentencing to allow such notice to
be given. Otherwise, the victim's failure to appear or to fails to
so notify the court
such failure shall constitute a waiver of the
right to make an oral statement. In lieu of such appearance and
oral statement, the victim may submit a written statement to the
court or to the probation officer in charge of the case. Such
probation officer shall forthwith file any such statement delivered
to his
or her office with the sentencing court, and the statement
shall be made a part of the record at the sentencing hearing. Any
such statement, whether oral or written, shall relate solely to the
facts of the case and the extent of any injuries, financial losses
and loss of earnings directly resulting from the crime for which
the defendant is being sentenced.
(c) Within a reasonable time, prior to the imposition of sentence upon such defendant, the prosecuting attorney or assistant
prosecuting attorney in charge of the case shall in writing advise
the person who was the victim of such crime or in the case of a
minor, the parent or guardian of such minor, or the fiduciary of
his
or her estate, if he
or she be then deceased, of the date, time
and place of the original sentencing hearing, and of the victim's
rights to submit a written or oral statement to the sentencing
court as hereinabove provided.
A copy of the written notice shall
be filed with the court together with a description of the manner
by which it was transmitted to the victim.
(d) The oral or written statement given or submitted by any
victim in accordance with the provisions of this section shall be
in addition to and not in lieu of the victim impact statement
required by the provisions of section three of this article.
§61-11A-3. Victim impact statement; when required; contents; use;
right of defendant to review and present evidence.
(a) In every case in which a presentence report is ordered by
the court, such presentence report shall contain a victim impact
statement unless the court orders otherwise, if the defendant, in
committing a felony or misdemeanor, caused physical, psychological
or economic injury or death of the victim.
(b) The victim impact statement shall be prepared by the
probation officer and shall include the identity of the victim, an
itemization of any economic loss suffered by the victim as a result of the offense, a description of the nature and extent of any
physical or psychological injury suffered by the victim as a result
of the offense, the details of any change in the victim's personal
welfare, lifestyle or family relationships as a result of the
offense, whether there has been any request for psychological or
medical services initiated by the victim or the victim's family as
a result of the offense and such other information related to the
impact of the offense upon the victim as may be required by the
court.
(c) If the court does not order a presentence investigation
and report, the prosecuting attorney may request that the probation
officer prepare a victim impact statement. The victim impact
statement shall be considered by the court as a factor in
determining the appropriate sentence. Additionally, the statement
may be utilized for the determination of claims by victims of
crimes pursuant to the provisions of article two-a, chapter
fourteen of this code.
(d) In cases that involve child victims of offenses defined in
section twelve, article eight of this chapter or article eight-b or
eight-d of this chapter, any victim impact statement in a
presentence report may include a statement from a therapist,
psychologist or physician who is providing treatment to the child
as to the recommendations regarding the effect that possible
disposition may have on the child.
(e) A victim impact statement prepared in accordance with the
provisions of this section, other than for claims by victims of
crimes pursuant to the provisions of article two-a, chapter
fourteen of this code, shall be made available to the defendant,
and his
or her counsel if he
or she is so represented, at least ten
days prior to the date set for pronouncement of his
or her
sentence. The court shall, upon motion by or on behalf of the
defendant, grant the defendant a hearing, whereby he
or she may
introduce testimony or other information related to any alleged
factual inaccuracies in the statement.
(f) The court shall not impose a sentence without first
ascertaining, on the record, that this section has been complied
with.
§61-11A-6. State guidelines for fair treatment of crime victims
and witnesses in the criminal justice system.
(a) No later than the first day of July, one thousand nine
hundred eighty-four, the Attorney General shall promulgate rules
and regulations in accordance with the provisions of chapter
twenty-nine-a of this code, establishing guidelines for
law-enforcement agencies and prosecuting attorneys' offices
consistent with the purposes of this article. The Attorney General
shall seek the advice of the
department of public safety State
Police and Department of
Health and Human
Services Resources in
preparing such rules
and regulations. In preparing such rules,
and regulations, the following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that
victims routinely receive emergency social and medical services as
soon as possible and are given information on the following:
(A) Availability of crime victim compensation (where
applicable);
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process,
including what they can expect from the system as well as what the
system expects from them; and
(D) Stages in the criminal justice process of significance to
a crime victim, and the manner in which information about such
stages can be obtained.
(2) The prosecuting attorney or his
or her assistant should
ensure that victims and witnesses receive information on steps that
law-enforcement officers and prosecuting attorneys can take to
protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to
attend criminal justice proceedings should be notified by the
prosecuting attorneys' offices as soon as possible of any
scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family
of those victims and witnesses should, if such persons provide the
appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial
proceedings relating to their case, from the prosecuting attorney's
office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial
officer;
(C) The release of the accused pending judicial proceedings;
and
(D) Proceedings in the prosecution of the accused (including
the entry of a plea of guilty, trial, sentencing, and, where a term
of imprisonment is imposed, the release of the accused from such
imprisonment).
(5) The victim of a serious crime, or in the case of a minor
child or a homicide, the family of the victim, shall be consulted
by the prosecuting attorney in order to obtain the views of the
victim or family about the disposition of any criminal case brought
as a result of such crime, including the views of the victim or
family about:
(A) Dismissal;
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should, if
practical, be provided prior to court appearance, a waiting area that is separate from all other witnesses.
(7) Law-enforcement agencies should promptly return victim's
property held for evidentiary purposes unless there is a compelling
law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by
law-enforcement agencies and prosecuting attorneys in informing
employers that the need for victim and witness cooperation in the
prosecution of the case may necessitate absence of that victim or
witness from work. A victim or witness who, as a direct result of
a crime or of cooperation with law-enforcement agencies or
attorneys for the government, is subjected to serious financial
strain, should be assisted by the appropriate state agencies in
dealing with creditors.
(b) The court shall not impose a sentence without first
ascertaining, on the record, that this section has been complied
with.
(b) (c) Nothing in this section shall be construed as creating
a cause of action against the State of West Virginia or any of its
political subdivisions.
NOTE: The purpose of this bill is to ensure the rights of
victims to testify at sentencing in criminal cases.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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