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Marsy’s Law would have unintended consequences

By Charles J. Keefe, Esq. - Nashua | Feb 25, 2018

What is known around the country as Marsy’s Law has come to New Hampshire in the form of a proposed constitutional amendment to purportedly provide broad protections for alleged victims of crime. This movement is the result of a national campaign funded by a California billionaire whose sister was murdered by her ex-boyfriend in 1983. This proposed constitutional amendment enumerates certain “rights” for alleged victims that are largely already encapsulated in New Hampshire’s Victim’s Bill of Rights law, but it goes unnecessarily beyond that. It greatly expands the definition of the word “victim,” it may require the state to hire a lawyer for the alleged victim, and it would likely cause constitutional conflict between the rights afforded an accused by our founders and those of alleged victims.

In New Hampshire, in addition to our Victim’s Bill of Rights, every county attorney’s office has at least one victim-witness advocate whose role is specifically to support alleged victims of crime through the criminal process. Our county attorneys, and their victim-witness advocates do a tremendous job in their roles serving alleged victims. This proposed constitutional amendment is entirely unnecessary in our state. It seeks to fix a problem that does not exist, and it would do so at great expense to New Hampshire taxpayers. In one county in Montana last year, where this amendment exists, its implementation added an estimated annual cost of $100,000 to the county’s budget. In South Dakota, where the amendment passed in 2017, it cost that state $5,000,000 to implement it, and the House speaker there is planning to put it back on the ballot for repeal due to its unintended consequences. In North Dakota, other victim-related groups opposed the amendment because it diverted funds from their services. Again, this proposal is an expensive fix to a problem that does not exist.

Additionally, this amendment would make anyone who feels he or she has been affected by a crime a “victim,” thereby allowing that person the right to confer with prosecutors and possibly have the state provide that person an attorney. This would greatly affect our already overwhelmed prosecutors with additional time and expense to address those one would not reasonably consider a victim of a crime and expanding the services that prosecutors must provide to newly defined victims. With the advent of Felonies First in Hillsborough County already straining resources, this amendment would add to the current strain without reason or cause.

Lastly, this amendment would create constitutional conflict between those rights that are the cornerstones of our state and federal constitutions (due process, the presumption of innocence, the right to confront witnesses). If people are labeled “victims” at the start of case, an accused is no longer presumed innocent. On its face, the amendment also would allow a victim to deny an accused information he or she is constitutionally required to receive in order to defend against a criminal charge. Additionally, this proposal would allow a victim to have a right to a prompt conclusion of a case, no matter the significant issues that may arise in a criminal case – competency of the accused, suppression of evidence, newly discovered evidence, obtaining and disclosing experts, etc. This amendment would create an almost daily constitutional crisis in courtrooms around New Hampshire.

As a society, we all want to do as much as we can for victims of crime. The idea of a constitutional amendment to support victims of crime sounds wonderful. However, our state already does a fantastic job in that role by providing support, services and outreach. This proposed constitutional amendment would cost taxpayers hundreds of thousands of dollars in this county, it would strain county and judicial resources, it would create legal problems on a regular basis for judge’s and lawyers to sort out. All of this is unnecessary.

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