Marsy’s Law: Are Crimes Victims Really More Protected Now?

Eric Long

By Eric Long

On Nov. 7, 2017, Ohio voters overwhelmingly passed Issue 1, or “Marsy’s Law,” under the guise of a “victim’s bill of rights.” Ohio is the most recent state to adopt such legislation, and surely will not be the last. On its face, it is hard to imagine opposition to helping victims of crimes, and the pre-election question posed to defense attorneys and prosecutors alike was usually the same: “Why would I not vote to give these victims rights?”

Although the answer to this question seems self-evident, there are other considerations that complicate the issue. For instance, what protections or rights does Marsy’s Law provide to victims in Ohio and what effect does Marsy’s Law have on the rights of the accused?

Does Marsy’s Law Provide Additional Protection to Victims?

While proponents of Marcy’s Law extol the protections that victims will enjoy under the new constitutional amendment, the fact is important to note that victims already had the enumerated rights under existing Ohio law. The following chart (below) provides a comparison of the protections available under Marsy’s Law and previous Ohio law.

As evidenced by the foregoing analysis, the only significant changes are the right of a victim to refuse to engage in the discovery process and to have a greater ability to intervene during court proceedings. It is widely believed that this includes the potential interference with a prosecuting attorney’s ability to reach plea resolutions. Such a realization is troubling because despite the “victim’s rights” designation, Marsy’s Law is less a gain for victims and more a loss for the accused.

How Does Marsy’s Law Affect the Rights of the Accused?

There is concern that Marsy’s Law will have a negative impact on the constitutional rights of the accused. Marsy’s Law effectively undermines the presumption of innocence by accepting that the accuser is in-fact, a victim. By labeling an accuser as a “victim” and allowing him or her to hide behind a “victim’s bill of rights,” the legislature is ignoring the presumption of innocence and the state’s burden of proof that a crime was committed.

Perhaps more significant is the effect that Marsy’s Law has on a defendant’s access to evidence. Ohio is an “open discovery” state, meaning that the prosecution and defense exchange evidence, openly and transparently, prior to trial. However, the ability of an accuser to refuse to engage in the discovery process under Marsy’s Law obstructs the free flow of information and undermines the purpose of open discovery – avoiding surprises and ensuring fair trial. Moreover, previously available means for a defendant to obtain evidence, such as issuing a subpoena to an accuser, is now dependent on an accuser’s willingness to cooperate.

Although an accuser’s right to refuse to speak with defense counsel or an investigator is not novel, the apparent right to ignore lawfully issued subpoenas for depositions, civil or criminal, or a subpoena for documents, substantially limits a defendant’s ability to gain potentially exculpatory evidence. While certain evidence may be available through other sources, there is some evidence that can only be obtained from the accuser. Evidence such as text messages, metadata for electronic evidence, notes, diaries, and calendars are often critical to establish a defense and may now be withheld from the defendant by the accuser. Prosecutors and law enforcement officers who prefer to avoid open discovery can simply advise the accuser that such information need not be shared, even with the state. The ability to withhold evidence has the potential to drastically erode open discovery, which prosecutors, defense attorneys, and courts worked tirelessly to implement. More importantly, an accuser who strategically withholds evidence is a dangerous threat to a judicial system that was designed to ensure fairness and reduce the likelihood that a person is convicted of a crime that they did not commit.

Eric Long joined Friedman & Nemecek L.L.C., after years practicing primarily in civil litigation. His current practice includes municipal, state and federal representation of clients at all stages of criminal litigation, from pre-indictment investigations to post-conviction work. Licensed in Ohio and Illinois, he frequently accompanies his clients to courts and hearings across the United States. Mr. Long’s diverse background has allowed him to effectively represent clients in civil and administrative proceedings that are quasi-criminal in nature, such as professional disciplinary hearings and Title IX investigation.