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Another View -- Carol Ann Conboy and Buzz Scherr: A better way to protect victims' rights in NH

By CAROL ANN CONBOY
and BUZZ SCHERR

February 23. 2018 11:11PM

Former State Supreme Court Associate Justice Carol Ann Conboy (DAVID LANE/UNION LEADER FILE PHOTO)



UNH law professor Buzz Scherr (JAY REITER/UNION LEADER FILE PHOTO)

We have been listening carefully to the public and private discussions about the proposed constitutional amendment known as Marsy's Law and our alternative proposal that appeared in this newspaper on Feb. 1.

We have heard the profound concerns of many voices: the powerful testimony presented at the Senate Judiciary Committee hearing; the vivid, heartfelt stories of victims and their families; the experiences of victims' advocates; the feedback from prosecutors and parole board personnel who work daily with crime victims; the questions of legislators seeking to understand the scope of the issue; and, the due process concerns of the criminal defense bar.

We are heartened by the depth and gravity of the debate on how best to recognize the constitutional status of crime victims. We continue to appreciate the difficulty of expressing that status within the complexity of the criminal justice system that necessarily reflects the divergent interests of many stakeholders.

We have listened particularly closely to victims' desires for explicit recognition of their rights to fair notice and to be heard at appropriate junctures in the criminal justice process. Although our state is especially attuned to victims' concerns, we now appreciate that a more explicit recognition of these particular rights is warranted because they are the rights that protect victims against government inaction.

We have also heard the many concerns focused on the potential for Marsy's Law to infringe on a defendant's constitutional right to the presumption of innocence prior to judicial determination of guilt. Consistent with our foundational constitutional principles, there is a necessary difference between a crime victim's position prior to a legal determination as to an accused's guilt, and the victim's position following a legal determination of guilt. Thus, it has been observed that Marsy's Law may unintentionally merge these critically different positions.

We have also listened closely to the concerns expressed by legislators and others as to the breadth of a victim's right to "privacy" stated in our initial proposal. The import of this stated "right" is naturally subject to various interpretations. Some view it as a proper prohibition on the release by law enforcement of any information about a crime. Others view this proposed provision as a grant of expansive, and as yet unspecified, rights of privacy to only one class of individuals, a grant of rights never-before expressed in our Constitution.

We note that the New Hampshire Supreme Court has acknowledged a victim's constitutional privacy rights as early as 1981 in State v. Howard, involving sexual assault, and as recently as in State v. Mazzaglia, involving a homicide victim and her family. We also observe that, daily, New Hampshire judges consistently and effectively balance victims' privacy rights against defendants' due process rights.

In recognition of what we have learned from the ongoing, robust debate, we propose the following modification of our original proposal for a constitutional amendment setting forth the rights of crime victims:

"A victim of crime has the right to be treated with fairness and respect for the victim's safety and dignity, the right to fair notice of relevant proceedings involving adjudication of an accused's guilt, and sentencing and post-conviction release of a convicted defendant, and the right to be heard during such proceedings, all of which rights shall be enforced consistent with the rights guaranteed to others involved in the criminal justice system."

Carol Ann Conboy is a retired New Hampshire Supreme Court Justice. Albert "Buzz" Scherr is a professor at the UNH School of Law.


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