Bill Text: AZ HB2563 | 2014 | Fifty-first Legislature 2nd Regular | Chaptered
Bill Title: Juvenile crime victims' rights
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-04-30 - Chapter 269 [HB2563 Detail]
Download: Arizona-2014-HB2563-Chaptered.html
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Conference Engrossed |
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State of Arizona House of Representatives Fifty-first Legislature Second Regular Session 2014
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CHAPTER 269
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HOUSE BILL 2563 |
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AN ACT
amending title 8, chapter 3, article 3, Arizona Revised Statutes, by adding section 8‑350.02; amending sections 8‑383, 8‑384, 8‑386, 8‑391, 8‑392, 8‑397, 8‑409, 8‑413 and 8‑414, Arizona Revised Statutes; repealing section 8‑415, Arizona Revised Statutes; amending title 8, chapter 3, article 7, Arizona Revised Statutes, by adding a new section 8‑415; amending sections 8‑420, 8‑421 and 39-127, Arizona Revised Statutes; relating to juvenile crime victims' rights.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 8, chapter 3, article 3, Arizona Revised Statutes, is amended by adding section 8-350.02, to read:
8-350.02. Civil actions by victim or other persons
A juvenile who is adjudicated in a delinquency proceeding is precluded from subsequently denying in any civil proceeding brought by the victim or this state against the adjudicated delinquent the essential allegations of the delinquent act of which the juvenile was adjudicated delinquent, including adjudications resulting from no contest pleas. An order of restitution in favor of a person does not preclude that person from bringing a separate civil action and proving in that action damages in excess of the amount of the restitution order that is actually paid.
Sec. 2. Section 8-383, Arizona Revised Statutes, is amended to read:
8-383. Implementation of rights and duties
A. Except as provided in sections 8‑385 and 8‑386, the rights and duties that are established by this article arise on the arrest or formal charging of a juvenile who is alleged to be responsible for a delinquent act against a victim. The rights and duties continue to be enforceable pursuant to this article until the final disposition of the charges, including acquittal or dismissal of the charges, all postadjudication release, review and appellate proceedings and the discharge of all proceedings related to restitution. If a delinquent is ordered to pay restitution to a victim, the rights and duties continue to be enforceable until restitution is paid or a judgment is entered in favor of the victim pursuant to section 8‑344.
B. If a juvenile's adjudication is reversed and the case is returned to the juvenile court for further proceedings, the victim has the same rights that were applicable to the delinquency proceedings that led to the appeal or other postadjudication relief proceeding.
B. C. After the final termination of a delinquency proceeding by dismissal or acquittal, a person who has received notice and has the right to be present and be heard pursuant to the victims' bill of rights, article II, section 2.1, Constitution of Arizona, this article or any court rule is no longer entitled to those rights.
Sec. 3. Section 8-384, Arizona Revised Statutes, is amended to read:
8-384. Inability to exercise rights; designation of others; notice; representative for a minor or vulnerable adult; definition
A. If a victim is physically or emotionally unable to exercise any right but is able to designate a lawful representative who is not a bona fide witness, the designated person may exercise the same rights that the victim is entitled to exercise. The victim may revoke this designation at any time and exercise the victim's rights.
B. If a victim is incompetent, deceased or otherwise incapable of designating another person to act in the victim's place, the court may appoint a lawful representative who is not a witness. If at any time the victim is no longer incompetent, incapacitated or otherwise incapable of acting, the victim may personally exercise the victim's rights.
C. If the victim is a minor or vulnerable adult the victim's parent or other immediate family member may exercise all of the victim's rights on behalf of the victim. If the delinquent act is alleged against a member of the minor's or vulnerable adult's immediate family, these rights may not be exercised by that person but may be exercised by another member of the immediate family unless the court, after considering the guidelines in subsection D of this section, finds that another person would better represent the interests of the minor or vulnerable adult for purposes of this chapter.
D. The court shall consider the following guidelines in appointing a representative for a minor or vulnerable adult victim:
1. If Whether the minor or vulnerable adult has a relative who would not be so substantially affected or adversely impacted by the conflict resulting from the allegation of a delinquent act against a member of the immediate family of the minor or vulnerable adult that the representative could not represent the victim.
2. The representative's willingness and ability to do all of the following:
(a) Undertake working with and accompanying the minor victim or vulnerable adult through all proceedings, including delinquency, civil and dependency proceedings.
(b) Communicate with the minor or vulnerable adult victim.
(c) Express the concerns of the minor or vulnerable adult to those authorized to come in contact with the minor or vulnerable adult as a result of the proceedings.
3. The representative's training, if any, to serve as a minor's minor or vulnerable adult victim's representative.
4. The likelihood of the representative being called as a witness in the case.
E. The minor's minor or vulnerable adult victim's representative shall accompany the minor or vulnerable adult victim through all proceedings, including delinquency, criminal, dependency and civil proceedings, and, before the minor's or vulnerable adult's courtroom appearance, shall explain to the minor or vulnerable adult the nature of the proceedings and what the minor or vulnerable adult will be asked to do, including telling the minor or vulnerable adult that the minor or vulnerable adult is expected to tell the truth. The representative shall be available to observe the minor or vulnerable adult in all aspects of the case in order to consult with the court as to any special needs of the minor or vulnerable adult. Those consultations shall take place before the minor or vulnerable adult testifies. The court may recognize the minor's minor or vulnerable adult victim's representative when the representative indicates a need to address the court. A minor's minor or vulnerable adult victim's representative shall not discuss the facts and circumstances of the case with the minor or vulnerable adult witness, unless the court orders otherwise on a showing that it is in the best interests of the minor or vulnerable adult.
F. Any notices that are to be provided to a victim pursuant to this article shall be sent only to the victim or the victim's lawful representative.
G. For the purposes of this section, "vulnerable adult" has the same meaning prescribed in section 13‑3623.
Sec. 4. Section 8-386, Arizona Revised Statutes, is amended to read:
8-386. Information provided to victim by law enforcement agencies
A. As soon after the detection of an offense as the victim may be contacted without interfering with an investigation or arrest, the law enforcement agency responsible for investigating the offense shall provide the victim with a multicopy form:
1. That allows the victim to request or waive applicable rights to which the victim is entitled, on request, under this article.
2. That provides the victim a method to designate a lawful representative if the victim so chooses pursuant to section 8‑384, subsection A or section 8‑385.
3. That provides notice to the victim of all of the following information:
(a) The victim's right under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, to be treated with fairness, respect and dignity and to be free of intimidation, harassment or abuse throughout the criminal or juvenile justice process.
(b) The availability, if any, of crisis intervention services and emergency and medical services and, if applicable, that medical expenses arising out of the need to secure evidence may be reimbursed pursuant to section 13‑1414.
(c) In cases involving domestic violence, the procedures and resources available for the protection of the victim pursuant to section 13‑3601.
(d) The names and telephone numbers of public and private victim assistance programs, including the county victim compensation program and programs that provide counseling, treatment and other support services.
(e) The police report number, if available, other identifying case information and the following statement:
If within thirty days you are not notified of an arrest in your case, you may call (the law enforcement agency's telephone number) for the status of the case.
(f) Whether the suspect is an adult or juvenile, the victim will be notified by the law enforcement agency at the earliest opportunity after the arrest of a suspect.
(g) If the suspect is a juvenile and the officer requests that the accused be detained, a statement of the victim's right, on request, to be informed if the juvenile will be released or will be detained pending the detention hearing and of the victim's right to be present and heard at the detention hearing and that, to exercise these rights, the victim must contact the detention screening section of the juvenile probation department immediately to request notice of all of the following:
(i) The juvenile's release.
(ii) The date, time and place of the detention hearing and any changes to that schedule.
(iii) If the victim chooses to exercise the right to be heard through a written statement, how that statement may be submitted to the court.
(h) That the victim or the immediate family member of the victim, if the victim is killed or incapacitated, has the right to receive one copy of the police report, including any supplements to the report, from the investigating law enforcement agency at no charge pursuant to section 39-127.
B. If at the time of contact with a law enforcement agency the victim is physically or emotionally unable to request or waive applicable rights, the law enforcement agency shall designate this on the multicopy form and the entities that may be subsequently affected shall presume that the victim invoked the victim's right to request applicable rights to which the victim is entitled, on request, unless the victim later waives those rights.
C. The law enforcement agency shall submit one copy of the victim's request or waiver of predisposition rights form to the detention center, if the arresting officer is requesting that the accused be detained, at the time the juvenile is taken to detention. If detention is not requested, the form copies shall be submitted to the juvenile probation intake section at the time the case is otherwise referred to court. The probation intake section shall submit a copy of the victim's request or waiver of predisposition rights form to the prosecutor and the departments or governmental agencies, as applicable, that are mandated by this article to provide victims' rights services upon on request.
D. If the accused juvenile is cited and released by an Arizona traffic ticket and complaint form pursuant to section 8‑323, the law enforcement agency shall inform the victim how to obtain additional information about subsequent proceedings.
E. Law enforcement agencies within a county may establish different procedures designed to efficiently and effectively provide notice of the victim's rights pursuant to this article and notice to affected entities of victim request or waiver information. If different procedures are established, the procedures shall:
1. Be reported to the entities within a county affected by the procedures and reported to the attorney general.
2. Be designed so that detention centers within a county receive notice of the victim's request or waiver of the victim's predisposition rights at the same time that an accused juvenile is detained.
3. Be designed so that the juvenile probation intake section of the county receives notice of the victim's request or waiver of the victim's predisposition rights at the same time that the case is referred to court.
4. Provide that the notice to affected entities of a victim's request or waiver of the victim's predisposition rights includes information that allows the affected entity to contact the victim.
5. Be supported by the use of brochures, forms or other written materials developed by the law enforcement agencies within a county and reviewed by the attorney general pursuant to section 8‑398, subsection B.
Sec. 5. Section 8-391, Arizona Revised Statutes, is amended to read:
8-391. Notice of adjudication; impact statement
A. On request the prosecutor's office, within fifteen days after the adjudication, transfer, acquittal or dismissal of the charges against the accused, shall give notice to the victim of the offense or offenses for which the accused was adjudicated delinquent, transferred for adult prosecution or acquitted or of the charges dismissed against the juvenile defendant.
B. If the juvenile is adjudicated delinquent and the victim has requested notice, the prosecutor's office shall notify the victim, if applicable, of:
1. The function of the predisposition report.
2. The name and telephone number of the probation department that is preparing the predisposition report.
3. The right to make a victim impact statement under section 8‑404.
4. The right to receive portions of the predisposition report pursuant to section 8‑404, subsection C.
5. The right to be present and be heard at any predisposition or disposition proceeding pursuant to section 8‑405.
6. The time, place and date of the disposition proceeding.
7. If the court orders restitution, the right to have a judgment entered for any unpaid amount and to file a restitution lien pursuant to section 8‑345.
8. The right of the defense to view the predisposition report.
C. The victim shall be informed that the victim's impact statement may include the following:
1. An explanation of the nature and extent of any physical, psychological or emotional harm or trauma suffered by the victim.
2. An explanation of the extent of any economic loss or property damage suffered by the victim.
3. An opinion of the need for and extent of restitution.
4. Whether the victim has applied for or received any compensation for the loss or damage.
D. Notice provided pursuant to this section does not remove the probation department's responsibility to initiate the contact between the victim and the probation department concerning the victim's economic, physical, psychological or emotional harm. At the time of contact, the probation department shall advise the victim of the date, time and place of the disposition proceeding and of the victim's right, if present, to be heard at that proceeding.
Sec. 6. Section 8-392, Arizona Revised Statutes, is amended to read:
8-392. Notice of postadjudication review and appellate proceedings
A. Within fifteen days after the disposition proceeding the prosecutor's office, on request, shall notify the victim of the disposition imposed on the juvenile defendant.
B. The prosecutor's office shall provide the victim with a form that allows the victim to request postadjudication notice of all postadjudication review and appellate proceedings, all postadjudication release proceedings, all probation modification proceedings that impact the victim, all probation revocation or termination proceedings, all conditional liberty revocation proceedings or modifications to conditional liberty, any decisions that arise out of these proceedings, all releases and all escapes.
C. The prosecutor's office shall advise the victim on how the completed request form may be filed with the appropriate agencies and departments.
D. On request of the victim, the prosecutor's office that is responsible for handling any postadjudication or appellate proceedings shall notify the victim of the proceedings and any decisions that arise out of the proceedings.
E. The supreme court or court of appeals shall send a victim who requests notice pursuant to this section a copy of the memorandum decision or opinion from the issuing court concurrently with the parties. If the victim is represented by counsel, the notice shall be provided to the victim's counsel.
Sec. 7. Section 8-397, Arizona Revised Statutes, is amended to read:
8-397. Notice of release, discharge or escape from a mental health treatment agency or residential treatment
A. If the victim has made a request for notice, the court or the department of juvenile corrections, whichever has supervision of the accused or delinquent, shall provide the victim, at least ten days before the release or discharge of the accused or delinquent, with notice of the release or discharge of the accused or delinquent who is placed by court order in a mental health treatment agency or a residential treatment agency. The mental health treatment agency or residential treatment agency that has custody of the accused or delinquent shall notify the court or department of juvenile corrections, whichever has supervision of the accused or delinquent, at least thirty days before the release or discharge of the accused or delinquent.
B. The court or the department of juvenile corrections, whichever has supervision of the accused or delinquent, shall mail provide notice to the victim immediately after the escape or subsequent readmission of the accused or the delinquent notice of the escape or subsequent readmission of the accused or the delinquent who is placed by court order in a mental health treatment agency or a residential treatment agency. The mental health treatment agency or residential treatment agency that has custody of the accused or delinquent shall immediately notify the court or the department of juvenile corrections, whichever has supervision of the accused or delinquent, of the escape, runaway or subsequent readmission of the accused or delinquent.
Sec. 8. Section 8-409, Arizona Revised Statutes, is amended to read:
8-409. Consultation between crime victim advocate and victim; privileged information; exception
A. A crime victim advocate shall not disclose as a witness or otherwise any communication made by or with the victim, including any communication made to or in the presence of others, unless the victim consents in writing to the disclosure.
B. Unless the victim consents in writing to the disclosure, a crime victim advocate shall not disclose records, notes, documents, correspondence, reports or memoranda that contain opinions, theories or other information made while advising, counseling or assisting the victim or that are based on communications made by or with the victim, including communications made to or in the presence of others.
C. The communication is not privileged if the crime victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory material.
D. An accused may make a motion for disclosure of privileged information. If the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in camera. Material that the court finds is exculpatory shall be disclosed to the accused.
E. If, with the written or verbal consent of the victim, the crime victim advocate discloses to the prosecutor or a law enforcement agency any communication between the victim and the crime victim advocate or any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent shall disclose the material to the accused's attorney only if the information is otherwise exculpatory.
F. Notwithstanding subsections A and B of this section, if a crime victim advocate is employed or authorized by a prosecutor's office, the consents either verbally or in writing, a crime victim advocate may disclose information to the prosecutor with the oral consent of the victim other professionals and administrative support persons that the advocate works with for the purpose of assisting the advocate in providing services to the victim and to the court in furtherance of any victims' right pursuant to this chapter.
Sec. 9. Section 8-413, Arizona Revised Statutes, is amended to read:
8-413. Victim's right to privacy; exception; definitions
A. The victim has the right at any court proceeding not to testify regarding the victim's addresses, telephone numbers, place of employment or other any identifying or locating information unless the victim consents or the court orders disclosure on finding that a compelling need for the information exists. A court proceeding on the motion shall be in camera.
B. A victim's identifying and locating information that is obtained, compiled or reported by a law enforcement agency or prosecution agency shall be redacted by the originating agency and prosecution agencies from records pertaining to the criminal case involving the victim, including discovery disclosed to the defendant.
C. Subsection B of this section does not apply to:
1. The victim's name.
2. Any records that are transmitted between law enforcement and prosecution agencies or a court.
3. Any records if the victim has consented to the release of the information.
4. The general location at which the reported crime occurred.
D. For the purposes of this section:
1. "Identifying information" includes a victim's date of birth, social security number and official state or government issued driver license or identification number.
2. "Locating information" includes the victim's address, telephone number, e-mail address and place of employment.
Sec. 10. Section 8-414, Arizona Revised Statutes, is amended to read:
8-414. Speedy adjudication; continuance; notice
A. In any delinquency proceeding, the court, prosecutor and law enforcement officials shall take appropriate action to ensure a speedy adjudication for the victim.
B. The prosecutor shall make reasonable efforts to notify a victim of any request for a continuance, except that if the victim is represented by counsel who has filed a notice of appearance, the court, if the request for a continuance is in writing, shall make reasonable efforts to notify the victim's counsel in the same manner in which a party is notified.
B. C. In any delinquency proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a speedy adjudication. If a continuance is granted, the court shall state on the record the reason for the continuance.
Sec. 11. Repeal
Section 8-415, Arizona Revised Statutes, is repealed.
Sec. 12. Title 8, chapter 3, article 7, Arizona Revised Statutes, is amended by adding a new section 8-415, to read:
8-415. Effect of failure to comply
A. The failure to comply with a victim's constitutional or statutory right is a ground for the victim to request a reexamination proceeding within ten days after the proceeding at which the victim's right was denied or with leave of the court for good cause shown. After the victim requests a reexamination proceeding and after the court gives reasonable notice, the court shall afford the victim a reexamination proceeding to consider the issues raised by the denial of the victim's right. Except as provided in subsection B of this section, the court shall reconsider any decision that arises from a proceeding in which the victim's right was not protected and shall ensure that the victim's rights are thereafter protected.
B. The failure to use reasonable efforts to perform a duty or provide a right is not cause to seek to set aside an adjudication or disposition after trial. Failure to afford a right under this chapter shall not provide grounds for a new trial. A victim who was given notice of a plea or sentencing proceeding may make a motion to reopen a plea or sentence only if the victim was not voluntarily absent from the proceeding and has asserted the right to be heard before or during the proceeding at issue and the right to be heard was denied and, in the case of a plea, the accused has not pled to the highest offense charged. This subsection does not affect the victim's right to restitution, which the victim may seek to enforce at any time.
C. Unless the juvenile is discharged from the juvenile's sentence, the failure to use reasonable efforts to provide notice and a right to be present or be heard pursuant to this chapter at a proceeding that involves a postconviction release is a ground for the victim to seek to set aside the postconviction release until the victim is afforded the opportunity to be present or be heard.
D. If the victim seeks to have a postconviction release set aside pursuant to subsection c of this section, the court or department of juvenile corrections shall afford the victim a reexamination proceeding after the parties are given notice.
E. A reexamination proceeding conducted pursuant to this section or any other proceeding that is based on the failure to perform a duty or provide a right shall commence not more than thirty days after the appropriate parties have been given notice that the victim is exercising the right to a reexamination proceeding pursuant to this section or to another proceeding based on the failure to perform a duty or provide a right.
Sec. 13. Section 8-420, Arizona Revised Statutes, is amended to read:
8-420. Right to leave work; scheduled proceedings; employment rights; nondiscrimination; confidentiality; definition
A. An employer who has fifty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of that employer, shall allow an employee who is a victim of a juvenile offense to:
1. Leave work to exercise the employee's right to be present at a proceeding pursuant to sections 8‑395, 8‑400, 8‑401, 8‑402, 8‑403, 8‑405, 8‑406 and 8‑415.
2. Obtain or attempt to obtain an order of protection, an injunction against harassment or any other injunctive relief to help ensure the health, safety or welfare of the victim or the victim's child.
B. An employer may not dismiss an employee who is a victim of a juvenile offense because the employee exercises the right to leave work pursuant to subsection A of this section.
C. An employer is not required to compensate an employee who is a victim of a juvenile offense when the employee leaves work pursuant to subsection A of this section.
D. If an employee leaves work pursuant to subsection A of this section, the employee may elect to use or an employer may require the employee to use the employee's accrued paid vacation, personal leave or sick leave.
E. An employee who is a victim of a juvenile offense shall not lose seniority or precedence while absent from employment pursuant to subsection A of this section.
F. Before an employee may leave work pursuant to subsection A of this section, the employee shall do all of the following:
1. Provide the employer with a copy of the form provided to the employee by the law enforcement agency pursuant to section 8‑386, subsection A or a copy of the information the law enforcement agency provides to the employee pursuant to section 8‑386, subsection E.
2. If applicable, give the employer a copy of the notice of each scheduled proceeding that is provided to the victim by the agency that is responsible for providing notice to the victim.
G. It is unlawful for an employer or an employer's agent to refuse to hire or employ, to bar or to discharge from employment or to discriminate against an individual in compensation or other terms, conditions or privileges of employment because the individual leaves work pursuant to subsection A of this section.
H. Employers shall keep confidential records regarding the employee's leave pursuant to this section.
I. An employer may limit the leave provided under this section if the employee's leave creates an undue hardship to the employer's business.
J. The prosecutor shall inform the victim of the victim's rights pursuant to this section. A victim may notify the prosecutor if exercising the victim's right to leave under this section would create an undue hardship for the victim's employer. The prosecutor shall communicate the notice to the court during the scheduling of proceedings where the victim has the right to be present. The court shall continue to take the victim's schedule into consideration when scheduling a proceeding pursuant to subsection A of this section.
K. For the purposes of this section, "undue hardship" means a significant difficulty and expense to a business and includes the consideration of the size of the employer's business and the employer's critical need of the employee.
Sec. 14. Section 8-421, Arizona Revised Statutes, is amended to read:
8-421. Statement of rights
In order to assure that any victim who comes before the juvenile court has been advised of the victim's constitutional rights, the following statement shall be prominently posted in each juvenile court in this state and shall be read out loud by a judge of the juvenile court shall make the following statement at the time each victim first appears in that court:
If you are the victim of a delinquent act with a case pending before this court, you are advised that you have rights to justice and due process under Arizona law that, among others, include the right to be treated with fairness, respect and dignity, to a speedy disposition and a prompt and final conclusion of the case, to be present at court proceedings, to choose whether or not to be interviewed by the juvenile's attorney, to be heard before the court makes a decision on release, negotiation of a plea, scheduling and disposition and to seek restitution from a person who is adjudicated as causing your loss. If you have not already been provided with a written statement of all victims' rights, please contact the victim services division of the prosecutor's office.
Sec. 15. Section 39-127, Arizona Revised Statutes, is amended to read:
39-127. Free copies of police reports and transcripts for crime victims
A. A victim of a criminal offense that is a part I crime under the statewide uniform crime reporting program or an immediate family member of the victim if the victim is killed or incapacitated has the right to receive one copy of the police report from the investigating law enforcement agency at no charge and, on request of the victim, the court or the clerk of the court shall provide, at no charge, the minute entry or portion of the record of any proceeding in the case that arises out of the offense committed against the victim and that is reasonably necessary for the purpose of pursuing a claimed victim's right.
B. For the purposes of this section subsection, "criminal offense", "immediate family" and "victim" have the same meanings prescribed in section 13‑4401.
B. A victim of a delinquent act that is a part I crime under the statewide uniform crime reporting program or an immediate family member of the victim if the victim is killed or incapacitated has the right to receive one copy of the police report from the investigating law enforcement agency at no charge and, on request of the victim, the court or the clerk of the court shall provide, at no charge, the minute entry or portion of the record of any proceeding in the case that arises out of the offense committed against the victim and that is reasonably necessary for the purpose of pursuing a claimed victim's right. For the purposes of this subsection, "delinquent act", "immediate family" and "victim" have the same meanings prescribed in section 8-382.
APPROVED BY THE GOVERNOR APRIL 30, 2014.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 30, 2014.
