Marsy’s Law: What it Means for North Dakota | O'Keeffe O'Brien Lyson Attorneys

Marsy’s Law: What it Means for North Dakota

Marsy’s Law is not a law at all, but is actually part of the North Dakota Constitution as of December 8, 2016.  North Dakota’s voters approved a new constitutional amendment about victims’ rights called Marsy’s Law.  Despite opposition from attorneys, state officials, and other groups, Marsy’s Law passed with 62% voter approval.  As a result, crime victims are now guaranteed certain rights under the state constitution including rights to be notified about hearings and when abusers are released, and the right to refuse depositions and other interviews.

Marsy’s Law is the brainchild of a California billionaire whose sister was murdered and then his mother was later confronted by the alleged murderer in a grocery store.  The family was not aware
the alleged murderer was out on bail.  Marsy’s Law supporters believe victims or victims’ surviving family members should have equal rights in the legal process.

Marsy’s Law adds important rights for victims to the state constitution.  However, many of the victim’s rights enumerated in Marsy’s Law already existed in North Dakota law.  Now that voters enacted Marsy’s Law into the constitution, there are some potential conflicts between state statutes and the state constitution. Attorneys throughout the state, including both criminal defense and state’s attorneys have noted potential issues with Marsy’s Law. These problems include the broad definition of victim and victim notification.

Marsy’s Law may increase costs and increase the burden on North Dakota’s law enforcement.  The definition of victim within Marsy’s Law is also concerning because it is so broad that it could include victims of all crimes, including property crimes.  The definition of victim could also include any witness to certain crimes.  For example, if someone streaks at a sporting event anyone and everyone in attendance is a victim.

With a broad definition of victim, law enforcement and prosecutors must send out more notifications than ever before.  North Dakota already has an automated notification system for victims informing those victims about hearings or when accused or convicted are released.  Now with Marsy’s Law, these notifications will be mandatory and sent to all victims of crime, whether of a personal crime or other types of crime.  Another implication of Marsy’s Law includes that victims must be notified before all hearings.  This includes some hearings which happen quickly after an arrest.  If there is a problem with a notification or a prosecutor cannot contact a victim, that victim could technically argue that their constitutional rights were violated.  Although the notifications may put some burden on the system, it will avoid situations like the one described above where a victim is confronted by one who committed a crime against the victim or the victim’s family.

Marsy’s Law includes the right for victims to refuse interviews and depositions.  This possibly conflicts with a defendant’s Sixth Amendment right under the United States Constitution to confront a witness against him.  Leading up to trial, this could prevent a defendant from adequately preparing for trial by not having access to victim’s testimony.  This may actually allow for abusers and criminals to avoid prosecution.  Alternatively, attorneys may have to bring disputes over access to victim interviews to court.

In addition to the victim’s right to refuse interviews, victims also have a right to keep information private.  The new additions to the constitution may also prevent law enforcement from releasing the location of crimes, including traffic accidents.  In South Dakota, law enforcement stopped providing names or addresses of places where crimes occurred after the state adopted Marsy’s Law.  However, in other states with Marsy’s Law, most public records remained public because they were never private to begin with.  North Dakota’s understanding of Marsy’s Law may vary and have a different result regarding public records.

There will likely be litigation and legislation in the future to determine the exact meaning of Marsy’s Law in North Dakota; what it means today may differ from its meaning tomorrow.  Hopefully lawmakers and courts can determine the contours of the new constitutional amendment to adequately address the concerns of attorneys, state officials, victims, and victim advocates.