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A Small Victory for Victims' Rights

Generally, witnesses are not allowed to attend trials in which they are going to testify.  The theory is that witnesses should not hear the other witnesses and tailor their own testimony accordingly.  The rationale a bit of a stretch, though, because by the time of the trial the witnesses most interested in the case already know the gist of the evidence.

Can the defendant be excluded if he is going to testify?  Of course not.  Everyone knows that whatever value there may be in the "rule against witnesses" it does not override the more important value of allowing the defendant to attend the trial.

Can the victim (or, in a murder case, the victim's family) be excluded?  Surprisingly, the answer has historically been yes.  While the interest of the victims in attending the trial may not be precisely the same as the defendant's, it is still a strong interest and should generally override the relatively weak policies behind the rule against witnesses.  Yet victims of crime have had to fight for the right to attend trials.  In federal court, Congress has provided such a right, although a qualified one:

18 U.S.C. ยง3771:

(a) Rights of Crime Victims.-- A crime victim has the following rights:
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

Today, AP reports, "A judge has ruled that Chandra Levy's mother will be allowed to attend the entire trial of the man accused of killing the federal intern, even though Susan Levy will likely be called as a witness."


It is routine in Texas that the murder victim survivors are excluded from the trial due to "The Rule" as it is referred to here. In most cases, this is mutally waived so that the defendant's family can also be in the courtroom.

However, we have seen cases where the defense actually subpoenaed the MVS as a witness specifically to keep them out of the courtroom since they would obviously engender sympathy.

In one case, the family hired a personal attorney who filed a motion to quash the subpoena. The judge required the defense to provide justification for the subpoena, which they could not do, having no intent to ever call the MVS to the stand. The subpoena was quashed, but most victim survivors would not have any idea that they could do this or how to go about it.

This is a terrible practice and prosecutors should be more aggressive about helping the families get back in the courtroom where they belong. Unfortunately, sometimes the State prefers for the families to be in the hallway, fearing an emotional outburst that could lead to a mistrial.

Wow. Issuing subpoenas to people you have no intention to call is beyond slimy. That is a clear abuse of process and a bar discipline complaint is in order.

Welcome to the blog, Charlene.

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