Rules Committee
R15.3 ARCP
To whom It may concern:
I would like to comment that the proposed amendment to Rule 15.3 Arizona Rules of Criminal Procedure which was adopted on an expedited basis on October 24, 2018 should not be adopted.
I believe when this rule was restyled it did not make any substantive change to the intent of Rule 15.3. Rather it appears the amendment was to clarify that persons described by "Rule 39(b)" were victims. Consequently making such change did not change the purpose of the rule.
As a retired judge and a member of COVIC, I feel compelled to comment that the proposed change infringes upon the victim's right to justice and due process. In particular, "to be free from intimidation, harassment or abuse, throughout the criminal justice process." Further, to some extent "to refuse an interview, deposition ... request by the defendant.." . Article 24 Section 2.1 (A) 1. and 5 of the Arizona Constitution.
This amendment appears to allow the State to depose a victim as a sword to develop evidence against a defendant. In doing so upon the State Notice of Deposition of a Victim the victim would be unable to refuse an interview and in this case, deposition, in which the defendant, generally through counsel would have a right to cross-examine the victim. This would infringe upon the victim's right to privacy - self-determination as to the extent of participation the victim wishes to have in a criminal justice process. In fact, there may be situations, particularly in refusal to prosecute cases that a victim makes a choice to not participate in the criminal justice system, perhaps based on safety concerns as the victim evaluates the circumstances of any alleged criminal event. The criminal justice system should not provide the state a sword to challenge the victim's self determination of any action they may wish to take.
Typically, victim's right(s) provisions are shields to be invoked by a victim based upon their individual assessment of a criminal offense. This proposed rule evaporates the victim's individual right to determine his or her participation in the criminal justice system by forcing them to be deposed by the State and then be subject to cross-examination by a defendant possibly against their will.
It is acknowledged that there are circumstances in which a victim may choose to be deposed to preserve evidence. Such decisions should be based upon unavailability concerns of a victim, with or without the assistance of the state.
In conclusion, I urge that this expedited amendment be rejected and the restyled version of Rule 15.3 ARCP remain in place.
Thank you for your consideration.
Richard Weiss
Retired Superior Court Judge
COVIC Member
609 Country Club Dr.
Kingman, Arizona 86401
[email protected] ABN: 007013