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Rule 39. Victims' Rights

Arizona Revised Statutes AnnotatedRules of Criminal ProcedureEffective: December 12, 2019

Arizona Revised Statutes Annotated
Rules of Criminal Procedure (Refs & Annos)
IX. Miscellaneous
Rule 39. Victims' Rights
Effective: December 12, 2019
16A A.R.S. Rules Crim.Proc., Rule 39
Rule 39. Victims' Rights
(a) Definitions and Limitations.
(1) Criminal Proceeding. As used in this rule, a “criminal proceeding” is any matter scheduled and held before a trial court, telephonically or in person, at which the defendant has the right to be present, including any post-conviction matter.
(2) Identifying and Locating Information. As used in this rule, “identifying and locating information” includes a person's date of birth, social security number, official state or government issued driver license or identification number, the person's address, telephone number, email addresses, and place of employment.
(3) Limitations.
(A) Cessation of Victim Status. A victim retains the rights provided in these rules until the rights are no longer enforceable under A.R.S. §§ 13-4402, 13-4402.01, and 13-4433.
(B) Legal Entities. The victim's rights of any corporation, partnership, association, or other similar legal entity are limited as provided in statute.
(b) Victims' Rights. These rules must be construed to preserve and protect a victim's rights to justice and due process. Notwithstanding the provisions of any other rule, a victim has and is entitled to assert each of the following rights:
(1) the right to be treated with fairness, respect and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process;
(2) the right to notice regarding the rights available to a victim under this rule and any other provision of law, and the court must prominently post or read the statement of rights in accordance with A.R.S. § 13-4438;
(3) upon request, the right to reasonable notice of the date, time, and place of any criminal proceeding in accordance with A.R.S. § 13-4409;
(4) the right to be present at all criminal proceedings;
(5) upon request, the right to be informed of any permanent or temporary release or any proposed release of the defendant;
(6) upon request, the right to confer with the State regarding:
(A) any decision about the preconviction release of the defendant;
(B) any pretrial resolution including any diversion program or plea offer;
(C) a decision not to initiate a criminal prosecution or to dismiss charges; and
(D) the trial, before the trial begins;
(7) upon request, the right to notice of and to be heard at any criminal proceeding involving:
(A) the initial appearance;
(B) the accused's post-arrest release or release conditions;
(C) a proposed suspension of Rule 8 or a continuance of a trial date;
(D) the court's consideration of a negotiated plea resolution;
(E) sentencing;
(F) the modification of any term of probation that will substantially affect the victim's safety, the defendant's contact with the victim, or restitution;
(G) the early termination of probation;
(H) a probation revocation disposition; and
(I) post-conviction release.
(8) the right to be accompanied at any interview, deposition, or criminal proceeding by a parent or other relative, or by an appropriate support person named by a victim, including a victim's caseworker or advocate, unless testimony of the person accompanying the victim is required in the case. If the court finds that a party's claim that a person is a prospective witness is not made in good faith, it may impose sanctions, including holding counsel in contempt;
(9) if the victim is eligible, the right to the assistance of a facility dog when testifying as provided in A.R.S. § 13-4442;
(10) the right to refuse to testify regarding any identifying or locating information unless the court orders disclosure after finding a compelling need for the information, and any proceeding on any motion to require such testimony must be in camera;
(11) the right to require the prosecutor to withhold, during discovery and other proceedings, the victim's identifying and locating information.
(A) Exception. A court may order disclosure of the victim's identifying and locating information as necessary to protect the defendant's constitutional rights. If disclosure is made to defense counsel, counsel must not disclose the information to any person other than counsel's staff and designated investigator, and must not convey the information to the defendant without prior court authorization.
(B) Redactions. Rule 15.5(e) applies to information withheld under this rule;
(12) the right to refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on the defendant's behalf, and:
(A) the defense must communicate requests to interview a victim to the prosecutor, not the victim;
(B) a victim's response to such requests must be communicated through the prosecutor; and
(C) if there is any comment or evidence at trial regarding a victim's refusal to be interviewed, the court must instruct the jury that a victim has the right under the Arizona Constitution to refuse an interview;
(13) at any interview or deposition conducted by defense counsel, the right to condition the interview or deposition on specification of a reasonable date, time, duration, and location of the interview or deposition, including a requirement that it be held at the victim's home, at the prosecutor's office, or at an appropriate location in the courthouse;
(14) the right to terminate an interview at any time or refuse to answer any question during the interview;
(15) the right to a copy of any presentence report provided to the defendant except those parts that are excised by the court or are confidential by law;
(16) the right to be informed of the disposition of the case;
(17) the right to a speedy trial or disposition and a prompt and final conclusion of the case after conviction and sentence; and
(18) the right to be informed of a victim's right to restitution upon conviction of the defendant, of the items of loss included within the scope of restitution, and of the procedures for invoking the right.
(c) Exercising the Right to Be Heard.
(1) Nature of the Right. If a victim exercises the right to be heard, the victim does not do so as a witness and the victim is not subject to cross-examination. A victim is not required to disclose any statement to any party and is not required to submit any written statement to the court. The court must give any party the opportunity to explain, support, or refute the victim's statement. This subsection does not apply to victim impact statements made in a capital case under A.R.S. § 13-752(R).
(2) Victims in Custody. If a victim is in custody for an offense, the victim's right to be heard under this rule is satisfied by affording the victim the opportunity to submit a written statement.
(3) Victims Not in Custody. A victim who is not in custody may exercise the right to be heard under this rule through an oral statement or by submitting a written or recorded statement.
(4) At Sentencing. The right to be heard at sentencing allows the victim to present evidence, information, and opinions about the criminal offense, the defendant, the sentence, or restitution. The victim also may submit a written or oral impact statement to the probation officer for use in any presentence report.
(d) Assistance and Representation.
(1) Right to Prosecutor's Assistance. A victim has the right to the prosecutor's assistance in asserting rights enumerated in this rule or otherwise provided by law. The prosecutor must inform a victim of these rights and provide a victim with notices and information that a victim is entitled to receive from the prosecutor by these rules and by law.
(2) Standing. The prosecutor has standing in any criminal proceeding, upon the victim's request, to assert any of the rights to which a victim is entitled by this rule or by any other provision of law.
(3) Conflicts. If any conflict arises between the prosecutor and a victim in asserting the victim's rights, the prosecutor must advise the victim of the right to seek independent legal counsel and provide contact information for the appropriate state or local bar association.
(4) Representation by Counsel. In asserting any of the rights enumerated in this rule or provided by any other provision of law, a victim has the right to be represented by personal counsel of the victim's choice. After a victim's counsel files a notice of appearance, all parties must endorse the victim's counsel on all pleadings. When present, the victim's counsel must be included in all bench conferences and in chambers meetings with the trial court that directly involve the victim's constitutional rights. At any proceeding to determine restitution, the victim has the right to present information and make argument to the court personally or through counsel.
(e) Victim's Duties.
(1) Generally. Any victim desiring to claim the notification rights and privileges provided in this rule must provide his or her full name, address, and telephone number to the entity prosecuting the case and to any other entity from which the victim requests notice, and to keep this information current.
(2) Legal Entities.
(A) Designation of a Representative. If a victim is a corporation, partnership, association, or other legal entity that has requested notice of the hearings to which it is entitled by law, that legal entity must promptly designate a representative by giving notice to the prosecutor and to any other entity from which the victim requests notice. The notice must include the representative's address and telephone number.
(B) Notice. The prosecutor must notify the defendant and the court if the prosecutor receives notice under (e)(2)(A).
(C) Effect. After notice is provided under (e)(2)(B), only the representative designated under (e)(2)(A) may assert the victim's rights on behalf of the legal entity.
(D) Changes in Designation. The legal entity must provide any change in designation in writing to the prosecutor and to any other entity from which the victim requests notice. The prosecutor must notify the defendant and court of any change in designation.
(f) Waiver. A victim may waive the rights and privileges enumerated in this rule. A prosecutor or a court may consider a victim's failure to provide a current address and telephone number, or a legal entity's failure to designate a representative, to be a waiver of notification rights under this rule.
(g) Court Enforcement of Victim Notice Requirements.
(1) Court's Duty to Inquire. At the beginning of any proceeding that takes place more than 7 days after the filing of charges by the State and at which the victim has a right to be heard, the court must inquire of the State or otherwise determine whether the victim has requested notice and has been notified of the proceeding.
(2) If the Victim Has Been Notified. If the victim has been notified as requested, the court must further inquire of the State whether the victim is present. If the victim is present and the State advises the court that the victim wishes the court to address the victim, the court must inquire whether the State has advised the victim of their rights. If not, the court must recess the hearing and the State must immediately comply with (d)(1).
(3) If the Victim Has Not Been Notified. If the victim has not been notified as requested, the court may not proceed unless public policy, the specific provisions of a statute, or the interests of due process require otherwise. In the absence of such considerations, the court may reconsider any ruling made at a proceeding at which the victim did not receive notice as requested.
(h) Appointment of Victim's Representative. Upon request, the court must appoint a representative for a minor victim or for an incapacitated victim, as provided in A.R.S. § 13-4403. The court must notify the parties if it appoints a representative.

Credits

Added by Aug. 31, 2017, effective Jan. 1, 2018. Amended on an emergency basis, effective Aug. 27, 2019, adopted on a permanent basis Dec. 12, 2019.
16A A. R. S. Rules Crim. Proc., Rule 39, AZ ST RCRP Rule 39
Current with amendments received through 08/15/2020.
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