Kentucky already has a robust set of laws (statutes) designed to protect the rights of complaining witnesses/victims throughout the criminal trial process. They are in place from the time that a person is arrested until that person, if eligible, may be considered for parole. Yet, a few vocal, well-funded individuals believe that their voices are not sufficiently heard in the criminal prosecution of a case. These people are asking you to amend your constitution. If the voices of complaining witnesses are not being heard, it is because prosecutors and judges are not following the statutes that already protect these rights.
OPINION: Kentucky crime victims deserve equal rights provided in Marsy’s Law
The solution is not to create a constitutional amendment that weakens your constitutional rights if you, a friend or family member is accused of a crime. Instead, if these rights are not being respected, the answer is for judges and prosecutors to protect complaining witnesses/victims by making sure that the statutory rights currently in existence are enforced.
The amendment provides that a person can hire her own lawyer or look to the prosecutor to protect and represent her interests and those of the community. A wealthy complaining witness will have the ability to hire her own counsel to participate in the case if she perceives that the prosecutor is not adequately protecting her interests. Under the proposed amendment, what if the complaining witness is poor and cannot afford to hire a lawyer, yet wants to take advantage of this option?
This amendment offers no way to enable them to do so. The results of this amendment will amplify what unfortunately exists too often in our courts today — those with money wield their influence and pay a lawyer to further their interests, while those who don’t have to fend for themselves and hope they have a good prosecutor on the case.
Prosecutors have a duty to the community, to the complaining witness and to the defendant. It is their job to see that justice is done, and most take that responsibility seriously. They are elected by the people to represent all of the people of the Commonwealth. The proposed constitutional amendment attempts to contort and confuse this role.
No longer will the primary duty of prosecutors be to “do justice.” Instead, that duty will be affected by individual interests. This compromises the important and elevated ethical obligations we expect and currently demand of prosecutors in the Commonwealth.
Prosecutors around the Commonwealth have said privately and publicly that Constitutional Amendment #1 (also known as “Marsy’s Law”) will not benefit crime victims or the justice system.
Anyone wondering how Marsy’s Law will affect the local court system should speak to trusted prosecutors, judges, and lawyers. What they will likely hear is that Marsy’s Law will not make anything better and will in fact make the system less efficient and less reliable. Because of the enormous public relations campaign by supporters of Marsy’s Law, these concerns by elected justice professionals may never be broadcast in a TV, radio or online ad, but they will tell more truth about Marsy’s Law than any of the paid advertisements by the well-funded interest groups in favor of the amendment.
The Constitution protects citizens from the imposing power of the state to take away liberty, freedom from stigma, and sometimes even life. That is the reason that our citizens are given the presumption of innocence unless proven guilty. This amendment declares that a complaining witness who brings a criminal charge against another citizen is entitled to a heightened status under our Constitution. If adopted, the amendment will weaken constitutional protections for the accused and create the potential for a race to the courthouse.
As an example, imagine you are in a car accident with another person and the other person accuses you of a crime related to the accident. The other person wins the race by being first to take out a criminal complaint. Then, without more — without any evidence, without any judge or jury — that person is cast as a “victim” going forward, rather than as a witness or party to litigation, putting you at a disadvantage. An amendment bestowing constitutional rights to complaining witnesses, from the very start of a case, turns our system of justice, along with the bedrock principles of our Constitution, on its head.
These are not the only negative impacts that are foreseeable, and they do not begin to cover the confusion, expose the unfairness and reveal the costs that will result from passage of the proposed amendment. However, they provide a few concrete examples and a disturbing snapshot of what lies ahead, which should cause alarm and lead Kentuckians to vote “No” on Constitutional Amendment #1.
