Introduced Version House Bill 2104 History

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H. B. 2104

(By Delegate Rowan)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact §61-11A-2, §61-11A-3 and §61-11A-6 of the Code of West Virginia, 1931, as amended, all relating to ensuring victims' rights to testify at sentencing in criminal cases.

Be it enacted by the Legislature of West Virginia:
That §61-11A-2, §61-11A-3 and §61-11A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person who is a victim of a felony, the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family.
(b) Prior to the imposition of sentence upon any defendant who has been found guilty of a felony or has pleaded guilty or nolo contendere to any felony, the court shall permit the victim of the crime to appear before the court for the purpose of making an oral statement for the record if the victim notifies the court of his or her desire to make such a statement after receiving the notification provided in subsection (c) of this section. If the victim is not present at the time set for sentencing, or fails to so notify the court, and has not submitted any written statement as hereafter provided, the court shall ascertain on the record as to whether the victim has been given the notice required by subsection (c) of this section. If no meaningful notice has been given to the victim, the court shall postpone sentencing to allow such notice to be given. Otherwise, the victim's failure to appear or to fails to so notify the court such failure shall constitute a waiver of the right to make an oral statement. In lieu of such appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such probation officer shall forthwith file any such statement delivered to his or her office with the sentencing court, and the statement shall be made a part of the record at the sentencing hearing. Any such statement, whether oral or written, shall relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced.
(c) Within a reasonable time, prior to the imposition of sentence upon such defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall in writing advise the person who was the victim of such crime or in the case of a minor, the parent or guardian of such minor, or the fiduciary of his or her estate, if he or she be then deceased, of the date, time and place of the original sentencing hearing, and of the victim's rights to submit a written or oral statement to the sentencing court as hereinabove provided. A copy of the written notice shall be filed with the court together with a description of the manner by which it was transmitted to the victim.
(d) The oral or written statement given or submitted by any victim in accordance with the provisions of this section shall be in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.
§61-11A-3. Victim impact statement; when required; contents; use; right of defendant to review and present evidence.

(a) In every case in which a presentence report is ordered by the court, such presentence report shall contain a victim impact statement unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor, caused physical, psychological or economic injury or death of the victim.
(b) The victim impact statement shall be prepared by the probation officer and shall include the identity of the victim, an itemization of any economic loss suffered by the victim as a result of the offense, a description of the nature and extent of any physical or psychological injury suffered by the victim as a result of the offense, the details of any change in the victim's personal welfare, lifestyle or family relationships as a result of the offense, whether there has been any request for psychological or medical services initiated by the victim or the victim's family as a result of the offense and such other information related to the impact of the offense upon the victim as may be required by the court.
(c) If the court does not order a presentence investigation and report, the prosecuting attorney may request that the probation officer prepare a victim impact statement. The victim impact statement shall be considered by the court as a factor in determining the appropriate sentence. Additionally, the statement may be utilized for the determination of claims by victims of crimes pursuant to the provisions of article two-a, chapter fourteen of this code.
(d) In cases that involve child victims of offenses defined in section twelve, article eight of this chapter or article eight-b or eight-d of this chapter, any victim impact statement in a presentence report may include a statement from a therapist, psychologist or physician who is providing treatment to the child as to the recommendations regarding the effect that possible disposition may have on the child.
(e) A victim impact statement prepared in accordance with the provisions of this section, other than for claims by victims of crimes pursuant to the provisions of article two-a, chapter fourteen of this code, shall be made available to the defendant, and his or her counsel if he or she is so represented, at least ten days prior to the date set for pronouncement of his or her sentence. The court shall, upon motion by or on behalf of the defendant, grant the defendant a hearing, whereby he or she may introduce testimony or other information related to any alleged factual inaccuracies in the statement.
(f) The court shall not impose a sentence without first ascertaining, on the record, that this section has been complied with.
§61-11A-6. State guidelines for fair treatment of crime victims and witnesses in the criminal justice system.

(a) No later than the first day of July, one thousand nine hundred eighty-four, the Attorney General shall promulgate rules and regulations in accordance with the provisions of chapter twenty-nine-a of this code, establishing guidelines for law-enforcement agencies and prosecuting attorneys' offices consistent with the purposes of this article. The Attorney General shall seek the advice of the department of public safety State Police and Department of Health and Human Services Resources in preparing such rules and regulations. In preparing such rules, and regulations, the following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that victims routinely receive emergency social and medical services as soon as possible and are given information on the following:
(A) Availability of crime victim compensation (where applicable);
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process, including what they can expect from the system as well as what the system expects from them; and
(D) Stages in the criminal justice process of significance to a crime victim, and the manner in which information about such stages can be obtained.
(2) The prosecuting attorney or his or her assistant should ensure that victims and witnesses receive information on steps that law-enforcement officers and prosecuting attorneys can take to protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to attend criminal justice proceedings should be notified by the prosecuting attorneys' offices as soon as possible of any scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family of those victims and witnesses should, if such persons provide the appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to their case, from the prosecuting attorney's office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial officer;
(C) The release of the accused pending judicial proceedings; and
(D) Proceedings in the prosecution of the accused (including the entry of a plea of guilty, trial, sentencing, and, where a term of imprisonment is imposed, the release of the accused from such imprisonment).
(5) The victim of a serious crime, or in the case of a minor child or a homicide, the family of the victim, shall be consulted by the prosecuting attorney in order to obtain the views of the victim or family about the disposition of any criminal case brought as a result of such crime, including the views of the victim or family about:
(A) Dismissal;
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should, if practical, be provided prior to court appearance, a waiting area that is separate from all other witnesses.
(7) Law-enforcement agencies should promptly return victim's property held for evidentiary purposes unless there is a compelling law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by law-enforcement agencies and prosecuting attorneys in informing employers that the need for victim and witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. A victim or witness who, as a direct result of a crime or of cooperation with law-enforcement agencies or attorneys for the government, is subjected to serious financial strain, should be assisted by the appropriate state agencies in dealing with creditors.
(b) The court shall not impose a sentence without first ascertaining, on the record, that this section has been complied with.
(b) (c) Nothing in this section shall be construed as creating a cause of action against the State of West Virginia or any of its political subdivisions.

NOTE: The purpose of this bill is to ensure the rights of victims to testify at sentencing in criminal cases.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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