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The Third Model of Criminal Process:
The Victim Participation Model
Douglas Evan Beloof *
I. I NTRODUCTION
It is time to face the fact that the law now acknowledges the importance of victim participation in the criminal process. Thirty-one states have chiseled victims’ rights into their respective constitutions. 0 The federal government and the rest of the states have enacted numerous statutory rights for victims. 1 An amendment to the United States Constitution providing civil rights for crime victims has been proposed 2 and is the topic of authors in this symposium. There are those who resist acknowledging the existence, genuine nature, and significance of victim participation laws. The state of denial that accompanies such resistance has stood in the way of the future for too long. This is a future in which there is a state of understanding regarding victim participation laws. At the turn of the millennium,
- (^) Visiting Professor of Law, Northwestern School of Law, Lewis & Clark College.
Professor Beloof has written Victims in Criminal Procedure , a casebook. Thanks to the criminal law faculty at Northwestern School of Law, Lewis & Clark College, Professors Susan Mandiberg, Arthur La France, and Bill Williamson. Thanks to Professor Paul Cassell for reviewing an early version of this Article. Thanks also to Professors Susan Bandes, Robert Mosteller, and William Pizzi, and Steve Twist, for their comments at the symposium. Thanks to Professor Leslie Sebba of the Hebrew University of Jerusalem, Institute of Criminology, Faculty of Law, for his insightful comments.
(^0) See infra Appendix A; Jacqueline V. McDonald, Developments in State
Constitutional Law 1993: Victims’ Rights , 25 R UTGERS L.J. 1066, 1066–67 (1994) (citing Michigan Supreme Court case that recognized victim’s right to participate); Don Siegelman & Courtney W. Tarver, Victims’ Rights in State Constitutions , 1 E MERGING I SSUES S T. C ONST. L. 163, 165 n.6 (1988) (tracing rise of victims’ rights through state statutes and state constitutions).
(^1) See D OUGLAS E. B ELOOF , V ICTIMS IN C RIMINAL P ROCEDURE 93–194 (1999);
N ATIONAL V ICTIM C ENTER , T HE 1996 V ICTIM ’ S R IGHTS S OURCEBOOK : A C OMPILATION AND C OMPARISON OF V ICTIM R IGHTS L AWS passim (1996) [hereinafter S OURCEBOOK ]; Siegelman & Tarver, supra note 1, at 167 (identifying 44 state victims’ rights statutes).
(^2) See S.J. Res. 3, 106th Cong. (1999).
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continued resistance to such an understanding is analogous to looking at the night sky with blinders on. Now, to navigate the criminal process, one must cast aside the blinders and look at the rest of the sky. The inclusion of the victim as a participant has shaken convention- al assumptions about the criminal process to their foundation. 3 One core assumption that has occupied the field of criminal procedure for many years is no longer true. This core assumption is that only two value systems compete with each other in the criminal process. Professor Packer identified and then labeled these two value systems the “Crime Control Model” and the “Due Process Model.” 4 The Crime Control Model has as its value the efficient suppression of crime. 5 The Due Process Model has as its value the primacy of the defendant and the related concept of limiting governmental power. 6 Thirty years ago, Professor Packer stated:
The kind of model we need is one that permits us to recognize explicitly the value choices that underlie the details of the criminal process. In a word, what we need is a normative model or models. It will take more than one model, but it will not take more than two. 7
This last assertion is no longer true. Today, it takes more than two models to recognize explicitly the value choices that underlie the criminal process.
(^3) Compare Booth v. Maryland, 482 U.S. 496, 502–07 (1987) (holding that
introduction of victim impact statement at sentencing phase of capital murder trial violated Eighth Amendment), with Payne v. Tennessee, 501 U.S. 808, 821–27 (1991) (holding that Eighth Amendment did not erect per se bar prohibiting capital sentencing jury from considering victim impact evidence).
(^4) H ERBERT L. P ACKER , THE LIMITS O F THE C RIMINAL S ANCTION 149–53 (1968)
(developing and explaining two possible models of criminal process).
(^5) See id. at 158.
(^6) See id. at 163, 165.
(^7) Id. at 153.
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participation in the criminal process can be understood. 14 The mere existence of a victim participation value that is external to the two- model concept was not itself a sufficient justification for the creation of a new model. 15 For a victim model to be useful, there needed to be a consensus in law that the values underlying the victims’ roles are genuine and significant. 16 This consensus in law now exists, as reflected in modern laws that create rights of participation for victims of crime in all fifty states and the federal government, and in historic traditions of victim participation that have endured to the present day. 17 However, because victim participation does not rest on the values underlying the Crime Control and Due Process Models, the two models cannot facilitate an understanding of victim participation. Laws of victim participation in the criminal process represent a shift in a dominant paradigm of criminal procedure. To reflect this shift, a third m odel—the Victim Participation Model—is needed to complement, but not to replace, Packer’s two models.
(^14) See Donald J. Hall, The Role of the Victim in the Prosecution and Disposition of a
Criminal Case , 28 V AND. L. R EV. 931 passim (1975) (delineating level and type of victim’s involvement in criminal procedure, from violation to eventual conviction and punishment).
(^15) Leslie Sebba noted that Packer’s models took no account of the victim: “These
models illuminate the relationship between the state on the one hand and the defendant on the other, but are of no assistance in determining the role of the victim vis-a-vis the two leading parties in the dramatis personae of the penal process.” Leslie Sebba, The Victim’s Role in the Penal Process: A Theoretical Orientation , 30 A M. J. C OMP. L. 217, 231 (1982). Sebba articulated two models that did incorporate the role of the victim. The first of these models was the Adversary-Retribution Model, in which the State stands back from the confrontation between the victim and the accused. See id. at 231–32. This model existed at early English and American common law when the victim prosecuted the crime and the “state provide[d] the machinery for the victim himself to achieve the desired objectives.” Id. at 232. The second model is the Social Defense-Welfare Model, which essentially reflects elimination of victim involvement in the criminal process. See id. at 231. In the Social Defense-Welfare Model, the State stands in the shoes of the victim in prosecuting the offense and also stands in the shoes of the defendant by compensating the victim. See id. at 232 (criticizing piecemeal approach to involving victims in criminal procedure).
(^16) The limited role of the victim in 1975 is presented in Hall, supra note 15,
passim.
(^17) See B ELOOF , supra note 2, at 7–25 (discussing historical background and
providing explanations for including victims in criminal proceedings); SOURCEBOOK , supra note 2, passim.
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In order to promote a thorough understanding of the Victim Participation Model, this Article examines the Model in several different ways. Part II reviews the values underlying the Crime Control, Due Process, and Victim Participation Models. Part III examines three procedural scenarios, cast in the setting of victim participation, to demonstrate that the present reality of the criminal process is better reflected in a three-model concept. Part IV discusses the language of the three-model concept and its differences from the language of the two-model concept. Part V examines the Victim Participation Model in the context of some procedural stages of the criminal process, including reporting crime, investigating crime, the charging process, trial, sentencing, and appeal.
II. T HE V ALUES U NDERLYING THE T HREE M ODELS
A. The Value Underlying the Crime Control Model
The primary value underlying the Crime Control Model is the efficient suppression of crime. Efficiency is the capacity to process criminal offenders rapidly. Professor Packer provides an image of the Crime Control Model:
The image that comes to mind is an assembly-line conveyor belt which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case... the same small but essential operation that brings it one step closer to being a finished product, or, to exchange the metaphor for the reality, a closed file. The criminal process, in this model, is seen as a screening process in which each successive stage... involves a series of routinized operations whose success is gauged primarily by their tendency to pass the case along to a successful conclusion. 18
B. The Value Underlying the Due Process Model
Underlying the Due Process Model is the value of the primary importance of the individual defendant and the related concept of limiting governmental power. Again, Professor Packer’s image is helpful:
If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present formidable impediments to carrying the accused any further along in the process.... The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty. It is a little like quality control in
(^18) P ACKER , supra note 5, at 159–60.
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Generally, these rights are rights to notice and attendance, and the right to speak to the prosecutor and the judge. 26 These rights are, by nature, due-process-like rights, 27 although other types of rights have been created. 28 The fundamental justification for providing due-process-like rights of participation (and other types of rights) is to prevent the two kinds of harm to which the victim is exposed. The first harm is primary harm, which results from the crime itself. The other harm is secondary harm, which comes from governmental processes and governmental actors within those processes. 29 These harms place the concepts of “dignity,” “fairness,” and “respect” in context, and provide the fundamental basis for victim participation in the criminal process. The primary harm is a basis for victim participation in the same way that harm to an individual, coupled with a legitimate theory of the liability of another, is
(^26) See S OURCEBOOK , supra note 2, at §§ 2, 5, 10 (discussing three different rights
of participation).
(^27) A few jurisdictions explicitly articulate the due process nature of victim rights
of participation. See infra Appendix A (listing Arizona, Colorado, Oklahoma, South Carolina, Tennessee, and Utah).
(^28) See id. Generally, these other rights are rights of privacy and protection. See
S OURCEBOOK , supra note 2, at §§ 4, 12.
(^29) A recent United States Supreme Court case is helpful in understanding both the
legitimacy and the significance of the concept of secondary harm. In Calderon v. Thompson , 523 U.S. 538 (1998), a five-to-four majority made the Court’s plainest statement to date that victims are injured by governmental processes. The Calderon Court, in the context of a defendant’s petition for writ of habeas corpus, implicitly recognized as legitimate the concept of secondary harm to victims. Put another way, victim harm can result from the operation of the criminal process itself. The Court stated: Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the “powerful and legitimate interest in punishing the guilty,” an interest shared by the State and the victims of crime alike. 118 S. Ct. at 1501 (quoting Herrera v. Collins, 506 U.S. 390, 421 (1993) (O’Connor, J., concurring)) (citation omitted). Significantly, the Court’s implicit acknowledgment of and reliance upon secondary harm was made in Calderon absent any legislative directive that secondary harm be considered. Indeed, victims presently have no right to speedy resolution in federal habeas corpus proceedings.
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the basis for standing in other legal contexts. 30 The potential for secondary harm provides a significant basis for a victim’s civil rights against governmental authority. 31 The primacy of the individual victim
(^30) The most direct analogy to primary harm is the rationale of State standing in a
criminal proceeding, based on the idea that the State is harmed by the crime. See P ROSSER & K EETON , L AW OF T ORTS 7 (5th ed. 1986). An indirect analogy is provided by the fact that a person physically injured by the illegal actions of another has standing as a party in a civil tort action. See id. ; William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim , 13 A M. C RIM. L. R E V. 649, 654–56 (1976) (linking decline of victim’s role, in part, to rise of Beccaria’s view that State alone is harmed by crime). An extension of the concept of harm as a basis for victim laws of participation is that victim harm is so significant that the State breaches its social contract with citizens by excluding victims from the criminal process. Former United States Senator Mike Mansfield stated: “[T]he modern result has established the combination [in the criminal justice system] of state versus criminal.... Such a policy abrogates any social contract that is thought to exist between the citizen and his society.” Mike Mansfield, Justice for the Victims of Crime , 9 HOUS. L. R EV. 75, 77 (1971) (advocating social compensation programs for victims of crime). One commentator links the rise of victim participation laws to a breach of the social contract. See Richard L. Aynes, Constitutional Considerations: Government Responsibility and the Right Not to be a Victim , 11 P EPP. L. R EV. 63, 69–73 (1984) (discussing government responsibility for victims); see also Kenneth O. Eikenberry, Victims of Crime/Victims of Justice , 34 W AYNE L. R EV. 29, 33–36 (1987) (supporting constitutional amendment similar to Bill of Rights so that victims’ rights are not forgotten in variations of political climate).
(^31) In those state constitutional provisions that have not explicitly identified the
government as the entity from which victims need protection, protection from the government is implicit in the placement of these laws within the respective states’ bills of rights. Constitutional scholars Ronald Rotunda and John Nowak write: Almost all of the [federal] constitutional protections of individual rights and liberties restrict only the actions of governmental entities. For example, the Bill of Rights acts as a check only on the actions of the federal government. Moreover, the provisions of the body of the Constitution that protect individual rights are limited expressly in their application to actions of either the federal or state governments. 2 RONALD R OTUNDA & J OHN N OWAK , T REATISE ON C ONSTITUTIONAL L AW : S UBSTANCE & P ROCEDURE 352 (2d ed. 1992). Following the logic of these scholars, victims’ rights that are placed in state bills of rights are checks against governmental power even if the enabling language of many provisions does not explicitly say so. This interpretation is supported by the express language of several state constitutional amendments incorporating victims’ rights. For example, the Maryland Constitution provides: “A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process.” M D. C ONST. art. 47(a); see also infra Appendix A (listing other state constitutions that recognize dignity and respect for victims).
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indirectly result in greater or lesser efficiency, and victim participation may or may not conflict with the value of the primacy of the individual defendant. A remarkable feature of victim participation in the criminal process is that participation is, to a great extent, left up to the individual victim’s choice. 34 The notable exception is that a victim must appear as a witness in those cases in which the State insists on prosecution. If the victim fails to participate (except as a witness) the case does not fail, but is narrowed to a case between the State and the defendant, the two
(^34) An early, and narrow, view of the justification of victim participation was that
victim participation was founded on the idea of resolving the psychological trauma of the victim. Victim participation, the argument goes, may actually increase psychological harm or at least hinder resolution. See Lynne N. Henderson, The Wrongs of Victim’s Rights , 37 S TAN. L. R EV. 937, 954–55 (1985) (describing possible harms). From the point of view of an advocate of the Victim Participation Model, there are several difficulties with this observation as a basis to exclude victims from the criminal process. First, as laws of victim participation have since emerged, the actual basis of victims’ rights laws is not narrowly circumscribed to the resolution of psychological trauma to the victim. See, e.g. , 1991 Ariz. Sess. Laws 229 § 2 (uncodified legislative intent of Arizona Victims’ Bill of Rights) (stating that “all crime victims are provided with basic rights of respect, protection, participation, and healing of their ordeals”; this is one of the few victim participation laws to mention resolution of trauma). The resolution of psychological trauma has not emerged as the main measure of the propriety of victim participation, but is only one part of according victims fairness, dignity, and respect. Second, because the law allows the victim to decide about whether participation in the criminal process will be beneficial or harmful to them, it is paternalistic to exclude all victims from the criminal process because some might be psychologically harmed by inclusion, particularly because victims are free to choose not to participate. The paternalistic view also focuses too narrowly within the broader issue of reduction or resolution of psychological trauma to the victim. The focus is too narrow because the view has no room for the idea that even if victims know they will be traumatized by the criminal process, they may choose to participate anyway. If given a choice, victims who may be psychologically harmed by the criminal process do not necessarily prioritize the avoidance of psychological pain over participation. Crime victims may possess a sense of responsibility to see the truth revealed and an appropriate disposition achieved. This sense of responsibility may manifest itself by victim participation in the process, regardless of any psychological pain that results from the participation. Furthermore, for some victims it may be that the inability to choose to exercise this sense of responsibility will itself result in further trauma or in a delay of resolution of existing trauma. Third, it seems a rare and peculiar suggestion that the government actually is benefitting individuals via a denial of rights of participation in the legal process. For a recent review of the adequacy of victims’ rights in relation to the victims’ emotional and physical needs, see L ESLIE S EBBA , T HIRD P ARTIES : V ICTIMS AND THE C RIMINAL J USTICE S YSTEM 68–82 (1996).
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parties who must continue to participate if there is to be a case at all. The luxury of the victim’s choice whether to participate is possible because the public prosecutor retains control over critical decisions and retains central responsibility for the prosecution.^35 The absence of the victim (except as a witness) does not mean that the State becomes unable to control and pursue the prosecution of the case, but merely limits the ability of the victim to influence the prosecution and disposition of the case. One of the central features of the concept of secondary harm as it has emerged in participation rights of victims is that secondary harm (harm from governmental processes and governmental actors within the process) may mean different things to different victims. Victim A may choose to exercise all available rights of participation, while Victim B may choose not to exercise any right of participation. Both Victim A and Victim B determine for themselves whether active participation will minimize, or contribute to, secondary harm. This choice, whether to participate, is consistent with the Victim Participation Model value of primacy of the individual victim. Implicit in victim participation laws is the idea that denying the individual victim the choice whether to participate or not participate in the criminal process is unfair to the victim, disrespectful of the victim, and a great affront to the victim’s dignity. 36 As a consequence of the victim’s legal ability to choose whether to participate, at least two other general observations may be made. First, the public prosecutor will always be necessary where such choice is present, because it remains important to society to prosecute certain crimes regardless of the victim’s level of participation. 37 Second, unequal procedural treatment of similarly situated criminal defendants is possible because victims are permitted to choose whether or not to informally or formally influence decision makers concerning charging or disposition, 38 and because the victim has the choice to assist or resist the position of either, or both, of the parties. One defendant may face a
(^35) See supra note 34 and accompanying text (discussing East , 55 F.3d at 1001,
and Person , 854 F.2d at 663–64.
(^36) See infra Appendix A (listing state constitutions and statutes that recognize
value of treating victims with fairness, respect, and dignity).
(^37) See Josephine Gittler, Expanding the Role of the Victim in a Criminal Action: An
Overview of Issues and Problems , 11 P EPP. L. R EV. 117, 156 (1984) (recognizing that public prosecutor is practical necessity because crime victims alone cannot adequately fulfill prosecution function).
(^38) See Payne v. Tennessee, 501 U.S. 808, 821–27 (1991) (permitting admission
of victim impact statement).
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procedural context, and in some cases, the choices of the individual victim, the individual defendant, and the public prosecutor. Because the Victim Participation Model values the primacy of the individual victim, it will inevitably conflict with the value of efficiency underlying the Crime Control Model in some circumstances. In addition, while the Due Process Model and the Victim Participation Model both focus on the primacy of individuals, there are limits to that similarity. For three important reasons, the shared value of primacy of an individual does not result in a shared model. First, the values underlying the Victim Participation and Due Process Models are based on the primacy of two separate individuals: respectively, the individual victim and the individual accused. Second, this conflict of values is accompanied by the potential of revenge from the victim towards the defendant. Third, while the victim has experienced primary harm and may experience secondary harm, the defendant faces harm from the criminal process and formal punishment. Because of these differences, the value of primacy of the defendant may conflict with the value of primacy of the victim. To illustrate conflicts and similarities among the three value systems, it is helpful to explore examples that illustrate the dynamic among the values underlying the three models. This Part examines the interplay of values underlying the three models: first, in the procedural choice to allow a victim to informally influence the decision not to charge; second, in the procedural choice to allow a victim the right to a speedy trial; third, in the procedural choice to allow mandatory minimum sentences to trump a victim’s influence over sentencing.
A. The Interplay of Values Underlying the Victim’s Influence on the Decision Whether to Charge
The first example, reflecting a reality predating modern victim laws, shows the distinction between the value of efficiency and the value of victim primacy. It is well known that adult rape victims have virtually complete control over the decision whether to charge the alleged perpetrator with a crime. 41 Suppose, hypothetically, that a female victim of an acquaintance rape goes to the hospital with a black eye and a broken nose. The victim’s account and the forensic evidence reveal that a rape has occurred. Despite encouragement to prosecute from the detective, the victim advocate, and the deputy district attorney, the victim ultimately expresses a personal preference not to proceed with charging. Respecting this preference, the deputy district attorney does not charge a readily identifiable rape suspect. Rape is a serious crime of violence. The community and the individual victim are safer with the rapist in prison. Nonetheless, in sex crimes against adults, the charging decision is, as a practical matter, almost always left up to the victim. However misguided the victim may be perceived to be, she essentially controls the choice. Even when the
(^41) See Hall, supra note 15, at 951.
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reasons for her choice may not be respected, her choice is respected because she is the victim. The Victim Participation Model readily explains why this is so. The rape charge is not pursued because of respect for the victim’s dignity and privacy, and, relatedly, because of an understanding about secondary harm generally and specifically, the victim’s desire not to be abused by the process. In this example, values underlying the Victim Participation Model completely dominate over the value of efficiency. The Crime Control Model demands the swift suppression of crime, a goal that would be best achieved by charging and prosecuting the defendant, and, if found guilty, imposing upon the defendant a substantial period of incarcera- tion. The Crime Control Model is simply incapable of explaining this deference to the victim. Furthermore, the Due Process Model value of the primacy of the defendant is completely ignored in the decision not to charge when that decision is made because of the victim’s wishes. In other words, the dominant value at play in this example cannot be comprehended using the two-model concept. The Victim Participation Model value of primacy of the individual victim is needed to make sense of the prosecutor’s decision not to pursue the charge. 42
B. The Interplay of Values Underlying the Victim’s Right to a Speedy Trial
The second procedural example involves the victim’s right to a speedy trial. Victims have speedy trial rights in many jurisdictions. 43 However, unlike the defendant, the victim is typically not put at an advantage by delay, nor held centrally responsible for preparing the case for trial. Speedy trials are efficient. 44 As a result, the values
(^42) The Victim Participation Model is not intended to negate or minimize the
utility of other existing approaches to explaining criminal procedures. For example, gender-based approaches to explaining procedures do provide insight, as can the reality of limited resources. Some may rely on a gender-based explanation that the prosecution really does not care about rape. Some may point out that the victim’s decision not to proceed (and the prosecutor’s decision to respect the victim’s wishes) is because of the undue weight given to an inappropriate shame and stigma that accompanies rape. Finally, some may argue that the decision not to charge is at least indirectly related to limited prosecutorial resources.
(^43) See S OURCEBOOK , supra note 2, at tbl.2-A. For a debate on the propriety of the
victim’s right to a speedy trial, compare Cassell, supra note 40, at 498–500, with Robert P. Mosteller, The Unnecessary Victims’ Rights Amendment , 1999 U TAH L. R EV. 441, 470–72.
(^44) See P ACKER , supra note 5, at 159. Packer notes that in the Crime Control
Model “[t]here must [] be a premium on speed and finality.” Id.
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Let the facts change to illustrate the conflict between the Victim Participation Model and mandatory minimum sentences. Assume that despite the wishes of the victim’s family, the prosecutor pursued and secured a conviction for reckless homicide. A mandatory minimum sentence is inevitable. Because the Victim Participation Model and the Due Process Model have a principal value in common—acknowledg- ment of the importance of individuals—in some circumstances the models may join together to oppose other values. Thus, the values underlying the Victim Participation Model and the Due Process Model are not always in conflict. Like the surviving family in this example, a victim may seek mercy for the defendant in a victim impact statement at sentencing. Efficiency values underlying mandatory minimum sentencing schemes defy the value of the primacy of the individual defendant that underlies the Due Process Model. This is because mitigation evidence, like that offered by the victim’s family, is irrelevant to the mandatory minimum sentencing decision. Less well understood is that a mandatory minimum sentencing scheme conflicts with the value of the primacy of the victim that underlies the Victim Participation Model. This is because mandatory minimum sentencing makes the victim’s right to a victim impact statement irrelevant, in the sense that the victim impact statement has no potential for real impact on the decision of the sentencing authority. What would be the result in the altered example of the tragic shooting between the young men? Of course, the victim’s family would have the right to make a victim impact statement. However, in the face of a mandatory minimum sentence, the right to an impact statement will have no substance because the court will be powerless to adjust the sentence downward, and the defendant will be sentenced to a mandatory minimum term in prison. Perhaps, a majority of the public, or even a majority of victims, support mandatory minimums. Nevertheless, mandatory minimum sentences conflict with the primacy of the individual victim. Where mandatory minimums prevail, the separate values of both the primacy of the victim and the primacy of the defendant are suppressed by the value of efficient suppression of crime. While the dominance of the efficiency value explains the result, a real understanding of the values being suppressed cannot be achieved by reference to the two-model concept alone.
IV. T HE L ANGUAGE OF THE T HREE -M ODEL C ONCEPT
Because the three-model concept acknowledges the existence, genuine nature, and significance of the value that underlies victim participation, the very use of three models may be seen by some to promote the legitimacy of the Victim Participation Model value of primacy of the individual victim. In defense of the three-model concept, it is the laws of victim participation, and not the model, that have already given legitimacy to victim participation. In proposing a three-model concept, the point is not to advocate for or against particular victim laws, but to provide a model helpful to understanding
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what has already been, and may in the future be, legitimized by society. Despite this disclaimer, the two-model concept, without the Victim Participation Model, has been a dominant paradigm and its adherents may defend it. A defense of the two-model system involves up to three assumptions: that the value underlying the Victim Participation Model is nonexistent, that it is not genuine, and/or that it is insignificant. To defend the belief that this value does not exist or is not genuine, one must make the assumption that the value of victim primacy, reflected in the language of victim participation laws, is not actually the value being promoted by these laws. Of course, even accepting the existence and genuine nature of the value underlying victim participation, it can still be argued that the value of primacy of the individual victim is not significant enough to warrant the status of legitimacy. To reach the conclusion that the value is not significant enough for legal recognition is to reject the weight of authority provided by statutory and state constitutional civil rights for victims in favor of the view that the primary and secondary harms to the victim are not a sufficient basis for victim participation in the criminal process. The denial of the existence, genuineness, or significance of the value underlying the Victim Participation Model for the purpose of adhering exclusively to the values of the two-model concept is distinguishable from arguing within the three-model language that a given procedure does not actually promote the value of the primacy of the individual victim. In the three-model language the argument can be made that a procedure purporting to promote the value underlying victim participation does not actually do so. Instead, the procedure may actually involve promoting the values of either efficiency or primacy of the defendant. However, unlike the two-model language, the three- model language suggests the need for a context-specific analysis of values underlying all three models. Because of the overt identification of the value of primacy of the individual victim, the distinct nature of this value, and the inclusion of this value in the conventional analytic framework, the three-model concept is more likely than the two-model concept to be useful in determining when the value of victim primacy actually is or is not being promoted in a particular procedure. Furthermore, the three-model language encompasses the notion that the values of more than one of the models may simultaneously be promoted by the same procedural choice. In the three-model language the debate becomes a discourse among recognizable values underlying the three models. On the other hand, in the two-model language there are only two values—efficiency and primacy of the individual defendant. From the point of view of a proponent of the Due Process Model operating within the two-model language, threats to the value of primacy of the individual defendant necessarily originate from the competing value of efficiency. In the two-model language no other conclusion is possible. In the language of the two-model concept, victim interests are not recognized as independent of efficiency; yet, the values underlying victim participation do not fit within the efficiency value. Thus, in the
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procedural stages and a brief overview of the state of victim laws in selected procedural stages.
A. Reporting the Crime
1. Reporting and The Victim Participation Model
The individual victim of crime can maintain complete control over the process only by avoiding the criminal process altogether through nonreporting. This is properly a decision for the victim. In the vast majority of cases, the victim possesses a de facto veto power over whether the criminal process will be engaged. Many victims of crime elect to exercise this veto power.^46 Exercise of the veto may reflect one or more of the following: the victim’s desire to retain privacy; the victim’s concern about participating in a system that may do them more harm than good; the inability of the system to effectively solve many crimes (particularly property crimes); the inconvenience to the victim; the victim’s lack of participation, control, and influence in the process; or the victim’s rejection of the model of retributive justice.^47 The idea that the State is the only entity harmed by crime defies common sense. 48 It requires a leap of logic to conclude that only the State, and not the victim, is harmed by crime.^49 In the unreported crime, the victim is quite cognizant of the harm. On the other hand, the State is typically unaware of crime unless it is reported. Except in certain kinds of cases, such as homicide, the State will never even know that a crime has been committed. This reveals that while the State may be harmed in some indirect way, the victim is the person directly harmed. As a result, the victim’s harm is more significant than the harm to the State.
(^46) See B UREAU OF J USTICE S TATISTICS , C RIMINAL V ICTIMIZATION IN THE U NITED
S T A T E S , 1994, at 83–91& tbls.91–100 (1997) (listing statistics of victims not reporting crimes).
(^47) This is not an exhaustive list. See id.
(^48) See Juan Cardenas, The Crime Victim in the Prosecutorial Process , 9 H ARV. J.L.
& P UB. P OL ’ Y 357, 384 (1986) (“It is the crime victim who has been directly injured by the crime committed, not the state. In a very important sense, the crime ‘belongs’ to the crime victim; therefore, the victim is entitled to expect the legal system to serve his interests... consistent with justice and fairness.”).
(^49) In Linda R.S. v Richard D. , 410 U.S. 614, 619 (1973), the Court acknowledged
that victims are in fact injured by crime, but have no “judicially cognizable interest in the prosecution or nonprosecution of another.” Professor Abraham Goldstein has challenged the Court’s ruling as a compounding of an historical misunderstanding. See Goldstein, supra note 46, at 550.
308 UTAH LAW REVIEW^ [1999: 289
The use of coercion to force the victim to report, for example, by criminalizing the failure to report in the case of misprision, is unwise because it adds insult to the victim’s injury. Such laws threaten the victim’s veto power over reporting. In addition, laws criminalizing nonreporting threaten the privacy of victims. Moreover, the victim, not the State, is the party that is directly harmed, and should thus make the ultimate decision whether to report the crime. Nonetheless, noncoercive efforts to induce or encourage the victim to report are appropriate. The victim retains veto power over reporting despite the existence of incentives. The option of reporting may become more viable for the victim in need of the particular inducement offered. Inducements to reporting may include providing resources through social services or victim compensation, allowing the victim formal or informal influence in the process, or protecting the victim’s person or privacy. 50 These inducements all implicitly acknowledge that the victim is the one harmed and is worthy of respect and fair treatment.
2. Reporting and the Crime Control Model
The nonreporting victim frustrates the value of efficiency that underlies the Crime Control Model. The failure to identify and punish perpetrators is centrally a failure of the value of efficient suppression of crime to become the value exclusively and universally held by victims. Efforts to force the victim to report might be undertaken if it were practical, but the encouraging of reporting is mainly done by providing inducements to the victim. To the extent these inducements do not threaten the Crime Control Model value of efficient suppression of crime, the inducements are tolerated in order to promote reporting and follow-through by the victim.
3. Reporting and the Due Process Model
Any force or inducement to report that threatens the value of primacy of the individual suspect or the reliability of the process is unwise. Inducements impact the reliability of the crime report itself. For example, the offering of monetary rewards to victims for reporting crime may adversely impact reliability. Furthermore, inducements protecting the privacy or safety of the victim may suppress the value of the primacy of the individual defendant. For example, pretrial detention provides a measure of safety to the victim at the expense of important
(^50) See R OBERT E LIAS , THE POLITICS OF VICTIMIZATION: V ICTIMS, V ICTIMOLOGY AND
H UMAN R IGHTS 173–77 (1986) (listing possible services and reimbursement options to encourage victims to come forward).
