Marsy’s Law Supporters Are Awfully Cavalier About the Rights of the Accused

Today on SAB Lacee Bjork Anderson, an attorney and supporter of Marsy’s Law for North Dakota (Measure 3 on the November ballot, read it here), has a rebuttal for a post I wrote arguing that Marsy’s Law isn’t needed.

You can read her post here, and my post here.

I wanted to provide a rebuttal to her rebuttal because some of her arguments in favor of Marsy’s Law are truly unfortunate and represent a cavalier attitude toward the rights of the accused which seems all too typical among the Marsy’s Law crowd.

“First and foremost, as an attorney I must refute Rob’s opinion on the Sixth Amendment,” she writes. “It is a fact that the Sixth Amendment does not include a right to pre-trial depositions. Numerous examples of case law support this without question.”

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…Marsy’s Law would take the power to decide whether or not defendants get to confront their accusers pre-trial out of the hands of judges and put the decision in the hands of the accusers. This is a fundamental and dangerous shift in the application of the 6th amendment.[/mks_pullquote]

I’m not so sure that this is as settled an issue as Anderson would have us believe. In fact, in the Grand Forks case I wrote about there is a dispute right now between the defense and the prosecution as to whether or not the accused – a male teacher who allegedly had sex with a female student – has the right to depose his accuser before the trial. The prosecution is against it while the defense is for it. The judge, ultimately, will decide.

That seems like the right balance between protecting the victim from undo harassment and protecting the accused’s right to a vigorous defense. But the Marsy’s Law folks want that balance to go away.

The 6th amendment affords we citizens the right to confront witnesses against us during a criminal proceeding, up to and including our accusers. The Marsy’s Law crowd thinks that right should only exist during the actual trial, meaning that the prosecution should get to interview the accuser all they want, but the defense can only interview them at trial in a courtroom. They feel this way because they think questioning the accuser in a criminal case is harassment.

That’s simply not fair. The prosecution would love it, of course. What better way to hamstring the defense than to severely hamper their ability to confront and investigate the accusations against them before trial?

Currently there are statutory protections for underage victims which give judges the ability to block pre-trial depositions if they feel they feel the motivation is less a sincere desire to investigate the facts than an attempt to harass or intimidate. Those protections are in play in the Grand Forks case. Anderson argues that these protections do not exist for accusers over the age of 18.

To the extent that this is true, that sounds like something for state lawmakers to fix. Not justification for an amendment to the state constitution giving accusers the right to veto all attempts to be interviewed by the defense pre-trial.

To reiterate that point, Marsy’s Law would take the power to decide whether or not defendants get to confront their accusers pre-trial out of the hands of judges and put the decision in the hands of the accusers. This is a fundamental and dangerous shift in the application of the 6th amendment.

“Accused and convicted criminals will maintain all existing rights, including the right to confront their accuser during trial,” Anderson writes.

Only, the 6th amendment doesn’t restrict confrontration rights to trial. Statute and case law may have put some limits on pre-trial confrontration rights when it comes to accusers – and I largely agree with the limitations in place would be willing to listen to ideas on how to reform them – but none of it rises to the level of Marsy’s Law which would give the accused full constitutional veto power over any pre-trial questioning from the defense.

That is ridiculous. That’s absurd. That’s unjust. And if the Marsy’s Law folks weren’t so addled by their overweening sense of self righteousness they might recognize it.