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Does Arizona's Victims' Bill of Rights violate defendants' rights?

The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant's right to "be confronted with the witnesses against him" in all prosecutions. That's one reason why the state can't bring hearsay evidence against you in a criminal case, for example. You have the right to see, hear and confront any witness (or even a document) accusing you of any crime. It's an essential part of due process of law.

Is it enough to confront those witnesses on the stand at trial, or should the defense team have the right to talk to prosecution witnesses earlier, during the investigation stage? A group of criminal defense attorneys and an investigator say no, cross examining witnesses at trial is not good enough.

To give criminal defendants their full right to challenge the case against them, they say, the defense team must be able to interview those witnesses independently before trial. It's the only way to spot inconsistencies in their story, for example. It may be the only way to track down evidence supporting the defendant's case -- and that absolutely has to be done before trial.

But in Arizona, the Crime-Victims' Rights Implementation Act, of 1991 (which implemented the Victims' Bill of Rights voters approved in 1990) places strict limitations on defense access to crime victims and their families. It requires the defense to ask the prosecution to contact alleged victim-witnesses -- and they can say no.

The defense attorneys, the private investigator and Arizona Attorneys for Criminal Justice recently filed suit against Attorney General Mark Brnovich, claiming that the restrictions are unconstitutional.

"Defense lawyers should not be required to get permission from the government in order to conduct a thorough investigation into their client's case," said the president of the Arizona Attorneys for Criminal Justice in a statement about the case. "This law is a textbook example of unconstitutional prior restraint on speech and makes it very difficult for lawyers to meet their obligation to provide effective assistance of counsel to criminal defendants in Arizona."

"This law was intended to prevent the harassment and intimidation of victims, but it does much more than that by acting as a complete ban on any speech by criminal defense attorneys to victims," added the legal director of the ACLU of Arizona, which opposes the law as written. "Criminal defense attorneys are not interested in harassing or intimidating victims and if they do, they're already subject to prosecution under Arizona law and professional discipline."

Arizona is the only state to have such a law.

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