TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2017
RE: Rule 15, N.D.R.Crim.P., Depositions
N.D. Const. Art. I, § 25(1)(f) gives victims: "[t]he right to privacy, which includes the right to refuse an interview, deposition, or other discovery request made by the defendant, the defendant's attorney, or any person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interaction to which the victim consents. Nothing in this section shall abrogate a defendant's sixth amendment rights under the Constitution of the United States nor diminish the state's disclosure obligations to a defendant."
Proposed amendments to Rule 15, attached, allow victims to refuse to consent to a deposition.
N.D. Const. Art. I, § 25(1)(f) may be one of the most controversial of the Marsy's Law provisions because it seems like it could be contrary to a defendant's sixth amendment rights, regardless of the language disclaiming this problem. Further, the language about setting "reasonable conditions" for interactions between defendant and victim is nebulous. Therefore, it is likely that court decisions will be required to establish the reach of this provision.
Staff has not been able to locate case law on this provision in the states that have adopted Marsy's Law. There is robust case law in Arizona, however, which adopted a Victims' Bill of Rights in 1990 as Art. 2, § 2.1 of the Arizona Constitution. A copy of Art. 2, § 2.1 is attached. The Arizona provision contains language used and expanded upon in Marsy's Law, including in Art. 2, § 2.1(4) the right to "refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person's acting on behalf of the defendant."
In the first case to examine the Victims' Bill of Rights, Knapp v. Martone, 823 P.2d 685 (Ariz. 1992), the Arizona Supreme Court called for a plain language interpretation of the provision and concluded that Art. 2, § 2.1(4) means what it says and allows a victim to refuse a deposition. Arizona court decisions since that time have been consistent with this ruling. A summary of some Arizona case law on this topic is attached.