For the Defense - Vol. 4, Issue 2 - 5

constitutional protections afforded criminal
defendants, consistently explain that they do not
seek to infringe on any such rights. They merely seek
to balance those rights with equal rights for victims.
It appears to me, however, that the creation of these
new victims' rights will necessarily be at the expense
of criminal defendants.
For example, Marsy's Law seeks to grant victims
the right "to proceedings free from unreasonable
delay and a prompt and final conclusion of the
case." I wonder how this right will be enforced.
How will this play out in a courtroom? Will an
alleged victim have a right to object to a defendant's
continuance request? From a legal standpoint,
the alleged victim's right to a prompt disposition
without unreasonable delay will be equal to the
defendant's due process right to investigate or to
hire counsel. I know of no guidance for how courts
should conduct this balancing. I also see no way
for the actual enforcement of this victims' right
to be enforced without a correlating reduction of
defendants' rights.
Another concern surrounds the right of victims
"to reasonable and timely notice of and to be
present at all public proceedings involving the
criminal or delinquent conduct." We know that
this right already exists in our Crime Victims' Bill of
Rights, but the purported inadequacy of the existing
law is the lack of any enforcement provision. I don't
know who is supposed to provide this notice. These
bills do not specify. These bills are clear that any
violation of the provisions of the bills do not "create
any cause of action for compensation or damages
against the Commonwealth...or any officer of
employee of the Court."
What is the remedy when whoever has
responsibility of advising an alleged victim of a
sentencing hearing fails to do so? What is the
remedy, if not damages from the breaching party
or agency? May the Commonwealth seek to vacate
the judgment of sentence? Obviously, to allow
such relief would run afoul of the double jeopardy
protections in the Federal and Pennsylvania
Constitutions. While such a result sounds ludicrous,
we must remember that the victim's right would be
equal to the defendant's constitutional right to not
be placed twice in jeopardy. Either the defendant
loses an entrenched constitutional right, or the
victim does not have an enforceable right.

I could go on. I could parse through every
provision of Marsy's Law and ask questions I do
not believe have been answered or even asked.
If I were president of the District Attorneys'
Association, I might be asking who is going to
pay the unfunded mandate for all the notices
to victims? Does anyone smell a new cost of
prosecution coming down the pike?
The mission of PACDL, in part, is "to educate,
advocate and inspire by providing support for
criminal defense lawyers...leveling the playing field
and protecting freedoms." Please consider joining
PACDL's efforts to ask much needed questions
of our legislators and to request public hearings
before amending our Constitution. Our Advocacy
Committee could use your help researching
the many problems other states have already
encountered from passing Marsy's Law or with the
drafting of position papers. We understand the
public sentiment for Marsy's Law, but we are also
the people who can foresee the problems ahead.
Who will speak up if not us?
PANTONE

2955C

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

#153A5B

CS
MJ

#EAC137

Cramer
Swetz
McManus
&Jordan P.C.

THE RIGHT LAWYER CAN MAKE A DIFFERENCE

Monroe County Criminal Defense

JIM SWETZ

PACDL Past President

BRIAN JORDAN
PACDL Board of Directors

711 Sarah Street * Stroudsburg, PA 18360 * (570) 421-5568
www.csmjlawyer.com

Vol. 4, Issue 2

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For The Defense

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For the Defense - Vol. 4, Issue 2

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