Tuesday, July 25, 2006

Victims' families can watch entire trial - and still testify

Typically a murder victim's relatives can watch the entire trial of the accused killer. And typically a witness can not watch a trial until after they have testified. So what does a judge do when the witness is a family member of the victim?

That very question was blocking the trial of four people -- Iouri Mikhel, Jurlius Kadamovas, Petro Krylov, and Natalya Solovyeva -- charged in Los Angeles district court with kidnapping, ransoming, and then killing five people. According to a recent report by California radio station KVML, Mikhel and Kadamovas targeted wealthy Russian immigrants living in L.A. But instead of handing over the five victims, they murdered them and dumped the bodies.

District Judge Dickran M. Tevrizian denied the crime victims the right to watch the trial, citing the traditional federal rules barring a witness from watching a trial until after they testify. Federal prosecutors then appealed to the Ninth Circuit, asking it to force the lower court to allow the victims/witnesses to watch the whole trial.

In a 7-page decision, handed down on July 7, the Ninth U.S. Circuit Court of Appeals found "Congress created just such an exception for crime victims when it enacted the [Crime Victims' Rights Act] and gave crime victims '[t]he right not to be excluded from any . . . public court proceeding.' 18 U.S.C. ยง 3771(a)(3)."

A family victim does not have a hard-and-fast right to attend the trial at the cost of the defendants rights, the three-judge panel noted, but a victim/witness can only be excluded if there is "clear and convincing" evidence that their testimony would change by observing the entire trial.

The appellate court said the lower court judge had to at least hold a hearing to determine whether the crime victims' testimony would substantially change if they were in the courtroom prior to testifying. "A mere possibility that a victim-witness may alter his or her testimony as a result of hearing others testify is therefore insufficient to justify excluding him or her from trial," the unsigned opinion said. "Rather, a district court must find by clear and convincing evidence that it is highly likely, not merely possible, that the victim-witness will alter his or her testimony."

The Ninth Circuit granted the prosecution's petition in part, ordering the lower court to decide whether the victims/witnesses testimony would be "materially altered" if they were allowed to watch the trial in its entirety.

Four days after the Ninth Circuit's opinion was handed down, KVML reported that jury selection would finally be starting, with opening arguments planned for sometime around Labor Day.

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