Highlight the Right: Privacy
The right to privacy, including the right to refuse a deposition or discovery request
The right to privacy is as old as our nation and it is an ingrained part of our American DNA, that we have certain rights to protecting our private information. That want for privacy doesn’t and shouldn’t change, just because someone becomes the victim of a crime. Using this logic, many states have adopted privacy protections in their state statutes and constitutions that protect the privacy of victims of crime. Forty-five states provide legal privacy protections for victims in the form of refusing a discovery deposition or request[i] and 12 make that protection constitutional.[ii] Iowa is not one of those states. We are 1 of 5 states[iii] that allows unchecked access to pre-trial discovery depositions of victims of crime. Marsy’s Law will change that. It will provide victims of crime with both the general constitutional right to privacy and the right to refuse a deposition or other discovery request posed by the defense. As we address criminal justice reform in Iowa, we can continue to support an accused’s due process rights and also require that victims are treated with dignity, respect and fairness.
The image of someone testifying on the witness stand is one that is recognizable in our modern society. A less recognizable aspect of the legal system is a proceeding known as a discovery deposition. Discovery depositions are quite common in civil litigation and occur pre-trial during the discovery or evidence-gathering portion of the case. Though less common in criminal court, a victim can still be subpoenaed to sit for a discovery deposition, a traumatic practice for victims virtually unchecked in Iowa. A criminal pre-trial deposition typically consists of a few people in a small conference room with attorneys for the defendant, a prosecutor, a court reporter and the victim or other witness generally fielding defense led questioning. The judge is typically not present in a pre-trial criminal deposition and will not determine whether objections to certain questions will stand until a later date. This becomes a problem for victims because they will likely be required to answer questions that a court at the time of trial could otherwise consider harassing or irrelevant and ultimately prohibit. Often victims, especially those who are victims of sexual and gender-based violence, will be asked highly personal questions like the number of sexual partners they have had, their sexual desires, or every time they did consent to a sexual experience with their abusive partner – all while sitting across a table from their abuser. It’s an unnecessary and traumatic experience for victims of crime.
A discovery request is another aspect of the discovery or evidence-gathering phase of the case and involves sending requests for documents and posing questions to the subpoenaed party to answer. Again, Iowa allows a defendant to seek records, regardless of their relevancy to the case, from a victim to exist unchecked by the court and provides no meaningful statutory or constitutional rights to privacy that protect the victims’ private information. Requiring a victim of a crime to turn over private material – like notes from therapy sessions and rape crisis counseling – undermines victims’ privacy rights and could prevent victims from seeking help.[iv] While some statutory language exists to attempt to combat the fishing expedition that could result from requiring victims to turn over years of medical and mental health records, without a victim’s constitutional right to privacy, the statutory protection will always lose to a defendant’s constitutional rights. Especially, in cases where the victim and offender know each other well, victims’ can be harassed by requests for their diaries, bank records and text messages. These requests likely have nothing to do with the case, but are instead intended to embarrass victims and push them to not cooperate with the prosecution.
Opponents of victims’ rights in Iowa will often cite the defendant’s US Constitutional 6th Amendment right to confront their accuser as a reason that victims should be subject to depositions and intrusive discovery requests. What their argument fails to consider, though, is: 1. current precedent on the right to confrontation and 2. the fact that 45 other states[v] allow a victim to refuse pre-trial criminal depositions without infringing on a defendant’s due process rights. It is especially alarming because these opponents fail to articulate, either mistakenly or purposefully, well-established law on this very issue. The Supreme Court has been very clear that there is no constitutional right to pretrial discovery,[vi] and that the 6th Amendment right to confront your accuser applies only as a trial right that is satisfied with the ability to cross-examine at trial. The 6th Amendment is not an absolute right to a pre-trial face-to-face interview.[vii] The language in Marsy’s Law for Iowa to refuse a deposition applies only to the victim and protects the victim from unnecessary, cumbersome, and traumatic breaches of privacy. The accused remains entitled to information that is discoverable to defend an accusation. This covers everything in the government’s possession -including exculpatory evidence, pretrial statements made to the police, medical reports from the incident, defense led interviews of non-victim witnesses, and even victim depositions before trial with the victim’s consent. Under Marsy’s Law for Iowa’s privacy protections, the court merely becomes a deciding factor on all discovery requests to the victim. A request for discovery can always be brought to the court where the court will consider and weigh the interests of both the defendant and the victim. The court may grant requests made by the defendant for pre-trial discovery or victim depositions where a compelling need has been shown
Forcing victims to undergo a pre-trial interview where they are required to answer questions from someone being paid to undermine their account of the most traumatic experience of their life, while staring in the face of the person they are accusing of perpetrating the violence against them revictimizes survivors. Additionally, allowing the possibility of a fishing expedition into the private and irrelevant mental health records of a victim is re-traumatizing and wholly unnecessary to ensure a fair trial for the defendant. These practices must cease in Iowa. A defendant’s right to due process and a victim’s right to privacy can exist in harmony—as it does in just about every other state in the country. It is time the interests of criminal justice participants are balanced in our state.
[i] Sally Johnson, Depositions Can Be Ordeal as Well as a Protection, N.Y. Times, March 8, 1991, https://www.nytimes.com/1991/03/08/news/depositions-can-be-ordeal-as-well-as-a-protection.html; See also e.g. Ala. Code § 15-23-70.
[ii] Ariz. Const. art. 2, § 2.21(A)(5); Cal. Const. art. 1, § 28(b)(5); Fla. Cons. art. I, § 16(b)(5) (to prevent the disclosure of information or records […] which could disclose confidential or privileged information of the victim); Idaho Const. art. 1, § 22(8); La. Const. art. I, § 25; Nev. Const. art. 1, § 23(1)(e); N.D. Const. art. 1, § 25(1)(f); Ohio Cons. art. I, § 10a(A)(6); Okla. Const. art. II, § 34(A); Or. Const. art. I, § 42(1)(c); S.D. Const. art. 6, § 29(6); Wis. Const. art. I, § 9m(2)(l).
[iii] Id all states besides Florida, Indiana, Iowa, Missouri, Vermont have some form of statutory or constitutional protection for victims regarding pre-trial criminal depositions.
[iv] State v. Cashen, 789 N.W.2d 400 (2010) Iowa Sup. (Cady, J., dissenting).
[v] Supra note ii
[vi] Weatherford v. Bursey, 49 U.S. 545 (1977).
[vii] Maryland v. Craig, 497 .S. 836 (1990)