MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Juvenile Justice

By: Representative Warren

AN ACT TO PROVIDE FOR A VICTIMS' BILL OF RIGHTS FOR YOUTH COURTS; TO DEFINE CERTAIN TERMS; TO AUTHORIZE THE APPOINTMENT OR DESIGNATION OF A LAWFUL REPRESENTATIVE FOR A VICTIM; TO REQUIRE THAT CERTAIN INFORMATION BE PROVIDED TO VICTIMS; TO PROVIDE FOR THE NOTIFICATION OF CHARGES AGAINST THE JUVENILE; TO PROVIDE FOR CONFERENCES WITH THE PROSECUTING ATTORNEY; TO SPECIFY THE RIGHTS OF THE VICTIM; TO PROVIDE FOR SEQUESTRATION, IF POSSIBLE, FROM THE ACCUSED WHILE WAITING FOR COURT PROCEEDINGS; TO AUTHORIZE CONFIDENTIALITY OF CERTAIN IDENTIFYING INFORMATION; TO PROVIDE FOR CONFERENCES WITH YOUTH COURT COUNSELORS; TO PROVIDE THAT THE VICTIM SHALL BE INFORMED OF DISPOSITIONAL ORDERS AND APPEALS; TO REQUIRE NOTIFICATION OF ESCAPES; TO PROVIDE FOR THE RETURN OF PROPERTY OR AN EXPLANATION WHY PROPERTY WILL NOT BE RETURNED; TO PROTECT THE VICTIM FROM LOSS OF EMPLOYMENT; TO AMEND SECTION 99-43-3, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The purpose of this act is to ensure the fair and compassionate treatment of victims of delinquent acts in the youth courts of Mississippi, to increase the effectiveness of the youth court system by affording rights and considerations to the victims of delinquent acts, and to preserve and protect victims' rights to justice and fairness in the youth court system.

SECTION 2. As used in this act, the following words shall have the meanings ascribed to them, unless the context clearly requires otherwise:

(a) "Accused" means a juvenile who has been charged with committing a violent offense.

(b) "Court proceeding" means any hearing, argument or other matter scheduled by and held before the youth court, but does not include any matter not held in the presence of the judge.

(c) "Custodial agency" includes the Division of Youth Services, a detention facility in which a juvenile has been placed by a youth court judge, or any secure mental health facility having custody of a juvenile who has been charged or adjudicated for a violent offense.

(d) "Final disposition" means the ultimate termination of the jurisdiction of the youth court over the accused for the violent offense.

(e) "Immediate family" means the spouse, parent, child, sibling, grandparent or guardian of the victim, unless that person is in custody for an offense or is the accused.

(f) "Lawful representative" means a person who is a member of the immediate family or who is designated by the court to represent the victim. No person in custody for an offense or who is the accused may serve as lawful representative.

(g) "Post-arrest release" means any release of the accused from confinement prior to the adjudicatory hearing.

(h) "Post-adjudication release" means any release of the accused from detention which results from the violent offense.

(i) "Prosecuting attorney" means the county attorney or an attorney designated by the youth court judge as youth court prosecutor.

(j) "Right" means any right granted to the victim by the laws of this state.

(k) "Victim" means a person against whom the violent offense has been committed, or if the person is deceased or incapacitated, the lawful representative.

(l) "Violent offense" means conduct that gives a law enforcement officer, prosecutor or youth court intake worker probable cause to believe that an act has been committed which would be a felony if committed by an adult and involves physical injury or the threat of physical injury, or any sexual offense, or any offense involving domestic violence or burglary of a dwelling. The burglary of a dwelling will be considered a violent offense under this act only if a resident or guest is present at the time of the offense.

SECTION 3. (1) If a victim is physically or emotionally unable to exercise any right established by this act, but is able to designate in writing a lawful representative, the designated representative or person may exercise the same rights that the victim is entitled to exercise. The victim may revoke his or her designated representation at any time and thereafter personally exercise his or her rights.

(2) If a victim is incompetent, deceased or otherwise incapable of designating another person to act in his or her behalf, the court may appoint a lawful representative who is not a witness in the case. If at any time the victim is no longer incompetent, incapacitated, or otherwise incapable of acting, the victim may personally exercise his or her rights.

(3) If the victim is a minor, the parent, guardian or other immediate family of the victim, or a designated representative as determined by the court, may exercise all of the right of the victim on behalf of the victim.

SECTION 4. Unless the victim is unavailable or incapacitated as a result of the violent offense, within seventy-two (72) hours after the law enforcement agency becomes responsible for investigating the offense, the law enforcement agency shall provide to the victim in a manner and form prescribed by the Attorney General the following information.

(a) The availability of emergency and crisis services.

(b) The availability of victims' compensation benefits and the name, address and telephone number of the victim compensation hearing officer.

(c) The name of the law enforcement officer and telephone number of the law enforcement agency with the following statement attached: "If within sixty (60) days you are not notified of an arrest in your case, you may call the telephone number of the law enforcement agency for the status of the case."

(d) The procedural steps involved in a youth court action.

(e) The rights authorized by the Mississippi Constitution on rights of victims, including a form to invoke these rights.

(f) The existence of and eligibility requirements for restitution and compensation pursuant to Section 99-37-1 et seq. and Section 99-41-1 et seq.

(g) A recommended procedure if the victim is subjected to threats or intimidation.

(h) The name and telephone number of the office of the prosecuting attorney to contact for further information.

SECTION 5. (1) Upon written request of the victim, the prosecuting attorney shall notify the victim of all charges filed against the juvenile and any youth court proceedings, other than detention hearings, as soon as practicable, including any changes that may occur.

(2) In order to be entitled to receive notice under this section, the victim shall provide to and maintain with the office of the prosecuting attorney a request for notice which shall include the telephone number and address of the victim. The request for notice shall be considered withdrawn and void in the event the victim fails to update this information as necessary.

(3) Notice provided under this section is not a violation of the confidentiality provisions of the Youth Court Act.

SECTION 6. (1) The prosecuting attorney shall confer with the victim prior to the adjudicatory hearing on a violent offense, including any recommendations from the victim concerning any dispositional alternatives.

(2) Any information received by the victim relating to the substance of the case shall be kept confidential, except as authorized by the court.

SECTION 7. The rights of the victim do not include the authority to direct the prosecution of the case.

SECTION 8. The victim shall have the right to a final disposition of the case in the youth court without unreasonable delay. To effectuate this right, the court in determining whether or not to grant a continuance or change the date of any proceeding shall make every reasonable effort to consider the prejudice to the victim of the delay.

SECTION 9. The victim has the right to be present throughout all proceedings of the youth court which are presided over by the judge, with the exception of the initial detention hearing. The judge shall not enter a dispositional order unless the victim is present or the judge has been advised by the prosecuting attorney that the victim was informed of the date, time and place of the hearing and of his right to be present, or that reasonable efforts were made to so inform the victim and he or she could not be located. The absence of a victim who has been informed of the date, place and time of any youth court proceeding, or who cannot be located by reasonable efforts, shall not preclude the court from going forward with the proceeding.

SECTION 10. Where possible, the court shall provide a waiting area for the victim separate from the area where the accused, his or her family and witnesses are waiting for the court proceeding. If a separate waiting area is not available, the court shall minimize the contact of the victim with the accused, his or her family and witnesses by providing a law enforcement officer or member of the court staff to stay with the victim in the waiting area.

SECTION 11. Based upon the reasonable apprehension of the victims of acts or threats of physical violence or intimidation by the accused, the family of the accused, or anyone at the direction of the accused, the prosecutor may petition the court to direct that no fact which could divulge the residence of place of employment of the victim, or other related information, be testified to in open court or made a part of the record. If the court grants the petition, the attorney for the accused shall be directed to hold any such information confidential and not to divulge it to the accused or to any person without a further order from the court.

SECTION 12. If the victim has provided the prosecuting attorney with a current address and/or telephone number, the prosecuting attorney shall provide to the victim information about his or her right to be present and to be heard at any dispositional hearing, along with the date, time and place that the hearing is to be held. If the judge orders restitution, the victim shall be informed of the procedure to be followed to collect the restitution.

SECTION 13. Prior to the dispositional hearing, the youth court counselor assigned to the case shall confer with the victim and inform the victim of his or her right to make a written or oral statement to the judge concerning the disposition of the case. In making his report to the judge, the counselor shall provide information on the economic, physical and psychological impact that the violent offense has had on the victim and the immediate family of the victim. Any oral statement to the judge by the victim shall be made at the dispositional hearing with all parties present.

SECTION 14. If the victim is not present at the dispositional hearing, he or shall be informed of the dispositional order as soon as practicable.

SECTION 15. If the youth court judge's decision is appealed to the Mississippi Supreme Court, the prosecuting attorney shall inform the victim of the appeal and, if the youth court will be represented in the appeal by someone other than the county or youth court prosecuting attorney, give the victim the address and telephone number of the attorney who will be representing the youth court in the appeal.

SECTION 16. (1) If the victim has requested notice, he or she shall be notified of any escape by the accused from detention and of any subsequent return to custody. This notification shall be given by the agency having physical custody of the accused at the time of the escape.

(2) If the victim has requested notice, the agency having physical custody of the accused shall notify the victim within fifteen (15) days prior to the release of the accused from custody.

SECTION 17. After consultation with the prosecuting attorney, the law enforcement agency responsible for investigating the offense shall return to the victim any property belonging to the victim that was taken during the course of the investigation, or shall inform the victim why the property will not be returned. If the property taken during the investigation is needed as evidence, the court may, upon request of the prosecuting attorney and where practicable, order that a photograph of the property be substituted. If evidence is released pursuant to this subsection, the attorney for the accused or his investigator may inspect and independently photograph any evidence before it is released.

SECTION 18. Upon request of the victim, the prosecuting attorney shall notify the victim's employer that the victim has the duty to respond to a subpoena to testify in the youth court hearings or to participate in the preparation of the case without loss of employment, intimidation or threat or fear of loss of employment.

SECTION 19. The failure to provide a right, privilege or notice to a victim under this act shall not be grounds for the accused to seek to have the adjudication or disposition set aside, and any reasonable attempt to provide notice shall satisfy the requirements of this act.

SECTION 20. The prosecuting attorney may assert the rights of the victim at any time during the proceedings.

SECTION 21. Section 99-43-3, Mississippi Code of 1972, is amended as follows:

99-43-3. As used in this chapter, the following words shall have the meanings ascribed to them, unless the context clearly requires otherwise:

(a) "Accused" means a person who has been arrested for committing a criminal offense and who is held for an initial appearance or other proceeding before trial or who is a target of an investigation for committing a criminal offense.

(b) "Appellate proceeding" means an oral argument held in open court before the Mississippi Court of Appeals, the Mississippi Supreme Court, a federal court of appeals or the United States Supreme Court.

(c) "Arrest" means the actual custodial restraint of a person or his submission to custody.

(d) "Community status" means extension of the limits of the places of confinement of a prisoner through work release, intensive supervision, house arrest, and initial consideration of prediscretionary leave, passes and furloughs.

(e) "Court" means all * * * courts of the state with the exception of the juvenile courts. The policy and procedure for assuring the rights of victims in the youth courts shall be administered as provided in Sections 1 through 21 of House Bill No. , 2000 Regular Session.

(f) "Victim assistance coordinator" means a person who is employed or authorized by a public entity or a private entity that receives public funding primarily to provide counseling, treatment or other supportive assistance to crime victims.

(g) "Criminal offense" means conduct that gives a law enforcement officer or prosecutor probable cause to believe that a felony involving physical injury, the threat of physical injury, or a sexual offense, or any offense involving spousal abuse, domestic violence or burglary of a dwelling house has been committed.

(h) "Criminal proceeding" means a hearing, argument or other matter scheduled by and held before a trial court but does not include a lineup, grand jury proceeding or other matter not held in the presence of the court.

(i) "Custodial agency" means a municipal or county jail, the Department of Corrections * * * or a secure mental health facility having custody of a person who is arrested or is in custody for a criminal offense.

(j) "Defendant" means a person or entity that is formally charged by complaint, indictment or information of committing a criminal offense.

(k) "Final disposition" means the ultimate termination of the criminal prosecution of a defendant by a trial court, including dismissal, acquittal or imposition of a sentence.

(l) "Immediate family" means the spouse, parent, child, sibling, grandparent or guardian of the victim, unless that person is in custody for an offense or is the accused.

(m) "Lawful representative" means a person who is a member of the immediate family or who is designated as provided in Section 99-43-5; no person in custody for an offense or who is the accused may serve as lawful representative.

(n) "Post-arrest release" means the discharge of the accused from confinement on recognizance, bond or other condition.

(o) "Post-conviction release" means parole, or discharge from confinement by an agency having custody of the prisoner.

(p) "Post-conviction relief proceeding" means a hearing, argument or other matter that is held in any court and that involves a request for relief from a conviction, sentence or adjudication.

(q) "Prisoner" means a person who has been convicted or adjudicated of a criminal offense against a victim and who has been sentenced to the custody of the sheriff, the Department of Corrections, Department of Youth Services, juvenile detention facility, a municipal jail or a secure mental health facility.

(r) "Prosecuting attorney" means the district attorney, county prosecuting attorney, municipal prosecuting attorney, youth court prosecuting attorney, special prosecuting attorney or Attorney General.

(s) "Right" means any right granted to the victim by the laws of this state.

(t) "Victim" means a person against whom the criminal offense has been committed, or if the person is deceased or incapacitated, the lawful representative.

SECTION 22. This act shall take effect and be in force from and after July 1, 2000.