Marsy’s law originated from a case in California involving an individual named Marsalee Nicholas who was then a college student; in 1983, Ms. Nicholas’ ex-boyfriend murdered her—and years later the murderer bumped into Ms. Nicholas’ family at a local grocery store. The family had no idea that the murderer had been released, which caused a great deal of distress upon seeing him in the store.

 

Marsy's Law amended Article I, Section 16 of the Florida Constitution to preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims' rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents. That Bill of Rights for crime victims and their families is extensive, including: The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated; as well as the right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case.

 

Yet there are, of course, limits to Victim's Rights. The Florida Constitution does not permit victims or their families, for instance, to actively participate in the trial by sitting at counsel table or being introduced to the jury, and Florida's version of Marsy's Law gives a victim a right to participate only as a nonparty (which you will see, is quite valuable) but not as a party. So, a victim's lawyer will understand and make use of the full extent of victims' rights.

 

Though, where exactly are the limits of Victim's Rights? We look to related legislation. The legislature's express intent is to fulfill the state's "moral responsibility" to aid crime victims. See § 960.02, Fla. Stat. (2021). Courts are guided by the Legislature's stated purpose for enacting a piece of legislation. Indeed, the expressed intent behind the amendment was to protect the victims and ensure the state do all that is possible to assist the victims.

 

Let us turn, then, to Florida's legal definitions of the relevant terms, "crime" and "victim."

 

"Crime" is defined under section 960.03(3)(a) to mean: "A felony or misdemeanor offense . . . which results in . . . injury . . . ." So, interestingly, the statute's definition of a crime does not require a criminal conviction before a victim of an offense is eligible for compensation under the Act. The Legislature has consistently broadened the definition of crime to include more crime victims. Indeed, Florida caselaw defines a victim as, simply, "someone injured under any of various conditions." The term "victim" just designates the status of a person participating in a lawsuit. That is, a victim is someone harmed as a “direct result" of the criminal episode. The Florida statute addressing Victim Assistance specifically, at section 960.03(14), defines "victim" to mean:

(a) A person who suffers personal physical injury or death as a direct result of a crime;

(b) A person younger than 18 years of age who was present at the scene of a crime, saw or heard the crime, and suffered a psychiatric or psychological injury because of the crime but who was not physically injured;

(c) A person younger than 18 years of age who was the victim of a felony or misdemeanor offense of child abuse that resulted in a mental injury as defined by s. 827.03 but who was not physically injured;

(d) A person against whom a forcible felony was committed and who suffers a psychiatric or psychological injury as a direct result of that crime

 but who does not otherwise sustain a personal physical injury or death . . . .

 

In Butler v. State, 315 So. 3d 30, 31 (Fla. 4th DCA 2021), the defendant argued that the trial court erred in excluding his father from the courtroom during trial. A grand jury had indicted the defendant for second degree murder with a deadly weapon for the stabbing death of his brother. The appellate court concluded that the trial court had abused its discretion in excluding the relative because the father's right to be present did not conflict with the defendant's right to a fair trial. Indeed, the father was listed as a defense witness.

 

Thus, Victim's Rights are individual rights, not "government rights" (if any such "government rights" exist).

 

RESTITUTION 

 

Despite the statute, the rules, the case law, and the constitutional amendment, proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive.

 

The prosecutor does often attempt to secure fair restitution for a victim. They can, but often fail to succeed (or even to try). To order restitution under the statute, the court must find that the loss or damage is causally connected to the defendant's offense. Only those damages or losses which flow from defendant's criminal activity may be assessed as restitution. For restitution to be deemed reasonable, it must bear a significant relationship to the offense of which the defendant is convicted, and one factor to be considered in this regard is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. Restitution can cover, for instance, a victim's private investigator costs, or wages lost by the mother of a victim during time she was too upset by the crime to go to work.

 

But the zealous duty to secure the greatest compensation is not the prosecutor's responsibility. Indeed, the prosecutor does not represent the victim. The government cannot claim the victim mantle.

 

The prosecutor typically relies on the victim, merely, to prove the case, but the prosecutor's obligation is to pursue societal interests—however the prosecutor may understand those interests—not the victim's interests. A prosecutor zealously protects the rights of individuals in general, but without representing any individual as a client, and so puts the rights and interests of society in a paramount position.

 

NONPARTY STANDING AND REPRESENTATION 

 

Nonparties are routinely granted standing in a criminal setting for the limited purpose of asserting and protecting specific rights. While standing and party status are not the same, the differences do not by any means bar nonparty representation in legal proceedings.

 

FAIR PUNISHMENT OF A TRUE OFFENDER

 

Punishment counteracts domination by reducing the criminal to the position of the victim. When the criminal suffers as the victim suffered, equality between the two is reestablished. Yet when society and its officials look the other way, their indifference continues the criminal's dominance over the victim. This societal imbalance occurs when the offender is not adequately punished—or when the true offender is not even identified—and perhaps especially when an innocent is prosecuted in the true offender's place. The failure to punish the offender properly leaves society in the position of maintaining the victim's sorry state: Abandoned, left alone, the victim feels betrayed by the system. The violation of the state-supported position—as such violations are perceived by the state, not by private victims—has displaced the violation of the victim's interests as the rationale for punishment. So, the primary purpose of criminal punishment today has become a method of asserting the power and the authority of the government, posing as "society."