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Court rules victims can be referred to as ‘alleged victims’

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People who prosecutors say are the victims of crime have no legal right to be referred to at trial as “victim” rather than “alleged victim,” the state Court of Appeals ruled Thursday.

In a split ruling the judges acknowledged the Arizona Constitution spells out the rights of crime victims throughout criminal proceedings. And the court said they are legally entitled “to be treated with respect and dignity.”

But Judge Kent Cattani, writing for himself and Judge Peter Swann, said that does not preclude a trial judge from allowing defense counsel to refer to the person as the “alleged victim.”

In a dissent, Judge James Beene said he reads the constitutional and statutory rights of the child at issue – in this case of child molestation and sexual abuse – to be broader than his colleagues.

“Because a person against whom a crime has allegedly been committed is afforded several substantive pre-trial rights pursuant to Arizona law, logic dictates this individual is a ‘victim’ and should be referred to as such,” he wrote. And Beene said that does not impair the right of a defendant to get a fair trial.

Wednesday’s ruling drew praise from Joey Hamby whose firms represented Derek Achenbach, the defendant in this case.

“We are very gratified that the Arizona Court of Appeals has upheld the right of every defendant to be presumed innocent during trial,” he said.

Jamie Balson, who represented the interests of the child, did not respond to a request for comment.

Achenbach was charged with offenses against the unnamed child. Balson asked Maricopa County Superior Court Judge George Foster to forbid Achenbach’s defense team from referring to the girl as the “alleged victim” during the trial.

The judge refused and the trial went on anyway, with the jury finding Achenbach guilty of the sex abuse charges but innocent of the molestation charge.

That case is now on appeal. But Balson, as the girl’s attorney, continued her separate fight in hopes of getting a precedent-setting decision to overturn the trial judge’s action.

Wednesday’s court action does set a precedent — Cattani acknowledged there have been no other ruling ever in Arizona on the issue — but not the way Balson had hoped.

Cattani rejected Balson’s argument that the term “alleged victims” violates the girl’s rights because it calls into question whether a crime was committed and whether someone is, in fact, a victim.

“The term ‘alleged victim’ simply reflects the procedural posture of a case such as this in which the defendant disputes that any crime occurred,” the appellate judge wrote.

“Although ‘alleged victim’ connotes some degree of uncertainty as to whether a crime occurred, until a defendant has been convicted of a charged offense, the case involves an alleged criminal act against an alleged victim,” Cattani continued. “Characterizing the proceedings in this matter thus accurately conveys the procedural posture of the case and does not inherently violate a victim’s right to be treated with fairness, respect, and dignity.”

Balson had no better luck with her argument that the term “alleged victim” improperly suggests the girl is untrustworthy.

“The use of that term is not a comment on the victim’s credibility, just as the use of the term ‘defendant’ or — a more apt comparison — ‘alleged perpetrator’ is not a comment on the defendant’s credibility,” Cattani wrote. “Instead, such a reference simply avoids prejudging and reserves judgment on credibility issues, which are for the jury alone to decide.”

Still, Cattani said there may be situations where a trial judge can — and should — require that someone be referred to as the “victim.”

For example, he said, there are situations where there is no question that a crime has occurred but the only issue to be resolved is who committed that crime.

“The superior court could reasonably conclude that referring to the crime victim as an ‘alleged victim’ would mischaracterize the nature of the proceedings and be disrespectful to the victim,” Cattani said. But this case is different, he said, where there is a dispute as to whether any crime occurred.

And Cattani said that trial judges still retain the ability to keep defense attorney from referring to someone as an alleged victim in a sarcastic on insulting tone.

Beene, in his dissent, said requiring defense lawyers to refer to people such as this girl as a “victim” does not impair the ability of a defendant like Achenbach to get a fair trial.

He said jurors in criminal cases are told that defendants are presumed by law to be innocent, that the simple fact he is charged with a crime does not allow them to think he is guilty, and that a “not guilty” plea means prosecutors have the burden of proving each element of the crimes charged beyond a reasonable doubt.

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