Douglas: ​Our Constitution's Victim Bill Of Rights

CONCORD, NH — If we were to roll back history to 1784 that would be the year that New Hampshire adopted our Constitution, which is the second oldest in the country. The context of the document is that the Revolutionary War had only come to an end one year previously. The foundational reason or the “Why of America” for that war was well set forth in the unanimous Declaration of Independence for the 13 colonies.

In the Declaration, the signers said that when the form of government had become destructive, the right of the people to abolish it must be recognized.

In the Declaration, the signers said the king had obstructed justice; had made judges dependent on his will alone; had created standing armies; had put the military over the civil power; and declared martial law; and deprived the colonists of trial by jury. The Declaration attacked the evils of the Writs of Assistance which enabled agents of the King to search anyone, anywhere, anytime for anything. These and other oppressions were what the victims of the crown had experienced here and came together in 1784 to address in the New Hampshire Constitution.

Our state Bill of Rights is a document that basically says we will not be victimized anymore by a government. Thus, the New Hampshire Bill of Rights outlaws quartering of soldiers (Article 27); martial law is limited (Article 34); judges must be impartial and independent (Article 35); and, of course, citizens should be protected from unreasonable searches and seizures (Article 19) and also guarantees the right to trial by jury (Article 20).

Article 19 was written to require warrants and reasonable searches approved by judges not the open-ended evils of the Writs of Assistance that victimized our residents for years. In Article 15, the rights of the accused are set forth which include the right not to testify but to confront witnesses against the accused and to have the right to counsel.

So looking back to 1784, the victims of the crown created their own victims’ bill of rights from the numerous items mentioned in the Declaration of Independence.

At the time our Bill of Rights was adopted, victims of crimes could bring private complaints and prosecute them against the accused. Most people accused of crimes could not afford a lawyer and private prosecutions did not involve county attorneys or the Attorney General’s Office. One of the first cases I tried in 1969 was a private criminal complaint for assault.

It is only more recently that the two tables in the courtroom for the state and the accused each have a lawyer seated there, but the victim is sitting out in the audience with the spectators. The victim is not at the table or even inside the bar of the courtroom because the victim is merely considered to be a witness in a case between the two contending forces.

Luckily, in 1982, the beginning of a victim’s rights movement was initiated when President Reagan’s Task Force on Victims of Crimes called for a constitutional amendment to provide for notice and protection of victims’ interests in court proceedings involving a harm they alleged had occurred to them. By 1993, New Hampshire Attorney General Jeff Howard did a review of victims’ rights in New Hampshire and one of his recommendations was the adoption of a state constitutional amendment to protect victims and to set forth their rights. That was 25 years ago.

The Marsy’s Law drive came well after that and has led to 35 states adopting constitutional provisions protecting victims’ rights. There is nothing in the current New Hampshire version (which has been rewritten by Attorney General MacDonald) that would take away rights of the accused. They still have the same right to jury trial, confrontation, protection from double jeopardy, the right not to testify, etc.

But what will be protected is the victims’ ability to know what is going on in their case if they opt in to receiving notice of the various proceedings. They still do not have to come to court and they do not have to participate, but at least they will have the same notice that the defendant and the state have if they want to follow their case along.

They will also know their rights because they will be given a Marsy’s Law card that will provide them with the rights that are set forth in the constitutional amendment.

Our founders were victims of an unfair legal system under the crown. They corrected that with the Bill of Rights. It is now time to allow our modern day victims to have more information and more confidence in the outcome in our courtrooms by allowing the voters to consider CACR 22 this November. I hope you will let them do so.

Chuck Douglas is a former New Hampshire Supreme Court Justice, U.S. Rep., and serves as Legal Counsel to Marsy’s Law N.H. Submitted image.