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REFERENCE TITLE: crime victim advocates; privileged communications |
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State of Arizona Senate Fiftieth Legislature Second Regular Session 2012
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SB 1369 |
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Introduced by Senator Shooter; Representative Jones: Senators Allen, Melvin, Nelson, Smith
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AN ACT
amending sections 8-382, 8-409, 13-4401 and 13-4430, Arizona Revised Statutes; relating to victims' rights.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 8-382, Arizona Revised Statutes, is amended to read:
8-382. Definitions
In this article, unless the context otherwise requires:
1. "Accused" means a juvenile who is referred to juvenile court for committing a delinquent act.
2. "Appellate proceeding" means any contested matter before the state court of appeals, the state supreme court, a federal court of appeals or the United States supreme court.
3. "Arrest" means the actual custodial restraint or temporary custody of a person.
4. "Court" means the juvenile division of the superior court when exercising its jurisdiction over children in any proceeding relating to delinquency.
5. "Crime victim advocate" 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.
6. "Custodial agency" means any law enforcement officer or agency, a sheriff, a county juvenile detention center, the department of juvenile corrections or a secure mental health facility that has custody of a person who is arrested or in custody for a delinquent or incorrigible offense.
7. "Delinquency proceeding" means any hearing, argument or other matter that is scheduled or held by a juvenile court judge, commissioner or hearing officer and that relates to an alleged or adjudicated delinquent offense.
8. "Delinquent" means a child who is adjudicated to have committed a delinquent act.
9. "Delinquent act" means an act to which this article applies pursuant to section 8‑381.
10. "Detention hearing" means the accused's initial appearance before the court to determine release before adjudication.
11. "Final disposition" means the ultimate termination of the delinquency proceeding by a court, including dismissal, acquittal, transfer to adult court or imposition of a disposition after an adjudication for a delinquent offense.
12. "Immediate family" means a victim's spouse, parent, child, sibling, grandparent or lawful guardian.
13. "Juvenile defendant" means a juvenile against whom a petition is filed seeking to have the juvenile adjudicated delinquent.
14. "Lawful representative" means a person who is designated by the victim or appointed by the court and who will act in the best interests of the victim.
15. "Postadjudication release" means release on probation, intensive probation, work furlough, community supervision or home detention, release on conditional liberty pursuant to section 41‑2818 by the department of juvenile corrections or any other permanent, conditional or temporary release from confinement, discharge or completion of commitment by the department of juvenile corrections, a sheriff, a municipal jail, a juvenile detention center, a residential treatment facility or a secure mental health facility.
16. "Postadjudication review hearing" means a hearing that is held in open court and that involves a request by the juvenile for review of a disposition.
17. "Postarrest release" means the discharge of the accused from confinement.
18. "Release" means no longer in the custody of the custodial agency and includes transfer from one custodial agency to another custodial agency.
19. "Rights" means any right granted to the victim by the laws of this state.
20. "Victim" means a person against whom the delinquent act was committed, or if the person is killed or incapacitated, the person's spouse, parent, child, grandparent or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person's spouse, parent, child, grandparent, sibling, other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.
Sec. 2. Section 8-409, Arizona Revised Statutes, is amended to read:
8-409. Consultation between crime victim advocate and victim; privileged information; exception
A. A crime victim advocate shall not disclose as a witness or otherwise any communication except compensation or restitution information between the advocate and made by or with the victim, including any communication made to or in the presence of others, unless the victim consents in writing to the disclosure.
B. Unless the victim consents in writing to the disclosure, a crime victim advocate shall not disclose records, notes, documents, correspondence, reports or memoranda, except compensation or restitution information, that contain opinions, theories or other information made while advising, counseling or assisting the victim or that are based on the communication between communications made by or with the victim and the advocate, including communications made to or in the presence of others.
C. The communication is not privileged if the crime victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory material.
D. An accused may make a motion for disclosure of privileged information. If the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in camera. Material that the court finds is exculpatory shall be disclosed to the accused.
E. If, with the written or verbal consent of the victim, the crime victim advocate discloses to the prosecutor or a law enforcement agency any communication between the victim and the crime victim advocate or any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent shall disclose the material to the accused's attorney only if the information is otherwise discoverable exculpable.
F. Notwithstanding subsections A and B, if a crime victim advocate is employed or authorized by a prosecutor's office, the advocate may disclose information to the prosecutor with the oral consent of the victim.
Sec. 3. Section 13-4401, Arizona Revised Statutes, is amended to read:
13-4401. Definitions
In this chapter, unless the context otherwise requires:
1. "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.
2. "Appellate proceeding" means any contested matter before the state court of appeals, the state supreme court, a federal court of appeals or the United States supreme court.
3. "Arrest" means the actual custodial restraint of a person or the person's submission to custody.
4. "Court" means all state, county and municipal courts in this state.
5. "Crime victim advocate" 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.
6. "Criminal offense" means conduct that gives a peace officer or prosecutor probable cause to believe that one of the following has occurred:
(a) A felony.
(b) A misdemeanor involving physical injury, the threat of physical injury or a sexual offense.
7. "Criminal proceeding" means any hearing, argument or other matter that is scheduled by and held before a trial court but does not include any deposition, lineup, grand jury proceeding or other matter that is not held in the presence of the court.
8. "Custodial agency" means any law enforcement officer or agency, a sheriff or municipal jailer, the state department of corrections or a secure mental health facility that has custody of a person who is arrested or in custody for a criminal offense.
9. "Defendant" means a person or entity that is formally charged by complaint, indictment or information of committing a criminal offense.
10. "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.
11. "Immediate family" means a victim's spouse, parent, child, sibling, grandparent or lawful guardian.
12. "Lawful representative" means a person who is designated by the victim or appointed by the court and who acts in the best interests of the victim.
13. "Post‑arrest release" means the discharge of the accused from confinement on recognizance, bond or other condition.
14. "Post‑conviction release" means parole, work furlough, community supervision, probation if the court waived community supervision pursuant to section 13‑603, home arrest or any other permanent, conditional or temporary discharge from confinement in the custody of the state department of corrections or a sheriff or from confinement in a municipal jail or a secure mental health facility.
15. "Post‑conviction relief proceeding" means a contested argument or evidentiary hearing that is held in open court and that involves a request for relief from a conviction or sentence.
16. "Prisoner" means a person who has been convicted of a criminal offense against a victim and who has been sentenced to the custody of the sheriff, the state department of corrections, a municipal jail or a secure mental health facility.
17. "Release" means no longer in the custody of a custodial agency and includes transfer from one custodial agency to another custodial agency.
18. "Rights" means any right that is granted to the victim by the laws of this state.
19. "Victim" means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person's spouse, parent, child, grandparent or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person's spouse, parent, child, grandparent, sibling, other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.
Sec. 4. Section 13-4430, Arizona Revised Statutes, is amended to read:
13-4430. Consultation between crime victim advocate and victim; privileged information; exception
A. A crime victim advocate shall not disclose as a witness or otherwise any communication except compensation or restitution information between himself and made by or with the victim, including any communication made to or in the presence of others, unless the victim consents in writing to the disclosure.
B. Unless the victim consents in writing to the disclosure, a crime victim advocate shall not disclose records, notes, documents, correspondence, reports or memoranda, except compensation or restitution information, that contain opinions, theories or other information made while advising, counseling or assisting the victim or that are based on the communication between communications made by or with the victim and the advocate, including communications made to or in the presence of others.
C. The communication is not privileged if the crime victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory evidence.
D. A defendant may make a motion for disclosure of privileged information. If the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in camera. Material that the court finds is exculpatory shall be disclosed to the defendant.
E. If, with the written or verbal consent of the victim, the crime victim advocate discloses to the prosecutor or a law enforcement agency any communication between the victim and the crime victim advocate or any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent shall disclose such material to the defendant's attorney only if such information is otherwise discoverable exculpatory.
F. Notwithstanding subsections A and B, if a crime victim consents either verbally or in writing, a crime victim advocate may disclose information to other professionals and administrative support persons that the advocate works with for the purpose of assisting the advocate in providing services to the victim and to the court in furtherance of any victim's right pursuant to this chapter.