Advocating for Victims in a Companion Criminal Case

Often in personal injury and wrongful death cases the District Attorney’s (“DA”) office will be in a position to consider filing criminal charges.  In such circumstances the attorney you hire to represent you in the civil case should protect your rights and give voice to your concerns in the associated criminal case. 
The concept of crime victims having specific rights in a criminal proceeding is a relatively recent development and as such its implementation has been imperfect.  In 2008 California voters amended the state constitution and certain provisions of the Penal Code by enacting Marsy’s Law, the California Victims’ Bill of Rights Act of 2008.  Article I, section 28 of the California Constitution now lists 17 rights and standards that the criminal court process is obligated to follow, including the right to be treated with fairness and respect, to refuse to be interviewed by the defense, and, upon request, to reasonable notice of and the opportunity to reasonably confer with the prosecution regarding the defendant’s arrest, charging, and pretrial disposition (in other words, plea bargain).  However, the standards set by Marsy’s Law are not always met by the overburdened staffs of the court and prosecuting attorneys’ offices.  This is exactly where having an experienced civil litigator who is familiar with criminal proceedings and has a good working relationship with the DA’s office becomes so crucial.  From the moment our office is retained to represent the victim of a crime regarding his or her civil lawsuit against the defendant, we advise the DA’s Office that we are that person’s advocate and invoke Marsy’s Law to ensure an open line of communication.
Marsy’s Law, however, is just the starting point.  If the defendant is convicted of a crime, he or she may be ordered by the court to pay restitution.  For certain types of crimes, restitution may include reimbursing the victim not only for ordinary out-of-pocket expenses, but also for psychological harm.  Criminal restitution orders have certain advantages over civil judgments, primarily in that they can be enforced as a condition of probation.  A criminal conviction may also be the key to recovering attorney’s fees or costs associated with the civil litigation arising from the same event.  Similarly, the fact of a conviction might give rise to a claim for punitive damages in the civil action.
Civil litigation on its own when you or someone close to you is injured is stressful enough.  Adding another layer of complexity with a criminal case may be overwhelming.  At Janssen Malloy LLP we are experienced in helping crime victims through their civil claim and criminal prosecution, ensuring that their voices are heard and justice is done.