No. 42297 (Amendment): Rule R671-203. Victim Input and Notification

(Amendment)

DAR File No.: 42297
Filed: 11/01/2017 05:33:22 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to define victim, victim representative, notification, hearing attendance, victim statement and testimony, and victim impact hearings.

Summary of the rule or change:

This change defines a victim, and victim representation, and pursuant to Subsection 77-27-13(4), victim impact statements are required to be sent to the Board by other municipalities. The change clarifies a victim's right to attend hearings, and rights to victim impact hearings.

Statutory or constitutional authorization for this rule:

• Art I Sec 28
• Section 77-37-3
• Section 77-38-1 et seq.
• Section 77-27-9.5
• Section 77-27-1 et seq.
• Section 77-37-4
• Subsection 77-27-9(4)
• Subsection 63G-3-201(3)

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on the state budget.

local governments:

There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on local governments.

small businesses:

There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on small businesses.

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings because the change does not affect or impact any individual, partnership, corporation, association, governmental entity, or public or private organization.

Compliance costs for affected persons:

There is no anticipated cost or savings because the change does not have a fiscal impact on affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no anticipated fiscal impacts on businesses.

Chyleen Arbon, Board Chair

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• Bev Uipi at the above address, by phone at 801-261-6446, by FAX at , or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2017

Interested persons may attend a public hearing regarding this rule:

• 12/06/2017 08:00 AM, Board of Pardons and Parole, 448 E 6400 S, Suite 300, Salt Lake City, UT

This rule may become effective on:

12/22/2017

Authorized by:

Chyleen Arbon, Chair

RULE TEXT

R671. Pardons (Board of), Administration.

R671-203. Victim Input and Notification.

R671-203-1. General Provisions.

For purposes of Utah Administrative Code, Title R671 and all rules contained therein:

(1) "Victim" means:

(a) A natural person against whom an offender, as a principal, accomplice or party to the offense, committed a criminal offense for which a conviction was entered and for which the Board of Pardons and Parole (Board) has jurisdiction;

(b) A natural person originally named in an allegation of criminal conduct who is not a victim of the offense of Board jurisdiction to which the defendant entered a negotiated plea of guilty; or

(c) A victim representative as provided herein.

(2) "Victim Representative" means: a person designated by a victim or by this rule to represent a victim during Board processes, hearings, or communications.

(3) Pursuant to Utah Code Ann. Subsection 77-27-13(2)[statute], the Department of Corrections shall provide the Board [of Pardons] with all available information in its records or possession concerning the impact a crime may have had upon the victim or victim's family.

(4)(a) Pursuant to Utah Code Ann. Subsection 77-27-13(5)(a), within 30 days from the date of sentencing[statute,] the prosecutor of the case[, and upon request of the Board, any other law enforcement official] responsible for an offender's arrest, conviction, and sentence, shall forward to the Board any[to the Board a] victim impact statement in its possession[referring] that refers to any physical, mental , or economic loss suffered by the victim or victim's family.

(b) Upon request of the Board pursuant to Utah Code Ann. Subsection 77-27-13(4), any other law enforcement official responsible for an offender's arrest, prosecution, conviction, sentence, supervision or incarceration, shall forward to the Board any victim impact statement in its possession that refers to any victim contact information or any physical, mental, or economic loss suffered by the victim or victim's family.[If a victim does not wish to give testimony or is unable to do so, a victim representative may be appointed by the victim, or if the victim is a minor, by the victim's parent(s) or lawful guardian or custodian, to speak on the victim's behalf. A family member of the victim may also testify if the victim is deceased as a result of the offense or if the victim is a child.

"Victim" for purposes of this Rule means:

A. Any person, of any age, against whom an offender committed a felony or class A misdemeanor offense either personally or as a party to the offense, for which a prison sentence was imposed or for which the hearing is being held;

B. In the discretion of the Board, any person, of any age, against whom a related crime or act is alleged to have been perpetrated or attempted;

C. Any victim originally named in an allegation of criminal conduct who is not a victim of the offense to which the defendant entered a negotiated plea of guilty; and

D. Any victim representative and family member as provided herein.

"Victim Representative" means a person who is designated by the victim or designated by the Board, who represents the victim in the best interests of the victim.]

(5) [A]No victim or victim representative[, who is] appearing at a hearing [where photographic equipment is being used by the media, will not]may be photographed without the approval of the victim, victim representative, and the [individual ]presiding [at the ]hearing official.

(6)(a) Victims are encouraged to:

(i) visit the Board's website (bop.utah.gov) as soon as possible to obtain information about Board procedures; and

(ii) provide information to the Board for future notifications.

(b) The Board shall maintain information in written form and on its website (bop.utah.gov) for victims about Board procedures, victim notification, attending hearings, submitting victim impact information, and testifying at hearings.

(7) Victims may contact the Board[of Pardons], after any parole hearing, for information concerning the outcome of that hearing. Victims [are advised that they ]may also contact the [Utah State Prison Records Unit Supervisor]Department of Corrections for information on offender releases.

(8) All persons attending hearings must comply with the security and clearance regulations of the facility where the hearing is held. These regulations include picture identification, appropriate dress, and no contraband. Contraband for this purpose includes but is not limited to purses/bags, cell phones, and other electronic devices. Visitors should arrive at the facility 15 to 20 minutes prior to the scheduled hearing to allow adequate time for the security clearance.

 

R671-203-2. Victim Representative.

(1) If a victim does not wish to give testimony or is unable to do so, a victim representative may be designated to speak on the victim's behalf.

(a) If a victim over the age of 18 desires to designate a victim representative, the victim may make that designation on the record at a hearing, or in a notarized statement filed with the Board prior to or at a hearing.

(b) If a victim is under the age of 18, a victim's parent, guardian, or custodian may represent the victim during Board processes, hearings, and communications.

(c) If a victim is deceased, a family member, or the victim's personal representative as appointed by a court, may be designated as the victim's representative.

(2) A victim representative must, at all times, act according to the instructions, and in the best interests, of the victim.

(3) Notwithstanding any provision of this rule, or any designation, an offender, offender's co-defendant, or offender's attorney may not act as a victim representative in matters before the Board in which the offender was convicted of causing any injury or damage to the victim.

 

R671-203-[2]3 . Notification.

[A.](1) Notice of an offender's original parole hearing shall be [timely sent]given to [the]a victim as soon as practicable at the victim's[his] most recent address of record [with]as provided to the Board. The notice shall include:

[(1)](a) the date[, time,] and location of the hearing;

[(2)](b) [a clear statement of the reason for ]the type of hearing, and the cases or[including all] offenses involved;

[(3)](c) a list of or reference to the statutes and rules applicable to [the]a victim's participation in the hearing;

[(4)](d) the address and telephone number of the Board employee[an office or person the victim] who may be contacted for further explanation of [the ]procedures regarding victim participation in the hearing;

[(5)](e) specific information about how, when, and where the victim may obtain the results of the hearing; and

[(6)](f) notification that the victim must maintain current contact information with the Board in order to receive future notifications of hearings affecting [the]a specific offender's incarceration or parole.

[B.](2) If [the]a victim is deceased, or the Board is otherwise unable to contact the victim, the Board shall make reasonable efforts to notify the victim's immediate family of the hearing.

[C.](3)(a) Following [the ]notice of the original hearing, a victim may elect to receive notice of any future [parole grant ]hearing[, parole revocation hearing or re-hearing] as defined by Utah Code Ann. Subsection 77-38-2(5)(g) and Utah Administartive Code Section R671-203-4.

(b) In order to [do so]receive notice of these future hearings, the victim shall notify the Board of the desire to receive future notices, and shall thereafter maintain current contact information with the Board.

[D.](4) If a[For] victim[s who] elects to receive future notices, [the Board will mail such]the notice shall be sent to the victim's [last current address of record or ]most recent contact information as provided to the Board.

 

R671-203-[3]4 . Right to Attend [; Right to ] and Testify.

(1) Pursuant to Utah Code Ann. Subsection 77-38-2(5)(g), [As used in this section, ]"hearing" means a public hearing at which the offender is present, and which concerns whether to grant parole or other form of discretionary release from imprisonment[hearing for a parole grant or revocation, or a rehearing of either of these if the offender is present].

(2) A victim may attend any hearing regarding the offender.

(3) A victim may testify during any hearing regarding the [impact of the offense(s) upon the victim, and may present any concerns or statements regarding any decision to be made regarding the offender ] offender .

(4) A[The] victim may request a re-scheduling or continuance of the hearing if travel or other significant conflict prohibits their attendance at the hearing.

 

R671-203-[4]5 . Victim Statements and Testimony.

[A.](1) A victim, victim representative or victim's family member (if the victim is a child[,] or deceased [or unable to attend due to physical incapacity]), may testify regarding the impact of the offense(s) upon the victim, any restitution claimed, and may present any concerns or statements regarding any decision to be made regarding the offender.

[B.](2) The testimony may be presented as a written statement, which may also be read aloud, if the presenter desires; or as oral testimony.

[C.](3) Oral testimony at hearings [will]may be limited [to five minutes in length per victim or representative]in order to accommodate the hearing calendar.

(4) If a deceased victim's family member testifies, testimony [should] may be limited to one family [representative]member from the victim's marital family (i.e. spouse or children) and[/or] one family [representative]member from the victim's nuclear/extended family (i.e. parent, sibling or grandparent).

(5) In [Under] exceptional or extraordinary circumstances a victim or victim representative may [formally petition the Board to ]request that additional testimony be permitted.

[D.](6)(a) A victim may present testimony during the hearing outside the presence of the offender. [The offender will be excused from the hearing room so that the victim can give testimony,]However, the offender shall be permitted[may be able] to hear the victim 's testimony and respond during the hearing[speak, depending on the facility where the hearing is conducted].

(b) If a victim presents testimony during a victim impact hearing held separately from an original hearing or rehearing, an audio recording of [T]the victim's testimony [will]shall be [recorded or otherwise ]made available to the offender.[At the conclusion of the testimony, the offender will be returned to the hearing room, and the Board will allow the offender to respond. A separate hearing will not be scheduled to allow for testimony outside the presence of the offender.]

[E.](7) Victims who desire to testify at hearings shall notify the Board as far in advance of the hearing as possible so that appropriate arrangements can be made and adequate time allocated.

[F.](8) Victims or representatives [ should ] are encouraged to bring a written copy of their [remarks]testimony to the hearing or send a copy to the Victim Coordinator for the Board file.

[G. In cases where multiple victims desire to testify, the Board may reschedule the hearing to accommodate the extra time required to hear all victims. If Board business is not concluded by 5:00 p.m. on a hearing day, all remaining hearings may be rescheduled and visitors required to return. ] (9)(a) Any person aggrieved by the conduct of the offender, who is not a victim as defined by this rule, may submit a written statement regarding any impact to the person from the offender's conduct.

(b) Other than protected identifying information, including but not limited to address, email, and phone numbers, information submitted to the Board is disclosed to the offender pursuant to legal requirements.

 

R671-203-[5]6. Victim Impact Hearings.

[A.](1) [In any case where]If an offender's original parole hearing is scheduled[set by Board administrative determination] more than three years from the offender's commitment to prison, the victim or victim representative [, as defined by R671-203-1,] may request that the Board conduct a Victim Impact hearing, in order to preserve victim impact testimony [and victim statements] for future use and reference by the Board.

( 2) The Board may also conduct a Victim Impact hearing if a hearing, as defined by Utah Code Ann. Subsection 77-38-2(5)(g) and Utah Administrative Code Section R671-203-4, is to be held outside the State of Utah because the offender is housed in another state.

[B.]( 3)(a) The sole purpose of a Victim Impact hearing held pursuant to R671-203-6(1) is to afford an opportunity for victim impact testimony [and victim statements ]to be made in cases where an offender's original hearing is scheduled more than three years following commitment to prison, so that the victim is not denied an opportunity to participate in the offender's original hearing, simply because of the passage of time between the offender's commitment to prison and original hearing.

(b) A Victim Impact hearing is not a substitute for an original hearing.

(c) A Victim Impact hearing held pursuant to R671-203-6(1) will not result in a review, re-scheduling, or re-determination of [an]a previously determined original hearing date.

(d) Victim Impact hearings are for the convenience of victims, and may take the place of the victim's attendance and testimony at an out of state hearing.

[C.](4) Victims who request, and for whom Victim Impact hearings are conducted, retain all rights afforded pursuant to constitutional provision, statute or Board rule, including: the right to notice of the original hearing and any future hearings[, as provided by R671-203-1 and R671-203-2]; the right to attend any hearing for the offender[, as provided by R671-203-1 and R671-203-3]; and the right to testify and make future statements to the Board at [ant]any hearing for the offender[, as provided by R671-203-1 and R671-203-4].

[D.](5) [Upon such a request from a victim, the Board shall schedule and conduct a victim impact hearing. ]In scheduling and conducting a Victim Impact hearing:

[(1)] (a) All notice provisions of this Rule[R671-202-1 and R671-203 et seq.] shall apply.

([2]b) All victim appearance, testimony and statement provisions of R671-203 shall apply.

([3]c) Unless the offender is housed in an out of state prison, the offender shall be present, pursuant to the provisions of R671-301, and shall be afforded an opportunity to respond to the victim's testimony[or statement]. However, this is not an opportunity for the offender to discuss [his/her]the conviction, sentence or potential release.

([4]6) The Victim Impact hearing shall be recorded, pursuant to the provisions of R671-304.

 

KEY: victims of crimes

Date of Enactment or Last Substantive Amendment: [October 4, 2012]2017

Notice of Continuation: January 30, 2017

Authorizing, and Implemented or Interpreted Law: Art. I, Sec. 28; 77-27-9.5; 77-37-3; 77-37-4; 77-38-1 et seq.; 63G-3-201(3); 77-27-1 et seq.; 77-27-9(4)

---