WARM SPRINGS TRIBAL CODE
376.010 Victim Rights
376.015 Implementation of Rights and Duties
376.020 Inability to Exercise Rights
II. INFORMATION AND NOTICE REQUIRE-MENTS
376.100 Information Provided to Victim by Law Enforcement.
376.105 Notice of Terms and Conditions of Release
376.110 Pretrial Notice
376.115 Notice of Criminal Proceedings
376.120 Notice of Conviction, Acquittal, or Dismissal
376.125 Notice of Post-Conviction Review and Appellate Proceedings
376.130 Notice of Escape
376.135 Notice of Prisoner’s Status
376.140 Notice of Probation/Parole Modification, Termination, or Revocation
III. VICTIM’S RIGHT TO PARTICIPATE
376.200 Form of Participation
376.205 Victim Impact Statement
376.210 Victim Conference with Prosecutor and Victim Advocate
376.215 Plea Negotiation Proceedings
376.225 Probation/Parole Modification, Revocation Disposition, or Termination Proceedings
376.300 Return of Victim’s Property
376.305 Privileged Information Exception for Communications between Victim Advocate and Victim
376.310 Minimizing Victim’s Contacts
376.315 Victim’s Right to Refuse an Interview
376.320 Victim’s Right to Privacy
376.325 Standing to Invoke Rights
WARM SPRINGS TRIBAL CODE
376.001 Objective. The Warm Springs Tribal Council recognizes the importance of keeping victims of crime informed about and involved in the criminal justice process. The purpose of this Chapter is to set forth the rights of a victim of a criminal offense and the procedures by which the victim and the Tribe will ensure that those rights are protected and can be exercised effectively. The statutes set forth in this Chapter shall be construed to preserve and protect victims’ rights to justice and due process. The rights of victims set forth in this Chapter shall not limit or compromise the rights of criminal defendants under federal and tribal law.
- “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.
- “Appellate proceeding” means a contested oral argument that is held in open court before the Warm Springs Court of Appeals.
- “Arrest” means the actual custodial restraint of a person or the person’s submission to custody.
- “Court” means the Warm Springs Tribal Court or the Warm Springs Court of Appeals.
- “Criminal offense” means conduct that gives a law enforcement officer or prosecutor probable cause to believe that a crime enumerated in the Warm Springs Tribal Code involving physical injury or the threat of physical injury, a sexual offense, or a crime against property has occurred.
- “Criminal proceeding” means any hearing, argument or other matter that is scheduled by and held before the court but does not include any deposition, lineup, proceeding, or other matter that is not held in the presence of the court,
- “Custodial agency” means any law enforcement or detention officer or tribal agency, 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.
- “Defendant” means a person or entity that is formally charged by complaint, indictment, or information with committing a criminal offense.
- “Final disposition” means the ultimate termination of the criminal prosecution of a defendant by a trial court, including dismissal, acquittal, or conviction and imposition of a sentence.
- “Immediate family” ordinarily means a victim’s spouse, parent, child, sibling, grandparent, grandchild, or victim representative. Warm Springs traditional law and custom may also be considered in determining who is a member of the “immediate family”.
- “Victim 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. If a victim representative has been designated or appointed, any reference in this Code to the victim shall be read to include the victim representative as well, if appropriate within the context.
- “Minor” means a person under the age of eighteen (18) years.
- “Post-arrest release” means the discharge of the accused from confinement on recognizance, bond, or other condition.
- “Post-conviction release” means work furlough, community supervision, parole, probation, home arrest, or any other permanent, conditional, or temporary discharge from confinement in the custody of the Department of Parole and Probation or a secure mental health facility.
- “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.
- “Prisoner” means a person who has been convicted of a criminal offense and who has been sentenced to the custody of a correctional facility or a secure mental health facility.
- “Release” means no longer in the custody of a custodial agency and includes transfer from one custodial agency to another custodial agency.
- “Rights” means any right that is granted to the victim by the laws and customs of the Tribe.
- “Suspect” means a person believed to have committed a criminal offense.
- ‘Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
- “Victim” means a person against whom a criminal offense has been committed, or if the person is deceased or incapacitated, the person’s spouse, legal guardian, parent, child, sibling, or other lawful representative, except if the person is in custody for the offense or is the accused.
- “Victim advocate” means a person who is employed or authorized by the Tribe to provide counseling or other supportive assistance to crime victims. If a victim advocate is counseling or otherwise assisting a victim, any reference in this Code lo the “victim” shall be read lo include the victim advocate as well, if appropriate within the context.
- “Vulnerable adult” means an individual who is 18 years of age or older and who is unable to protect him/herself from abuse, neglect, or exploitation by others because he/she is elderly, or has a mental or physical impairment.
- “WSPD” means the Warm Springs Police Department.
376.10 Victim Rights. A victim of crime has a right:
- To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
- To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
- To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
- To be heard, upon request, at any criminal proceeding involving a post-arrest release decision, a negotiated plea, or sentencing.
- To refuse a pretrial interview or deposition request by the defendant, the defendant’s attorney or any other person acting on behalf of the defendant.
- To confer with the prosecution, upon the victim’s request, before or after the
crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
- To review sentencing recommendations relating to the crime against the victim when they are available.
- To receive restitution upon order of the Court from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury upon order of the Court.
- To be heard, upon the victim’s request, at any proceeding when any post conviction release from confinement is being considered.
- To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
- To be informed that they may be eligible for available victim compensation programs.
- To be informed of victims’ rights under this Chapter.
376.15 Implementation of Rights and Duties.
- Except as provided in WSTC § 376.020 below, the rights and duties enumerated in this Chapter arise upon the arrest or formal charging of the person or persons alleged to have committed a criminal offense against a victim. The rights and duties continue to be enforceable pursuant to this Chapter until the final disposition of the charges, including acquittal or dismissal of the charges, all post
conviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution. If a defendant is ordered as part of the final disposition to pay restitution to a victim, the rights and duties continue to be enforceable until restitution is paid or a criminal restitution order is entered in favor of the victim.
- If a defendant’s conviction is reversed on appeal and the case is returned to the trial court for further proceedings, the victim has the same rights that were applicable to the criminal proceedings that led to the appeal or other post conviction relief proceedings.
- After the final termination of a criminal prosecution by dismissal with prejudice or acquittal, a person who has received notice and the right to be present and heard pursuant to the victim’s rights stated in this Chapter is no longer entitled to such rights.
- It is at the victim’s discretion to exercise his/her rights to be present and heard at a Court proceeding, and the absence of the victim, for whatever reason, from the hearing or trial shall not be construed as a waiver of his or her rights.
376.20 Inability to Exercise Rights.
- If a victim is physically or emotionally unable to exercise any right but is able to designate a victim representative who is not a bona fide witness, the designated representative m ay exercise the victim’s rights. The victim shall promptly provide written notice to the Prosecutor’s Office of the designation of a victim representative. The victim may revoke this designation at any time and exercise the victim’s rights.
- If a victim is incompetent, deceased, or otherwise incapable of designating a lawful representative to act in the victim’s place, a third party may request the Court’s permission to act as a designated representative, or the court may appoint a designated representative, but such representative may not be a witness. If at any time the victim is no longer incompetent, incapacitated, or otherwise incapable of acting, the victim may personally exercise the victim’s rights.
- If the victim is a minor or vulnerable adult, an immediate family member of the victim may exercise all of the victim’s rights on behalf of the victim after notifying the Prosecutor’s Office that he or she will be exercising the victim ‘s rights on behalf of the victim as the victim’s lawful representative. If the criminal offense is alleged against a member of the minor’s or vulnerable adult’s immediate family, the victim’s rights may not be exercised by that person but may be exercised by another member of the immediate family.
376.025 Notice. Any notices that are to be provided to a victim pursuant to this Chapter shall be sent only to the victim.
II. INFORMATION AND NOTICE REQUIREMENTS
376.100 Information Provided to Victim by Law Enforcement.
- WSPD shall contact the victim as soon as administratively possible, without interfering with an investigation or arrest, and shall complete the Victim’s Rights Form. A copy of the completed form shall be given to the victim, and a copy distributed to the Prosecutor’s Office. The original will be retained in the law enforcement file. The Victim’s Rights Form shall contain the following information: (a) A statement that the victim may request or waive applicable rights to which the victim is entitled under this Chapter. The WSPD shall indicate in the appropriate box on the reporting form whether a victim has invoked/waived the rights and the form shall include the victim’s address and phone number with an alternate contact number. The law enforcement officer will explain to the victim that the victim must advise the Prosecutor’s Office and WSPD of changes of address. (b) A statement that the victim may receive the following information and assistance: (i) Notice of the victim’s right to be treated with fairness, respect, and dignity and to be free of intimidation, harassment, or abuse throughout the criminal or juvenile justice process. (ii) Notice of the availability of crisis intervention services and emergency and medical services. (iii) In cases of domestic violence, notice of the procedures and resources available for the protection of the victim. (iv) Notice of the names and telephone numbers of victim assistance programs, including the Oregon Department of Justice victim compensation program and programs that provide counseling, treatment, and other support services. (v) Notice that if the victim is not notified of an arrest within 30 days of the incident, the victim may call law enforcement to inquire about the status of the case. (vi) Notice that the victim will be notified by law enforcement at the earliest opportunity after the arrest of a suspect. (vii) Notice of a right to request information about a suspect’s release and information about the next court proceeding for the suspect’s initial appearance and of the victim’s right to be heard at that initial appearance. (viii) Notice of the victim ‘s right to submit a written statement to the Court and the procedure for doing so.
- If the suspect is cited and released, the Prosecutor’s Office shall inform the victim of the Court date for the initial appearance and how to obtain additional information about the subsequent criminal proceedings.
- If a suspect has not been arrested at the time of the WSPD’s contact with the victim as required by subsection ( 1) of this section, the WSPD shall notify the victim of the arrest of a suspect at the earliest opportunity after the arrest and shall inform the victim of the place, date, and time of the arraignment.
376.105 Notice of Terms and Conditions of Release. Upon request, the Prosecutor’s Office shall provide a copy of the terms and conditions of release to the victim.
376.110 Pretrial Notice. Within seven (7) days after the Prosecutor’s Office charges a criminal offense by complaint, information, or indictment where the accused is in custody or has been served a summons, the Prosecutor’s Office shall give the victim written notice of the following:
- The victim’s rights under this Chapter.
- The charge or charges against the defendant and a clear and concise written statement of the procedural steps involved in a criminal prosecution.
- The procedures a victim shall follow to invoke his/her right to confer with the prosecutor pursuant to WSTC § 376.210.
- The name and phone number of the Victims of Crime Services office (VOCS) to contact for more information.
376.115 Notice of Criminal Proceedings. Upon receiving notice from the court, the Prosecutor’s Office shall give timely notice to the victim of scheduled proceedings related to the defendant and of any changes in that schedule.
376.120 Notice of Conviction, Acquittal, or Dismissal.
- Within 15 days after the conviction or acquittal or dismissal of the charges against the defendant, the Prosecutor’s Office shall, on request, give to the victim notice of the conviction, acquittal, or dismissal.
- If the defendant is convicted and the victim has requested notice, the victim shall be notified, if applicable, of: (a) The function of the pre-sentence report. (b) The name and telephone number of the probation department that is preparing the pre-sentence report (c) The right to make a statement as provided in WSTC § 376.200 and WSTC § 376.205. (d) The defendant’s right to view the pre-sentence report. (e) The victim’s right to view the sentence recommendations. (f) The right to be present and be heard at any pre-sentence or sentencing proceeding pursuant to WSTC § 376.220. (g) The place, date, and time of the sentencing proceeding. (h) The right to submit a written or oral impact statement pursuant to WSTC § 376.205 prior to or during the sentencing proceeding.
376.125 Notice of Post-Conviction Review and Appellate Proceedings.
- Within 15 days after sentencing, the Prosecutor’s Office shall, on request, notify the victim of the sentence imposed on the defendant.
- The Prosecutor’s Office shall provide the victim with a form that allows the victim to request notice of all post-conviction review and appellate proceedings, of all post-conviction release proceedings, of all probation modification proceedings that impact the victim, of all probation revocation or termination proceedings, of any decisions that arise out of these proceedings, and of all releases and escapes.
- On request of the victim, the Prosecutor’s Office shall notify the victim of the proceedings set forth in subsection (2) above and of any decisions that arise out of the proceedings.
- In cases of violent crimes and sex crimes, the Prosecutor’s Office shall provide the victim with the name and telephone number of the probation officer who is monitoring the case.
376.130 Notice of Escape. The WSPD shall immediately give notice to a victim and to the Prosecutor’s Office of the accused’s or prisoner’s escape and notice of a subsequent re-arrest of the prisoner or accused. Law enforcement shall give notice by any reasonable means including, but not limited to, telephone, electronic mail, or in-person verbal notice.
376.135 Notice of Prisoner’s Status. If the victim has made a request for post-conviction notice, the WSPD shall mail to the victim the following information about a prisoner in custody:
- Within 30 days after a request, notice of the earliest release date of the prisoner, if his/her sentence exceeds six months.
- At least 15 days before the prisoner’s release, notice of the release.
- Within 15 days after the prisoner’s death, notice of the death.
376.140 Notice of Probation/Parole Modification, Termination, or Revocation.
- Upon request of the victim, the prosecutor shall notify the victim of any probation/parole revocation disposition proceeding or any proceeding in which the court is asked to terminate the probation/parole of a person who is convicted of committing a criminal offense against the victim.
- Upon request of the victim, the prosecutors shall notify the victim of a modification of the terms of probation/parole of a person but only if the modification will substantially affect the person’s contact with or the safety of the victim or if the modification affects restitution or incarceration status.
III. VICTIM’S RIGHT TO PARTICIPATE
376.200 Form of Participation.
- Except as provided in subsection (2), a victim’s right to be heard may be exercised, at the victim’s discretion, through an oral statement or submission of a written statement to the Court.
- If the victim is in custody for committing a criminal offense, the victim may be heard by submitting a written statement to the court.
376.205 Victim Impact Statement. A victim impact statement submitted to the court pursuant to WSTC § 376.120(2)(i) may include the following, which may be accompanied by supporting documentation:
- An explanation of the nature and the extent of any physical, psychological, or emotional harm or trauma suffered by the victim.
- An explanation of the extent of any economic loss or property damage suffered by the victim.
- An explanation of the need for and extent of restitution.
- A disclosure that the victim has applied for or received other compensation for the loss or damage.
376.210 Victim Conference with Prosecutor and Victim Advocate.
- Upon request of the victim, the prosecutor and victim advocate shall confer with the victim about the disposition of a criminal offense, including the victim’s views about a decision not to proceed with a criminal prosecution, a dismissal, a plea, or sentence negotiations and a pretrial diversion program.
- Upon request of the victim, the prosecutor and the victim advocate shall confer with the victim before the commencement of the trial.
- The right of the victim to confer with the prosecutor and victim advocate does not include the authority to direct the on-going prosecution or dismissal of the case.
376.215 Plea Negotiation Proceedings.
- Upon request of the victim, the victim has the right to be present and be heard at any proceeding in which a negotiated plea for the person accused of committing the criminal offense against the victim will be presented to the court.
- The Prosecutor’s Office shall advise the court that before negotiating a plea, the Prosecutor’s Office made reasonable efforts to confer with the victim.
- The Prosecutor’s Office shall make reasonable efforts to give the victim notice of a plea proceeding pursuant to WSTC § 376.025 and to inform the victim that the victim has the right to be present and, if present, to be heard.
- The Prosecutor’s Office shall advise the court that, to the best of the prosecutor’s knowledge, the Prosecutor’s Office has complied with the notice requirements of this Chapter and the prosecutor shall inform the court of the victim’s position, if known, regarding the negotiated plea.
376.220 Sentencing. At any disposition proceeding, the victim has the right to be present and to address the Court. The victim may present evidence, information, and opinions that concern the criminal offense, the defendant, the sentence, and the need for restitution.
376.225 Probation/Parole Modification, Revocation Disposition, or Termination Proceedings.
- The victim has the right to be present and heard at any probation/parole revocation proceeding or any proceeding in which the court is requested to terminate the probation/parole of the defendant.
- The victim has the right to be heard at any proceeding in which the court is requested to modify the terms of probation/parole of the defendant if the modification will substantially affect the defendant’s contact with or the safety of the victim or if the modification involves restitution or incarceration status.
376.300 Return of Victim’s Property.
- Upon the request of the victim and after consultation with the prosecutor, the WSPD shall return to the victim any property belonging to the victim that was taken during the course of the investigation or shall inform the victim of the reasons why the property will not be returned. The WSPD shall make reasonable efforts to return the property to the victim as soon as possible.
- If the victim’s property has been admitted as evidence during a trial or hearing, the court may order its release to the victim if a photograph can be substituted. If evidence is released pursuant to this subsection, the defendant if pro se or the defendant’s attorney or investigator may inspect and independently photograph the evidence before it is released.
376.305 Privileged Information Exception for Communications between Victim Advocate and Victim.
- A victim advocate shall not be disclosed as a witness or otherwise disclose any communication, except compensation or restitution information, between himself/herself and the victim, unless the victim consents in writing to the disclosure.
- Unless the victim consents in writing to the disclosure, a 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 the victim and the advocate.
- The communication is not privileged if the victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory material. The victim advocate must disclose such information to the prosecutor.
- Upon motion of either party, or where the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in chambers. Material that the court finds is exculpatory shall be disclosed to the defendant.
- The victim advocate shall disclose to the Prosecutor’s Office or a law enforcement agency any communication between the victim and the advocate or any records, notes, documents, correspondence, reports, or memoranda; the Prosecutor’s Office shall disclose such material to the defendant’s attorney only if such information is otherwise discoverable.
- Where a victim advocate is required to disclose information pursuant to subsections (4) or (5) of this section, the victim advocate shall: (a) Make a reasonable attempt to provide notice to the victim(s) affected by the release of the information; and (b) Take steps necessary to protect the privacy and safety of the person affected by the release of information, including, but not limited to, seeking an appropriate protective order or confidentiality agreement.
376.310 Minimizing Victim’s Contacts. Before, during, and immediately after any court proceeding, the court shall provide appropriate safeguards to ensure the safety and comfort of the victim.
376.315 Victim’s Right to Refuse an Interview.
- Unless the victim consents, the victim shall not be compelled to submit to a pre trial interview that is conducted by the defendant, the defendant’s attorney, or an agent of the defendant.
- The defendant, the defendant’s attorney, or an agent of the defendant shall initiate contact with the victim only through the Prosecutor’s Office. The Prosecutor’s Office shall promptly inform the victim of the defendant’s request for an interview and shall advise the victim of the victim’s right to refuse the interview.
- The Prosecutor’s Office shall not be required to forward any correspondence from the defendant, the defendant’s attorney or an agent of the defendant to the victim or the victim’s representative.
- If the victim consents to an interview, the Prosecutor’s Office shall inform the defendant, the defendant’s attorney, or an agent of the defendant of the time and place the victim has selected for the interview. If the victim wishes to impose other conditions on the interview, the Prosecutor’s Office shall inform the defendant, the defendant’s attorney, nr an agent of the defendant of the conditions. The victim has the right to terminate the interview at any time and to refuse to answer any question during the interview. The prosecutor has standing at the request of the victim to protect the victim from harassment, intimidation, or abuse and may seek any appropriate protective court order.
- If a transcript or recording of the interview is made on request of the prosecutor, the prosecutor shall receive a copy of the transcript or recording. If the defendant or the defendant’s attorney comments at trial on the victim’s refusal to be interviewed, the court shall instruct the jury that the victim has the right to refuse an interview.
376.320 Victim’s Right to Privacy. The victim has the right at any Court proceeding not to testify regarding the victim’s addresses, telephone numbers, place of employment, or other locating information unless the victim consents or the Court orders disclosure after a finding that a compelling need for the information exists. Any court proceeding where such information might be disclosed, including such information contained in the records and documents of Warm Springs Community Counseling, Children’s Protective Services, or VOCS, shall be in chambers and the record of the proceeding sealed.
376.325 Standing to Invoke Rights. At the request of the victim, the prosecutor may assert in the victim’s behalf any right to which the victim is entitled.