In February, Colorado was added to the list of states that allow crime suspects to search victims’ homes if it might strengthen their defense. The decision by the appeals court has prompted worries from both victims’ rights advocates and prosecutors.
In their decision, Colorado judges determined that homeowners’ privacy interests can sometimes be outweighed by a defendant’s right to a just trial. Colorado now joins California, New Jersey, New York, and North Carolina as states that allow such searches. However, advocates for victims’ rights disagree.
They believe the court’s decision will only add to the anguish of victimization. If suspects are granted permission to search private residences, they believe victims will be less apt to report the crime.
The decision was reached after a man convicted of sexually assaulting his cousins had a judge deny him the opportunity to examine the crime scene in his grandmother’s basement. The appeals court concurred that the accused had not shown a need to search the crime scene, but added that it is certainly within the rights of judges to allow a search.
Until this decision was reached, the law was unclear about granting access to private homes. In the past, defense lawyers routinely searched cellphones, computers, and other property for evidence. In addition to confidential records, defendants have also been allowed to order psychological examinations of victims.
If the defense feels the original investigation was not comprehensive, it sometimes becomes imperative to revisit the crime scene. Defendants would have to prove the second search would produce “relevant, material and necessary” evidence that original photographs and searches did not. The duty of the courts would be to balance the defendant’s rights with the privacy interests of the resident.
The ruling does not address important issues, such as how the search would be carried out, whether law enforcement would be involved, and the implications if a victim refuses to comply.
Prosecutors and victims’ rights attorneys feel the vaguely worded decision could be left open to interpretation by individual judges, generating the potential for abuse and re-victimization. They feel a 2010 case in which the Colorado Supreme Court ruled that a judge had made a mistake by allowing a defense expert to search the computers and emails of the family of a sexual assault victim should have been consulted. In that case, the high court ruled the search would have been in violation of the family’s fourth amendment rights.
The appeals court decision is currently under review in the Colorado attorney general’s office.
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