Playing Fair With Families of the Victims

A Denver judge ruled recently that family members of victims in the Oklahoma City bombing must decide whether to testify as witnesses or attend court proceedings as observers. However, they cannot do both.

U.S. District Judge Richard P. Matsch said hearing statements and seeing evidence in the cases of their loved ones could taint testimony by family members.

Should family members of crime victims be disqualified as witnesses if they are in court to observe?

Ellery Sorkin, Encino, past president of the San Fernando Valley Criminal Bar Assn.:

“That’s perfectly reasonable for a judge to do and common for all trials. If the family comes in ahead of time and hears all the testimony, they have the advantage of knowing what has been said and can tailor their testimony appropriately and fill in the gaps . . . Theoretically, family members could testify first and after that, they’re members of the public and could watch the balance of the trial . . . Some judges have tried to make the defendant testify first . . . But attorneys control the order of calling witnesses, and lawyers ought to be able to run their own cases.”

U.S. Sen. Dianne Feinstein (D-Calif.), co-sponsor of the Victims’ Bill of Rights Amendment to the U.S. Constitution:

“Victims and their families should have the right to be present at all key trial proceedings where that right is extended to the accused. Some defense lawyers argue that allowing victims to be present at a trial could taint their testimony as witnesses, yet a defendant may be a witness in his or her own trial and . . . still has the right to remain in the courtroom. In civil trials, both the plaintiff and defendant are witnesses, yet both have the absolute right to be in the courtroom throughout the trial.”

Ivan Schenkel, North Hollywood, grandfather of a 15-year-old girl killed in 1989:

“In situations where they’ve kept witnesses out of court until they’ve given their disposition, then allowed them in the courtroom . . . makes sense to me. . . . I think family members should be allowed to attend the rest of the proceedings after their testimony.”

Ralph J. Novotney Jr., Woodland Hills, 1989-90 Trial Lawyer of the Year, San Fernando Valley Criminal Bar Assn.:

“There’s a good rule that applies to both sides that says if you’re going to be a witness, you can’t watch other witnesses testify. When witnesses who may have an interest or bias, good or bad, hear what other witnesses say, it is a tendency of human nature to tailor one’s testimony . . . There is also the power of suggestion . . . all of a sudden they believe they saw or heard that.”

James D. Gregory, Encino, member of California Attorneys for Criminal Justice:

“I would like to see victims’ family members . . . perhaps put on as witnesses first and then entitled to stay . . . There are occasions when I may need a relative of a defendant as a witness but also want that mother or father in the courtroom throughout the trial. It’s important to show a jury a defendant has family support.”

On the Issue appears every Tuesday. Please send suggestions for possible topics to On the Issue, Los Angeles Times, 20000 Prairie St., Chatsworth 91311. Or fax them to (818) 772-3338. Or e-mail them to valley@latimes.com Include your name and number.