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Appellate court reinstates AZ law barring defense attorneys from talking to crime victims

Ninth Circuit Court of Appeals
Jimmy Jenkins/KJZZ
The 9th Circuit Court of Appeals.

A federal appellate court reinstated an Arizona law that bars criminal defense attorneys from directly contacting crime victims or their families.

The law passed was in the 1990s and says defense attorneys can only attempt to contact crime victims through the prosecutor’s office.

The ACLU sued the state in 2017, claiming it violated lawyers’ First Amendment rights by limiting who they can contact. A trial court judge agreed.

In overturning that decision Thursday, the 9th U.S. Circuit Court of Appeals did not resolve the First Amendment question.

The appellate judges said even if they were to void the law, defense attorneys are restricted from cold calling victims and their families.

At issue is a law adopted in the wake of voter approval in 1990 of the Victims Bill of Rights. The constitutional amendment includes things like the right to be present during all stages of the trial, to be notified of all events, and to refuse to be interviewed.

Based on that, state lawmakers the following year enacted a law saying defense lawyers and their investigators can initiate contact with crime victims only though the prosecutor's office. That includes not just the actual victims but also their family members.

Prosecutors are required to pass on the requests. But they also can advise those the lawyer wants to interview that they have the legal right to simply say "no."

The ACLU, on behalf of Arizona Attorneys for Criminal Justice and several individual lawyers, filed suit in 2017 to void the statute.

"It prevents First Amendment protected speech," Jared Keenan, an attorney for the American Civil Liberties Union who represents the defense lawyers, told Capitol Media Services as the case was going through the system. "Any time the government imposes some kind of hurdle to your rights to speech, it's problematic."

Keenan said it's also unnecessary.

"Victims are free to tell an attorney, or anyone else, that they simply don't want to speak to them," he said, something that already occurs even in the states that don't have this kind of prohibition. All the Arizona defense attorneys want, said Keenan, is to be allowed to try to initiate those conversations.

A trial judge agreed, saying victims and family members remain free not to speak with defense attorneys. And Judge Steven Logan said there is ample evidence that victims are made aware of their rights.

But the three-judge panel said Thursday that even if they were to void the law, the attorneys still would be restricted by court rules against cold-calling victims and their families to get information to defend their clients in court. And that, wrote Judge Anthony Johnstone for the court, undermines any First Amendment argument about the law.

Greg Hahne started as a news intern at KJZZ in 2020 and returned as a field correspondent in 2021. He learned his love for radio by joining Arizona State University's Blaze Radio, where he worked on the production team.