Victim Rights in Arizona's Constitution Clash With Sixth Amendment at Arizona Supreme Court

In 1990, Arizona was the first state in the nation to adopt a Victim’s Bill of Rights (VBR) as part of its state constitution’s declaration of rights. Those rights range from expressions of ideals, such as the right to be treated with fairness and dignity, to more concrete protections, such as the right at issue in this case: the right to refuse a discovery request. It is natural and expected that the VBR will come into conflict with a criminal defendant’s federal constitutional rights, and Arizona’s courts have with some regularity sorted out where to draw the line when a “case presents a confluence of clashing constitutional rights and principles”—including this year in Draper v. Gentry.[1]

Lane Draper, his brother Grant, Jordon Nez, and Roessel Jackson spent a long night drinking together and planned to sleep at Nez’s apartment before going to work the next morning. At some point in the night, Grant was killed with a knife, and the murder weapon was never found. When police responded the next day, the three men had wildly different stories accounting for their actions.[2] Ultimately, the police decided to charge Nez with second-degree murder. Under Arizona law, the definition of “victim” includes first-degree relatives of a homicide victim. Lane Draper, Grant’s brother, met that definition.[3]

Nez’s defense was that either Draper or Jackson had killed Grant. Nez sought discovery of the GPS data from Draper’s truck because his whereabouts during the night were critical to his defense. Judge Gentry limited the amount of time to a four-hour window but ordered Draper, over his and the state’s objections, to make the truck available for a defense consultant to download the data. Draper challenged the ruling,[4] and after the court of appeals declined jurisdiction, the Arizona Supreme Court granted discretionary review.[5]

While Draper’s claim plainly fell within the scope of the VBR, Nez’s rights as a criminal defendant were also at stake. The U.S. Supreme Court has recognized that criminal defendants have a federal constitutional right to compel discovery that is necessary to present a complete defense.[6] While Nez’s case was pending in the trial court, the Arizona Supreme Court decided in R.S. v. Hon. Thompson (Vanders) that when a statutory victim’s right to refuse a discovery request conflicts with the defendant’s right to know information favorable to his defense—in that case, psychiatric records of the victim validating a self-defense claim—the Supremacy Clause requires that the state constitutional right of a victim yield to the federal constitutional right of the defendant.[7] Because the medical records critical to the defendant in Vanders were held by a third party, the defendant needed only to show a reasonable possibility that the records would support his defense to trigger an in camera review of the records.[8]

Draper presented a question touched upon in Vanders’ dicta: Does a defendant, in order to obtain direct disclosure from a victim, need to show only a reasonable possibility that the information will help his defense, or must he meet a higher standard of substantial probability to overcome the protections of the VBR.[9] Further, because obtaining the GPS data from Draper’s truck would require a “search” of his “effects,” the Arizona Supreme Court would need to address whether the Fourth Amendment and its state constitutional counterpart[10] provide any additional protection for a victim.

The court issued a per curiam opinion, joined by five justices, eight months after argument. Justice Bolick, joined by Vice Chief Justice Timmer, concurred in part, dissented in part, and dissented in the result.

The majority opinion recognized that Vanders “provides our analytical starting point” and allows a defendant not only to invoke rules of procedure to prevent disclosure from third parties but also the federal right to due process.[11] The court quickly dispensed with Draper’s search-and-seizure arguments. Recognizing that the data sought here “falls within the Fourth Amendment’s protection,” it noted that probable cause is required only for a search warrant. A warrant requires heightened protection because it is ex parte, whereas a pretrial motion for disclosure gives notice to the affected parties so they may be heard. The amendment’s guarantee against “unreasonable searches and seizures” is protected by a judge who balances the aggrieved person’s security against the interest in ordering disclosure.[12] The court dispensed with Draper’s state constitutional argument as unbriefed,[13] but the court had recently held that this provision is co-extensive with the Fourth Amendment.[14]

As for balancing Draper’s VBR rights against Nez’s due process rights, the court noted the important fact that in this case, a third party affiliated with Nez would be obtaining the discovery; if it was possible that Nez’s agent could view the data before it was given to the trial court, then “that is tantamount to direct disclosure.”[15] The court stated that while Nez easily met the “reasonable possibility” standard,

under the circumstances here—where discovery may entail disclosure directly from the victim to the defendant and thus evade the privacy protections afforded by in camera review—Nez may need to show more than a reasonable possibility that evidence necessary for his defense exists within the universe of requested information to establish his entitlement to discovery directly from Draper.[16]

Because the record was unclear on these questions, the court remanded to the trial court to consider the nature of the disclosure. If this constitutes a direct disclosure, then the court held that “the substantial probability standard is appropriate.” It determined that “‘very likely’ is the proper meaning of ‘substantial probability.’”[17]

The dissenters agreed with the majority on everything except for the creation of a substantial probability test.[18] They pointed out that Vanders stated this elevated standard “effectively requires a defendant to know the contents of the requested documents,” and thus it would prevent defendants from obtaining disclosure of information to which the court agreed they were constitutionally entitled.[19] “Where the VBR collides with a defendant’s right of constitutional dimension, as the majority acknowledges here, the proper course is not to deny disclosure or impose requirements that are nearly impossible to meet, but to allow it in a way that is least burdensome to the victim.”[20] The dissenters would have affirmed the trial court’s order, which faithfully applied the “reasonable possibility” standard.[21]

How Draper will be applied is unclear—even in Nez’s case, the issue is pending. Since defendants can more readily meet the “reasonable possibility” standard, trial courts can avoid the question by appointing their own representatives to obtain the data at issue, rather than relying on the defendant’s agent. Although the facts of Draper do not present the question, the court seems to approve of direct disclosures without court involvement if the defendant can meet the heightened “substantial probability” standard, so defendants are incentivized to argue for that. While victims maintain their rights under the VBR, those rights continue to yield in those limited cases where a defendant can articulate how the disclosure relates to the defense and shows a reasonable possibility that the disclosure will support the defense.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].