DAR File No. 42297
This rule was published in the November 15, 2017, issue (Vol. 2017, No. 22) of the Utah State Bulletin.
Pardons (Board Of), Administration
Rule R671-203
Victim Input and Notification
Notice of Proposed Rule
(Amendment)
DAR File No.: 42297
Filed: 11/01/2017 05:33:22 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The purpose of this amendment is to define victim, victim representative, notification, hearing attendance, victim statement and testimony, and victim impact hearings.
Summary of the rule or change:
This change defines a victim, and victim representation, and pursuant to Subsection 77-27-13(4), victim impact statements are required to be sent to the Board by other municipalities. The change clarifies a victim's right to attend hearings, and rights to victim impact hearings.
Statutory or constitutional authorization for this rule:
- Art I Sec 28
- Section 77-37-3
- Section 77-38-1 et seq.
- Section 77-27-9.5
- Section 77-27-1 et seq.
- Section 77-37-4
- Subsection 77-27-9(4)
- Subsection 63G-3-201(3)
Anticipated cost or savings to:
the state budget:
There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on the state budget.
local governments:
There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on local governments.
small businesses:
There is no anticipated cost or savings because the victim input and notification do not have a fiscal impact on small businesses.
persons other than small businesses, businesses, or local governmental entities:
There is no anticipated cost or savings because the change does not affect or impact any individual, partnership, corporation, association, governmental entity, or public or private organization.
Compliance costs for affected persons:
There is no anticipated cost or savings because the change does not have a fiscal impact on affected persons.
Comments by the department head on the fiscal impact the rule may have on businesses:
There are no anticipated fiscal impacts on businesses.
Chyleen Arbon, Board Chair
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:
Pardons (Board Of)AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530
Direct questions regarding this rule to:
- Bev Uipi at the above address, by phone at 801-261-6446, by FAX at , or by Internet E-mail at buipi@utah.gov
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
12/15/2017
Interested persons may attend a public hearing regarding this rule:
- 12/06/2017 08:00 AM, Board of Pardons and Parole, 448 E 6400 S, Suite 300, Salt Lake City, UT
This rule may become effective on:
12/22/2017
Authorized by:
Chyleen Arbon, Chair
RULE TEXT
R671. Pardons (Board of), Administration.
R671-203. Victim Input and Notification.
R671-203-1. General Provisions.
For purposes of Utah Administrative Code, Title R671 and all rules contained therein:
(1) "Victim" means:
(a) A natural person against whom an offender, as a principal, accomplice or party to the offense, committed a criminal offense for which a conviction was entered and for which the Board of Pardons and Parole (Board) has jurisdiction;
(b) A natural person originally named in an allegation of criminal conduct who is not a victim of the offense of Board jurisdiction to which the defendant entered a negotiated plea of guilty; or
(c) A victim representative as provided herein.
(2) "Victim Representative" means: a person designated by a victim or by this rule to represent a victim during Board processes, hearings, or communications.
(3) Pursuant to
Utah Code Ann. Subsection 77-27-13(2)[statute], the Department of Corrections shall
provide the Board [of Pardons] with all available information
in its records or possession concerning the impact a crime
may have had upon the victim or victim's family.
(4)(a) Pursuant to
Utah Code Ann. Subsection 77-27-13(5)(a), within 30 days from
the date of sentencing[statute,] the prosecutor of the case[, and upon request of the Board, any other law enforcement
official] responsible for
an offender's arrest, conviction, and sentence, shall
forward
to the Board any[to the Board a] victim impact statement
in its possession[referring]
that refers to
any physical, mental
, or economic loss suffered by the victim or victim's
family.
(b) Upon request of the Board pursuant to Utah Code Ann.
Subsection 77-27-13(4), any other law enforcement official
responsible for an offender's arrest, prosecution, conviction,
sentence, supervision or incarceration, shall forward to the Board
any victim impact statement in its possession that refers to any
victim contact information or any physical, mental, or economic
loss suffered by the victim or victim's family.[If a victim does not wish to give testimony or is unable to
do so, a victim representative may be appointed by the victim, or
if the victim is a minor, by the victim's parent(s) or lawful
guardian or custodian, to speak on the victim's behalf. A
family member of the victim may also testify if the victim is
deceased as a result of the offense or if the victim is a
child.
"Victim" for purposes of this Rule
means:
A. Any person, of any age, against whom an offender
committed a felony or class A misdemeanor offense either
personally or as a party to the offense, for which a prison
sentence was imposed or for which the hearing is being
held;
B. In the discretion of the Board, any person, of any
age, against whom a related crime or act is alleged to have been
perpetrated or attempted;
C. Any victim originally named in an allegation of
criminal conduct who is not a victim of the offense to which the
defendant entered a negotiated plea of guilty; and
D. Any victim representative and family member as
provided herein.
"Victim Representative" means a person who is
designated by the victim or designated by the Board, who represents
the victim in the best interests of the victim.]
(5) [A]No victim or victim representative[, who is] appearing at a hearing [where photographic equipment is being used by the media,
will not]may be photographed without the approval of the victim, victim representative, and the [individual ]presiding [at the ]hearing
official.
(6)(a) Victims are encouraged to:
(i) visit the Board's website (bop.utah.gov) as soon as possible to obtain information about Board procedures; and
(ii) provide information to the Board for future notifications.
(b) The Board shall maintain information in written form and on its website (bop.utah.gov) for victims about Board procedures, victim notification, attending hearings, submitting victim impact information, and testifying at hearings.
(7) Victims may contact the Board[of Pardons], after any parole hearing, for
information concerning the outcome of that hearing. Victims [are advised that they ]may also contact the [Utah State Prison Records Unit Supervisor]Department of Corrections for information on offender
releases.
(8) All persons attending hearings must comply with the security and clearance regulations of the facility where the hearing is held. These regulations include picture identification, appropriate dress, and no contraband. Contraband for this purpose includes but is not limited to purses/bags, cell phones, and other electronic devices. Visitors should arrive at the facility 15 to 20 minutes prior to the scheduled hearing to allow adequate time for the security clearance.
R671-203-2. Victim Representative.
(1) If a victim does not wish to give testimony or is unable to do so, a victim representative may be designated to speak on the victim's behalf.
(a) If a victim over the age of 18 desires to designate a victim representative, the victim may make that designation on the record at a hearing, or in a notarized statement filed with the Board prior to or at a hearing.
(b) If a victim is under the age of 18, a victim's parent, guardian, or custodian may represent the victim during Board processes, hearings, and communications.
(c) If a victim is deceased, a family member, or the victim's personal representative as appointed by a court, may be designated as the victim's representative.
(2) A victim representative must, at all times, act according to the instructions, and in the best interests, of the victim.
(3) Notwithstanding any provision of this rule, or any designation, an offender, offender's co-defendant, or offender's attorney may not act as a victim representative in matters before the Board in which the offender was convicted of causing any injury or damage to the victim.
R671-203-[2]3
. Notification.
[A.](1) Notice of an offender's original parole hearing
shall be [timely sent]given to [the]a victim
as soon as practicable at
the victim's[his] most recent address of record [with]as provided to the Board. The notice shall include:
[(1)](a) the date[, time,] and location of the hearing;
[(2)](b) [a clear statement of the reason for ]the
type of hearing,
and the cases or[including all] offenses involved;
[(3)](c)
a list of or reference to the statutes and rules applicable
to [the]a victim's participation in the hearing;
[(4)](d) the address and telephone number of
the Board employee[an office or person the victim]
who may
be contacted for further explanation of [the ]procedures regarding victim participation in the hearing;
[(5)](e) specific information about how, when, and where the
victim may obtain the results of the hearing; and
[(6)](f) notification that the victim must maintain current
contact information with the Board in order to receive future
notifications of hearings affecting [the]a specific offender's incarceration or parole.
[B.](2) If [the]a victim is deceased, or the Board is otherwise unable to
contact the victim, the Board shall make reasonable efforts to
notify the victim's immediate family of the hearing.
[C.](3)(a) Following [the ]notice of the original hearing, a victim may
elect to receive notice of any future [parole grant ]hearing[, parole revocation hearing or re-hearing]
as defined by Utah Code Ann. Subsection 77-38-2(5)(g) and Utah
Administartive Code Section R671-203-4.
(b) In order to [do so]receive notice of these future hearings, the victim shall
notify the Board of the desire to receive future notices, and shall
thereafter maintain current contact information with the Board.
[D.](4)
If a[For] victim[s who] elects to receive future notices, [the Board will mail such]the notice
shall be sent to the victim's [last current address of record or ]most recent
contact information as provided to the Board.
R671-203-[3]4
. Right to Attend [; Right to
]
and
Testify.
(1) Pursuant to Utah Code Ann. Subsection 77-38-2(5)(g), [As used in this section, ]"hearing"
means a
public hearing at which the offender is present, and which
concerns whether to grant parole or other form of discretionary
release from imprisonment[hearing for a parole grant or revocation, or a rehearing of
either of these if the offender is present].
(2) A victim may attend any hearing regarding the offender.
(3) A victim may testify during any hearing regarding the [impact of the offense(s) upon the victim,
and may present any concerns or statements
regarding any decision to be made regarding the offender
]
offender
.
(4) A[The] victim may request a re-scheduling or
continuance of the hearing if travel or other significant conflict
prohibits their attendance at the hearing.
R671-203-[4]5
. Victim Statements and Testimony.
[A.](1) A victim, victim representative or victim's family
member (if the victim is a child[,]
or deceased [or unable to attend due to physical incapacity]),
may testify regarding the impact of the offense(s) upon the victim,
any restitution claimed,
and may present any concerns or statements
regarding any decision to be made regarding the
offender.
[B.](2) The testimony may be presented as a written statement,
which may also be read aloud, if the presenter desires; or as oral
testimony.
[C.](3) Oral testimony at hearings [will]may be limited [to five minutes in length per victim or
representative]in order to accommodate the hearing calendar.
(4) If a
deceased victim's family member testifies, testimony [should]
may
be limited to one family [representative]member from the
victim's marital family (i.e. spouse or children) and[/or] one family [representative]member from the
victim's nuclear/extended family (i.e. parent, sibling
or grandparent).
(5) In [Under] exceptional or extraordinary circumstances
a victim
or victim representative may [formally petition the Board to ]request
that additional testimony
be permitted.
[D.](6)(a) A victim may present testimony during the hearing
outside the presence of the offender. [The offender will be excused from the hearing room so that
the victim can give testimony,]However, the offender
shall be permitted[may be able] to hear the victim
's
testimony and respond during the hearing[speak, depending on the facility where the hearing is
conducted].
(b) If a victim presents testimony during a victim impact
hearing held separately from an original hearing or rehearing, an
audio recording of [T]the victim's testimony [will]shall be [recorded or otherwise ]made available to the
offender.[At the conclusion of the testimony, the offender will be
returned to the hearing room, and the Board will allow the offender
to respond. A separate hearing will not be scheduled to allow for
testimony outside the presence of the offender.]
[E.](7) Victims who desire to testify at hearings shall notify
the Board as far in advance of the hearing as possible so that
appropriate arrangements can be made and adequate time
allocated.
[F.](8) Victims or representatives
[
should
]
are encouraged to
bring a written copy of their [remarks]testimony to the hearing or send a copy to the Victim
Coordinator for the Board file.
[G.
In cases where multiple victims desire to
testify, the Board may reschedule the hearing to accommodate the
extra time required to hear all victims. If Board business is not
concluded by 5:00 p.m. on a hearing day, all remaining hearings
may be rescheduled and visitors required to return.
]
(9)(a) Any person aggrieved by the conduct of
the offender, who is not a victim as defined by this rule, may
submit a written statement
regarding any impact to the person from the offender's
conduct.
(b) Other than protected identifying information, including but not limited to address, email, and phone numbers, information submitted to the Board is disclosed to the offender pursuant to legal requirements.
R671-203-[5]6. Victim Impact Hearings.
[A.](1) [In any case where]If an offender's original parole hearing is
scheduled[set by Board administrative determination] more
than three years from the offender's commitment to prison, the
victim
or victim representative
[, as defined by R671-203-1,] may request that the
Board conduct a Victim Impact hearing, in order to preserve victim
impact testimony [and victim statements] for future use and
reference by the Board.
( 2) The Board may also conduct a Victim Impact hearing if a hearing, as defined by Utah Code Ann. Subsection 77-38-2(5)(g) and Utah Administrative Code Section R671-203-4, is to be held outside the State of Utah because the offender is housed in another state.
[B.](
3)(a)
The sole purpose of a Victim Impact hearing
held
pursuant to R671-203-6(1)
is to afford an opportunity for victim
impact testimony [and victim statements ]to be made in cases where
an offender's original hearing is scheduled more than three
years following commitment to prison, so that the victim is not
denied an opportunity to participate in the offender's original
hearing, simply because of the passage of time between the
offender's commitment to prison and original hearing.
(b) A Victim Impact hearing is not a substitute for an original hearing.
(c)
A Victim Impact hearing
held
pursuant to R671-203-6(1)
will not result in a review,
re-scheduling,
or re-determination of [an]a previously determined
original hearing date.
(d) Victim Impact hearings are for the convenience of victims, and may take the place of the victim's attendance and testimony at an out of state hearing.
[C.](4) Victims who request, and for whom Victim Impact hearings
are conducted, retain all rights afforded pursuant to
constitutional provision, statute or Board rule, including: the
right to notice of the original hearing and any future hearings[, as provided by R671-203-1 and R671-203-2]; the
right to attend any hearing for the offender[, as provided by R671-203-1 and R671-203-3]; and
the right to testify and make future statements to the Board at [ant]any hearing for the offender[, as provided by R671-203-1 and R671-203-4].
[D.](5) [Upon such a request from a victim, the Board shall schedule
and conduct a victim impact hearing. ]In scheduling and
conducting a Victim Impact hearing:
[(1)]
(a) All notice provisions of
this Rule[R671-202-1 and R671-203 et seq.] shall apply.
([2]b) All victim appearance, testimony and statement provisions of
R671-203 shall apply.
([3]c)
Unless the offender is housed in an out of state prison, the
offender shall be present, pursuant to the provisions of R671-301,
and shall be afforded an opportunity to respond to the victim's
testimony[or statement]. However, this is not an opportunity
for the offender to discuss [his/her]the conviction, sentence or potential release.
([4]6) The Victim Impact hearing shall be recorded, pursuant to
the provisions of R671-304.
KEY: victims of crimes
Date of Enactment or Last Substantive Amendment: [October 4, 2012]2017
Notice of Continuation: January 30, 2017
Authorizing, and Implemented or Interpreted Law: Art. I, Sec. 28; 77-27-9.5; 77-37-3; 77-37-4; 77-38-1 et seq.; 63G-3-201(3); 77-27-1 et seq.; 77-27-9(4)
Additional Information
More information about a Notice of Proposed Rule is available online.
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For questions regarding the content or application of this rule, please contact Bev Uipi at the above address, by phone at 801-261-6446, by FAX at , or by Internet E-mail at buipi@utah.gov. For questions about the rulemaking process, please contact the Office of Administrative Rules.