Victim Impact Statements and Marsy's Law: The Family's Voice in the Criminal Case

Published August 22, 2023 · For Grieving Families

When someone you love is killed by another person's crime, the criminal case can feel like something that happens around you. The prosecutor represents the State of Ohio, not your family. The defendant has a lawyer. Hearings are scheduled and continued, often without much explanation.

Ohio law gives families a voice in that process. The most visible moment is the victim impact statement at sentencing, when the court hears what your loved one meant and what the crime took from your family. This post explains the rights Ohio's Constitution and statutes provide, how families can prepare, and how the criminal case relates to a civil wrongful death claim.

Marsy's Law

Ohio's Constitution includes a crime victims' bill of rights, commonly called Marsy's Law. Article I, Section 10a, took effect on February 5, 2018. Among other things, it gives a victim the right:

• to be treated with fairness and respect for the victim's safety, dignity, and privacy;
• upon request, to reasonable and timely notice of all public proceedings, and to be present at them;
• to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole;
• to reasonable protection from the accused;
• to full and timely restitution from the person who committed the offense;
• to proceedings free from unreasonable delay;
• upon request, to confer with the prosecutor; and
• to be informed in writing of these rights.

These rights may be asserted by the victim, by the prosecutor at the victim's request, or by the victim's other lawful representative. If a court denies relief, the victim or representative may petition the court of appeals.

Who speaks when the victim has died

When the victim has died, a family member may step into that role. This spring, House Bill 343 updated Ohio's victim rights statutes in R.C. Chapter 2930. It took effect on April 6, 2023.

Under R.C. 2930.02, when a victim is deceased, a member of the victim's family or a victim advocate may be designated to exercise the victim's rights as the "victim's representative." In cases involving a homicide offense, a member of the deceased victim's family, a victim advocate, or another person designated by family members may serve. The statute defines "member of the victim's family" broadly, to include a spouse, child, stepchild, sibling, parent, stepparent, grandparent, or other relative, but never a person charged in connection with the crime. If more than one person wants to serve, the court designates one. The prosecutor and law enforcement should be told who the representative is so that notices go to the right person.

Being heard at sentencing

R.C. 2930.14 requires the court, before imposing a sentence, to permit the victim and the victim's representative to be heard "orally, in writing, or both." Important details:

• The court must consider what you say, along with the other sentencing factors.
• No one may cross-examine you about an oral statement.
• A written statement is confidential and is not a public record, although the court may share copies with the defendant and counsel and may redact parts that are not relevant.
• New facts can delay sentencing. If a statement includes new material facts, the court may not rely on them unless it gives the defendant a chance to respond.

In felony cases involving physical harm, R.C. 2947.051 also requires the court to order a formal victim impact statement, prepared by the probation department or a victim assistance program. It must describe the victim's economic loss, any change in family relationships, and the psychological impact on the victim's family, and it includes the statements the victim or representative provides.

How to prepare

There is no right way to grieve on paper. Families often find these suggestions helpful:

• Tell the court who your loved one was. Their work, faith, humor, and the people who depended on them.
• Describe the loss honestly. Empty chairs at holidays, children growing up without a parent, a spouse alone.
• Decide who will speak. Several family members may want to contribute. Your victim advocate or the prosecutor can explain what the court will allow.
• Write it down even if you speak. Reading from a page helps on a very hard day.
• Stay with what you know. Your statement is most powerful when it comes from your own experience. Leave disputed facts about the crime to the evidence.

The criminal case and the civil case

Marsy's Law states that it does not create a cause of action for damages against the state or its officers. A family's claim for compensation from the person or company responsible is a separate civil wrongful death action, brought by the personal representative of the estate. Our chapter on criminal and civil cases explains how the two proceed.

Because sentencing is a public proceeding, it is wise to share your statement with your civil lawyer before the hearing. Not to change your words, but to make sure nothing in it creates avoidable problems in the civil case, such as speculation about facts still in dispute or comments about money. If your loved one was killed by an impaired driver, our page on drunk driver wrongful death explains the civil claims that often follow. Families may also be eligible for help through Ohio's crime victims compensation program, which we described in an earlier post.

Taking care of yourselves

Speaking in a courtroom, often with the defendant present, is one of the hardest things a family can do. Lean on each other and on any victim advocates helping you. Our chapter on caring for your family gathers resources for the months ahead.