Antonio R. Sarabia II
IP Business Law, Inc.
320 via Pasqual
Redondo Beach , California 90277
Email: asarabia2@gmail.com
It is common for the victim in a criminal case to ask about restitution for losses. Also common is for the prosecutor to explain that he may need the victim to testify and that there is no restitution without a conviction. An example: a new wide screen TV was stolen, the victim can identify the defendant as the person who stole the tv and the victim would like to get restitution for the TV. The prosecutor explains that restitution is only available upon conviction and the victim’s testimony is needed for conviction. This happens tens of thousands of times a day in California.
A “witness” is “any person whose testimony is desired in any proceeding or investigation by a grand jury or in any criminal action, prosecution or proceeding.” Penal Code section 1334.1(a). Rule of Professional Conduct Rule 3.4 (d) does not allow lawyers to: “acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case.” That is precisely what happens in the typical theft or assault case in which the victim is a witness and seeks restitution.
Rule 3.4 applies to prosecutors. Rule 1.0 (a) states that the Rules apply to “all lawyers.” Prosecuting agencies are included in the definition of “law firm” in Rule 1.0.1 (c). Price v. State Bar of California (1982) 30 Cal.3d 537, 548, applied the predecessor to Rule 3.4 (Rule 7-107), to a prosecutor. Comment 1 to Rule 3.8 (Special Responsibilities of a Prosecutor) states: “[a]ll lawyers in government service remain bound by rules 3.1 and 3.4.”
Perhaps one way out of this dilemma is the position that “compensation” in Rule 3.4(d) does not include restitution. But under cases, the Penal Code and the Government Code, restitution is compensation. “He concedes that if David were an actual victim of the offense, he would be entitled to restitution. O’Neal assumes that because he did not physically molest him, David cannot be a victim. But compensation is not restricted to physical injuries …” People v. O’Neal (2004) 122 Cal.App.4th 817, 820–821 (victim restitution criminal case). “Compensation’ means money, property or anything else of value.” Penal Code section 653.56. This definition encompasses payment for losses, which is restitution.
The California Victim Compensation and Government Claims Board makes emergency restitution to crime victims who cannot await convictions. The board name includes “compensation.” One of its governing statutes provides: “a person shall be eligible for compensation when all of the following requirements are met: (a) The person for whom compensation is being sought is any of the following: (1) A victim.” Government Code section 13955. Restitution to victims is compensation under this statute as well.
One response to these points is that Rule 3.4(d) and its predecessors are quite old and some of these statutes were enacted later. That response might indicate that when the Supreme Court approved the predecessor for Rule 3.4(d), there was no victim restitution and therefore it could not have intended to include restitution as part of “compensation.” There are three answers to this point.
One answer is that the meaning of “compensation,” which existed long before the predecessor to the Rule was enacted, includes restitution: “the act or state of compensating, as by rewarding someone for service or by making up for someone’s loss, damage, or injury by giving the injured party an appropriate benefit.” Dictionary.com. This meaning fits with Penal Code section 1202.4(a)(1): “a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.”
A second answer is that the test is not what the Supreme Court knew at the time it enacted the rule, the test is whether later legislatures considered Rule 3.4(d) (and its predecessors) when they enacted broad descriptions of “compensation” (which include restitution). Rule 3.4(d) was already on the books, so there is a presumption that the legislature knew that rule used “compensation” when it passed other legislation with the same term. “[W]e must assume that when passing a statute the Legislature is aware of existing related laws and intends to maintain a consistent body of rules.” Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7. If any of the statutes above were enacted after the predecessor to Rule 3.4(d), the legislature intended to use the same word “compensation,” which encompasses restitution.
A third answer is that the Rules of Professional Conduct were revised in 2018, when victim restitution rights had been the law for decades. No revisions were made to exclude restitution from Rule 3.4(d). Fuentes applies again because the Supreme Court was presumed to be aware of the statutes and cases on restitution and “compensation” when it approved the Rules of Professional Conduct in 2018.
Because “compensation” in Rule 3.4(d) includes restitution, there is no way out of this ethical box for prosecutors. Prosecutors commonly violate Rule 3.4(d). Prosecutors, such as deputy district attorneys, should not be left in the cold to address this problem. Rule 5.1(a) requires supervising attorneys to ensure that subordinate attorneys follow the Rules of Professional Conduct. Although rule 5.1(a) uses the term “law firm,” Rule 1.0.1(c) includes government organizations within that term. While a district attorney may not be able to solve this problem, there are steps that she or he can take. One step is to make prosecutors aware of the problem. Another step is to raise the problem with the State Bar. There are several reasons for this. First, this is an intractable problem which cannot be solved by better conduct. Second, the State Bar may be more flexible and lenient when attorneys approach it rather than waiting to be caught. Third, this may enlist the State Bar in addressing the problem, perhaps through policy changes about enforcement of the rule. Perhaps the State Bar could solve the violation with a proposed change in the rule.
There is a related obligation prosecutors can fulfill. The prosecution has a duty to disclose all substantial material evidence favorable to an accused, including evidence relating to the credibility of a material witness. “[S]uppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process … [s]ince a witness’s credibility depends heavily on his motives for testifying, the prosecution must disclose to the defense and jury any inducements made to a prosecution witness to testify …” People v. Phillips (1985) 41 Cal.3d 29, 46 (cleaned.) Restitution for losses, contingent upon outcome, is an inducement to testify, which bears directly on credibility. Prosecutors should disclose that victim witnesses have a financial incentive to support conviction.
Prosecutors may question the need for this disclosure. Everyone knows about victim restitution, and it is yet another thing to add to a heavy load of required disclosures. The assumption that everyone knows about victims being entitled to restitution is not a safe one, particularly with a jury trial. The California Supreme Court has placed this responsibility on prosecutors. It is not a sufficient answer for a prosecutor to say that he or she thought everyone knew.
The burden of this disclosure can be changed by how the disclosure is made. It is one thing to state: “the victim who is testifying may be compensated by payment after a conviction.” It is quite another to say: “California gives crime victims a constitutional right to restitution. This means a convicted defendant must pay for the victim’s losses. The victim who will testify in this case is aware of her constitutional right.”
District attorneys should not leave prosecutors on their own to determine how to comply with Phillips. They should implement disclosure standards to protect convictions.