Blog Post | 114 KY. L. J. ONLINE | April 3, 2026
Defendant vs. Victim: The Victims’ Rights Movement and its Potential Impact on the Right to a Fair Trial
By: Madelin Shelton, Staff Editor, Vol. 114
The victims’ rights movement in the United States has led to widespread change in the criminal justice system within the last 40 years.[1] Following a burgeoning movement in the 1970s that criticized the treatment of crime victims in the criminal justice system,[2] President Ronald Reagan’s Task Force on Victims of Crime released a report on the status of crime victims in 1982.[3] The task force ultimately found that crime victims’ interests nationwide were too often dismissed or undervalued under the then-current criminal justice framework.[4] It proposed several reforms, one of which being an amendment to the U.S. Constitution “to protect crime victims’ rights ‘to be present and to be heard at all critical stages of judicial proceedings.’”[5] But realizing the difficulty of passing such an amendment on the federal level, crime victims’ advocates shifted their focus to state constitutional amendments and statutory provisions.[6] This state-focused strategy has been largely successful, “with about 35 states adopting victims’ rights amendments to their state constitutions”[7] and “all fifty states pass[ing] statutory victims’ rights” since the 1980s.[8]
Many of the victims’ rights frameworks—whether through state constitutional amendments or statutes—include the right for the victim to be present throughout the trial, which has potential implications on witness sequestration rules should a victim be called as a witness.[9] Witness sequestration allows a witness to be excluded from the courtroom to prevent them from “purposefully or unconsciously” changing their testimony to more closely match that of an earlier witness.[10]
Kentucky’s own victims’ rights amendment, passed in 2020, includes a provision that grants victims a seemingly unlimited right to attend trials by not explicitly stating exceptions for witness sequestration issues.[11] This model exempting victims from the typical witness sequestration rule is also present in other states, such as Arizona, Arkansas, and Oregon.[12] Other states generally exempt victims from witness sequestration rules, but do not have such blanket exemption provisions, providing that victims can be present for other witnesses’ testimonies only after they have testified themselves[13] or blocking their presence if the court deems it necessary to protect the defendant’s right to a fair trial.[14]
Critics of victims’ rights provisions often criticize an absolute right to attend the trial as infringing on the defendant’s Sixth Amendment right to a fair trial.[15] They argue that, particularly if a victim is not the first witness to testify for the prosecution, then their ability to alter their testimony to match previous witnesses’ grows.[16] This concern was showcased significantly in State v. Beltran-Felix, [17] where the Utah Court of Appeals upheld the State’s evidence rule allowing the victim to attend the entire trial even though the victim was called as the State’s final witness.[18]
On the other hand, victims’ rights advocates claim that victims should be given the same unqualified right to attend the trial as defendants.[19] Additionally, they argue that, even with potential witness sequestration issues, the right to be present is crucial for allowing crime victims “to recover from the psychological damage of a crime.”[20] Victims’ advocates also argue that blocking victims from attending trials “merely intensifies the loss of control victims feel after the crime” as they are not allowed to attend what are supposed to be public proceedings in what many see as their own case.[21] Finally, advocates claim that defendants do not have a constitutional right to exclude victims from the courtroom and, thus, should not be permitted to do so.[22]
As the victims’ rights movement continues to achieve success through state advocacy, the tension between the rights of defendants versus the rights of victims will continue to be hotly contested. One of the most interesting tensions in these debates—a defendant’s right to a fair trial versus a victim’s right to attend a trial despite serving as a witness—requires thoughtful analysis as to its potential implications in the criminal justice system, for both defendants and victims alike.
[1] Douglas Keith, Victims’ Rights Meet State Constitutions, State Ct. Rep. (Sept. 28, 2023), https://statecourtreport.org/our-work/analysis-opinion/victims-rights-meet-state-constitutions.
[2] Paul G. Cassell & Margaret Garvin, Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J. Crim. L. & Criminology 99, 103 (2020).
[3] Id. at 104.
[4] Id.
[5] Id. (quoting President’s Task Force on Victims of Crime, Final Report (1982), https://ovc.ojp.gov/library/publications/final-report-presidents-task-force-victims-crime).
[6] Id. at 104-05.
[7] Id. at 105.
[8] Id.
[9] See, e.g., Ky. Const. § 26A; see also, e.g., Alaska Stat. Ann. § 12.61.010 (West 2026) (providing that victims have a right to attend trials even if they would later be called as a witness).
[10] See Fed. R. Evid. 615; Robert P. Mosteller, The Unnecessary Victims’ Rights Amendment, 1999 Utah L. Rev. 443, 457 (1999).
[11] See Ky. Const. § 26A (including the “right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused”).
[12] See, e.g., Ariz. R. Evid. 615(4) (providing that victim is exempt); see also, e.g., Ark. R. Evid. 616 (providing that adult victim and guardian of minor victim are exempt); Or. Rev. Stat. Ann. § 40.386(4) (1988) (providing that victim is exempt).
[13] See, e.g., Mich. Comp. Laws Ann. § 780.789 (West 2026).
[14] See, e.g., Ark. Code Ann. § 16-19-1103 (West 2026).
[15] See Mosteller, supra note 10, at 459; see also U.S. Const. amend. VI. (establishing the defendant’s right to a fair trial).
[16] See Mosteller, supra note 10, at 459.
[17] 922 P.2d 30, 38 (Utah Ct. App. 1996).
[18] Id.
[19] See Paul G. Cassell, The Victims’ Rights Amendment: A Sympathetic, Clause-by-Clause Analysis, 5 Phx. L. Rev. 301, 321 (2012).
[20] Id. at 320; Ken Eikenberry, Victims of Crimes/Victims of Justice, 34 Wayne L. Rev. 29, 41 (1987).
[21] Deborah P. Kelly, Victims, 34 Wayne L. Rev. 69, 72 (1987).
[22] Cassell, supra note 18, at 321; see, e.g., United States v. Edwards, 526 F.3d 747, 757–58 (11th Cir. 2008).