State v. Wein, 396 P.3d 608

Background

Phillip Sisco was indicted on numerous historical sexual-offense charges involving minors and initially held without bond.
After the Court of Appeals' Miller decision, defendants held without bond under A.R.S. § 13-3961(A)(3) became entitled to an additional Simpson II-style bail hearing to determine bondability and release conditions.
At Sisco's Simpson II hearing the state proffered victims' impact statements for the court to consider when assessing whether any conditions could reasonably assure victim/community safety (the third Miller/Simpson II requirement).
The trial court refused to consider those victim statements in determining bondability unless Sisco could cross-examine the victims, and thus found Sisco bondable without considering the statements.
The state sought special-action relief; the appellate court concluded victims have a constitutional and statutory right to be heard at release proceedings and that victims’ statements are not subject to cross-examination.
The court vacated the bond hearing result and directed a new hearing where the court must consider victims’ impact statements in determining bondability without compelling cross-examination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court may refuse to consider victims’ impact statements at a Simpson II bondability hearing unless the victims submit to cross-examination	State: victims may be heard; their statements inform whether conditions can reasonably assure safety and need not be subject to cross-examination	Defense (trial court): Simpson II requires a "full blown adversarial hearing," so victims must be subject to cross-examination before their statements can be considered in bondability determination	The court held victims’ statements must be considered in the bondability determination and victims cannot be forced to submit to cross-examination under Arizona law
Whether victims’ impact statements are admissible though hearsay at a Simpson II hearing	State: hearsay and grand-jury records are permissible at bond hearings and so victim statements may be considered	Defense: implied challenge to using untested hearsay in a hearing determining deprivation of liberty	The court affirmed that hearsay (including victims’ statements) may be considered at such hearings; Simpson I permits hearsay in pretrial bond proceedings
Whether the Victims’ Bill of Rights and A.R.S. § 13-4422/13-4426.01 allow victims to be heard without being treated as witnesses subject to cross-examination	State: constitutional and statutory provisions give victims the right to be heard and specifically provide they are not to be treated as witnesses or cross-examined	Defense: argued adversarial hearing protections require cross-examination of those who speak at the hearing	The court held the constitutional and statutory victims’ protections prevail: victims may be heard and their statements are not subject to compulsory cross-examination
Whether special action jurisdiction is appropriate	State: issue involves statutory and constitutional interpretation of victims’ rights, is of public importance, and not adequately reviewable on appeal	No direct opposing jurisdictional claim noted	The court accepted special-action jurisdiction as appropriate and granted relief

Key Cases Cited

Simpson v. Owens, 207 Ariz. 261 (App. 2004) (Simpson I) (pretrial bond hearings may permit hearsay and require the opportunity for adversarial examination generally)
Simpson v. Miller, 240 Ariz. 208 (App. 2016) (Miller) (defendants held under §13-3961(A)(3) entitled to additional hearing with separate dangerousness findings)
Simpson v. Miller, 241 Ariz. 341 (2017) (Simpson II) (Arizona Supreme Court: defendants entitled to an adversarial Simpson II bail hearing; trial court must separately find dangerousness before denying bail)
Mendaz v. Robertson, 202 Ariz. 128 (App. 2002) (victims whose rights are protected may not be compelled to testify at release hearings)