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ID Theft victims (or not)

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by: Abassos • November 29, 2009 • no comments

A bit of brilliance from Ryan: The DA's failure to abide by their constitutional duties to "victims" may belie their claim at sentencing that each possessed ID represents a victim.

"Hey all. I have previously written that ID Thefts - from one criminal episode - merge if there aren't separate victims. I've also argued that the person whose name is "stolen" is not necessarily a victim. Laura Frikert has written a great brief on that score, and we are awaiting ruling from the COA. I won't belabor the argument here.

But here's an interesting aspect I thought about today.

As the COA has recently noted, there is a statutory presumption that "[o]fficial duty has been regularly performed." OEC 311(1)(j)

As y'all know, the Oregon Constitution places some official duties on you, if there is a victim to a crime.

And victim, of course, is defined in the constitution as follows:

(c) "Victim" means any person determined by the prosecuting attorney to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. In the event that no person has been determined to be a victim of the crime, the people of Oregon, represented by the prosecuting attorney, are considered to be the victims. In no event is it intended that the criminal defendant be considered the victim.

So if you've got one of those ID Theft cases where 50 IDs were found at one time, and the name on each ID - and therefore on each count of the indictment - lists a different person, I would ask if your prosecutor, pursuant to his or her constitutional obligations, fulfilled his duties to anyone he or she believes is a victim of ID Theft, and I'm pretty certain you'd get the answer that the "victims" named in each count in the indictment have not been notified, nor any effort made to guarantee them their constitutional rights.

Of course, you don't have to ask your DA. You can just check to see if a certification of compliance - as contained in UTCR 4.120.1 - has been filed in the court file. If not, that's a pretty strong assumption that they aren't victims, right? If they are victims, the prosecutor has certain duties. There is a presumption, noted above, that those official duties have been regularly performed. If they haven't been performed, then either the prosecutor has violated the constitution or the names in the indictment aren't victims."