Routing Victim Contact Through Prosecutors: AACJ v. Mayes and Arizona Practice

By: Jonny Naylor

A.R.S. § 13-4433(B) states, “the defendant, the defendant’s attorney, or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office.” In 2017, the Arizona Attorneys for Criminal Justice (“AACJ”) challenged this statute, arguing that it violated the First Amendment. The District Court agreed, holding that the statute was overbroad and burdened speech more than necessary. On appeal, however, the Ninth Circuit in Arizona Attorneys for Criminal Justice v. Mayes reversed the district court’s decision, vacated the injunction, and remanded the case for judgment in favor of the State. The immediate result is that defense teams in Arizona must now begin any contact with a victim by contacting the prosecutor, who will then notify the victim and explain their options.

Background of the Case

Arizona’s Constitution establishes a Victims’ Bill of Rights and Title 13, Chapter 40, of the Arizona Revised Statutes enforces those rights. Section 13-4433 exists within that framework. Subsection (A) prohibits compelling a victim to submit to an interview unless the victim consents. Subsection (B) explains that the defendant must contact victims only through the prosecutor’s office. Subsection (D) allows a victim who agrees to an interview to set conditions, such as the time, place, duration, presence of counsel, and use of a tape recording. The AACJ challenged Subsection (B), arguing that it restricted defense attorneys’ ability to communicate directly with victims and their families, burdened attorney speech, and interfered with defense investigation. A federal district court agreed and enjoined Subsection (B) after a bench trial, on the ground that the rule was overbroad. The State appealed. Judge Johnstone wrote the Ninth Circuit opinion reinstating the statute and narrowing the dispute to whether the Court can strike down the statute on its face.

Arguments and the Court’s Reasoning

The AACJ brought a facial challenge, which asked the court to invalidate a statute in almost all its applications. To prevail, they had to show that the law’s unconstitutional applications were “substantial” compared to its legitimate ones. For the sake of analysis, the Ninth Circuit assumed that some applications of § 13-4433(B) might infringe on protected speech. It then compared those ‘edge cases’ against a valid use of the statute: routing requests for victim interviews under Rule 39. Because the plaintiffs did not challenge this routing requirement, the statute retained a broad and legitimate sweep, minimizing the AACJ’s claim that its unconstitutional application was “substantial.” The court concluded that the relatively small number of potentially problematic applications did not outweigh the statute’s many lawful ones. As a result, the ratio of unconstitutional to constitutional applications was not substantial enough to sustain the plaintiffs’ facial challenge.

What the Statute Requires in Practice

There are some requirements in § 13-4433(B) for initiating contact with a victim. Only the prosecutor’s office may serve as the point of contact when the defense would like to initiate contact with a victim. If the defense initiates the action, it must submit the request to the prosecutor. But if the victim reaches out first, the statute is not triggered. However, it is a helpful practice to document the contact and notify the prosecutor before proceeding. 

The statute also covers the entire defense team, including investigators and mitigation specialists, and it applies from the time of arrest (or charging) through the final verdict. If the victim is killed or cannot otherwise participate due to incapacity or disappearance, the Victims’ Bill of Rights designates specified family members as victims. Because of this framework, any attempt to initiate contact outside the prosecutor’s channel violates the statute, even if the victim later agrees to talk.

Practical Impacts Across Arizona Litigation

The court’s ruling does not affect all participants in the same way. Instead, it creates distinct responsibilities for defense counsel, prosecutors, and courts, each of whom must adjust their practices to ensure compliance and maintain efficient case management.

As a result of the court’s ruling, defense counsel should now direct all initial contacts with victims through the prosecutor. They must document each request with the date and time, and any follow-up must come through the same channel. The defense may still contact non-victim witnesses directly. If a victim initiates contact with the defense first, counsel should acknowledge the message, alert the prosecutor, and direct any next steps through that office. Taken together, these steps provide a clear framework for legal teams to comply with and adapt to the court’s ruling.

Prosecutors, meanwhile, should acknowledge defense requests, inform victims of their options, and schedule interviews when agreed upon, using clear forms that outline conditions such as time, place, duration, support individuals, and recording.

Finally, courts can expect fewer disputes over the initiation of contact and more specific questions on timing, conditions, and who qualifies as a victim. Case management will continue to find a balance between the victim’s autonomy and the need to stay on track.

Bottom Line

The court’s decision in AACJ v. Mayes restores § 13-4433(B). If the defense wants to speak with the victim, they must go through the prosecutor. The prosecutor then informs the victim, and the victim decides whether to participate or not. The statute reaffirms a uniform starting point for all defense-initiated outreach, providing a clear and consistent process for all involved.