In our last post in our series on restitution, we’ll discuss restitution hearings and procedures. What should you expect? What will happen during the hearing? Continue reading to find out.
First, What is Restitution?
In case you haven’t read our other blog posts in our series on restitution, here’s a brief introduction on what restitution is:
To clarify, restitution doesn’t involve the pain and suffering that often accompanies a criminal act. It’s intended to address out of pocket costs that were created by the criminal conduct. To get a better idea of this, we can look at the example of a car accident: if there’s a crash and everyone’s insured, the driver of the victim car could seek restitution for their deductible. The insurance company of the victim car could seek restitution also. However, what often happens is the victim’s insurance company will contact the defendant’s insurance company, and they’ll sort out the loss between insurance companies.
It’s worth noting that restitution can be involved in both criminal and civil cases. In civil law, it’s designed to help the plaintiff recover damages that are “…based on the defendant’s gain rather than the plaintiff’s loss.” In criminal law, the amount paid by a criminal is either full or partial and is ordered as part of a sentence or probation.
If you want to know more, check out our blog post, “What is Restitution?”.
At sentencing, the Court must address the issue of restitution. Oftentimes, a victim seeking criminal restitution claims a particular dollar amount in a form called a “Victim Impact Statement.” The claim for a pecuniary loss may be supported by documentation such as services or goods invoices, medical bills, business, or bank records. Absent such records, a victim can still make a claim based on believed or perceived losses.
You can see Colorado State’s Victim Impact Statement on the Colorado DOC website. The form will ask for basic information like the victim’s name, the inmate’s name, and the inmate’s DOC# if available. Then it will ask you for the victim’s impact statement which you will fill out documenting those losses from the criminal conduct.
A defendant may challenge the amount of restitution claimed – and the process for doing that is for the court to hold a restitution hearing. During a restitution hearing, the prosecution has the burden to prove the amount of the victim’s loss and its causal link to the defendant. The standard of proof is by a preponderance of the evidence, a low standard which means “more likely than not.” The types of evidence admitted during a restitution hearing is the introduction of the victim impact statement, the records mentioned above, or through victim testimony.
Any loss that has been offset, either through a third-party payment such as an insurance company, or previously made reimbursements can be argued by the defendant as a basis for a reduction in the amount of restitution claimed. At that point, the burden is on the defendant to prove the dollar amount of the offset.
Additionally, a defendant can challenge losses for repairs or replacement by providing his or her own estimates for repairs or replacements. While many pleas agreements will include a stipulated (agreed to) amount of restitution owed, outside such an agreement, a defendant may challenge the dollar amount claimed through a restitution hearing.
Ultimately, restitution can be a complex yet beneficial process. It can be used for victims, in civil and criminal court, and has different aspects like restitution waivers, timelines, hearings, and procedures. It’s important to contact an attorney, like here at the Colorado Lawyer Team, if you’re unsure how to begin or where to go in your case. Even though it’s complicated, it can help address out of pocket costs created by the conduct of someone else.
Interested in our other posts in our restitution series? Check them out here!
Need Legal Help?
Looking for legal representation? Not sure if hiring an attorney is the right thing for you? Consider reaching out to our attorneys here at the Colorado Lawyer Team for a free 30-minute consultation. With specialties in family law and criminal law, our experienced, dedicated, and hard-working attorneys may just be the representation you need! Find more information at https://CoLawTeam.com or call 970.670.0378.
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