Jon W. Chung (Arizona State University) has posted Structural Defects in Victim Conferral: A Structural Defect Framework for Arizona’s Right to Confer on SSRN. Here is the abstract:
Arizona’s Victims’ Bill of Rights guarantees crime victims the constitutional right to confer with prosecutors before case disposition. Yet the architecture implementing this right—opt-in forms presented at moments of trauma, automated notification pipelines, hallway conferences under docket pressure, and binary minute entries that record only that “conferral occurred”—systematically compresses victim voice in ways current doctrine cannot see or correct. This Article argues that the gap between Arizona’s constitutional promise and its procedural delivery is not a failure of individual prosecutors but a structural defect: a foreseeable artifact of architecture designed for low-fidelity output.
Drawing on the Structural Defect Framework developed in parallel work on AI deployment and employment discrimination, this Article provides a diagnostic lens for identifying when recurring harms should be attributed to system design rather than individual error. The Framework’s tripartite gateway—fixed interface, nominal equivalence, and supply-chain opacity—explains why conferral’s fidelity parameter is structurally invisible. Its four diagnostic elements—structural invisibility, foreseeable harm, doctrinal mismatch, and epistemic asymmetry—demonstrate why the defect persists despite good-faith efforts by individual actors. Arizona’s own jurisprudence, which has repeatedly built procedural architecture to reconcile competing constitutional rights, provides the template for reform.
This Article proposes structural guardrails—pre-offer timing requirements, synchronous modality baselines, standardized documentation, and calibrated judicial inquiry—paired with a burden-shifting safe harbor that rewards prosecutors’ offices investing in high-fidelity design. The goal is not to grant victims veto power or to indict prosecutors, but to align Arizona’s implementation architecture with the constitutional commitments the state has already made. The prosecutor is not the defendant. The architecture is the defendant.