User Name: DAVID SCHOEN
Date and Time: Thursday, February 28, 2019 10:27:00 AM EST
Job Number: 83852897
Document (1)
1. ARTICLE: Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure,
2007 Utah L. Rev. 861
Client/Matter: -None-
Search Terms: cvra and sixth amendment
Search Type: Terms and Connectors
Narrowed by:
Content Type
Narrowed by
Secondary Materials
Sources: Law Reviews and Journals
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2019 LexisNexis
DAVID SCHOEN
ARTICLE: Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of
Criminal Procedure
Reporter
2007 Utah L. Rev. 861 *
2007
Length: 59852 words
Author: Paul G. Cassell*
* Professor of Law, S.J. Quinney College of Law of the University of Utah, Judge, U.S. District Court for the District of Utah,
2002-07. Thanks to Sara Sun Beale, Doug Beloof, Doug Berman, Russell Butler, Matt Cannon, Meg Garvin, Nancy King, Erik
Luna, Peter McCabe, Benjamin McMurray, Ross McPhail, Dan Medwed, Wendy Murphy, Daphne Oberg, Jim Oleson, Judge
James Orenstein, Alice Ristroph, Greg Skordas, Felise Thorpe Moll, Steve Twist, Stewart Young, and especially my wife
Trish.
Text
[*863]
I. Introduction
Federal courts should treat crime victims fairly in the criminal process. In a nod to that goal, the Advisory Committee on the
Federal Rules of Criminal Procedure (Advisory Committee) has circulated for public comment proposed amendments to the
Federal Rules of Criminal Procedure (the Rules) regarding crime victims' rights. These amendments attempt to implement the
recently-enacted Crime Victims' Rights Act (CVRA), 1 which guarantees crime victims a series of rights, including the right to
be treated fairly. Unfortunately, the proposed amendments are mere tentative, half measures that do not begin to fully protect
crime victims.
This Article contends that the Advisory Committee should broaden its vision of the proper role for crime victims and
recommend far more expansive victim protections. In the CVRA, Congress articulated specific rights for crime victims, such as
the right to be notified of court hearings, to attend those hearings, and to speak at appropriate points in the process. 2 But along
with these specific rights came the sweeping requirement that crime victims "be treated with fairness and with respect for the
victim's dignity and privacy." 3 This congressional command must not be ignored. In addition, entirely apart from any
congressional dictate, crime victims deserve fair treatment in the federal system. Acting for the federal judiciary, the Advisory
Committee should make certain that the Rules fully reflect victims' interests rather than allow the initiative for protecting
victims to pass to other branches of government.
This Article proceeds in five parts. Following this Introduction, Part II reviews events leading to the recently circulated
amendments. The amendments were prompted by the CVRA - an act passed by Congress in 2004 to protect victims' rights
through the federal criminal process. To comply with the CVRA, the federal criminal rules had to be amended in many places,
1
Pub. L. No. 108-405, § 102(a), 118 Stat. 2260, 2261-62 (codified as amended at 18 U.S.C. § 3771 (Supp. 2006)).
2
18 U.S.C. § 3771 (a)(2)-(4).
3
Id. § 3771(a)(8).
DAVID SCHOEN
2007 Utah L. Rev. 861, *863
Page 2 of 78
as I argued at length in an earlier article. 4 After receiving my suggested changes, the Advisory Committee agreed with some,
but declined to adopt many of the others. At issue for the Advisory Committee was whether to proceed narrowly by changing
only a few rules to track specific congressional directives or to proceed more broadly by reworking the entire body of federal
criminal rules to ensure that they are all fair to crime victims. The Committee opted for the narrower approach.
Part III of this Article disputes the Advisory Committee's limited vision. Congress has required that the courts must treat crime
victims "with fairness" throughout the process. 5 The only way to fully implement that command is a [*864] thorough
reworking of the federal criminal rules to integrate victims into the day-to-day workings of the process. The Committee's
parsimonious amendments simply ignore that congressional directive and mean that, in practice, many of the federal criminal
rules will continue to overlook the legitimate interests of crime victims.
Part IV of this Article contains a rule-by-rule analysis of changes that should be made to the federal rules. The following
changes are of particular importance:
1. Ensuring that crime victims' attorneys can appear in court (Rule 1);
2. Providing for victim participation in the plea bargain process (Rule 11);
3. Protecting victims' addresses and telephone numbers from improper disclosure (Rule 12);
4. Guaranteeing victims the right to attend criminal depositions (Rule 15);
5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17);
6. Considering victims' interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23);
7. Integrating victims into the sentencing process (Rule 32);
8. Articulating victims' right to discretionary appointment of counsel (Rule 44.1);
9. Giving victims the right to be heard at bail decisions (Rule 46);
10. Requiring victims' views be considered before a case is dismissed (Rule 48);
11. Protecting victims' right to a speedy trial (Rule 50);
12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1));
13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2));
14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).
Finally, Part V briefly concludes by explaining that the likely consequence of the Advisory Committee failing to fully
implement Congress's vision will be that Congress itself will step in to do the job. It would be unfortunate if the Judiciary were
to abdicate its responsibilities to protect crime victims and leave the task to another branch of government.
This Article also contains a short Afterword, which recounts developments subsequent to the drafting of this Article in January
2007.
[*865]
II. Victims' Rights, the CVRA, and Amendments to the Rules
4
See Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime
Victims' Rights Act, 2005 BYU L. Rev. 835, 852-924 [hereinafter Cassell, Proposed Amendments].
5
18 U.S.C. § 3771(a)(8).
DAVID SCHOEN
2007 Utah L. Rev. 861, *865
Page 3 of 78
A. The Crime Victims' Rights Movement
The Crime Victims' Rights Movement developed in the 1970s because of a perceived imbalance in the criminal justice system.
The victims' absence from criminal processes conflicted with "a public sense of justice keen enough that … it has found voice
in a nationwide "victims' rights' movement." 6 Victims advocates argued that the criminal justice system had become
preoccupied with defendants' rights to the exclusion of considering the legitimate interests of crime victims. 7 These advocates
urged reforms to give more attention to victims' concerns, including protecting victims' rights to be notified of court hearings,
to attend those hearings, and to be heard at appropriate points in the process.
The victims movement received considerable impetus in 1982 with the publication of the report of the President's Task Force
on Victims of Crime ("Task Force"). The Task Force concluded that "the criminal justice system has lost an essential balance…
. The system has deprived the innocent, the honest, and the helpless of its protection… . The victims of crime have been
transformed into a group oppressively burdened by a system designed to protect them. This oppression must be reddressed." 8
The Task Force advocated multiple reforms. It recommended that prosecutors assume the responsibility for keeping victims
notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea bargains,
sentences, and restitution. 9 It also urged that courts receive victim-impact evidence at sentencing, order restitution in most
cases, and allow victims and their families to attend trials even if they would [*866] be called as witnesses. 10 In its most
sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be
present and to be heard at all critical stages of judicial proceedings." 11
In the wake of the recommendation for a constitutional amendment, crime victims' advocates considered how best to pursue
that goal. Realizing the difficulty of achieving the consensus required to amend the United States Constitution, advocates
decided to go first to the states to enact state victims' rights amendments. They have had considerable success with this "statesfirst"
strategy. 12 To date, about thirty states have adopted amendments to their own state constitutions, 13 which protect a
wide range of victims' rights.
6
Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (internal quotations omitted). See generally Douglas E. Beloof, Paul
G. Cassell & Steven J. Twist, Victims in Criminal Procedure 638-39 (2d ed. 2005) (discussing the need for victims' participation in the
criminal justice system); see also Shirley S. Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah L. Rev. 517;
Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289; Paul G. Cassell,
Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479 [hereinafter Cassell, Barbarians at
the Gates]; Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah
L. Rev. 1373 [hereinafter Cassell, Balancing the Scales]; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52
Miss. L.J. 514 (1982); William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American
Problems, 32 Stan. J. Int'l L. 37 (1996); Steven J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect Things, 1999
Utah L. Rev. 369.
7
See generally Beloof, Cassell & Twist, supra note 6, at 29-38; Douglas Evan Beloof, The Third Wave of Victims' Rights: Standing,
Remedy and Review, 2005 BYU L. Rev. 255; Cassell, Balancing the Scales, supra note 6, at 1380-82 (arguing for increased rights of crime
victims in criminal justice systems).
8
President's Task Force on Victims of Crime, Final Report 114 (1982).
9
Id. at 63.
10
Id. at 72-73.
11
Id. at 114 (emphasis omitted).
12
See S. Rep. No. 108-191, at 3 (2003).
13
See Ala. Const. amend. 557; Alaska Const. art. I, § 24; Ariz. Const. art. II, § 2.1; Cal. Const. art. I, §§12, 28; Colo. Const. art. II, § 16a ;
Conn. Const. art. I, § 8(b); Fla. Const. art. I, § 16(b); Idaho Const. art. I, § 22; Ill. Const. art. I, § 8.1; Ind. Const. art. I, § 13(b); Kan. Const.
art. 15, § 15; La. Const. art. 1, § 25; Md. Decl. of Rights art. 47; Mich. Const. art. I, § 24; Miss. Const. art. 3, § 26A; Mo. Const. art. I, § 32;
Neb. Const. art. I, § 28; Nev. Const. art. I, § 8; N.J. Const. art. I, § 22; N.M. Const. art. 2, § 24; N.C. Const. art. I, § 37; Ohio Const. art. I, §
10a; Okla. Const. art. II, § 34; Or. Const. art. 1, § 42; R.I. Const. art. I, § 23; S.C. Const. art. I, § 24; Tenn. Const. art. 1, § 35; Tex. Const. art.
I, § 30; Utah Const. art. I, § 28; Va. Const. art. I, § 8-A; Wash. Const. art. 2, § 33; Wis. Const. art. I, § 9m.
DAVID SCHOEN
2007 Utah L. Rev. 861, *866
Page 4 of 78
The Crime Victims' Rights Movement was also able to prod the federal system to recognize victims' rights. In 1982, Congress
passed the first federal victims' rights legislation, the Victim and Witness Protection Act, which gave victims the right to make
an impact statement at sentencing and provided expanded restitution. 14 Since then, Congress has passed several acts that
further protected victims' rights, including the Victims of Crime Act of 1984, 15 the Victims' Rights and Restitution Act of
1990, 16 the Violent Crime Control and Law Enforcement Act of 1994, 17 the Antiterrorism and Effective Death Penalty Act
of 1996, 18 and the Victim Rights Clarification Act of 1997. 19 Other federal statutes have been passed to deal with
specialized victim situations, such as child victims and witnesses. 20
Among these, the Victims' Rights and Restitution Act of 1990 is worth briefly highlighting. This act purported to create a
comprehensive list of victim's rights in the federal criminal justice process. The act commanded that "[a] crime victim has the
following rights" 21 and then listed various rights in the process. Among the [*867] rights were the right to "be treated with
fairness and with respect for the victims' dignity and privacy," 22 to "be notified of court proceedings," 23 to "confer with [the]
attorney for the Government in the case," 24 and to attend court proceedings, even if called as a witness, unless the victim's
testimony "would be materially affected" by hearing other testimony at trial. 25 The statute also directed the Justice
Department to make its "best efforts" to ensure that victims received their rights. 26 Yet this act never successfully integrated
victims into the federal criminal justice process and was generally regarded as something of a dead letter. Because Congress
passed the CVRA in 2004 to remedy the problems with this law, it is worth briefly reviewing why it was largely unsuccessful.
Curiously, the Victims' Rights Act was codified in Title 42 of the United States Code - the title dealing with "Public Health and
Welfare." As a result, the statute was generally unknown to federal judges and criminal law practitioners. Federal practitioners
reflexively consult Title 18 for guidance on criminal law issues. More prosaically, federal criminal enactments are bound
together in a single West publication - the Federal Criminal Code and Rules. This single publication is carried to court by
prosecutors and defense attorneys and is on the desk of most federal judges. Because West Publishing never included the
Victims' Rights Act in this book, the statute was essentially unknown even to the most experienced judges and attorneys. The
prime illustration of the ineffectiveness of the Victims' Rights Act comes from the Oklahoma City bombing case, where victims
were denied rights protected by statute in large part because the rights were not listed in the criminal rules. 27
Because of such problems with the statutory protection of victims' rights, victims advocates decided in 1995 the time was right
to press for a federal constitutional amendment. They argued that the statutory protections could not sufficiently guarantee
14
Pub. L. No. 97-291, 96 Stat. 1248 (1982).
15
Pub. L. No. 98-473, 98 Stat. 2170 (1984).
16
Pub. L. No. 101-647, 104 Stat. 4820 (1990).
17
Pub. L. No. 103-322, 108 Stat. 1796 (1994).
18
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
19
Pub. L. No. 105-6, 111 Stat. 12 (1997).
20
See, e.g., 18 U.S.C. § 3509 (2006) (protecting rights of child victim-witnesses).
21
Pub. L. No. 101-647, § 502(b) (1996).
22
Id. § 502(b)(1).
23
Id. § 502(b)(3).
24
Id. § 502(b)(5).
25
Id. § 502(b)(4).
26
Id. § 502(a).
27
United States v. McVeigh, 157 F.3d 809, 814-815 (10th Cir. 1998). See generally Cassell, Barbarians at the Gates, supra note 6, at 515-22
(discussing this case in greater detail).
DAVID SCHOEN
2007 Utah L. Rev. 861, *867
Page 5 of 78
victims' rights. In their view, such statutes "frequently fail to provide meaningful protection whenever they come into conflict
with bureaucratic habit, traditional indifference, [or] sheer inertia." 28 As the Justice Department reported:
Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.
Victims' rights advocates have sought reforms at the state level for the past twenty years, and many states have responded with
state statutes and [*868] constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to
fully safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or
authoritative to safeguard victims' rights. 29
To place victims' rights in the constitution, victims advocates (led most prominently by the National Victims Constitutional
Amendment Network 30 ) approached the President and Congress about a federal amendment. 31 In April 22, 1996, Senators
Kyl and Feinstein introduced a federal victims' rights amendment with the backing of President Clinton. 32 The intent of the
amendment was to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim
participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation."
33 A companion resolution was introduced in the House of Representatives. 34 The proposed amendment embodied seven core
principles: (1) the right to notice of proceedings, (2) the right to be present, (3) the right to be heard, (4) the right to notice of
the defendant's release or escape, (5) the right to restitution, (6) the right to a speedy trial, and (7) the right to reasonable
protection. In a later resolution, an eighth principle was added: standing. 35
The amendment failed to pass in the 104th Congress. On January 21, 1997, the opening day of the first session of the 105th
Congress, Senators Kyl and Feinstein reintroduced the amendment. 36 A series of hearings were held that year in both the
House and the Senate. 37 Responding to some of the concerns raised in these hearings, the amendment was reintroduced the
following year. 38 The Senate Judiciary Committee held hearings 39 and passed the proposed amendment. 40 However, the
full Senate did not consider the amendment. In 1999, Senators Kyl [*869] and Feinstein again proposed the amendment. 41
On September 30, 1999, the Judiciary Committee again voted to send the amendment to the full Senate. 42 But on April 27,
28
Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
29
Victims' Rights Amendment: Hearing on S.J. Res. 6 Before the S. Judiciary Comm., 105th Cong. 64 (1997) (statement of Janet Reno, U.S.
Att'y Gen.).
30
See www.nvcap.org (last visted Dec. 30, 2007).
31
For a comprehensive history of victims' efforts to pass a constitutional amendment, see Jon Kyl, Steven J. Twist & Stephen Higgins, On
the Wings of Their Angels, the Scott Campbell, Stephanie Roper, Wendy Preseon, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act,
9 Lewis & Clark L. Rev. 581, 583-91 (2005).
32
S.J. Res. 52, 104th Cong. (1996).
33
S. Rep. No. 108-191, at 1-2 (2003); see also S. Rep. No. 106-254 (2000) (listing recommendations for the federal victims' rights
amendment).
34
H.R.J. Res. 174, 104th Cong. (1996).
35
S.J. Res. 65, 104th Cong. (1996).
36
S.J. Res. 6, 105th Cong. (1997).
37
See, e.g., Victims' Rights Amendment: Hearing on S.J. Res. 6 Before the S. Judiciary Comm., 105th Cong. (1997).
38
S.J. Res. 44, 105th Cong. (1998).
39
Crime Victim's Rights Constitutional Amendment: Hearings on S.J. Res. 44 Before the S. Judiciary Comm., 105th Cong. (1998).
40
See 144 Cong. Rec. S11,010 (daily ed. Sept. 28, 1998).
41
S.J. Res. 3, 106th Cong. (1999).
DAVID SCHOEN
2007 Utah L. Rev. 861, *869
Page 6 of 78
2000, after three days of floor debate, the amendment was shelved when it became clear that its opponents had the votes to
sustain a filibuster. 43 At the same time, hearings were held in the House on the companion measure there. 44
Discussions about the amendment began again after the 2000 presidential elections. On April 15, 2002, Senators Kyl and
Feinstein again introduced the amendment. 45 The following day, President Bush announced his support. 46 On May 1, 2002,
a companion measure was proposed in the House. 47 On January 7, 2003, Senators Kyl and Feinstein proposed the amendment
as Senate Joint Resolution 1. The Senate Judiciary Committee held hearings in April of that year, 48 followed by a written
report supporting the amendment. 49 On April 20, 2004, a motion to proceed to consider the amendment was filed in the
Senate. Shortly thereafter, the motion to proceed was withdrawn when proponents determined they did not have the sixty-seven
votes necessary to pass the measure. After it had become clear that the necessary super-majority votes were not available to
amend the Constitution, victims advocates turned their attention to enactment of a comprehensive victims' rights statute.
B. The Crime Victims' Rights Act
The Crime Victims' Rights Act ultimately resulted from a decision by the victims' movement to seek a more comprehensive
and enforceable federal statute rather than to pursue the dream of a federal constitutional amendment. In April 2004, victims
advocates met with Senators Kyl and Feinstein to decide whether to push again for a federal constitutional amendment.
Concluding that the amendment lacked the required supermajority, the advocates decided to press for a far-reaching federal
statute protecting victims' rights in the federal criminal justice system. 50 In exchange for backing off from the constitutional
amendment in the short term, victims advocates received near universal congressional support for a "broad and encompassing"
statutory victims' bill of rights. 51 This "new and bolder" approach not only created a bill of rights for victims, but also
provided funding for victims' [*870] legal services and created remedies when victims' rights were violated. 52 The victims'
movement would then see how this statute worked in future years before deciding whether to continue to push for a federal
amendment. 53
The legislation that ultimately passed - the Crime Victims' Rights Act - gives victims "the right to participate in the system." 54
It lists various rights for crime victims in the process of prosecuting the accused, including the right to be notified of court
hearings, the right to attend those hearings, the right to be heard at appropriate points in the process, and the right to be treated
with fairness. 55 Rather than relying merely on the "best efforts" of prosecutors to vindicate the rights, the CVRA also contains
42
146 Cong. Rec. S2986 (daily ed. Apr. 27, 2000) (statement of Sen. Kyl).
43
Id. at S2966 (statement of Sen. Kyl).
44
H.R.J. Res. 64, 106th Cong. (2000).
45
S.J. Res. 35, 107th Cong. (2002).
46
149 Cong. Rec. 582 (daily ed. Jan. 7. 2003) (statement of Sen. Kyl).
47
H.R.J. Res. 91, 107th Cong., (2002).
48
A Proposed Constitutional Amendment to Protect Crime Victims, S.J. Res. 1: Hearings Before the S. Comm. on the Judiciary, 108th Cong.
(2003).
49
S. Rep. No. 108-191 (2003).
50
Kyl et al., supra note 31, at 591-92.
51
150 Cong. Rec. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
52
Id. at S4263 (statement of Sen. Feinstein).
53
Id. at S4260 (statement of Sen. Kyl); see also Prepared Remarks of Attorney General Alberto R. Gonzales, Hoover Inst. Bd. of Overseers
Conference (Feb. 28, 2005) (indicating a federal victims' rights amendment remains a priority for President Bush).
54
150 Cong. Rec. S4263 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). For a description of victim participation, see Beloof, supra
note 6.
55
18 U.S.C. § 3771(a) (2006).
DAVID SCHOEN
2007 Utah L. Rev. 861, *870
Page 7 of 78
specific enforcement mechanisms. 56 Most important, the CVRA directly confers standing onto victims to assert their rights, a
flaw in the earlier enactment. 57 The act provides that rights can be "asserted" by "the crime victim or the crime victim's lawful
representative, and the attorney for the Government." 58 The victim (or the government) may appeal any denial of a victim's
right through a writ of mandamus on an expedited basis. 59 The courts are also required to "ensure that the crime victim is
afforded" the rights given by the new law. 60 These changes were intended to make victims "an independent participant in the
proceedings." 61
C. My Proposed Amendments to the Federal Rules of Criminal Procedure
In the wake of the CVRA, the Federal Rules of Criminal Procedure needed to be significantly amended to comply with the
statute's mandates. With this goal in mind, I prepared a comprehensive set of proposed amendments to the Rules and submitted
them to the Advisory Committee on the Federal Rules of Criminal Procedure. 62
My proposals began from the premise that "victims now must be folded into the process through which federal courts conduct
criminal cases, including bail, plea, trial, and sentencing hearings." 63 Because the federal rules are the "playbook" [*871] of
the federal courts, it seemed advisable to reflect the new role of victims throughout the Rules. Moreover, Congress intended the
CVRA to be "a formula for success" and a "model for our States." 64 The only way the federal rules could serve as a model, I
argued, was by fully implementing victims' rights. I then proposed twenty-eight specific changes to the Federal Rules of
Criminal Procedure to integrate crime victims into the federal process. 65 Each of these proposals included both specific text
for an amendment and a legal justification for the change.
D. The Criminal Rules Committee Proposals
The Advisory Committee took up my proposed rule changes in the summer of 2005. The distinguished chair of the committee,
Judge Susan Bucklew, appointed a subcommittee, chaired by Judge James Jones, to consider changes to the federal rules to
implement the CVRA. The Subcommittee, including its reporter, Professor Sara Sun Beale, prepared a report to the full
committee recommending only a few changes to the Rules. 66 The Subcommittee "felt that it would not be appropriate to
create new victim rights not based upon the statute." 67 Accordingly, the Subcommittee recommended just a few changes to
the Rules, essentially parroting a few parts of the CVRA's language.
56
Id.
57
Cf. Beloof, supra note 7, at 283 (identifying this as a pervasive flaw in victims' rights enactments).
58
18 U.S.C. § 3771(d)(1).
59
Id. § 3771(d)(3).
60
Id. § 3771(b)(1).
61
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
62
See Cassell, Proposed Amendments, supra note 4.
63
Id. at 852.
64
Id. at 854-55 (quoting 150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)).
65
Id. at 856-923.
66
Memorandum from Professor Sara Sun Beale, Reporter, to the Members of the Crim. Rules Advisory Comm. (Sept. 19, 2005) [hereinafter
CVRA Subcommittee Memo]. This document does not appear on the helpful website regarding federal rulemaking - www.uscourts.gov/rules.
To make the document more widely available, I have posted the report on my website -http://www.law.utah.edu/paul-cassell.
67
CVRA Subcommittee Memo, supra note 66, at 2.
DAVID SCHOEN
2007 Utah L. Rev. 861, *871
Page 8 of 78
The full Advisory Committee took up the Subcommittee's proposals at its meeting on October 24-25, 2005. 68 It largely agreed
with the Subcommittee's proposals, approving a limited set of changes to the Rules to implement the CVRA. The Advisory
Committee sent a report of its proposed changes to the Standing Committee on Rules of Practice and Procedure in December,
2005. 69 The Advisory Committee described its changes as seeking "to incorporate, but not go beyond, the rights created by
the statute." 70 The rules were then circulated for nationwide public comment. 71 The Advisory Committee held a public
hearing on [*872] the rule change in Washington, D.C. on January 26, 2007. I testified at the hearing, presenting this Article
as my testimony. 72
III. The CVRA's Right to Fairness Requires Comprehensive Changes to Protect Victims
The CVRA requires fundamental changes in the Federal Rules of Criminal Procedure. The CVRA makes crime victims
participants in the criminal justice process and commands in sweeping terms that the courts must treat victims "with fairness
and with respect for the victim's dignity and privacy." 73 To faithfully implement that directive, it is necessary to assess each of
the existing rules against a fairness standard and then make changes and additions where the Rules do not guarantee fair
treatment to victims.
The Advisory Committee has made some useful progress in that direction. It should be commended for the careful drafting of
its proposed changes and the thoroughness with which it explored the topic. Moreover, it is the nature of articles such as this
one to highlight points of disagreement rather than points of agreement. The Advisory Committee has seen fit to adopt several
of the proposals that I recommended, 74 a fact that should not be overlooked.
Unfortunately, the Advisory Committee acted timidly. Instead of reviewing all the Rules to determine whether they treated
victims fairly, the Advisory Committee decided it would not venture beyond parroting specifically described rights in the
CVRA. The committee's reporter, well-regarded Duke law professor Sara Sun Beale, articulated the Advisory Committee's
drafting technique as simply incorporating rights created by Congress:
The most basic decision was how far beyond the statutory provisions the rules should go at this time. Although the CVRA
enumerates a number of specific rights, it also contains general language stating that victims have a "right to be treated with
fairness." Judge Cassell advocates using this general right to fairness as a springboard for a variety of victim rights not
otherwise provided for in the CVRA.
[We] concluded that the rules should incorporate, but not go beyond, the specific statutory provisions. The CVRA reflects a
careful Congressional balance between the rights of the defendant, the discretion afforded to prosecution, and the new rights
afforded to victims. In light of this careful statutory balance, [we] felt that it would not be appropriate to create new victim
rights not based upon the statute. Rather, [we] [*873] sought to incorporate the rights Congress did afford into the rules. In so
doing, [we] attempted, to the degree possible, to use the statutory language. [We] anticipate[] that the courts will develop the
68
Judicial Conference of the United States, Minutes of the Advisory Committee on the Rules of Criminal Procedure (Oct. 24-25, 2005),
available at http://www.uscourts.gov/rules/Minutes/CR10-2005-min.pdf [hereinafter Advisory Committee Minutes].
69
Judicial Conference of the United States, Report of the Advisory Committee on Criminal Rules (Dec. 8, 2005), available at
http://www.uscourts.gov/rules/Reports/CR12-2005.pdf [hereinafter Advisory Committee Report].
70
Id. at 2.
71
Committee on Rules of Practice & Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments
to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure (Aug. 2006), www.uscourts.gov/ rules/newrules1.html
[hereinafter Proposed Amendments] (last visted Dec. 30, 2007).
72
All testimony and other comments about the proposed changes can be found at www.uscourts.gov/rules/Proposed0206-1.htm.
73
18 U.S.C. § 3771(a)(8) (2006) (emphasis added).
74
See, e.g., infra notes 96-97 and accompanying text (discussing amendment to Rule 18).
DAVID SCHOEN
2007 Utah L. Rev. 861, *873
Page 9 of 78
meaning of the statutory terms on a case-by-case basis, and [we] did not attempt to use the rules to anticipate and resolve the
interpretative questions that will arise. 75
Before debating the merits of the Advisory Committee's position, it is useful to step back and look at the forest rather than the
trees. Regardless of how the CVRA's language on fairness is interpreted, should we really debate treating crime victims fairly?
Presumably the general public expects the nation's criminal rules to be fair to all concerned - the government, defendants, and
victims. Reflecting that view, for the last twenty years Congress has passed a series of laws extending rights to crime victims.
76 Even without a single word in the CVRA mentioning fairness, the Advisory Committee should carefully review the existing
rules to ensure fairness for victims.
In any event, Congress has spoken. The Advisory Committee's general approach does not faithfully implement the
congressional command of fair treatment, as the following sections demonstrate.
A. The CVRA's Text and Legislative History Create a Substantive Right to Fairness
Turning to the Advisory Committee's specific justifications for not implementing the right to fairness, perhaps its most striking
claim is that the right is merely some sort of a "springboard" for other specific rights. The Advisory Committee declines to
implement this right because this would "go beyond … the specific statutory provisions" in the CVRA. 77 But the right to
fairness is itself one of the specific provisions in the CVRA. The CVRA grants victims the following rights:
1. The right to be reasonably protected from the accused
2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused
3. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that
proceeding
[*874] 4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or
any parole proceeding
5. The reasonable right to confer with the attorney for the Government in the case
6. The right to full and timely restitution as provided in law
7. The right to proceedings free from unreasonable delay
8. The right to be treated with fairness and with respect for the victim's dignity and privacy 78
As in the various state victims' bills of rights, 79 the fairness right is not mere hortatory language. The CVRA introduced these
rights in the statute with the introductory clause: "A crime victim has the following rights … ." 80 Thus, the right to fairness is
75
CVRA Subcommittee Memo, supra note 66, at 1-2. The Advisory Committee largely adopted the recommendation of the subcommittee.
To simplify this Article, I will generally ascribe the views of the subcommittee to the Advisory Committee.
76
See supra notes 14-20 and accompanying text.
77
CVRA Subcommittee Memo, supra note 66, at 1.
78
18 U.S.C. § 3771(a) (2006) (emphasis added).
79
See, e.g., Alaska Const. art. I, § 24 (victim's right "to be treated with dignity, respect, and fairness during all phases of the criminal and
juvenile justice process"); Ariz. Const. art. II, § 2.1(A)(1) (victim's right "to be treated with fairness, respect, and dignity"); Idaho Const. art.
I, § 22(1) (victim's right "to be treated with fairness, respect, dignity and privacy throughout the criminal justice process"); Ill. Const. art. I, §
8.1(a)(1) (victim's right "to be treated with fairness and respect for their dignity"); Mich. Const. art. I, § 24(1) (victim's right "to be treated
with fairness and respect for their dignity and privacy throughout the criminal justice process"); N.J. Const. art. I, § 22 (victim's right to "be
DAVID SCHOEN
2007 Utah L. Rev. 861, *874
Page 10 of 78
to be given real world application. To be sure, it is a broad right - akin to the defendant's broad right to "due process of law." 81
But to implement that right in the criminal rules is not "creating new victims rights not based upon the statute," as the Advisory
Committee puts it, but simply implementing a clearly articulated congressional command.
It is a "cardinal principle of statutory construction" that effect must be given to every word in a statute. 82 Under the Advisory
Committee's approach, the congressional directive that crime victims be treated fairly will have no effect on [*875] any of the
Rules. The fairness directive will, in other words, be rendered mere surplusage - something that the Supreme Court has
repeatedly cautioned against. 83
The Advisory Committee also admits that it is interpreting the CVRA narrowly, contrary to the standard rule that remedial
legislation is to be construed broadly. 84
In addition, the Advisory Committee's approach flouts the declared intentions of the Act's drafters. There is no need to guess
about Congress's intent on the right of fairness. Senator Kyl, who cosponsored the CVRA with Senator Feinstein, explained
quite directly that Congress meant for the right to have substantive content:
The broad rights articulated in this section [section 8, mandating victims be treated with fairness along with dignity and
respect] are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be
treated with fairness. Of course, fairness includes the notion of due process. 85
Nor is there any doubt that Congress intended this command to reach the judiciary, including judicial branch components like
the Advisory Committee. Again, Senator Kyl specifically addressed this point:
Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision
[section 8] is intended to direct government agencies and employees, whether they are in executive or judicial branches, to treat
victims of crime with the respect they deserve and to afford them due process. 86
The Advisory Committee's decision not to treat fairness as an enforceable right is so at odds with the CVRA's legislative
history that one becomes curious as to why the Advisory Committee determined not to follow it. The Advisory Committee also
diverged from the legislative history in several other areas. 87 In reviewing the Advisory Committee's records, however,
notably absent is any mention of legislative intent. The Advisory Committee does not cite the statute's [*876] legislative
treated with fairness, compassion and respect by the criminal justice system"); N.M. Const. art. II, § 24(A)(1) (the "right to be treated with
fairness and respect for the victim's dignity and privacy throughout the criminal justice process"); Ohio Const. art. I, § 10a (victims "shall be
accorded fairness, dignity, and respect in the criminal justice process"); Tex. Const. art. I, § 30(a)(1) ("right to be treated with fairness and
with respect for the victim's dignity and privacy throughout the criminal justice process"); Utah Const. art. I, § 28(1)(a) (victim's right to be
"treated with fairness, respect, and dignity"); Wisc. Const. art. I, § 9m (victim's right to be treated with "fairness, dignity and respect for their
privacy"). See generally Cassell, Balancing the Scales, supra note 6, at 1387-88 (discussing victim's right to fairness in Utah).
80
18 U.S.C. § 3771(a) (emphasis added).
81
U.S. Const. amend. V; see also U.S. Const. amend. XIV (due process right in state proceedings).
82
See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)).
83
See, e.g., Babbit v. Sweet Home Chapter of Comtys. for a Great Or., 515 U.S. 687, 698 (1995).
84
See, e.g., Hughes v. Box, 814 F.2d 498, 501 (8th Cir. 1987); Gardner & N. Roofing & Siding Corp. v. Bd. of Governors of Fed. Reserve
Sys., 464 F.2d 838, 841 (D.C. Cir. 1972).
85
150 Cong. Rec. 4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added); see also 150 Cong. Rec. S10,911 (daily ed. Oct.
9, 2004) (statement of Sen. Kyl).
86
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added); see also 150 Cong. Rec. 4269 (daily ed. Apr.
22, 2004) (statement of Sen. Kyl).
87
See, e.g., infra notes 437-443 (noting rejection of Senators Feinstein's and Kyl's views on the right to be heard on issues affecting victims'
rights); infra note 488-493 (noting rejection of Senator Kyl's views on the right to be heard on speedy trial issues).
DAVID SCHOEN
2007 Utah L. Rev. 861, *876
Page 11 of 78
history even once in a twenty-page subcommittee report, in four pages of minutes of its discussions, or in twenty-six pages of
proposed amendments and accompanying Advisory Committee Notes. 88 Perhaps the Advisory Committee took a different
approach than the CVRA's drafters because it did not consider their stated intentions.
If, on the other hand, the Advisory Committee was aware of the drafters' intentions and declined to follow them, it is staking
out a rather unusual path. It is standard practice for the Advisory Committee, no less than courts, to look to legislative history in
crafting the Rules. 89 With respect to the CVRA in particular, many courts have found the CVRA's legislative history highly
instructive. They have good reason for relying on the history. Unlike some contentious pieces of legislation where legislators
possessed divergent views, the CVRA enjoyed a "broad, bi-partisan consensus." 90 It passed by a vote of 393 to 14 in the
House 91 and by a voice vote in the Senate. 92 Moreover, the CVRA's cosponsors were bipartisan, and the views they gave on
the legislation were not contradicted by anyone else. Thus, as the Ninth Circuit has explained in construing the CVRA to track
Senator Kyl's and Feinstein's views:
Floor statements by the sponsors of the legislation are given considerably more weight than floor statements by other members,
and they are given even more weight where, as here, other legislators did not offer any contrary views. Silence, the maxim
goes, connotes assent, and so we can draw from the fact that no one registered disagreement with Senators Kyl and Feinstein on
this point the reasonable inference that the views they expressed reflected a consensus, at least in the Senate. 93
In light of all this, it is beyond doubt that crime victims have a substantive right to be treated with fairness (as well as with
respect for their dignity and [*877] privacy) in the federal criminal justice process. Once that right is in mind, the Advisory
Committee has clear duties under the Rules Enabling Act. That Act provides that the Rules "shall not abridge, enlarge or
modify any substantive right." 94 Therefore, if any existing rule of criminal procedure "abridges" or even "modifies" a victim's
rights to fairness, it is invalid and must be changed. Accordingly, the Advisory Committee must review all the Federal Rules of
Criminal Procedure to ensure that they protect victims' right to fairness.
B. The Advisory Committee Treats the Right to Fairness Inconsistently
The Advisory Committee claimed that to implement the right to fairness would use the right as "a springboard for a variety of
victim rights not otherwise provided for in the CVRA." 95 If so, the Advisory Committee was unable to consistently follow its
own view. The Advisory Committee agreed with my proposed change to Rule 18; that change required that when a court
determines where within a judicial district to hold a trial, it should consider not only the convenience of the defendant and the
88
See Advisory Committee Report, supra note 69, at 1-20; Advisory Committee Minutes, supra note 68, at 13-16; Proposed Amendments,
supra note 71, at 349-75.
89
See, e.g., Fed. R. Crim. P. 15, Advisory Committee Note to 1974 Amendment (quoting directly from the Congressional Record statements
from drafter of relevant legislation).
90
See United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006); see also 150 Cong. Rec. S10910 (daily ed. Oct. 9, 2005) (statement
of Sen. Kyl) ("After extensive consultation with my colleagues, broad bipartisan consensus was reached and the language in [the CVRA] was
agreed to.").
91
150 Cong. Rec. H8208-09 (daily ed. Oct. 6, 2004).
92
150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004).
93
Kenna v. U.S. Dist. Court for the Cent. Dist. of Cal., 435 F.3d 1011, 1015-16 (9th Cir. 2006) (internal quotations and citations omitted);
accord United States v. Sharp, 463 F.Supp.2d 556, 561 n.12 (E.D. Va. 2006); see also In re Kenna, 453 F.3d 1136, 1137 (9th Cir. 2006)
(looking to legislative history to interpret CVRA); United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006) (same); United States v.
Degenhardt, 405 F. Supp. 2d 1341, 1344 (D. Utah 2006) (same); United States v. Ingrassia, 2005 WL 2875220 (E.D.N.Y. 2005) (same).
94
28 U.S.C. § 2072(b) (2006).
95
CVRA Subcommittee Memo, supra note 66, at 1.
DAVID SCHOEN
2007 Utah L. Rev. 861, *877
Page 12 of 78
witnesses, but also the victim as well. 96 Notably, the Advisory Committee's rationale for this change was to "implement[] the
victim's "right to be treated with fairness' under the Crime Victims' Rights Act." 97 But if a change to the relatively obscure
Rule 18 is appropriate in light of the victim's right to fairness, why aren't changes to many other, more significant rules also
appropriate?
Further highlighting the inconsistent treatment of the right to fairness is the way the Advisory Committee handled parallel
provisions in the CVRA. In a single clause, the CVRA gives victims the right to be treated not only with fairness, but also with
dignity and respect: section (a)(8) of the CVRA provides that victims shall enjoy "the right to be treated with fairness and with
respect for the victim's dignity and privacy." 98 The Advisory Committee used victims' rights to dignity and respect as a
"springboard" in several places. For example, the Advisory Committee proposed an amendment to prevent inappropriate
subpoenas for personal or confidential information about a victim, explaining that "this amendment implements the Crime
Victims Rights Act, codified at 18 U.S.C. § 3771(a)(8), which states that victims have a right to respect for their "dignity and
privacy.'" 99 Similarly, the Advisory Committee proposed an amendment to prevent the inappropriate release of a victim's
address and telephone number as part of alibi defense disclosures, explaining that "this amendment implements the victims'
rights under the Crime Victims Rights Act … to be treated with respect for the [*878] victim's dignity and privacy." 100 Why
the Advisory Committee believed it appropriate to try to implement the "dignity and privacy" provisions of the CVRA but not
the immediately adjacent "fairness" provision is unclear.
C. The Advisory Committee Should Not Leave the CVRA's Interpretation to the Litigation Process.
The Advisory Committee also justified its decision not to review the Rules for fairness on the ground that it would "not
attempt to use the rules to anticipate and resolve the interpretative questions that will arise" under the CVRA. 101 Yet a basic
purpose - perhaps the basic purpose - behind the procedural rules is to lay out answers to questions that might otherwise have to
be litigated. To that end, Rule 2 of the criminal rules provides that "these rules are to be interpreted to provide for the just
determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate
unjustifiable expense and delay." 102 It is at odds with securing simplicity in procedure to simply regurgitate the language of
the CVRA in the criminal rules, leaving every interpretative question to the vagaries of litigation.
Historical examples are legion of the Advisory Committee amending the Federal Rules of Criminal Procedure precisely to
resolve questions that were being (or might have been) litigated. To provide a few straightforward examples, in 1979 the
Advisory Committee amended and clarified the standards for presentence withdrawal of a guilty plea. The Advisory Committee
noted that courts had "critically stated that the Rule offers little guidance as to the applicable standard for a presentence
withdrawal of plea and that as a result the contours of [the presentence] standard [in the rule] are not easily defined." 103 The
amendment clarified language "which has been a cause of unnecessary confusion." 104
96
See Advisory Committee Report, supra note 69, at 8 (adopting proposal from Cassell, Proposed Amendments, supra, note 4, at 878-79).
97
Id. at 4; accord CVRA Subcommittee Memo, supra note 66, at 8.
98
18 U.S.C. § 3771(a)(8).
99
Advisory Committee Report, supra note 69, at 3 (note to Proposed Rule 17(c)(3)).
100
Id. at 351.
101
CVRA Subcommittee Memo, supra note 66, at 2.
102
Fed. R. Crim. P. 2.
103
Fed. R. Crim. P. 32 advisory committee's note (1979 Amend. to Rule 32(d)) (internal quotation marks omitted).
104
Id.
DAVID SCHOEN
2007 Utah L. Rev. 861, *878
Page 13 of 78
In 1983, the Advisory Committee changed Rule 11(a)(2) to eliminate a split of authority on conditional guilty pleas. One of the
reasons for the change was to "produce much needed uniformity in the federal system on this matter." 105
In 1994, the Advisory Committee amended rule 32(b)(2) to give defense counsel an opportunity to be present when probation
officers interviewed their clients while preparing a presentence report. 106 The Advisory Committee Notes explained that while
there was no constitutional right to counsel at this point in the process, caselaw in two circuits suggested that requests of
counsel to be present should be honored as a matter of prudence. 107 What is particularly interesting about [*879] this
example is that the Advisory Committee stepped in to protect the legitimate interests of defendants even in the absence of a
constitutional or statutory command to do so. Of course, the CVRA creates a statutory command to the Advisory Committee to
protect victims' interests.
In 2002, the Advisory Committee amended Rule 51 to provide that court rulings admitting or excluding evidence were
governed by the Federal Rules of Evidence. The reason was to avoid "the possibility that an argument might have been made"
that an earlier congressional action conflicted with the rules of evidence. 108 In other words, the Advisory Committee simply
anticipated and resolved an interpretive question that might otherwise have arisen.
In 2005, the Advisory Committee amended Rule 12.2 to provide sanctions for a party's failure to disclose certain alibi
information. 109 The reason for the change was to "fill[] a gap" in the Rules. 110
In these instances, the Advisory Committee stepped in to avoid unnecessary litigation and to clarify the application of the
Rules. Not only is this the Advisory Committee's standard approach, but there are particularly strong reasons for not leaving
clarification of crime victims' rules to case-by-case litigation. The most significant problem is that such litigation will occur
only in fits and starts. Unlike the government and criminal defendants who always have legal representation, crime victims
have no right to appointed counsel and are often indigent or otherwise unable to afford to hire an attorney. 111 As a result, in
many cases it is an empty gesture to promise victims that they can litigate application of the Rules. As a practical matter, they
will often be unable to do so. 112 Indeed, the Advisory Committee seemingly compounds this problem by declining to put into
the Rules any restatement of courts' discretionary authority to appoint counsel for crime victims. 113
Even in cases where victims can afford counsel to defend their legal rights, the kind of litigation that the Advisory Committee
envisions will be unenlightening and formalistic. For instance, while I have proposed including a specific provision in the Rule
11 guilty plea colloquy requiring that the court address a victim before accepting a plea, 114 the Advisory Committee has not
recommended any change. This failure could well spawn litigation about the victims' role in the plea process that will require
courts to consider why Rule 11 fails to mention crime victims and how this failure interplays with the CVRA's commands on
105
Fed. R. Crim. P. 11 advisory committee's note (1983 Amend.).
106
Fed. R. Crim. P. 32 advisory committee's note (1994 Amend.).
107
Id.
108
Fed. R. Crim. P. 51 advisory committee's note (2002 Amend.).
109
Fed. R. Crim. P. 12.2 advisory committee's note (2005 Amend.).
110
Id.
111
See Beloof, Cassell & Twist, supra note 6, at 381.
112
In theory, the government is given authority to assert rights for crime victims, see 18 U.S.C. § 3771(d)(1) (2006), but in practice the
reported cases under the CVRA thus far show few examples where the government has been willing to do so. See, e.g., Kenna v. U.S. Dist.
Court for the Cent. Dist. of Cal., 435 F.3d 1011, 1018 (9th Cir. 2006) (victims' assertion of right affirmed; government does not take a
position on the claim).
113
See infra notes 449-463 and accompanying text (discussing proposed rule 44.1).
114
See infra notes 145-152 and accompanying text.
DAVID SCHOEN
2007 Utah L. Rev. 861, *879
Page 14 of 78
victims' rights in the [*880] plea process. Because the CVRA guarantees victims a right in the plea process, its dictates will
ultimately govern. But only the Advisory Committee can pretermit such needless litigation about how to interpret its rules. In
short, it would be much simpler for all concerned if Rule 11 - and, indeed, all the other rules - were redrafted to simply fold
victims in at the appropriate point in the process.
Finally, one of the overriding goals of the CVRA is to dramatically reform the entire approach of the federal criminal justice
system. As Senator Feinstein explained "this legislation is meant to correct, not continue, the legacy of the poor treatment of
crime victims in the criminal process." 115 And Senator Kyl added, "[a] central reason for these rights is to force a change in a
criminal justice culture which has failed to focus on the legitimate interests of crime victims … ." 116 Given Congress's clear
intent to change a hostile legal culture, it makes no sense to leave victims to the mercies of litigation to determine the scope of
their rights.
For all these reasons, the Federal Rules of Criminal Procedure should be amended not only to implement the narrow rights
articulated in the CVRA but also its more open-ended rights, particularly the victim's right to be treated with fairness.
IV. Specific Rule Changes to Comply with the CVRA
Against the backdrop of the statutory command that victims should be treated with fairness, the balance of this Article will
compare my specific proposals for amending the Rules with those of the Advisory Committee - attempting to show the strong
points of my ideas. For convenience, the Article proceeds sequentially through the Rules from beginning to end, relying in the
case of proposed amendments on the Advisory Committee's numbering.
Rule 1 - Definition of "Victim" and "Victim's Representative" The Proposals:
I proposed amending Rule 1 to include a definition of victim and the victim's representatives as follows:
"Victim" means a person directly and proximately harmed as a result of the commission of a federal offense or an offense in the
District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the
legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons
appointed as suitable by the court, may [*881] assume the crime victim's rights under these rules, but in no event shall the
defendant be named as such guardian or representative. 117
The Advisory Committee instead proposed to cross-reference the statutory definition of "crime victim" as follows:
"Victim" means a "crime victim" as defined in 18 U.S.C. § 3771(e). A person accused of an offense is not a victim of that
offense. 118
Discussion:
The rules should be amended to make clear that both a victim and the victim's representative can assert the victim's rights. As
an effort in that direction, I proposed amending Rule 1 to include a definition of "victim" as well as a definition of "victim's
lawful representative." 119 My definitions were lifted from the CVRA. 120 In response, the Advisory Committee agreed to
include a definition of "victim" but left to an Advisory Committee Note the reference to the victim's representative. 121
115
150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
116
150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
117
Cassell, Proposed Amendments, supra note 4, at 856-57.
118
Proposed Amendments, supra note 71, R. 1(b)(11), at 1.
119
Cassell, Proposed Amendments, supra note 4, at 852, 856-57.
120
See 18 U.S.C. § 3771(e) (2006); see also United States v. Sharp, 463 F. Supp. 2d 556, 558 (E.D. Va. 2006) (person harmed by former
domestic partner of marijuana user was not "victim" entitled to provide victim impact statement pursuant to CVRA).
DAVID SCHOEN
2007 Utah L. Rev. 861, *881
Page 15 of 78
The differences between the two approaches might seem modest until one recognizes that another provision in the Advisory
Committee's proposals appears to intentionally omit any reference to a victim representative. Proposed Rule 60, the Advisory
Committee's "global" provision dealing with victims' rights, explains who may enforce victims' rights. 122 In clear contrast to
the CVRA's governing provision, this proposed rule omits any reference to a crime victim's representative. Proposed Rule 60
provides only that "the rights of a victim under these rules may be asserted by the victim and the attorney for the government."
123 In contrast, the CVRA enforcement provision states: "The crime victim or the crime victim's lawful representative, and the
attorney for the Government may assert the rights described in subsection (a)." 124 Nothing in the Advisory Committee Notes
indicates that a crime victim's representative is among those authorized to assert the rights. The Advisory Committee also
struck existing [*882] language in the Rules about a victim's representative exercising the victim's right to speak at
sentencing. 125
The repeated omission of any reference to a victim's representative is unsettling given the Advisory Committee's promise to
simply track the CVRA's language. 126 Its failure to track the language here leaves the impression that the Advisory Committee
is uncomfortable with a victim's representative asserting rights. Perhaps the Committee could make a policy argument against
such representation, but Congress has said victims have the right to have representatives speak for them. The Federal Rules
should follow the CVRA and state clearly that a victim's representative can assert a victim's rights.
The need for clarity on this point is heightened by pre-CVRA caselaw questioning any right by a victim's representative to
assert victims' rights. Most notably, in one of the Oklahoma City bombing prosecutions, the Tenth Circuit rebuked a trial judge
for permitting an attorney for the bombing victims to participate in oral argument at a sentencing hearing. 127 The Circuit
stated that "in the absence of any authority permitting the participation of victims' counsel, we harbor concerns about the
propriety of the district court's rulings." 128 This statement can no longer be regarded as good law in light of the CVRA's
commands. 129
Another reason for clarity is to make sure that corporate and organizational victims are able to be heard in the process. The
CVRA's definition of victim - "a person directly and proximately harmed as a result of the commission of a Federal offense"
130 - is essentially lifted from federal restitution statutes. 131 Federal courts have consistently held that a "person" entitled to
restitution includes corporate entities. 132 Of course, such legal entities cannot appear personally but only through [*883] a
121
For subsequent developments on this issue, see infra notes 578-579 and accompanying text.
122
Proposed Amendments, supra note 71, R. 60, at 16-18.
123
Advisory Committee Report, supra note 69, at 16.
124
18 U.S.C. § 3771(d)(1) (2006) (emphasis added).
125
See Proposed Amendments, supra note 71, R. 32(i)(4)(B)(i)-(ii), at 13-14 (deleting language confirming permission for parent or legal
guardian to exercise right to speak at sentencing for minor and incapacitated victims).
126
See, e.g., Advisory Committee Report, supra note 69, at 1 ("The Subcommittee concluded that the Rules should incorporate, but not go
beyond, the specific statutory provisions [in the CVRA].").
127
United States v. Fortier, 242 F.3d 1224, 1230 (10th Cir. 2001). In the interest of full disclosure, I was the attorney in question.
128
Id.
129
See United States v. Degenhardt, 405 F. Supp. 2d 1341, 1343 n.7 (D. Utah 2005) (noting that Fortier has now been overruled by statute).
130
18 U.S.C. § 3771(e) (2006) (emphasis added).
131
See 18 U.S.C. § 3663(a)(2); id. § 3663A(a)(2).
132
See, e.g., United States v. Martin, 128 F.3d 1188, 1191 (7th Cir. 1997) (collecting cases); United States v. Hand, 863 F.2d 1100, 1104 (3d
Cir. 1988) (it makes no sense to say that "if General Motors or Chase Manhattan Bank had funds stolen, in violation of federal criminal law, a
DAVID SCHOEN
2007 Utah L. Rev. 861, *883
Page 16 of 78
representative. To eliminate any doubt about the ability of corporate entities to assert their interests, the Rules should be
amended to clearly state that a victim's representative can enforce victims' rights. 133
Rule 2 - Fairness to Victims The Proposals:
I proposed amending Rule 2 to require fairness to victims in construing the Rules as follows:
These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in
procedure and fairness in administration to the government, defendants, and victims, and to eliminate unjustifiable expense and
delay. 134
The Advisory Committee did not propose amending Rule 2. 135
Discussion:
To assure that crime victims are treated fairly throughout the process, it makes sense to add language incorporating crime
victims in Rule 2 - the one rule that specifically mentions fairness. As discussed in the previous Part of this Article, the
Advisory Committee does not agree that the Rules should be amended to protect a victim's right to fairness and for this reason,
presumably, declined to amend Rule 2. The qualifier "presumably" is needed here because the CVRA Subcommittee did not
give an explanation for declining to follow my recommendation here. 136
The fairness issues appears to be the fundamental difference between my approach and the Advisory Committee's approach -
the Rules are either going to treat crime victims fairly or not. As discussed in the previous Part of this Article, they should.
But even those who share my view on fairness might nonetheless argue that Rule 2 need not be amended because it is an
interpretive rule with no substantive effect. After all, it could be argued, the rule simply calls for a "just determination" of
criminal cases, arguably a symbolic command. And, in any event, that command might be flexible enough to encompass crime
victims.
[*884] The debate about how Rule 2 ought to read is, however, about more than symbols. In 1946, the initial chairman of the
Advisory Committee called Rule 2 "the most important rule of the whole set." 137 Rule 2 has been cited by a number of courts,
138 including the Supreme Court. 139 Rule 2 has consequences. Not only does it "set[] forth a principle of interpretation" for
judge could not require the wrongdoers to pay restitution … ."); United States v. Kirkland, 853 F.2d 1243, 1246 (5th Cir. 1988) ("Non-human
entities … can be "victims' entitled to restitution … ."); see also United States v. Lincoln, 277 F.3d 1112, 1113-14 (9th Cir. 2002) (discussing
18 U.S.C. § 3664, which specifically recognizes the United States as a possible victim for restitution purposes).
133
The National Association of Criminal Defense Lawyers has proposed adding a "factfinding" hearing for determining who qualifies as a
victim under the CVRA. This novel and cumbersome proposal is discussed below. See infra notes 546-547 and accompanying text
(discussing Proposed Rule 60(b)).
134
Cassell, Proposed Amendments, supra note 4, at 858.
135
Proposed Amendments, supra note 71.
136
See CVRA Subcommittee Report, supra note 66, at 17-20 (listing Cassell proposals not adopted; Rule 2 proposal not listed).
137
Vanderbilt, N.Y.U Institute of Federal Rules of Civil Procedure, at 120 (1946), quoted in 1 Charles Alan Wright, Federal Practice and
Procedure: Criminal § 32, at 30 n.1 (3d ed. 1999).
138
See, e.g., United States v. Gupta, 363 F.3d 1169,1174 (11th Cir. 2004); United States v. Navarro, 169 F.3d 228, 237 (5th Cir. 1999);
United States v. Price, 13 F.3d 711, 723 (3d Cir. 1994); United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991); United States v.
Campbell, 845 F.2d 1374, 1378 (6th Cir. 1988); United States v. Green, 847 F.2d 622, 625 (10th Cir. 1988); United States v. Hillard, 701
F.2d 1052, 1061 (2d Cir. 1983), cert. denied 461 U.S. 958 (1983); United States v. Broadus, 664 F. Supp. 592, 596-98 (D.D.C. Cir. 1987);
United States v. Pers. Fin. Co. of N.Y., 13 F.R.D. 306, 311 (S.D.N.Y. 1952).
139
See Carlisle v. United States, 517 U.S. 416, 424, 431 (1996).
DAVID SCHOEN
2007 Utah L. Rev. 861, *884
Page 17 of 78
ambiguous rules, but the Court has used it as a basis for deviating from the Rules in some circumstances. 140 Indeed, in some
lower court cases, Rule 2 has proven outcome determinative. For example, in United States v. Broadus, the United States
District Court for the District of Columbia used Rule 2 as a basis for deviating from the time limits imposed by Rule 29(c) for
the defendant to seek a new trial. 141 Relying on Rule 2, the court determined that "a seemingly plausible inference from a
criminal rule cannot command blind adherence if it would deprive an accused person … of a just determination of his or her
cause." 142 Using Rule 2 to protect defendants' legitimate interests seems entirely proper. But crime victims need the same
textual support to secure their legitimate interests.
Not only is Rule 2 important, directly including crime victims in the language is important as well. Courts are used to resolving
disputes between prosecutors and defendants, not considering the interests of crime victims. 143 That problem is, indeed, the
whole reason for the passage of the CVRA. As Senator Feinstein has explained, "In case after case we found victims and their
families were ignored, cast aside, and treated as non-participants in a critical event in their lives. They were kept in the dark by
… judges focused on defendant's rights, and by a court system that simply did not have a place for them." 144 For all these
reasons, Rule 2 should be amended to make clear that the Rules must be construed to be fair not only to the parties, but also to
victims.
[*885] Rule 11(a)(3) - Victims' Views on Nolo Contendere Pleas The Proposals:
I proposed requiring courts to consider a victim's view before accepting any nolo contendere plea as follows:
Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties' and victims' views and
the public interest in the effective administration of justice. 145
The Advisory Committee proposed no change to the rule. 146
Discussion:
It is unclear why the Advisory Committee declined to change Rule 11 to require courts to consider victims' views on nolo
pleas. The CVRA Subcommittee purported to catalog and briefly discuss all of my proposals that the subcommittee declined to
recommend to the full Committee. Inexplicably, my Rule 11(a)(3) proposal (along with my other Rule 11 proposals) was not
mentioned 147 and, thus, there is nothing in the available records to indicate that the Advisory Committee considered it.
Possibly the reason the Advisory Committee did not recommend this change was simply oversight.
Perhaps the Advisory Committee was relying on its "global" rule on victims' rights (Rule 60) which provides that "the court
must permit a victim to be reasonably heard at any public proceeding in the district court concerning … [a] plea … involving
the crime." 148 But that rule deals solely with the subject of being "heard." Once the court has heard the victim, the question
140
See id. at 424-25 (referring to Fallen v. United States, 378 U.S. 139 (1964)).
141
664 F. Supp. at 598.
142
Id. at 596-97.
143
See, e.g., Beloof, supra note 6, at 289 (noting "state of denial" about crime victims' rights by institutional actors); Russell P. Butler, What
Practitioners and Judges Need to Know Regarding Crime Victims' Participatory Rights in Federal Sentencing Proceedings, 19 Fed. Sent'g
Rep., Oct. 2006, at 21, 21 (noting that the CVRA heralds a "new era" for crime victims' rights).
144
150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
145
Cassell, Proposed Amendments, supra note 4, at 866.
146
Proposed Amendments, supra note 71.
147
CVRA Subcommittee Memo, supra note 66, at 17-20.
148
Proposed Amendments, supra note 71, R. 60(a)(3), at 16.
DAVID SCHOEN
2007 Utah L. Rev. 861, *885
Page 18 of 78
remains what the court should do with the victim's statement. Currently Rule 11(a)(3) specifies that the court must consider
"the parties'" views on a nolo plea - but it makes no mention of the victim's views. 149 The CVRA now mandates that victims
must be "reasonably heard" at any proceeding involving a "plea." 150 It is hard to see how anyone could argue that a victim is
reasonably heard when, after making a [*886] statement about the nolo plea, the court is not required to even consider it. The
rule should be amended to require courts to consider victims' statements.
Rule 11(b)(4) - Victims' Right To Be Heard on Pleas
The Proposals:
I proposed that the court should be required to address any victim present when a plea is taken to determine whether the victim
wishes to make a statement and to consider the victim's view before accepting a plea, as follows:
Victims' Views. Before the court accepts a plea of guilty or nolo contendere or allows any plea to be withdrawn, the court must
address any victim who is present personally in open court. During this address, the court must determine whether the victim
wishes to present views regarding the proposed plea or withdrawal and, if so, what those views are. The court shall consider the
victim's views in acting on the proposed plea or withdrawal. 151
The Advisory Committee recommended no change to Rule 11. 152
Discussion:
It is hard to understand why the Advisory Committee declined to recommend changing Rule 11 to require that victims be
addressed, as it did not discuss the idea. 153 If the Advisory Committee deliberately rejected this idea, it has given no
explanation and it is hard to see any justification for the Advisory Committee's position. The CVRA gives victims "the right to
be reasonably heard at any public proceeding in the district court involving … [a] plea." 154 To implement the victim's right to
be heard regarding a plea, my proposed rule change merely required the court to directly address any victim who is present in
court and to consider any views the victim expressed. This is consistent with the CVRA's legislative history which explains that
"this provision is intended to allow crime victims to directly address the court in person." 155 The language of the proposed
rule is lifted from an earlier paragraph in Rule 11, which requires the court "before accepting a plea of guilty" to "address the
defendant personally in open court." 156 Victims should be treated evenhandedly with defendants. It may also be important for
the judge to address victims directly because many victims will lack [*887] the assistance of counsel. Untrained in legal
proceedings, victims may be uncertain about exactly when in the process they should present their views. Having the court
address the victim will eliminate that uncertainty and ensure that the victim's right to be heard is vindicated.
The Advisory Committee's "global" rule on victims' rights (Rule 60) does briefly address pleas. Tracking language in the
CVRA, the Advisory Committee would require the court to "permit a victim to be reasonably heard at any public proceeding …
149
The rule does mention that the court must consider "the public interest in the effective administration of justice" in reviewing a nolo plea.
See Fed. R. Crim. P. 11(a)(3). But this broad phrase does not appear to encompass the views of particular actors regarding a plea, as made
clear by the fact that the rule separately lists "the parties' views" as something the court must consider.
150
18 U.S.C. § 3771(a)(4) (2006).
151
Cassell, Proposed Amendments, supra note 4, at 866.
152
Proposed Amendments, supra note 71.
153
See supra note 145-147 and accompanying text (noting the absence of any mention of my Rule 11 proposals as those the subcommittee
rejected).
154
18 U.S.C § 3771(a)(4).
155
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
156
Fed. R. Crim. P. 11(b)(2).
DAVID SCHOEN
2007 Utah L. Rev. 861, *887
Page 19 of 78
concerning … [a] plea." 157 But this brief mention in the rule is inferior to my specific proposal for several reasons. First, Rule
11 is the "script" when federal judges accept guilty pleas. Victims should be directly included here so that judges do not
inadvertently overlook victims' rights. Second, stating only that victims may be "reasonably heard" regarding a plea, without
explaining how that will occur, invites litigation and uncertainty. For example, is a victim reasonably heard when allowed to be
heard only through written submission? 158 Is a victim treated "fairly" if the court is required to address the defendant in open
court but not to address the victim? If the court does not address the victim, when should the victim try to interrupt the
proceedings to be heard? Should the victim's views enter into the court's calculation about whether to accept the plea? All of
these questions are answered in a simple and straightforward way by my proposal - a proposal which the Advisory Committee
should adopt.
Rule 11(c)(1) - Prosecution To Consider Victims' Views on Pleas The Proposals:
I proposed that the prosecution should be required to consider victims' views in developing any proposed plea arrangement as
follows:
(1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may
discuss and reach a plea agreement. The court must not participate in these discussions. The attorney for the government shall
make reasonable efforts to notify identified victims of, and consider the victims' views about, any proposed plea negotiations. If
the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, [*888] the plea
agreement may specify that an attorney for the government will … [listing various options]. 159
The Advisory Committee did not recommend any change. 160
Discussion:
My proposed change required prosecutors to make reasonable efforts to notify victims about pleas and to consider the victims'
views regarding pleas. This requirement was taken almost verbatim from the Attorney General Guidelines for Victim and
Witness Assistance, which already directs prosecutors to "make reasonable efforts to notify identified victims of, and consider
victims' views about, prospective plea negotiations." 161 According to the Department of Justice, "twenty-nine states [already]
require prosecutors to "consult with' or "obtain the views of' victims at the plea agreement stage." 162
157
Proposed Amendments, supra note 71, R. 60(a)(3), at 15-16.
158
Compare United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345-46 (D. Utah 2005) (finding that a victim must be heard orally at
sentencing), and United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (noting in dicta that § 3771(a)(4) "requires the victim to
be given an opportunity actually to be "heard' rather than afforded some alternate means of communicating her views") (emphasis in
original), with United States v. Marcello, 370 F. Supp. 2d 745, 749 (N.D. Ill. 2005) (holding that "in detention hearings, the victim's right to
be reasonably heard does not mandate oral statements, particularly when the [victim] has no personal knowledge of the guilt of the
defendant(s) and offers an opinion only on a matter that is not in dispute").
159
Cassell, Proposed Amendments, supra note 4, at 868.
160
Proposed Amendments, supra note 71.
161
U.S. Dep't of Justice, Office for Victims of Crime, Attorney General Guidelines for Victim and Witness Assistance 30 (2005) (defining
what can be considered in determining whether notice is reasonable in a particular case) [hereinafter Dep't of Justice, Attorney General
Guidelines]; see also U.S. Dep't of Justice, Office for Victims of Crime, New Directions from the Field: Victims' Rights and Services for the
21st Century 87 (1997) ("Prosecutors should make every effort … to consult with the victim on the terms of any negotiated plea … .")
[hereinafter Dep't of Justice, New Directions from the Field].
162
Dep't of Justice, New Directions from the Field, supra note 161, at 75 (quoting National Victims' Center, 1996 Victim's Rights
Sourcebook: A Compilation of Victim's Rights Laws, Arlington, VA: National Victim Center, 1997 § 5).
DAVID SCHOEN
2007 Utah L. Rev. 861, *888
Page 20 of 78
Perhaps the Advisory Committee overlooked this proposed change. 163 Yet it is important, implementing not only a victim's
right to be heard at plea proceedings but also the rights to "confer with the attorney for the government" 164 and to be "treated
with fairness." 165 Given that victims have the right to confer, the conferring should take place at the most salient points in the
process. As Senator Feinstein explained, "This right [to confer] is intended to be expansive. For example, the victim has the
right to confer with the Government concerning any critical stage or disposition of the case." 166 Because the overwhelming
majority of federal criminal cases are resolved by a plea, a conference between the victim and the prosecutor regarding the plea
will be critical in most cases. Reflecting that fact, the Rules should follow the approach of the majority of states in directing
prosecutors to consult with victims about pleas.
[*889] Rule 11(c)(2) - Court to Be Advised of Victim Objections to Plea The Proposals:
I proposed that prosecutors and victims' attorneys should be required to advise the court whenever they are aware that the
victim objects to a proposed plea agreement as follows:
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless
the court for good cause allows the parties to disclose the plea agreement in camera. When a plea is presented in open court, the
attorney for the government or the attorney for any victim shall advise the court when the attorney is aware that the victim has
any objection to the proposed plea agreement. 167
The Advisory Committee proposed no change to this rule. 168
Discussion:
In circumstances where an attorney, either for the government or for the victim, is aware of a victim's objection to a plea, that
information should be relayed to the court. The victim's attorney will, no doubt, do this on her own initiative. The rule is
intended to clarify that the prosecutor is under an equal obligation to communicate this information to the court.
While the Advisory Committee may have overlooked this proposal, 169 the change is necessary because the CVRA implicitly
obligates prosecutors to communicate a victim's objection to the court. The CVRA commands that prosecutors use their "best
efforts" to enforce victims' rights. 170 Victims are often untrained in the law and unexpectedly thrust into criminal proceedings;
they may well believe that prosecutors automatically relay their objections to the plea to the court. The proposed rule avoids
confusion by requiring the prosecutor to notify the court of a victim's concern. The rule is limited to situations where the
prosecutor is aware of an objection.
This approach is consistent with the leading case of State v. Casey, 171 which considered whether a victim's request to be heard
regarding a plea made to the [*890] prosecutor was sufficient to trigger the victim's constitutional right to be heard. 172 In
163
See supra note 147 and accompanying text (noting listing of Cassell proposals rejected; Rule 11 proposals not listed).
164
18 U.S.C. § 3771(a)(5) (2006).
165
Id. § 3771(a)(8).
166
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
167
Cassell, Proposed Amendments, supra note 4, at 869.
168
Proposed Amendments, supra note 71.
169
See supra note 147 and accompanying text (noting listing of Cassell proposals rejected; Rule 11 proposals not mentioned).
170
18 U.S.C. § 3771(c)(1) (2006).
171
2002 UT 29, 44 P.3d 756. I served as pro bono counsel for the victim in the case.
172
See generally Nicole G. Farrell, Recent Developments, A Victim's Right To Be Heard Under the Victims' Rights Amendment, The
Victims' Right Act, and the Rights of Crime Victims Act, 2003 Utah L. Rev. 716 (summarizing impacts of case on Utah law).
DAVID SCHOEN
2007 Utah L. Rev. 861, *890
Page 21 of 78
Casey, the victim told the prosecutor that she wished to be heard in opposition to a plea. The prosecutor refused to convey that
information to the court and the trial judge accepted the plea. When the issue reached the Utah Supreme Court, the court
concluded that the prosecutor had an ethical obligation as an officer of the court to convey that information to the judge:
Prosecutors must convey such requests [to be heard] because they are obligated to alert the court when they know that the court
lacks relevant information. This duty, which is incumbent upon all attorneys, is magnified for prosecutors because, as our case
law has repeatedly noted, prosecutors have unique responsibilities… . The prosecutor is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest … in a criminal prosecution is not that it shall win … but that justice shall be done. 173
Applying the reasoning of Casey to analogous rights in the CVRA, federal prosecutors must, as officers of the court, convey a
victim's request to be heard regarding a plea. Indeed, the prosecutor should convey not only that request to be heard but also the
fact that the victim has an objection to the plea. In deciding whether to accept a plea, the court must consider the public interest.
174 As the Courts of Appeals have explained, ""Rule 11 also contemplates the rejection of a negotiated plea when the district
court believes that bargain is too lenient, or otherwise not in the public interest.'" 175 When the prosecutor is aware of an
objection from a keenly interested member of the public - the victim - the court should not be left in the dark about it, as
provided in my proposed rule. 176
[*891] Rules 12.1 and 12.3 - Victim Addresses and Phone Numbers Not Disclosed for Alibi and Public-Authority Defense
Purposes The Proposals:
Rule 12.1 currently requires the government to disclose the address and telephone numbers of any witness, including any
victim, that it plans to use to disprove a defendant's alibi. I proposed amending Rule 12.1 to protect the victim's privacy, by
excluding their addresses and telephone numbers from this requirement as follows:
(a) Government's Request for Notice and Defendant's Response.
(1) Government's Request. An attorney for the government may request in writing that the defendant notify an attorney for the
government of any intended alibi defense. The request must state the time, date, and place of the alleged offense.
(2) Defendant's Response. Within 10 days after the request, or at some other time the court sets, the defendant must serve
written notice on an attorney for the government of any intended alibi defense. The defendant's notice must state:
(A) each specific place where the defendant claims to have been at the time of the alleged offense;
(B) the name, address, and telephone number of each alibi witness and the address and telephone number of each witness (other
than a victim) on whom the defendant intends to rely. 177
(b) Disclosing Government Witnesses.
173
Casey, 2002 UT 29, P 32, 44 P.3d at 764 (internal citations omitted) (quoting State v. Emmett, 839 P.2d 781, 787 (Utah 1992)).
174
See, e.g., United States v. Bean, 564 F.2d 700, 704 (5th Cir. 1977) (stating that discretion of the court includes license to reject plea deals
that are against public interest).
175
United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir. 1985) (emphasis added) (quoting United States v. Miller, 722 F.2d 562, 563
(9th Cir.1983)).
176
For alternative ways of drafting this rule, see Cassell, Proposed Amendments, supra note 4, at 871-72 (noting that several states require
courts to inquire of prosecutors whether the victim has been advised of the proposed plea and whether the victim wishes to make a statement
concerning it).
177
This amendment to rule 12.1(a)(2)(B) was not in my previous proposal. See Cassell, Proposed Amendments, supra note 4 at 872-73. It is
included here for the reasons discussed infra at note 213 and accompanying text.
DAVID SCHOEN
2007 Utah L. Rev. 861, *891
Page 22 of 78
(1) Disclosure. If the defendant serves a Rule 12.1(a)(2) notice [regarding intent to present an alibi defense], an attorney for the
government must disclose in writing to the defendant or 178 the defendant's attorney:
(A) the name, address, and telephone number of each witness and the address and telephone number of each witness (other than
a victim) that the government intends to rely on to establish the defendant's presence at the scene of the alleged offense; and
(B) each government rebuttal witness to the defendant's alibi defense.
[*892] (2) Time to Disclose. Unless the court directs otherwise, an attorney for the government must give its Rule 12.1(b)(1)
disclosure within 10 days after the defendant serves notice of an intended alibi defense under Rule 12.1(a)(2), but no later than
10 days before trial.
(c) Continuing Duty to Disclose. Both an attorney for the government and the defendant must promptly disclose in writing to
the other party the name of each additional witness, and the address and telephone number of each additional witness (other
than a victim) if:
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier.
179
In addition, I proposed making a similar change to Rule 12.3 "regarding the address and telephone number of victims who will
be used to disprove a public-authority defense." 180
The Advisory Committee proposed more limited protection for victims' addresses and telephone numbers:
(b) Disclosing Government Witnesses.
(1) Disclosure.
(A) In general. If the defendant serves a Rule 12.1(a)(2) notice, an attorney for the government must disclose in writing to the
defendant or the defendant's attorney:
(i) (A) the name, address, and telephone number of each witness and the address and telephone number of each witness (other
than a victim) that the government intends to rely on to establish the defendant's presence at the scene of the alleged offense;
and
(ii) (B) each governmental rebuttal witness to the defendant's alibi defense.
(B) Victim's Address and Telephone Number. If the government intends to rely on a victim's testimony to establish the
defendant's presence at the scene of the alleged offense and the defendant establishes a need for the victim's address and
telephone number, the court may:
(i) order the government to provide the information in writing to the defendant or the defendant's attorney; or
[*893] (ii) fashion a reasonable procedure that allows the preparation of the defense and also protects the victim's interests.
… .
(c) Continuing Duty to Disclose.
178
The excision of the phrase "the defendant or" was not in my previous proposal. See Cassell, Proposed Amendments, supra note 4, at 872.
It is included here for reasons discussed infra at note 190 and accompanying text.
179
Cassell, Proposed Amendments, supra note 4, at 873.
180
Id.
DAVID SCHOEN
2007 Utah L. Rev. 861, *893
Page 23 of 78
(1) In General. Both an attorney for the government and the defendant must promptly disclose in writing to the other party the
name, of each additional witness and the address, and telephone number of each additional witness - other than a victim - if:
(A) (1) the disclosing party learns of the witness before or during trial; and
(B) (2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness
earlier.
(2) Address and Telephone Number of an Additional Victim Witness. The telephone number and address of an additional
victim witness must not be disclosed except as provided in (b)(1)(B).
(d) Exceptions. For good cause, the court may grant an exception to any requirement of Rule 12.1(a)-(c). 181
The Advisory Committee also proposed adding an Advisory Committee Note as follows:
Subdivisions (b) and (c). The amendment implements the Crime Victims' Rights Act, which states that victims have the right
to be reasonably protected from the accused, and to be treated with respect for the victim's dignity and privacy. See 18 U.S.C. §
3771(a)(1) & (8). The rule provides that a victim's address and telephone number should not automatically be provided to the
defense when an alibi defense is raised. If a defendant establishes a need for this information, the court has discretion to order
its disclosure or to fashion an alternative procedure that provides the defendant with the information necessary to prepare a
defense, but also protects the victim's interests. For example, the court might authorize the defendant and his counsel to meet
with the victim in a manner and place designated by the court, rather than giving the defendant the name and address of a
victim who fears retaliation if the defendant learns where he or she lives.
In the case of victims who will testify concerning an alibi claim, the same procedures and standards apply to both the
prosecutor's initial [*894] disclosure and the prosecutor's continuing duty to disclose under subdivision (c). 182
Discussion:
The Advisory Committee agrees with me that the current rule providing that a victim's address and telephone number be
automatically disclosed whenever an alibi is at stake conflicts with the CVRA. 183 This information can often be very sensitive
for a crime victim, as it could allow the defendant to find and harm a victim. The difference between our proposals is that I
would strike the requirement that a victim's address and telephone number be disclosed to the defense while the Advisory
Committee would add specific language allowing a court to order production of the address and telephone number based on a
defense showing of "need." 184
The Advisory Committee's approach highlights an inconsistency in the way it handles defendants' and victims' interests. It has
chosen to spell out in the Rules how a defendant can obtain access to a victim's address and telephone number. Of course, if the
Constitution or a statute already requires the prosecutor to turn over that personal information, any rule is irrelevant.
Presumably, the reason that the Advisory Committee added the language is because it knows that the language is not irrelevant
- that is, that the Constitution and statute do not always require production of this information. 185 Obviously, nothing is wrong
with the Advisory Committee drafting rules that go beyond the Constitution and statutes to protect defendants' legitimate
interests. That approach is, indeed, commendable. What is wrong is for the Committee to work through its rules to make sure
181
Proposed Amendments, supra note 71, R. 12.1, at 2-6 (footnote omitted).
182
Proposed Amendments, supra note 71, R. 12.1, at 6 (footnote omitted).
183
Compare Cassell, Proposed Amendments, supra note 4, at 872, with Proposed Amendments, supra note 71, R. 12.1.
184
Compare Cassell, Proposed Amendments, supra note 4, at 872-73, with Proposed Amendments, supra note 71, R. 12.1(b)(1)(B), at 3-4
(footnote omitted).
185
See generally infra notes 297-324 and accompanying text (reviewing case law establishing that criminal defendants lack any relevant
constitutional or statutory right to discovery).
DAVID SCHOEN
2007 Utah L. Rev. 861, *894
Page 24 of 78
defendants are treated fairly - even in the absence of an overarching statutory command to that effect - while not doing the
same for crime victims, even where the CVRA directly commands that victims be treated "with fairness." 186
In any event, the Advisory Committee's proposal is decidedly unfair. The Committee proposes a two-pronged approach:
If the government intends to rely on a victim's testimony to establish the defendant's presence at the scene of the alleged
offense and the defendant establishes a need for the victim's address and telephone number, the court may:
[*895] (i) order the government to provide the information in writing to the defendant or the defendant's attorney; or
(ii) fashion a reasonable procedure that allows the preparation of the defense and also protects the victim's interests. 187
Notice that the court can order disclosure of the victim's address upon a mere showing by the defendant of "a need," by
proceeding under subparagraph (i) of the proposed rule; the requirement to protect the victim's interests is triggered only if the
court chooses to proceed under paragraph (ii). And the proposed rule fails to give any guidance on when the court should
proceed under paragraph (ii) as opposed to paragraph (i).
The Advisory Committee's provision for two ways in which the court can avoid the requirements of withholding a victim's
name seems unnecessary. Subsection (d) of Rule 12.1 already allows a court to grant an exception to any of the requirements of
the rule for "good cause." 188 This exception has been used to justify the government's nondisclosure of its witnesses in
situations where their safety might be jeopardized. 189 There is, accordingly, no need to add "wiggle room" language in Rule
12.1.
More important, the Advisory Committee's approach is fundamentally flawed. It makes no sense to require that the victim's
interests be considered only half the time - i.e., only where the court proceeds under paragraph (ii) but not under paragraph (i).
More important, since the Advisory Committee appears to agree that disclosing a victim's address raises obvious safety
concerns, allowing disclosure without any consideration of the victim's interests violates the CVRA's command that the victim
must be "reasonably protected from the accused." 190 A court proceeding under paragraph (i) would be under no obligation to
"protect[] the victim's interests" (as paragraph (ii) specifically provides), since it is a standard rule of construction that expressio
unius est exclusio alterius (the expression of one thing implies the exclusion of the other). 191 At a bare minimum, the CVRA
requires redrafting the rule so that the court always considers victims' interests before it can order production of a victim's
address.
Also interesting are the choices that the Advisory Committee specifically lists for a judge. The options given are (i) "order the
government to provide the information in writing" or (ii) "fashion a reasonable procedure that allows the preparation of the
defense and also protects the victim's interests." The listing of these two (and only these two) options seems to imply that the
court does not have [*896] a third option - i.e., (iii) decline to order a victim's address be turned over. It is simply not the case
that every time the defendant can establish a "need" for information - no matter how trivial or how remotely connected to the
case - the court should either disclose a victim's address or fashion some other procedure toward the same end.
186
18 U.S.C. § 3771(a)(8) (2006).
187
Proposed Amendments, supra note 71, R. 12.1(b)(1)(B), at 3-4 (footnote omitted).
188
Fed. R. Crim. P. 12(d).
189
See, e.g., United States v. Causey, 834 F.2d 1277, 1282 (6th Cir. 1987) (noting that, in light of Rule 12(d), any penalty for violating the
rule is "neither mandatory nor absolute" (quoting United States v. Carter, 756 F.2d 310, 311 (3d Cir. 1985))).
190
18 U.S.C. § 3771(a)(1) (2006).
191
See, e.g., Swanson v. United States, 224 F.2d 795, 798 (9th Cir. 1955) (applying the principle of expressio unius est exclusio alterius
when constructing Fed. R. Crim. P. 46(f)(1)).
DAVID SCHOEN
2007 Utah L. Rev. 861, *896
Page 25 of 78
Even where the defendant can establish need, it may be the case that victims' safety interests will prevail. For example, in
United States v. Wills, the district court allowed the government to delay the disclosure of the name of a witness because the
witness feared for her safety and the defendant had a violent history. 192 On appeal to the Ninth Circuit, the defendant sought
reversal of his conviction, arguing that "the district court abused its discretion in finding good cause to permit the government
to withhold [the witness] from its alibi rebuttal list and witness list." 193 Before his trial, Wills had provided the government
with the name of one alibi witness. In response, the government filed a sealed, ex parte application under Rule 12.1(e) seeking
an exception to its obligation to disclose its alibi rebuttal witness to the defense. 194 Based on the defendant's violent history
and apparent ability to "induce others to commit crimes on his behalf," the court allowed the government to delay the
disclosure of the witness. 195
The Wills court noted that two other circuits had addressed or commented on the issue. The Sixth Circuit, in United States v.
Causey, held that good cause existed to justify the nondisclosure of a witness to the defense. 196 The Causey court found
evidence in the record indicating that witnesses were being threatened in an attempt to prevent them from testifying. 197 "In
such a situation, the physical safety and protection of potential witnesses constitutes a proper consideration of a trial court in
determining whether good cause exists to justify nondisclosure of witnesses to opposing counsel and thus noncompliance with
Rule 12.1." 198 Similarly, in United States v. Elizondo, the Seventh Circuit cited Causey for the proposition that the protection
of potential witnesses could justify postponing disclosure. 199 Following the reasoning of the Sixth and Seventh Circuits, Wills
held that the "district court did not abuse its discretion in finding that good cause existed to authorize the Government to delay
disclosure of [the witness's] identity." 200
The Advisory Committee might respond to these criticisms of its proposal by pointing to discretionary language; the proposed
rule states that the court "may" order production of the evidence or the fashioning of an alternative procedure. But given the
obvious safety concerns that attend disclosure of the victim's home [*897] address to the defense, the Advisory Committee
should exercise extreme caution. More important, courts have no discretion to ignore the commands of the CVRA. Courts must
always protect a victim's right "to be reasonably protected from the accused." 201 The proposed rule does not faithfully
implement that instruction. Indeed, the safety problems attendant to the Advisory Committee's proposal are heightened by fact