conferred is a broad one - to be "reasonably heard" at the sentencing proceeding. The victim's right to be "reasonably heard"
implicitly includes a right for the victim to speak to disputed Guidelines issues. As Senator Kyl explained, the victim's right
includes the right to make sentencing recommendations:
When a victim invokes this right during … sentencing proceedings, it is intended that he or she be allowed to provide all three
types of victim impact: the character of the victim, the impact of the crime on the victim, the victim's family and the
community, and sentencing recommendations. 398
A "sentencing recommendation" will often directly implicate Guidelines issues, particularly where a court gives significant
weight to the Guidelines calculation (as most currently do). 399 For example, if the victim wishes to recommend a sixty-month
sentence when the maximum guideline range is only thirty months, that sentencing recommendation may be meaningless
unless a [*932] victim can provide a basis for recalculating the Guidelines or departing or varying 400 from the Guidelines.
Congress intended the victim's right to be heard to be construed broadly, as Senator Feinstein stated: "The victim of crime, or
their counsel, should be able to provide any information, as well as their opinion, directly to the court concerning the …
sentencing of the accused." 401 Again, it is hard to see how victims can meaningfully provide "any information" that would
have a bearing on the sentence without being informed of the Guidelines calculations that likely will drive the sentence.
394
Cassell, Proposed Amendments, supra note 4, at 901-02.
395
See Proposed Amendments, supra note 71.
396
18 U.S.C. § 3771(a)(4) (2006).
397
See generally Beloof, Cassell & Twist, supra note 6, at 625-90 (discussing victim impact statements); Cassell, Balancing the Scales, supra
note 6, at 1395-96.
398
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added). See generally Beloof, Cassell & Twist, supra
note 6, at 625-90 (discussing three types of victim impact information).
399
See, e.g., United States v. Wilson, 350 F. Supp. 2d 910, 925 (D. Utah 2005) (giving "heavy weight" to the Guidelines' recommendation).
400
See United States v. Wilson, 355 F. Supp. 2d 1269, 1272 (D. Utah 2005) (discussing "departures" and "variances").
401
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added).
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2007 Utah L. Rev. 861, *932
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In addition, an independent basis for victims reviewing presentence reports is the victim's broad right under the CVRA to be
"treated with fairness" 402 and right to restitution, as I argued in my earlier article. 403
Thus, the CVRA should be understood as giving victims the right to relevant information in the presentence report about the
Guidelines and to be heard before a court makes any final conclusions about Guidelines calculations and other sentencing
matters. Many states follow a similar approach and give victims access to presentence reports as part of the victim-impact
process. 404
Since I made my proposal, the Ninth Circuit has considered the question of whether to reverse a district court that declined to
provide the entire presentence report to a fraud victim. In an opinion containing only one substantive paragraph, the Ninth
Circuit affirmed the district court, which had rejected a victim's argument that "the CVRA confers a general right for crime
victims to obtain [*933] disclosure of the [presentence report]." 405 The Ninth Circuit stated tersely that the district court did
not "commit legal error." 406
Although strong arguments can be made against Kenna, 407 the case is not on point to my proposal. First, Kenna involved a
claim of a "general right" to access to the presentence report, apparently untethered to any particular need for access. My
amendment would be limited to situations where victims seek "relevant" contents of the presentence report to make a victim
impact statement at sentencing. Second, the victim in Kenna sought the entire presentence report. The Ninth Circuit pointedly
observed: "We note that Kenna refused the district court's offer to consider disclosure of specific portions of the [presentence
report]." 408 My proposal tracks what the district court offered to Kenna - that a victim would have access to "relevant contents
of the presentence report."
Because victims have a right of access to relevant parts of the presentence report, the question then arises of how to provide
that access. In my earlier article, I recommended the simplest solution to the competing concerns would be to disclose the
report, upon request, to victims through the prosecutor. The prosecutor could filter out irrelevant confidential information and
assist the victim by highlighting critical parts of the report. It might be objected that this approach would burden prosecutors.
402
18 U.S.C. § 3771(a)(8) (2006).
403
Cassell, Proposed Amendments, supra note 4, at 894-96; see also Testimony of Paul G. Cassell to the U.S. Sentencing Comm'n (Feb. 15,
2005), available at http://www.ussc.gov/hearings/02_15_05/cassell_testimony.pdf (last visited Feb. 22, 2008) (advancing similar arguments).
404
Ala. Code § 15-23-73(b) (1995) (giving victim "right to review a copy of the presentence investigative report, subject to the applicable
federal or state confidentiality laws"); Alaska Stat. § 12.55.023 (2006) (giving victim right to look at portions of sentencing report); Ariz.
Const. art. II, § 2.1(a)(7) (giving victim right to review presentence report when available to the defendant); Ariz. Rev. Stat. Ann. § 13-4425
(2001) (giving victim right to review presentence report "except those parts excised by the court or made confidential by law"); Col. Rev.
Stat. § 24-72-304(5) (2007) (giving prosecutor discretion to allow victim or victim's family to see presentence report); Fla. Stat. §
960.001(1)(g)(2) (2006) (giving victim right to review presentence report); Idaho Code Ann. § 19-5306(1)(a) (2002) (giving victim right to
review presentence report); Ind. Code § 35-40-5-6(b) (1998) (giving victim right to read and "respond to" material contained in the
presentence report); La. Const. art. I, § 25 (giving victim "right to review and comment upon the presentence report"); Mont. Code Ann. § 46-
18-113(1) (2007) (giving prosecutor right to disclose contents of presentence report to victim); Or. Rev. Stat. § 137.077(2) (2005)
(presentence report must be made available to victim).
405
In re Kenna, 453 F.3d 1136, 1137 (9th Cir. 2006).
406
Id.
407
See Brief for the Petitioner, In re Kenna, 453 F.3d 1136 (9th Cir. 2006) (No. 06-73352). Cf. Matthew B. Riley, Note, Victim Participation
in the Criminal Justice System: In re Kenna and Victim Access to Presentence Reports, 2007 Utah L. Rev. 235, 235 (discussing Kenna and
urging that crime victims receive "as much of the report as possible without infringing on specific privacy concerns held by criminal
defendants").
408
In re Kenna, 453 F.3d at 1137.
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But the CVRA already gives victims the right to "confer" with prosecutors 409 - and presumably they will be conferring
regarding the important topic of sentencing. It is important to emphasize that my proposal would require prosecutors to give all
relevant information to the victim; in other words, prosecutors would serve as a conduit to the victim, but not a controller of the
victim.
The Advisory Committee declined to adopt my proposal, opining that "the prosecutor should remain the victim's source of
information regarding the sentencing process and the contents of the presentence report, and the prosecutor should have
discretion to determine what information from the presentence report should be imparted to the victim." 410 This reasoning
clashes directly with the CVRA's guiding principle: that victims deserve their own rights in the criminal process. Congress
wanted victims to become participants with rights "independent of the government or the defendant … ." 411 For this reason,
the CVRA allows the [*934] victim to assert rights independently of the government. 412 Senator Kyl explained the victim's
right to independent action directly: "[There is no authority for] the government's attorney … to compromise or co-opt a
victim's right… . The rights provided in this bill are personal to the individual crime victim and it is that crime victim that has
the final word regarding which of the specific rights to assert and when." 413
One of the victim's independent rights includes the opportunity to make "sentencing recommendations." 414 Congress's
command that victims be independent participants cannot be faithfully implemented if prosecutors control the information
victims receive. If allowed to do so, prosecutors could simply feed the victim information supporting the government's view,
while withholding information undercutting it. 415 Nothing in the CVRA provides any support for this approach. 416
The Advisory Committee was also concerned that presentence reports "are typically treated as confidential, because they
include a great deal of personal information about the defendant … ." 417 But this concern was easily handled by my
requirement that prosecutors pass along only "relevant" contents of the presentence reports. Personal information only
tangentially connected to sentencing issues would not be disclosed. And if personal information about the defendant were
directly connected to sentencing issues, then fairness entitles the victim to that information to formulate a sentencing
recommendation. After all, by the time of sentencing, the defendant has been found guilty, beyond a reasonable doubt, of
harming a victim. By committing a crime against the victim, the defendant has certainly forfeited some privacy interests -
including the chance to keep from the victim information relevant to sentencing. It is also important to recall that this
information is not truly confidential in the sense that no one else [*935] will see it. It has already been disclosed to the
probation officer, defense counsel, the prosecutor, and the judge.
409
18 U.S.C. § 3771(a)(5) (2006).
410
CVRA Subcommittee Memo, supra note 66, at 18.
411
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
412
See 18 U.S.C. § 3771(d)(1) (a victim's rights may be asserted by both the prosecutor and the victim or victim's representative).
413
150 Cong. Rec. S10,912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
414
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
415
The Advisory Committee's view that prosecutors should control what information the victim receives is so fundamentally at odds with the
animating principles of the CVRA that it makes one wonder where it came from. Interestingly the view seems to have originated in a small
subcommittee with a representative from the Justice Department but no crime victims rights representative. See CVRA Subcommittee Memo,
supra note 66, at 1 (noting that Deborah Rhodes, Counselor to the Asst. Atty. Gen. of the Criminal Division, served on the subcommittee
drafting this language).
416
At another point in its memorandum, the CVRA Subcommittee refers to 18 U.S.C. § 3771(d)(6), which provides that "nothing in this
chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." CVRA
Subcomittee Memo, supra note 66, at 20. But the simple act of giving information in a court document (the presentence report) to crime
victims does not impair the government's decision of whether and how to prosecute a defendant. See supra notes 363-365 and accompanying
text (discussing impairment issue under Rule 20).
417
CVRA Subcommittee Memo, supra note 66, at 18.
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2007 Utah L. Rev. 861, *935
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Once the victim receives relevant information from a presentence report, the victim no less than other participants at sentencing
should be entitled to be heard on any disputed issues. For example, in a fraud case, if the defendant claims to have swindled
only $ 5,000 and the government claims the loss is $ 10,000, the victim should be entitled to press her argument that the loss
was $ 40,000. To do otherwise, is to deprive the victim of an opportunity to participate in the sentencing process and to turn the
victim impact statement into a meaningless charade.
The Advisory Committee's view on this point is curious. The Advisory Committee did not directly quarrel with the position
that victims should have the opportunity to be heard on disputed sentencing issues. Instead, the Advisory Committee would
only go so far as to suggest that it
felt it would be desirable for the courts gradually to flesh out what the right to be heard means in this [sentencing] context
(determining, for example, when the right to be heard would include the right to introduce evidence). It is by no means clear
that the CVRA contemplates that victims will be entitled to access all of the particulars of the presentence report and be entitled
to litigate issues concerning the application of various guidelines, etc. 418
This view is objectionable on many levels. First, given the congressional purpose of fundamentally changing the way crime
victims are treated in the criminal justice process, it can hardly be desirable for courts to "gradually" determine what rights
victims have. As Senator Kyl explained, "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." 419 The CVRA was "meant to correct, not continue, the
legacy of the poor treatment of crime victims in the criminal process." 420
Second, the Committee diffidently opines that "it is by no means clear" that victims have the right to litigate disputed issues.
421 I will turn to the substance of that claim shortly. But even assuming it to be true, a fundamental purpose of the Federal
Rules of Criminal Procedure is to provide clarity on issues that would otherwise have to be litigated. 422 The Advisory
Committee could be "clear" that victims can litigate by simply putting in place my proposed rule. To do otherwise [*936] is,
unfortunately, to invite continued uncertainty over a point of vital importance to crime victims.
Finally, perhaps the reason that the Advisory Committee would venture only that it is unclear whether victims have the right to
dispute sentencing issues was a reluctance to stake out the contrary position. To maintain that victims cannot dispute sentencing
issues would collide with both statutes and common sense. As for statutory requirements, it is hard to understand how victims
will be "reasonably heard" at sentencing (as the CVRA commands) if they cannot contest the factors that may well drive a
sentence - the Guidelines calculations. Moreover, Congress has already directly mandated that victims will have the
opportunity to dispute sentencing factors when they relate to restitution. 423 Thus, if the Advisory Committee really wanted to
stake out a victims-can't-litigate-at-sentencing position, it would have to awkwardly carve out a restitution exception. Finally, a
victim is simply not treated with "fairness" if she is entirely excluded from the Guidelines process. The Supreme Court has
explained that "it is … fundamental that the right to … an opportunity to be heard "must be granted at a meaningful time and in
a meaningful manner.'" 424 It is not "meaningful" for victims to make sentencing recommendations without the benefit of
knowing what everyone else in that courtroom knows - what the recommended Guidelines range is. Yet Congress plainly
418
CVRA Subcommittee Memo, supra note 66, at 19.
419
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
420
Id. (statement of Sen. Kyl); see also 150 Cong. Rec. S4263 (Apr. 22, 2004) (statement of Sen. Feinstein) (describing the CVRA as a "new
and bolder approach than has ever been tried before in our Federal System").
421
CVRA Subcommittee Memo, supra note 66, at 19.
422
See supra notes 103-310 and accompanying text (providing illustrations of rules changes made to provide clarity).
423
See 18 U.S.C. § 3664(d)(2)(A) (2006) (probation officer shall disclose to victim amount subject to restitution as calculated by the
probation officer and the opportunity of the victim to file an affidavit seeking greater restitution); see also id. § 3771(a)(6) (giving victims
"the right to full and timely restitution as provided in law").
424
Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)) (emphasis added).
DAVID SCHOEN
2007 Utah L. Rev. 861, *936
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intended to pass a law establishing "fair play for crime victims, meaningful participation of crime victims in the justice system,
protection against a government that would take from a crime victim the dignity of due process … ." 425
By building victims into the Guidelines process, my proposal would also provide an important procedural protection to
defendants. My proposed amendment to Rule 32(f) would require that the victim's attorney or the prosecutor would raise any
reasonable objection to the presentence report before the sentencing hearing, so that it could be discussed at a presentence
conference and then presented in an organized fashion to the sentencing judge. I would also require either the victim's attorney
or the prosecutor to give notice to defense counsel and the court where an upward departure argument might rest on any
information provided by the victim. 426 Setting up the procedures in this way creates an orderly process for victim objections
to affect sentencing - with fair notice to the defense. Otherwise, the court - and the defendant - might hear for the first time at
sentencing that the prosecution was considering an upward departure based on information in the victim impact statement.
[*937] The courts of appeals have split on the need for advance notice of an upward departure based on victim impact
statements. In United States v. Dozier, the Tenth Circuit held that a district court is required to give notice to a defendant before
departing upward from the advisory guideline range based on victim impact statements. 427 The breadth of that holding may be
limited, however, by unusual facts: the presentence report did not identify victim impact information as a possible basis for an
upward departure and the government conceded that a sentencing remand was appropriate. The Third Circuit has expressly
declined to follow Dozier. In United States v. Vampire Nation, 428 the Third Circuit held that, in light of the Supreme Court's
decisions making the Guidelines advisory, 429 a defendant is always on notice that a judge might find a sentencing factor
calling for a sentence higher than that advised by the Guidelines. 430 With respect to victim impact statements, the Third
Circuit highlighted the fact that victim impact statements at the sentencing hearing might provide a new, previously
undisclosed ground for an upward (or downward) departure:
The right of victims to be heard is guaranteed by the Crime Victims' Rights Act ("CVRA") … . The right is in the nature of an
independent right of allocution at sentencing. See 18 U.S.C. § 3771(a)(4) (affording victims a "right to be reasonably heard at
any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding"). Under the CVRA,
courts may not limit victims to a written statement. See Kenna v. United States District Court, 435 F.3d 1011, 1017 (9th Cir.
2006) (Kozinski, J.) ("Limiting victims to written impact statements, while allowing the prosecutor and the defendant the
opportunity to address the court, would treat victims as secondary participants in the sentencing process. The CVRA clearly
meant to make victims full participants."). Given that it would be impossible to predict what statements victims might offer at
sentencing, it would be unworkable to require district courts to provide advance notice of their intent to vary their discretionary
sentence based on victim statements that had not yet been made. 431
The contrasting positions of the Tenth and Third Circuits is part of a larger disagreement between the circuits on the extent to
which the notice requirements in the criminal rules continue to operate under the now-advisory Guidelines regime. 432
425
150 Cong. Rec. S4264 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added); see also Kenna v. U.S. Dist. Court, 435 F.3d
1011, 1017 (9th Cir. 2006).
426
See Cassell, Proposed Amendments, supra note 4, at 901-03.
427
444 F.3d 1215, 1217-18 (10th Cir. 2006).
428
451 F.3d 189 (3d Cir. 2006), cert. denied, 127 S. Ct. 424 (2006).
429
See United States v. Booker, 543 U.S. 220, 222 (2004).
430
Vampire Nation, 451 F.3d at 196.
431
Id. at 197 n.4.
432
The Second, Fourth, and Ninth Circuits have ruled that Rule 32(h) continues to apply. See United States v. Anati, 457 F.3d 233, 236-37
(2d Cir. 2006); United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006); United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th
Cir. 2006). The Third, Seventh, Eighth, and Eleventh Circuits have held the opposite. See United States v. Irizarry, 458 F.3d 1208, 1212
DAVID SCHOEN
2007 Utah L. Rev. 861, *937
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Focusing specifically on the issue of victim impact information, the [*938] Third Circuit is correct that, under the current
rules, it is "unworkable" to provide advance notice of upward (or downward 433 ) departures based on victim allocution at the
sentencing hearing. Under my proposal, however, victims would be integrated into the presentence process for determining
Guidelines issues, thereby ensuring that the defense has fair notice of any upward departure and the government has fair notice
of any downward departure. Regardless of whether the Guidelines are advisory, this is the fairest way to proceed for
defendants, the prosecution, and victims.
(New) Rule 32(i)(4) - Victims' Right to be Reasonably Heard at Sentencing The Proposals:
Even before passage of the CVRA, the Federal Rules of Criminal Procedure gave victims of crimes of violence or sexual abuse
the right to be heard at sentencing. After the CVRA extended such rights to all victims, I proposed simply striking the limitation
in the rule so that it would apply to all victims as follows:
(B) By a Victim. Before imposing sentence, the court must address any victim of a the crime of violence or sexual abuse who is
present at sentencing and must permit the victim to speak or submit any information about the sentence … . 434
The Advisory Committee tracked my change of striking the crimes of violence and sexual abuse limitation; but the Committee
also substituted language from the CVRA about being reasonably heard as follows:
(B) By a Victim. Before imposing sentence, the court must address any victim of a the crime of violence or sexual abuse who is
present at sentencing and must permit the victim to speak or submit any information about the sentence to be reasonably heard.
435
[*939] Discussion:
My proposal retained the current language in Rule 32 allowing the victim "to speak or submit any information about the
sentence"; the Advisory Committee would allow the victim "to be reasonably heard" at sentencing - language lifted from the
CVRA.
In this area, the Advisory Committee has paradoxically used the CVRA as an occasion for possibly restricting victims' rights.
Under Rule 32(i)(4)'s current language, there is no doubt that the victim could "speak" at sentencing (that is, give an oral
statement). Under the proposed language, litigation could result about whether victims could be "reasonably heard" without
being allowed to speak (that is, be confined to purely written submissions). Indeed, during the Advisory Committee meeting on
the proposal, the Advisory Committee reporter conceded that "courts would have to construe exactly what [the phrase] meant
as situations came before them." 436
It is worth reflecting for a moment on how backward the Advisory Committee's approach to this issue is. Before the CVRA's
enactment, victims of crimes of violence and sexual assault had the right under Rule 32(i) "to speak" at sentencing (along with
the right to submit information). When Congress enacted the CVRA, the Advisory Committee and the Judicial Conference had
(11th Cir. 2006); United States v. Vampire Nation, 451 F.3d 189, 195-98 (3d Cir. 2006); United States v. Walker, 447 F.3d 999, 1006-07
(7th Cir. 2006); United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005). The First Circuit has held only that the failure to provide
notice does not constitute plain error. See United States v. Mateo, No. 06-1805, 2006 WL 1195676, at 1 (1st Cir. May 5, 2006).
433
For a helpful correction to the idea that victims' interests are always adverse to defense interests at sentencing, see generally Benji
McMurray, The Mitigating Power of a Victim Focus at Sentencing, 19 Fed. Sent'g Rep.125 (2006).
434
Cassell, Proposed Amendments, supra note 4, at 903.
435
Proposed Amendments, supra note 71, R. 32(i)(4)(B), at 13. The Advisory Committee also proposes striking out existing language in the
rule allowing guardians or family members to exercise the right to speak on behalf of minor and incapacitated victims. For criticism of this
deletion, see supra notes 117-125 and accompanying text.
436
Advisory Committee Minutes, supra note 68, at 14 (comment of Prof. Beale).
DAVID SCHOEN
2007 Utah L. Rev. 861, *939
Page 56 of 78
both approved broadening that rule to give all victims the right to speak. 437 (The Judicial Conference withdrew this proposed
rule to allow reconsideration in light of the CVRA.) The CVRA gave victims the right to be "reasonably heard" at sentencing.
Of course, the CVRA's obvious goal was to significantly expand the rights of crime victims. With respect to the right to speak
in particular, one of the CVRA's primary sponsors stated: "this section would fail in its intent if courts determined that written,
rather than oral communication, could generally satisfy this right." 438 Yet, in the wake of all this, the Advisory Committee
now proposes a rule that does not guarantee that victims have the right to speak, leaving this to the courts to construe on a caseby-case
basis. This retreat on victims' rights truly stands the CVRA on its head.
The Advisory Committee should directly state that victims have the right to speak at sentencing, as the only courts to have
reached the issue have held. 439 For [*940] instance, in United States v. Kenna, Judge Kozinski 440 explained that the
CVRA's legislative history "discloses a clear congressional intent to give crime victims the right to speak at proceedings
covered by the CVRA." 441 The court first highlighted the following statement by Senator Kyl:
It is not the intent of the term "reasonably" in the phrase "to be reasonably heard" to provide any excuse for denying a victim
the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to
appear personally and directly address the court. 442
Senator Dianne Feinstein, another primary sponsor of the bill, remarked that Senator Kyl's understanding of the bill was "[her]
understanding as well." 443
In addition to these floor statements, the Kenna court cited a committee report for the proposed constitutional amendment to
protect victims' rights. The Senate Report on the amendment - an amendment that contained language nearly identical to the
language in the eventually enacted CVRA - reads that:
The victim's right is to "be heard." The right to make an oral statement is conditioned on the victim's presence in the courtroom
… . Victims should always be given the power to determine the form of the statement. Simply because a decision making body,
such as the court … has a prior statement of some sort on file does not mean that the victim should not again be offered the
opportunity to make a further statement … . The Committee does not intend that the right to be heard be limited to "written"
statements, because the victim may wish to communicate in other appropriate ways. 444
437
See Advisory Committee on Criminal Rules, Criminal Rules Docket (Historical), http://www.uscourts.gov/rules/Criminal_Docket.pdf
(last visited Feb. 22, 2008).
438
150 Cong. Rec. S10910, S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
439
See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1015-16 (9th Cir. 2006); United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345 (D.
Utah. 2005); see also United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (opining 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"); cf. United
States v. Marcello, 370 F. Supp. 2d 745, 749 (N.D. III. 2005) (holding that in the unique context of detention hearings, victims have no right
to speak, particularly when the witness has no direct information to provide the court).
440
See generally Douglas E. Beloof, Judicial Leadership at Sentencing Under the Crime Victims' Rights Act: Judge Kosinki in Kenna and
Judge Cassell in Degenhardt, 19 Fed. Sent'g Rep. 36 (2006) (identifying victims of crime as participants at sentencing by analyzing the
CVRA and the significant caselaw).
441
Kenna, 435 F.3d at 1016.
442
Id. at 1015 (quoting 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyle)).
443
Id. (quoting 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)).
444
Id. at 1016 (quoting S. Rep. No. 108-191, at 38 (2003)).
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2007 Utah L. Rev. 861, *940
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Based on this legislative history, Kenna concluded that crime victims have the right to speak at CVRA-covered proceedings.
445 Kenna explained that this interpretation advanced the purposes of the CVRA, for the "statute was enacted to [*941] make
crime victims full participants in the criminal justice system." 446 The Advisory Committee should follow that lead and
provide that victims are guaranteed a right to speak at sentencing. 447 Of course, in cases involving numerous victims (for
example, a massive fraud case), the CVRA itself allows courts to fashion a "reasonable procedure" to accommodate the
competing concerns. 448
Rule 44.1 - Discretionary Appointment of Counsel for Victim The Proposals:
I proposed that the court's discretionary authority to appoint counsel for a victim should be included in a new rule as follows:
Rule 44.1 Counsel for Victims.
When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising his or her
rights. 449
The Advisory Committee did not propose any change in the Rules on this subject. 450
Discussion:
The Advisory Committee never discussed this particular proposed change, so it is possible that its failure to adopt it was an
oversight. 451 In any event, here it is perhaps useful to emphasize just a few points in favor of this proposal.
While the CVRA does not create a right to counsel for victims, nothing in the Act deprived the courts of their preexisting
inherent authority. The courts generally have the right to appoint volunteer counsel in civil cases, 452 a power that would seem
to extend to criminal cases. Indeed, the Supreme Court has left open the question of whether federal courts possess the inherent
authority to require counsel [*942] to provide legal services to the poor. 453 The local rules of some federal courts already
explicitly recognize this power. 454 In addition, Title 28 broadly permits the court in both civil and criminal cases to "request
an attorney to represent any person unable to afford counsel." 455 And before Gideon v. Wainwright, 456 courts could request
445
Id.
446
Id.
447
In possible response to such concerns as I raise here, the Advisory Committee modified the Advisory Committee Note to this rule. See
infra notes 587-589 and accompanying text.
448
18 U.S.C. § 3771(d)(2) (2006).
449
Cassell, Proposed Amendments, supra note 4, at 912-16.
450
See Proposed Amendments, supra note 71.
451
See CVRA Subcommittee Memo, supra note 66, at 17-20 (listing my proposals that the subcommittee decided not to recommend; my
proposed Rule 44.1 change not among them).
452
See generally Judy E. Zelin, Court Appointment of Attorney to Represent, Without Compensation, Indigent in Civil Action, 52 A.L.R. 4th
1063 (1987 & Supp. 2004) (collecting and analyzing cases considering the issue of whether the courts can appoint counsel in civil actions to
represent indigents).
453
Mallard v. U.S. Dist. Court, 490 U.S. 296, 307, 308 n.8 (1989).
454
See, e.g., D. Utah Civ. R. 83-1.1(b)(3) ("Any attorney who is admitted to the bar of this court must agree, as a condition of such
admission, to engage in a reasonable level of pro bono work when requested to do so by the court.").
455
28 U.S.C. § 1915(e)(1) (2006) (emphasis added).
456
372 U.S. 335 (1963).
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that lawyers provide assistance to indigent criminal defendants. Presumably, that same power extends to requesting assistance
for crime victims. 457 In light of all these facts, federal courts have the inherent power to request attorneys to represent indigent
crime victims.
An illustration of this power is found in a decision by the U.S. District Court for the Western District of North Carolina in
United States v. Stamper. 458 In this rape case, a dispute arose over the admission of certain psychiatric reports concerning the
victim that the defense alleged demonstrated a pattern of making false allegations of sexual abuse. 459 She requested
independent counsel to protect her privacy interests. 460 After consulting with the victim, the court appointed counsel for her.
461 The court then allowed her counsel to participate in hearings regarding the evidence, including cross-examination of the
relevant witnesses. 462
My proposed rule would simply confirm the existing discretionary power of the courts to appoint volunteer counsel
demonstrated in cases like Stamper. The rule is purely discretionary (the court "may" appoint counsel) and is limited to
situations where the interests of justice require appointment. The rule does not address payment for counsel, as this matter must
be left to subsequent appropriations from Congress. The court, however, can ask for volunteer counsel to assist victims pro
bono.
Finally, it might be argued that it is unnecessary to address this subject in a rule because the court's inherent authority to
appoint counsel exists even without a rule. Both courts and victims, however, will find it useful to have this authority close at
hand in the criminal rules. Rule 44 already covers the subject of appointing counsel for defendants in great detail, so adding a
Rule 44.1 addressing victims' counsel is a natural corollary. In addition, prosecutors are obligated by the CVRA to "advise the
crime victim that the crime victim can seek advice of an attorney with respect to the rights described in subsection (a)." 463
This may frequently [*943] require prosecutors to help victims obtain legal counsel. Accordingly, a separate rule on this
subject is appropriate. For all these reasons, the Rules should be amended to recognize the court's authority to appoint volunteer
counsel to represent a crime victim.
Rule 46 - Victims' Right to Be Heard Regarding Defendant's Release from Custody The Proposal:
I proposed that a victim should be given the right to offer views regarding the defendant's release from custody and that the
court should consider those views as follows:
(k) Victims' Right to Be Heard. A victim has the right to be heard regarding any decision to release the defendant. The court
shall consider the views of victims in making any release decision, including such decisions in petty cases. In a case where the
court finds that the number of victims makes it impracticable to accord all of the victims the right to be heard in open court, the
court shall fashion a reasonable procedure to facilitate hearing from representative victims. 464
The Advisory Committee proposed no change to this rule. 465 It did, however, propose a global rule that would give victims a
right to be heard at proceedings involving release:
457
See Beloof, Cassell & Twist, supra note 6, at 381-82 (suggesting this conclusion).
458
766 F. Supp. 1396, 1397 (W.D.N.C. 1991).
459
Id. at 1396.
460
Id. at 1397.
461
Id.
462
Id.
463
18 U.S.C. § 3771(c)(2) (2006).
464
Cassell, Proposed Amendments, supra note 4, at 917.
465
See Proposed Amendments, supra note 71 (showing no proposed change for Rule 46(k)).
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Rule 60. Victims
(a) Rights of Victims.
. . . .
(3) Right to Be Heard.
The court must permit a victim to be reasonably heard at any public proceeding in the district court concerning release . . .
involving the crime. 466
Discussion:
The Advisory Committee's global proposal gives victims the right to be "heard" on release decisions; but it fails to spell out
what effect, if any, the [*944] victim's statement would have after the court heard the victim. In other words, the Advisory
Committee proposal seemingly codifies an empty gesture.
In contrast, my proposal would take the straightforward and important step of requiring a court to consider the views of the
victim in determining any release decision. 467 That requirement is added directly into the rule governing release decisions -
Rule 46. Adding a specific rule with specific consequences is far preferable to the Advisory Committee's approach and is
consistent with the CVRA's goal of ensuring "reasonable conditions of pre-trial and post-conviction relief that include
protections for the victim's safety." 468
Rule 48 - Victims' Views on Dismissal to be Considered The Proposals:
I proposed that the court should be required to consider the views of victims in deciding whether to grant a government's
motion to dismiss a case as follows:
Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The
government may not dismiss the prosecution during trial without the defendant's consent. In deciding whether to grant the
government's motion to dismiss, the court shall consider the views of any victims. 469
The Advisory Committee proposed no change to this rule. 470
Discussion:
The Advisory Committee declined to adopt this recommendation for several reasons:
The Subcommittee recognized that victims will have a great interest in whether charges are dismissed. The CVRA does not,
however, explicitly address dismissals, and it speaks only of not excluding the [victim] from, and providing the [victim with]
… a right to be reasonably heard at public proceedings in the district court. If the government moves for dismissal there is
ordinarily no public proceeding. (When there is a [*945] public proceeding, the victim's right not to be excluded, and to be
reasonably heard is provided for in Rule [60].)
466
Proposed Amendments, supra note 71, R. 60(a)(3), at 16.
467
Existing law has places where a victim's views could profitably be brought to bear. See, e.g., 18 U.S.C. § 3142(c) (court to consider
whether release of the defendant "will endanger the safety of any other person").
468
See, e.g., 150 Cong. Rec. S10910, S10910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
469
Cassell, Proposed Amendments, supra note 4, at 918.
470
See Proposed Amendments, supra note 71 (showing no proposed change for Rule 48).
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In light of the statutory statement in 18 U.S.C. § 3771(d)(6) that nothing in the CVRA "shall be construed to impair the
prosecutorial discretion of the Attorney General," as well as the separation of powers issues raised by judicial review of the
government's decision to terminate a prosecution, the Subcommittee was not persuaded that the rule should be amended to
require the court to consider the victim's views on dismissal. When there is no public court proceeding, the victim's views will
be taken into account through the right to confer with the government under 18 U.S.C. § 3771(a)(5). 471
The Advisory Committee's opening premise is clear enough - victims do indeed have "great interest" in whether charges are
dismissed. But after this promising start, the Committee's logic is hard to track. The Advisory Committee seems to be of the
view that, in situations where a court considers a motion to dismiss at a public proceeding, the victim would be heard. 472 Yet
the proposed Rule the Committee cites for this proposition - proposed Rule 60 473 - is actually drafted so narrowly that the
victim would have no right to be heard on such a motion. 474
In situations where the court considered a motion to dismiss without a public proceeding, the Advisory Committee takes the
view that the CVRA does not "explicitly address" the subject. This view assumes, of course, that the victim's right to fairness
does not come into play when the prosecution moves to drop previously filed charges. This assumption is incorrect. Rule 48
already requires leave of court for a dismissal. In determining whether to grant leave, current case law requires the court to
consider whether dismissal is "clearly contrary to manifest public interest." 475 The existing caselaw requires that the impact
on a victim be considered in addressing a motion to dismiss. A dismissal is "clearly contrary to the public interest" if the
prosecutor appears to be motivated by animus toward the victim. 476 Under the command of the CVRA, the victim thus must
be treated with fairness when the dismissal motion is addressed, as my proposal provides.
[*946] When the government files a motion to dismiss criminal charges involving a specific victim, the only way to protect
that victim's right to be treated fairly is to consider the victim's views on the dismissal. 477 To treat a person with "fairness" is
conventionally understood as treating them "justly" and "equitably." 478 A victim is not treated justly and equitably if her
views are never before the court.
The Advisory Committee also alludes vaguely to "separation of powers issues raised by judicial review of the government's
decision to terminate a prosecution." Here the Advisory Committee may be stepping out of line and questioning the Supreme
Court. In 1944, the Court itself added the requirement to Rule 48 that prosecutors obtain leave of court before dismissing any
indictment. 479 Thus, if there are separation of powers "issues" about judicial review of dismissals, they have existed for more
than half a century by virtue of specific Supreme Court action.
471
CVRA Subcommittee Memo, supra note 66, at 20.
472
Id. ("When there is a public proceeding, the victim's right not to be excluded, and to be reasonably heard is provided for in Rule [60].").
473
In the subcommittee draft, the rule cited is actually numbered Rule 43.1. See CVRA Subcommittee Memo, supra note 66, at 20. Later,
without any substantive change, Rule 43.1 was renumbered as Rule 60.
474
See Proposed Amendments, supra note 71, R. 60, at 15-20 (giving victims a right to be heard only as to proceedings concerning "release,
plea, or sentencing") (discussed at infra notes 524-539 and accompanying text).
475
United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
476
In re Richards, 213 F.3d 773, 787 (3d Cir. 2000); see also United States v. Hamm, 659 F.2d 624, 629-30 (5th Cir. 1981).
477
Accord United States v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).
478
Black's Law Dictionary 633 (Bryan A. Garner ed., 8th ed. 2004) (defining the adjective "fair").
479
See Fed. R. Crim. P. 48 advisory committee's note recounting the history of the 1944 adoption.
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The Advisory Committee's next argument is that to allow victims to be heard on dismissals would violate the CVRA's
requirement that nothing in the Act "shall be construed to impair the prosecutorial discretion of the Attorney General." 480 But
it is hard to understand how allowing information from a victim to go to a court "impairs" the government's discretion.
Particularly given that courts must already review the public interest in reviewing dismissal motions, executive branch power is
not impaired when a court hears from a victim in making its determination whether to approve. 481
The Advisory Committee's final argument is that "when there is no public court proceeding, the victim's views will be taken
into account through the right to confer with the government … ." 482 The passive voice ("taken into account") obscures the
overarching fact that it is the government itself that is proposing to dismiss the charges. The victim deserves to be heard not
merely by the government agency proposing to drop the charges, but by the independent branch of government - the judiciary -
that will review that proposal. For all these reasons, Rule 48 should be amended to ensure that victims are heard because
charges are dismissed.
[*947] Rule 50 - Victims' Right to Proceedings Free From Unreasonable Delay The Proposals:
I proposed that a victim's right to proceedings free from unreasonable delay should be recognized as follows:
Rule 50. Prompt Disposition
(a) Scheduling Preference. Scheduling preference must be given to criminal proceedings as far as practicable.
(b) Defendant's Right Against Delay. The court shall assure that the defendant's right to a speedy trial is protected, as provided
by the Speedy Trial Act.
(c) Victim's Right Against Delay. The court shall assure that a victim's right to proceedings free from unreasonable delay is
protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to
continue over the objection of a victim, the court shall state its reasons in the record. 483
The Advisory Committee proposed no change to this Rule. 484
Discussion:
Victims have speedy trial rights under the CVRA, which grants victims the right "to proceedings free from unreasonable delay."
485 In addition, child victims previously had the right to a "speedy trial" in certain situations. 486
In view of these statutory rights, I proposed supplementing the existing rule on scheduling (Rule 50) to fold in victims' rights.
The Advisory Committee did not explicitly discuss this proposal, suggesting that its failure to act was possibly due to oversight.
487 Further suggesting oversight is the Advisory Committee's repeated statements that it "sought to incorporate, but not go
480
18 U.S.C. § 3771(d)(6) (2006).
481
See Heaton, 458 F. Supp. 2d at 1271-73 (reaching this conclusion). In Heaton, the government did not challenge this holding and, after
the decision requiring it to submit the victim's views, filed a pleading to that effect, all without any apparent separation of powers problem.
482
CVRA Subcommittee Memo, supra note 66, at 20.
483
Cassell, Proposed Amendments, supra note 4, at 918-19.
484
Proposed Amendments, supra note 71.
485
18 U.S.C. § 3771(a)(7) (2006).
486
Id. § 3509(j).
487
See CVRA Subcommittee Memo, supra note 66, at 17-20 (cataloging my proposals that the subcommittee did not adopt; Rule 50 not
mentioned).
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beyond, the rights created by statute" and that it "adopted the statutory language whenever possible." 488 Yet under the
Advisory Committee's proposed changes, victims' speedy trial rights under the CVRA are not incorporated into the Rules.
Victims should have their rights regarding scheduling reflected in the rule dealing with scheduling issues. My proposed rule
closely tracks the language of [*948] the CVRA. 489 It does add a provision that victims would be heard on a motion to
continue a proceeding. 490 This provision is consistent with the definitive legislative history. As Senator Kyl explained: "This
provision [in the CVRA] should be interpreted so that any decision to schedule, reschedule, or continue criminal cases should
include victim input through the victim's assertion of the right to be free from unreasonable delay." 491 My proposed rule also
requires that the court state its reason for granting any continuance. This requirement stems from a recommendation from the
President's Task Force on Victims of Crime. The Task Force noted "the inherent human tendency to postpone matters, often for
insufficient reason," and accordingly recommended that "reasons for any granted continuance … be clearly stated on the
record." 492 Several states have adopted similar provisions. 493
Rule 53 - Closed-Circuit Transmission of Proceedings for Victims The Proposals:
I proposed that closed-circuit transmission of court proceedings for victims should be authorized as follows:
Rule 53. Courtroom Photographing and Broadcasting Prohibited
(a) General Rule. Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs
in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
(b) Closed-Circuit Transmission for Victims. In order to permit victims of crime to watch criminal trial proceedings, the court
may authorize closed-circuit televising of the proceedings for viewing by victims or other persons the court determines have a
compelling interest in doing so. 494
The Advisory Committee proposed no change to this rule. 495
[*949] Discussion:
I proposed to facilitate a victim's protected right to attend a trial by allowing closed-circuit broadcasting of a trial. The Advisory
Committee did not act on this proposal for reasons that are unclear, as it did not include this proposed change in the catalog of
my proposals that it was rejecting. 496
Perhaps the Advisory Committee felt that it had sufficiently addressed the subject in its proposed changes to Rule 60. There the
Committee simply tracked language in the CVRA and provided that "if the court finds that the number of victims makes it
impracticable to accord all of the victims the rights described in subsection (a), the court must fashion a reasonable procedure
488
Proposed Amendments, supra note 71, at 2.
489
See id.
490
Id. at 19.
491
150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added).
492
President's Task Force, Final Report, supra note 8, at 76.
493
See, e.g., Ariz. Rev. Stat. Ann. § 13-4435(B) (2001) (requiring courts to "state on the record the reason for the continuance"); Utah Code
Ann. § 77-38-7(3)(b) (2005) (requiring the court to "enter in the record the specific reason for the continuance and the procedures that have
been taken to avoid further delays").
494
Cassell, Proposed Amendments, supra note 4, at 922.
495
Proposed Amendments, supra note 71.
496
CVRA Subcommittee Memo, supra note 66, at 17-20.
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to give effect to these rights that does not unduly complicate or prolong the proceedings." 497 Thus, in a situation where
numerous victims might overwhelm courtroom seating capacity, the court might craft a reasonable alternative procedure to
assure attendance rights. One such reasonable procedure would appear to be closed-circuit transmission of court proceedings to
a facility sufficiently large to accommodate all the victims. This was the procedure followed in the Oklahoma City bombing
case. 498
But tracking the CVRA is not enough. The language for my proposed rule comes from another statute, 42 U.S.C. § 10608(a),
which authorizes closed-circuit transmissions "notwithstanding any provision of the Federal Rules of Criminal Procedure to the
contrary" in cases in which a proceeding has been transferred more than 350 miles. 499 The Advisory Committee repeatedly
proposed folding language from the CVRA straight into the Federal Rules of Criminal Procedure. But if the goal is to fold
statutes into the Rules, other relevant victims' statutes should be folded in as well.
While folding in a provision on closed-circuit broadcasting, there appears to be no good reason to limit such transmissions to
such situations where venue has been transferred. The CVRA mandates that the courts must always craft "reasonable
procedures" to protect the rights of multiple victims. 500 The proposed rule simply authorizes courts to allow such
transmissions in appropriate cases. Interestingly, the CVRA's drafters specifically endorsed the closed-circuit procedure. 501
[*950] For reasons that have yet to be articulated, the Advisory Committee has not only failed to act on my proposal but it has
left in place a conflict between a statute and Rule 53. As noted above, 42 U.S.C. § 10608(a) specifically trumps Rule 53 in
situations where cases have been transferred more than 350 miles. 502 The Rules should at least be amended to fix that conflict.
503 While fixing that problem, the Advisory Committee should also adopt my change, which faithfully implements the CVRA's
commands.
(New) Rule 60(a)(1) - Notice of Proceedings for Victims The Proposals:
I proposed requiring federal prosecutors to give notice to crime victims of their rights and the court process as follows:
Rule 10.1 Notice to Victims.
(a) Identification of Victim. During the prosecution of a case, the attorney for the government shall, at the earliest reasonable
opportunity, identify the victims of the crime.
(b) Notice of Case Events. During the prosecution of a crime, the attorney for the government shall make reasonable efforts to
provide victims the earliest possible notice of:
497
Proposed Amendments, supra note 71, R. 60(b)(3), at 24 (tracking 18 U.S.C. § 3771(d)(2) (2006)).
498
Jo Thomas, Trial To Be Shown in Oklahoma for Victims, N.Y. Times, Jan. 30, 1997, at A14; Paul G. Cassell & Robert F. Hoyt, The Tale
of Victims' Rights, Legal Times, Dec. 23, 1996, at 32.
499
42 U.S.C. § 10608(a).
500
18 U.S.C. § 3771(d)(2).
501
See 150 Cong. Rec. S10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (noting that, because of multiple victims in the Oklahoma
City bombing case, closed-circuit broadcasting used; this is "merely one example" of how a court could fashion an appropriate procedure to
accommodate multiple victims).
502
42 U.S.C. § 10608(a).
503
Perhaps it could be argued that Rule 53 itself accommodates any conflict because its prohibition of broadcasting applies "except as
otherwise provided by a statute or these rules." Fed. R. Crim. P. 53. But reliance on that language is a bit odd because it should go without
saying that nothing in the Rules can trump a substantive statute passed by Congress. See 28 U.S.C. § 2072(b). Moreover, as a simple matter
of drafting clarity, it is desirable to have the Rules themselves avoid conflicts with statutes. Otherwise, courts may inadvertently follow the
Rules in violation of the statutory command. See, e.g., Cassell, Barbarians at the Gates, supra note 6, at 516 (recounting how this happened in
the Oklahoma City bombing case).
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(1) The scheduling, including scheduling changes and/or continuances, of each court proceeding that the victim is either
required to attend or entitled to attend;
(2) The release or detention status of a defendant or suspected offender;
(3) The filing of charges against a defendant, or the proposed dismissal of all charges, including the placement of the defendant
in a pretrial diversion program and the conditions thereon;
(4) The right to make a statement about pretrial release of the defendant;
(5) The victim's right to make a statement about acceptance of a plea of guilty or nolo contendere;
[*951] (6) The victim's right to attend public proceedings;
(7) If the defendant is convicted, the date and place set for sentencing and the victim's right to address the court at sentencing;
and
(8) After the defendant is sentenced, the sentence imposed and the availability of the Bureau of Prisons notification program,
which shall provide the date, if any, on which the offender will be eligible for parole or supervised release.
(c) Multiple Victims. The attorney for the government shall advise the court if the attorney believes that the number of victims
makes it impracticable to provide personal notice to each victim. If the court finds that the number of victims makes it
impracticable to give personal notice to each victim desiring to receive notice, the court shall fashion a reasonable procedure
calculated to give reasonable notice under the circumstances. 504
The Advisory Committee proposed to add language in its global victims rule (Rule 60(a)(1)) that would give victims notice
only of court proceedings:
Rule 60. Victims
(a) In General.
(1) Notice of a Proceeding. The government must use its best efforts to give the victim reasonable, accurate, and timely notice
of any public court proceeding involving the crime. 505
Discussion:
The difference between my proposal and the Advisory Committee's is that I would give victims notice of both the hearings held
in a case and the fact that they can speak at some of those hearings; in contrast, the Advisory Committee would give victims
notice only of the hearings. For example, I would place in the rule a requirement that victims be notified of their right to make a
statement at bail, plea, and sentencing hearings and told when the hearings would be held. The Advisory Committee would tell
the victim only when the hearings would be held. 506
[*952] The Committee proposal disregards both the law and sound public policy. The CVRA directs that government
investigating and prosecuting agencies "shall make their best efforts to see that crime victims are notified of, and accorded,
504
Cassell, Proposed Amendments, supra note 4, at 859-60.
505
Proposed Amendments, supra note 71, R. 60, at 22.
506
The Committee did agree with my recommendation that the notice should be provided by the Justice Department, not the courts. See
Cassell, Proposed Amendments, supra note 4, at 861-64. Originally, the CVRA Subcommittee had proposed that the Rules be silent on this
important issue. See Advisory Committee Minutes, supra note 68, at 14 (suggesting that "it is not clear whose burden it would be to provide
such notice" and "Professor Beale recommended the passive phrasing"). Apparently at some point after the meeting, the Advisory Committee
chose to place the notification burden squarely on the government. See Advisory Committee Report, supra note 69, at 5. The Advisory
Committee apparently recognized that this requirement was already the law, as found in another statute, 42 U.S.C. § 10607(b), (c)(3)(A)-(D).
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their rights [in the CVRA]." 507 Because the Advisory Committee's promised approach was to "incorporate, but not go beyond,
the rights created by the statute," 508 it is surprising to see that the Committee decided not to incorporate the CVRA's right for
victims to be "notified of … their rights." Here again, perhaps it simply overlooked this right of victims. 509
As a policy matter, leaving out this right threatens to cripple crime victims' right to speak at bail, plea, and sentencing hearings.
If victims are unaware of their rights to speak, they may unwittingly forfeit that right. Of course, few victims are
knowledgeable about the steps in the criminal justice process. Just as criminal defendants receive advice of their Miranda
rights, victims should receive advice of their rights.
Although the Committee did not justify its decision to exclude the right to notice, it might conceivably argue that because this
right does not involve the conduct of a public judicial proceeding, it does not belong in the Rules. The Committee advanced
such an argument to defend its decision to ignore some other aspects of the CVRA in its proposed rule changes. 510
Such an argument, at least if advanced with respect to notice issues, would lack merit. First, and most important, the rights at
issue are directly bound up with judicial proceedings: at issue is notice about the right to speak at bail, plea, and sentencing
proceedings. Moreover, this right directly bears on those proceedings. It is designed to ensure that a judge at these hearings will
have all relevant information, including information from crime victims.
Second, it is not true that the Federal Rules of Criminal Procedure only cover judicial proceedings. To provide a few
straightforward examples: Rule 11 authorizes prosecutors and defense attorneys to "discuss and reach a plea agreement"; 511
Rule 16 provides that, upon request, a prosecutor "must permit the defendant to inspect and to copy or photograph books,
papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the
item is within the government's possession, custody, or control"; 512 Rule 41 requires a police officer executing a search
warrant to "give a copy of the warrant and a receipt for the property taken to the person from whom [*953] … the property
was taken"; 513 and Rule 49 requires parties to serve their legal pleadings on each other. 514 Although these rights may have
some ultimate effect on a court proceeding, none of them involves the conduct of a judicial proceeding. If they are "in bounds"
for the Rules of Criminal Procedure, the subject of notice about rights to a hearing would seem to fit comfortably as well.
Turning to how to draft a rule giving victims notice of their rights, it is easy to reformulate my proposal so that it tracks the
more abbreviated style preferred by the Advisory Committee. Such a rule would read as follows (underlined language being
added to the Advisory Committee's proposed language):
(1) Notice of a Proceeding. The government must use its best efforts to give the victim reasonable, accurate, and timely notice
of any public court proceeding involving the crime and of the rights the victim has at those proceedings.
It is not unreasonable to ask prosecutors to give victims notice of their rights. As long ago as 1982, the President's Task Force
of Victims of Crime concluded that the prosecutor is "in the best position to explain to victims the legal significance of various
motions and proceedings." 515 The Attorney General Guidelines for Victim and Witness Assistance already require
507
18 U.S.C. § 3771(c)(1) (emphases added).
508
Advisory Committee Report, supra note 69, at 2.
509
See id. at 17-20 (purporting to catalog Cassell proposals rejected; notice of rights not included).
510
See id. at 13 (listing rights that "seem to fall outside the parameters of the Federal Rules of Criminal Procedure).
511
Fed. R. Crim. P. 11(c)(1).
512
Id. 16(a)(1)(E).
513
Id. 41(f)(1)(C) (Supp. 2007).
514
Id. 49(a)-(b).
515
President's Task Force, Final Report, supra note 8, at 64.
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prosecutors and their agents to provide notice to crime victims for their rights, 516 as do some states. 517 To ensure that the
Justice Department has sufficient resources to provide notice, the CVRA authorizes $ 25 million over the next five fiscal years
to the Office for Victims of Crime of the Department of Justice for enhancement of victim notification systems. 518 The
Advisory Committee should therefore add language to its proposed rule change to require prosecutors to give victims notice of
their rights.
[*954] (New) Rule 60(a)(1) - Proceeding Without Notice to a Victim The Proposals:
I proposed spelling out what would happen in circumstances where a court wanted to proceed with a hearing but no notice had
been given to a victim as follows:
(b) Proceeding With and Without Notice. The court may proceed with a public proceeding without a victim if proper notice has
been provided to that victim under Rule 10.1. The court may proceed with a public proceeding (other than a trial or sentencing)
without proper notice to a victim only if doing so is in the interest of justice, the court provides prompt notice to that victim of
the court's action and of the victim's right to seek reconsideration of the action if a victim's right is affected, and the court
ensures that notice will be properly provided to that victim for all subsequent public proceedings. 519
The Advisory Committee did not propose any such change. 520
Discussion:
It seemed desirable to me to spell out how courts should proceed when victims lacked notice of a hearing. In contrast, the
Advisory Committee has chosen not to address the subject.
By not addressing the subject, the Advisory Committee may be suggesting that the court is forbidden from moving forward
when a victim has not been given notice of a proceeding. The caselaw makes clear that when a defendant has not been given
notice, any subsequent court action is void. 521 The CVRA's legislative history shows that the same rule was to apply for
victims. As Senator Kyl explained,
It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at
which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is
equivalent to a violation of the right itself. 522
[*955] In light of the fact that a court might otherwise be barred from proceeding when a victim has not been given notice, it
still seems preferable to me to spell out a way to allow the court to move forward while simultaneously protecting victims'
interests. But I will not elaborate the point further here.
(New) Rule 60(a)(2) - Victims' Right to Attend Trials Both the Advisory Committee and I proposed a rule that guarantees
victims the right to attend court proceedings except in those very rare instances where the victim's testimony would be
516
See Attorney General Guidelines, supra note 161, at 23.
517
See, e.g., Ala. Code. § 15-23-62 (LexisNexis 1995) (requiring law enforcement officers to give victims initial description of their rights
and "the name and telephone number of the office of the prosecuting attorney to contact for further information").
518
See Pub. L. No. 108-405, 118 Stat. 2260, 2264-65 (2004); see also 150 Cong. Rec. S4267 (daily ed. Apr. 22, 2004) (statement of Sen.
Kyl) ("We authorized an appropriation of to assure … that moneys would be made available to enhance the victim notification system,
managed by the Department of Justice's Office for Victims of Crime, and the resources additionally to develop state-of-the-art systems for
notifying crime victims of important states of development.") (emphasis added).
519
Cassell, Proposed Amendments, supra note 4, at 904-05. I proposed adding this as new Rule 43.1, but discuss it here as new Rule 60(a)(1)
to track the Advisory Committee's nomenclature.
520
Proposed Amendments, supra note 71.
521
See Wright, supra note 210, § 721, at 13.
522
150 Cong. Rec. S10910-01 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (reprinted in Appendix B).
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materially altered by attending the trial. 523 Because the Advisory Committee proposal essentially tracks my proposal, it is not
necessary to discuss this issue here.
(New) Rule 60(a)(3) - Victims' Right to be Heard on Bail, Plea, Sentencing and Other Issues The Proposals:
I proposed not only specific rules allowing victim to be heard at release, plea, and sentencing hearings but also a general rule
giving victims the right to be heard on all issues directly affecting their rights as follows:
Right to be Heard on Victims' Issues. In addition to rights to be heard established elsewhere in these rules, at any public
proceeding at which a victim has the right to attend, the victim has the right to be heard on any matter directly affecting a
victim's right. 524
The Advisory Committee proposed only a narrow rule giving victims the right to be heard at only three specific points in the
process - bail, plea, and sentencing hearings:
Right to Be Heard. The court must permit a victim to be reasonably heard at any public proceeding in the district court
concerning release, plea, or sentencing involving the crime. 525
[*956] Discussion:
The Advisory Committee's proposed general rule on the victim's right to be heard is inferior to weaving that right into the
specific rules on release, plea, and sentencing. This issue is discussed earlier in this Article. 526 The larger issue to pursue here
is the silence of the Advisory Committee on how a court should proceed when a victim's rights under the CVRA are at stake in
other proceedings. For example, what if the court is considering continuing a trial in violation of a victim's right to
"proceedings free from unreasonable delay"? 527 Or excluding the victim from a proceeding in violation of a victim's right "not
to be excluded from … public court proceeding"? 528 Or turning over to the defense personal and confidential information
about the victim in violation of a victim's right "to be treated with fairness and with respect for the victim's dignity and
privacy"? 529 Or giving a defendant the victim's home address in an alibi situation in violation of the victim's right to be
"reasonably protected from the accused"? 530
My proposed rule would state directly that the victim has the right to be heard on such issues. How the Advisory Committee
would handle such issues is unclear. The Advisory Committee's proposed rule on the victim's right to be heard only confers
such a right for three specific hearings. The listing of three hearings might seem to suggest victims could not be heard
elsewhere. But denying victims a chance to be heard at other hearings where their rights are implicated is such an obvious
violation of fundamental notions of fairness (not to mention the victim's right to fairness under the CVRA) that one should be
reluctant to ascribe that position to the Advisory Committee.
523
See Cassell, Proposed Amendments, supra note 4, at 904-11; Proposed Amendments, supra note 71, R. 60(a)(2), at 16; see also In re
Mikhel, 453 F.3d 1137, 1139-40 (9th Cir. 2006) (reversing district court decision excluding victims from trial under the CVRA); Beloof &
Cassell, supra note 229, at 519-20 (concluding that the CVRA grants a "nearly unqualified" right for the victim to attend a trial).
524
Cassell, Proposed Amendments, supra note 4, at 905, 911.
525
Proposed Amendments, supra note 71, R. 60(a)(3), at 16.
526
See supra notes 464-468 and accompanying text (proposing amendments to Rule 48 regarding release); supra notes 151-158 and
accompanying text (proposing amendments to Rule 11 regarding pleas); supra notes 434-448 and accompanying text (proposing
amendments to Rule 32).
527
18 U.S.C. § 3771(a)(7) (2006).
528
Id. § 3771(a)(3).
529
Id. § 3771(a)(8); see also supra notes 231-351 and accompanying text (discussing amendments to Rule 17).
530
18 U.S.C. § 3771(a)(1); see also supra notes 177-213 and accompanying text (discussing this question).
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Part of the confusion here may stem from two different ways in which victims can be heard. The first way is when the victim's
statement is effectively built into the proceeding at issue. At sentencing hearings, for example, the CVRA envisions a specific
point in the process where the victim will have a chance to make a statement - the victim's allocution. 531 This is what the
CVRA means when it refers to the victim's "right to be heard" at sentencing proceedings (along with plea and bail proceedings).
But the listing of victims' rights to be heard at those three specific hearings could not possibly have meant that victims would
have to remain silent at all other hearings.
[*957] The CVRA envisions victims being heard in second sense - in arguing in favor of their rights. The CVRA directly gives
victims and their representatives the right to "assert" their rights. 532 These rights can be asserted by a victim's representative
(that is, an attorney). 533 The CVRA also allows victims to file motions asserting their rights which must be taken up
"forthwith." 534 These are all ways in which victims can properly be heard. 535
The CVRA's legislative history makes it unmistakably clear that victims would be heard at other points in the process. Senator
Feinstein explained that the basic goal of the CVRA was to give victims the right to "participate in the process where the
information that victims and their families can provide may be material and relevant … ." 536 Senator Kyl also noted that the
act's enforcement provisions would give victims rights to be heard throughout the process:
[The CVRA's enforcement provisions] allow[] a crime victim to enter the criminal trial court during proceedings involving the
crime against the victim, [to stand with other counsel in the well of the court,] and assert the rights provided by this bill. This
provision ensures that crime victims have standing to be heard in trial courts so that they are heard at the very moment when
their rights are at stake and this, in turn, forces the criminal justice system to be responsive to a victims' rights in a timely way.
537
As one illustration of how this right to be heard operates, consider the victim's right to proceedings free from unreasonable
delay. 538 Presumably, this right encompasses a victim's opportunity to be heard before a case is delayed. As Senator Kyl
stated: "This provision should be interpreted so that any decision to schedule, reschedule, or continue criminal cases should
include victim input through the victim's assertion of the right to be free from unreasonable delay." 539
In view of all the different ways in which crime victims can be heard, it is appropriate to have a rule that speaks broadly to the
subject and protects victims' right to be heard whenever their rights are at stake. My proposed rule achieves that goal.
[*958] (New) Rule 60(b) - Enforcement of Victims' Rights The Proposals:
I proposed folding into the procedures a victim's right to assert an error as follows:
Rule 51. Preserving Claimed Error
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.
531
See supra notes 434-448 and accompanying text (discussing victim allocution).
532
18 U.S.C. § 3771(d)(1).
533
Id.
534
Id. § 3771(d)(3).
535
See, e.g., United States v. Tobin, No. 04-CR-216-01-SM, 2005 WL 1868682, at 2 (D.N.H. July 22, 2005) (allowing putative victim to
assert right to proceedings free from unreasonable delay even though bail, plea, or sentencing hearing not at issue).
536
150 Cong. Rec. S4262 (Apr. 22, 2004) (statement of Sen. Feinstein).
537
150 Cong. Rec. S4269 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphases added).
538
18 U.S.C. § 3771(a)(7).
539
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added) (reprinted in Appendix B).
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(b) Preserving a Claim of Error. A party or a victim may preserve a claim of error by informing the court - when the court
ruling or order is made or sought - of the action the party wishes the court to take, or the party's objection to the court's action
and the grounds for that objection. If a party or a victim does not have an opportunity to object to a ruling or order, the absence
of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal
Rule of Evidence 103. 540
The Advisory Committee proposed incorporating some of the language of the CVRA dealing with enforcement of victims'
rights as follows:
Rule 60. Victim's Rights.
… .
(b) Enforcement and Limitations.
(1) Time for Decision. The court must promptly decide any motion asserting a victim's rights under these rules.
(2) Who May Assert Rights. The rights of a victim under these rules may be asserted by the victim or the attorney for the
government.
(3) Multiple Victims. If the court finds that the number of victims makes it impracticable to accord all of the victims the rights
described in subsection (a), the court must fashion a reasonable procedure to give effect to these rights that does not unduly
complicate or prolong the proceedings.
(4) Where Rights may be Asserted. The rights described in subsection (a) must be asserted in the district in which a defendant
is being prosecuted for the crime.
(5) Limitations on Relief. A victim may make a motion to re-open a plea or sentence only if:
(A) the victim has asked to be heard before or during the proceeding at issue and the request was denied;
[*959] (B) the victim petitions the court of appeals for a writ of mandamus within 10 days of the denial and the writ is
granted; and
(C) in the case of a plea, the accused has not pleaded to the highest offense charged.
(6) No New Trial. In no case is a failure to afford a victim any right under these rules grounds for a new trial. 541
Discussion:
I proposed to essentially create a rule for victims to assert error, leaving additional details to be treated elsewhere. The
Advisory Committee proposed to fold into the Rules of Criminal Procedure some of the enforcement provisions and restrictions
in the CVRA.
Because the Advisory Committee's proposal largely tracks the CVRA, much in it is unobjectionable. But the Advisory
Committee deviates from the CVRA's language in five places for reasons that are unexplained - and unexplainable. The patient
reader of this Article may not be surprised that all five of these deviations operate in the same direction - to reduce a crime
victim's rights from what Congress has commanded.
540
Cassell, Proposed Amendments, supra note 4, at 921-22.
541
Proposed Amendments, supra note 71, R. 60(b), at 16-18.
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First, in Proposed Rule 60(b)(1), the Advisory Committee has watered down the CVRA's directive that a court must decide any
victim's motion "forthwith" 542 to "promptly." While there is nothing wrong with this change as a matter of style, 543 it does
appear to reduce the speed with which courts will have to act to enforce victims' rights. "Forthwith" can be interpreted to be
more exacting requirement than "promptly." 544 Given that the Advisory Committee's premise that, where possible, it "should
incorporate" the language of the CVRA, 545 it is unclear why it chose to substitute "promptly" for the "forthwith" requirement.
Second, in Proposed Rule 60(b)(2), the Advisory Committee has inexplicably left out the right of the victim's representative to
assert a victim's right (along with [*960] the victim herself and the prosecutor). 546 This omission is criticized earlier in this
Article. 547
Third, in Proposed Rule 60(b)(5)(a) through (c), the Advisory Committee sets out three requirements for a victim to file a
motion to reopen a sentence - requirements taken straight from the CVRA. 548 Without explanation, however, the Advisory
Committee then leaves out the CVRA's qualification to these restrictions - "this paragraph does not affect the victim's right to
restitution as provided in Title 18, United States Code." 549
Fourth, in Proposed Rule 60(b)(4), the Advisory Committee has left out the CVRA's venue provision which allows a victim to
assert her rights "if no prosecution is underway, in the district court in the district in which the crime occurred." 550 In contrast
to the other three omissions just noted, the Advisory Committee specifically discussed whether to track the italicized language
in its proposed rule on asserting rights. Remarkably, it decided to take the statutory language out of the Rules:
Judge Levi expressed concern over the final phrase in Rule [60(b)(4)], which gives a victim the right to assert rights "if no
prosecution is underway, in the court in the district in which the crime occurred." Judge Jones said the Crime Victims Rights
Act affords victims certain rights even in the absence of a case. Judge Levi noted, however, that the criminal rules only apply to
proceedings in filed cases. Judge Jones explained that the subcommittee had decided to include it because there might be a preprosecution
proceeding of some sort to which the provision might apply. There was discussion as to whether a grand jury
investigation might qualify as such. Professor Beale said that, while the Act might give victims certain rights, such as being
treated respectfully, Judge Levi was probably correct that the rights covered by the criminal rules could only be asserted with
respect to a case being prosecuted. After further discussion, Judge Jones said the phrase would be deleted, as Judge Levi had
suggested. 551
542
18 U.S.C. § 3771(d)(3).
543
See Bryan A. Garner, A Dictionary of Modern Legal Usage 372 (2d ed. 1995).
544
See, e.g., Amella v. United States, 732 F.2d 711, 713 (9th Cir. 1984) "["Forthwith'] connotes action which is immediate, without delay,
prompt, and with reasonable dispatch."); Ayers v. Coughlin, 530 N.E.2d 373, 375 (N.Y. 1988) ("We reiterate that the statutory mandate to
commit individuals to the officials responsible for their custody "forthwith' means that it is done without delay, at once, promptly. "Forthwith'
signals immediacy.").
545
CVRA Subcommittee Memo, supra note 66, at 1-2.
546
Compare Proposed Amendments, supra note 71, R. 60(b)(2), at 17, with 18 U.S.C. § 3771(d)(1) (2006) (victims' rights may be asserted by
"the crime victim or the crime victim's lawful representative, and the attorney for the Government") (emphasis added).
547
See supra notes 117-133 and accompanying text. For the Advisory Committee's response to this criticism, see infra notes 578-579 and
accompanying text.
548
See 18 U.S.C. § 3771(d)(5)(a)-(c).
549
Id. § 3771(d)(5).
550
Id. § 3771(d)(3) (emphasis added).
551
Advisory Committee Minutes, supra note 68, at 15 (discussing now-renumbered Rule 43(1)(b)(3)).
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This resulted in the Advisory Committee proposing a rule that recites only half of the CVRA's venue provision. The rule as
proposed by the Advisory Committee provides that "the rights described in [the rules] must be asserted in [*961] the district in
which a defendant is being prosecuted for the crime," 552 leaving silent what a victim should do if no prosecution is underway.
Once again, the confusion that the Advisory Committee discovered in the statute stems from the committee's failure to give
effect to (among other things) the victim's right to fairness. The CVRA extends the requirement for fair treatment not only to
prosecutors and courts, but also to all "officers and employees of the Department of Justice and other departments and agencies
of the United States engaged in the detection, investigation, or prosecution of crime … ." 553 (I will call this the CVRA's
"coverage provision.") It is, of course, easily conceivable that investigative agencies might violate a victim's right to fairness
before formal criminal proceedings were initiated. Because "no prosecution is underway" in such circumstances, the victim
would need to assert their rights (in the language of the CVRA's venue provision) "in the district court in the district in which
the crime occurred."
Under the Advisory Committee's proposal, a victim who is treated unfairly by a federal investigative agency will lack any place
to assert her right to fair treatment - in contravention of a teaching that traces back at least to Marbury v. Madison that "where
there is a legal right, there is also a legal remedy." 554 The Advisory Committee, however, seems to think that this is not a
problem to be addressed in the Rules because the rights covered by the criminal rules "could only be asserted with respect to a
case being prosecuted." But, of course, this assumption depends on limiting the rights in the CVRA to such narrow provisions
as the right to be "heard" on sentencing and other issues, because these rights attach only to "any public proceeding." 555 This
assumption fails if the right to be treated fairly (not to mention the right to be treated with dignity and respect and other rights)
is in the mix - as CVRA's plain language demands.
The Advisory Committee seemed to recognize the venue problem for cases with no prosecution underway when it discussed
the fact that victims may now have rights in the grand jury process (a subject squarely covered by the criminal rules 556 ). But
other examples exist as well. For example, federal agents may improperly tread on a victim's rights through a search warrant
(another subject covered by the criminal rules 557 ). Or in the course of their investigation, they may mishandle evidence in a
way that treads on a victim's dignity (improperly disseminating a nude or pornographic photograph of a victim, for instance.
558 ) In [*962] all these situations, victims are at least entitled to a forum to assert their rights to be treated with fairness and
with respect for their dignity and privacy - yet the Advisory Committee has excised the CVRA's venue provision that provides
the forum.
552
Proposed Amendments, supra note 71, Rule 60(b)(4), at 17.
553
18 U.S.C. § 3771(c)(1) (emphasis added).
554
5 U.S. (1 Cranch) 137, 163 (1803).
555
18 U.S.C. § 3771(a)(4).
556
Fed. R. Crim. P. 6. See generally Beloof, Cassell & Twist, supra note 6, at 335-79 (discussing victims' rights and the grand jury process).
557
See Fed. R. Crim. P. 41.
558
Cf. Donohue v. Hoey, No. 02-1405, 2004 WL 2095661, at 22-24 (10th Cir. Sept. 21, 2004) (finding no § 1983 right to damages for
alleged mishandling of nude photograph during state police investigation).
The examples given in the text are just illustrations, and there may be many more situations where a victim's rights might be violated before
charges are filed. In particular, the victim might not receive notice of their rights before charges are filed. The Justice Department's own
guidelines provide that a victim must receive notice of rights "at the earliest opportunity after detection of a crime at which it may be done
without interfering with an investigation." Dep't of Justice, Attorney General Guidelines, supra note 161, at 23. Moreover, existing federal
law requires the same notification, although this law is found outside the CVRA. See 42 U.S.C. § 10607 (notice to victim must be given at
"the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation.").
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It is important to emphasize one argument the Advisory Committee does not appear to make: that the CVRA applies only to
charged crimes. Any such argument would not only fly squarely in the face of the CVRA's venue and coverage provisions
applying victims' rights against investigating agencies, but also of the CVRA's clear legislative history. Discussing the CVRA's
definition of a crime victim, 559 Senator Kyl said the statute used an "intentionally broad definition because all victims of
crime deserve to have their rights protected, whether or not they are the victim of the count charged." 560
At least one federal magistrate judge has suggested, in dicta, that - in spite of Senator Kyl's plain statement - the CVRA might
not apply until charges have been filed. 561 His primary reason for doing so, however, was that the Supreme Court's decision in
Hughey v. United States, 562 suggested this result. To be sure, the victims statute at issue in Hughey (the Victim Witness
Protection Act) did employ a similar definition of "victim" as that found in the CVRA. But Hughey turned on the fact that other
language in the restitution statute provided that ""a defendant convicted of an offense' may be ordered to "make restitution to
any victim of such offense.'" 563 Such a straightforward holding says little about a statute - such as the "fairness" provision in
the CVRA - that contains no such limiting language regarding persons "convicted … of [an] offense." Moreover, the magistrate
judge did not discuss the CVRA's coverage and venue provisions, which plainly dictate that the CVRA applies to crimes not yet
charged. For all these reasons, the [*963] Advisory Committee should apply the CVRA as written and include a venue
provision both for prosecuted and not-yet-prosecuted crimes.
Fifth, and most important, in proposed Rule 60(b)(2), the Advisory Committee gives victims the power to assert rights "under
these rules." As has been noted throughout this Article, the Rules as they would be amended by the Advisory Committee leave
out many of the victims' rights under the CVRA. For example, the victims right to a speedy trial has not been included in the
proposed rule changes. 564 By giving victims the power to only assert the limited number of rights listed "under these rules,"
the Advisory Committee ignores many victims' rights under the CVRA. At the very least, the language should be changed to
make clear that victims to assert all rights that they have under the CVRA.
One change that the Advisory Committee should not make is worth brief mention: The Advisory Committee should not add a
provision for a fact-finding hearing to determine whether someone is a "victim" of crime. In its comment on the pending
proposed amendments, the National Association of Criminal Defense Lawyers ("NACDL") has proposed such a procedure.
The rationale it gives is that "the conferring of "rights' on the "victim' comes, in general, at the expense of the defendant. Thus,
due process requires that a provision be added to these Rules for a factfinding hearing, to be held whenever the proper labeling
of a person as "victim,' is in dispute … ." 565
The NACDL's rationale is patently defective. The rights in the CVRA do not interfere with any rights of the defendant, as
pointed out throughout this Article. 566 For instance, for victims to be notified of court hearings, to attend those hearings, and
559
See supra notes 117-133 and accompanying text (discussing amendments to Rule 1).
560
150 Cong. Rec. S10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl); cf. United States v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah
2006) ("Although some of the other rights in the Crime Victims' Rights Act (such as the right to be heard and the right to not be excluded) are
limited to "public proceedings,' the right to fairness is not so restricted.").
561
United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005).
562
495 U.S. 411 (1990).
563
Id. at 415-16 (emphases added) (quoting 18 U.S.C. § 3579(a)(1) (1982 ed. Supp. IV)).
564
See supra notes 483-493 and accompanying text.
565
Peter Goldberger, Statement on Behalf of the Nat'l Assoc. of Crim. Defense Lawyers Before the Advisory Comm. on Criminal Rules 4
(Jan. 26, 2007).
566
While the CVRA extends to uncharged crimes, it is also obvious that "the CVRA does not grant victims any rights against individuals who
have not been convicted of a crime." In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005) (emphasis added); accord Searcy v.
Skinner, No. 6:06-1418-GRA-WMC, 2006 WL 1677177, at 2 (D.S.C. June 16, 2006). Like the constitutional amendment it was patterned on,
the CVRA extends rights against the government - that is, rights "not to be victimized again through the process by which government
DAVID SCHOEN
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to speak at those hearings does not interfere with the defendant's right to be notified of those hearings, attend those hearings,
and to speak at those hearings. Perhaps this is why the NACDL could only assert that "in general" victims' rights harm
defendants - the NACDL did not provide a single supporting example.
Moreover, the procedure that the NACDL would put in place - a full evidentiary hearing with the defendant able to crossexamine
the victim to be determine "victim" status - is novel and unwarranted. While crime victims' rights have existed in all
fifty states and the federal system for the last two decades, no [*964] jurisdiction has ever required anything like this. 567
Instead, procedural issues of how to determine victim status are left to the sound discretion of the trial courts.
To give a defendant an automatic right to challenge victim status raises constitutional and other problems. A defendant who
simply complained about a victim designation would lack "standing" under Article III of the Constitution, because there would
be no "threatened or actual injury resulting from the putatively illegal action." 568 Moreover, to give defendants free license to
cross-examine victims about whether they were truly victims would obviously create a right to discovery in a criminal case that
contradicts current law 569 and circumvents the stringent limitations on depositions of witnesses found in Rule 15. 570 The
potential for abusive questioning of victims in such hearings (where no jury is present to be alienated) should also not be
overlooked. 571 The victims' rights provisions in this country have never been used to give defendants new rights to question
and potentially traumatize victims. The CVRA's expansion of victims' rights should not be the occasion to start. 572
V. Conclusion
This Article has tried to make the case for specific changes to the Federal Rules of Criminal Procedure to protect crime
victims' rights, particularly those rights listed in the CVRA. The Article has attempted to sketch out one way that the Rules
could be amended to do this while at the same time contending that the Advisory Committee's pending victims' rights proposals
are too restrictive. In concluding the Article, it may be useful to raise broader concerns about the Advisory Committee's
minimalist approach.
In reviewing the Advisory Committee's proposals, some might reach the conclusion that the Committee treated the victims
issue as a chore to be survived rather than an opportunity to be seized. One can read the Committee's proposals and the minutes
of its discussions without finding much enthusiasm for the idea of crime victims becoming a part of the criminal justice
process. This reluctance may be part of a larger phenomenon of hostility by the legal culture to crime victims, as other scholars
and I have argued elsewhere. 573
officials prosecute, punish and release accused or convicted offenders." Tribe & Cassell, supra note 28; accord S. Rep. 106-254, at 1-2 (2000)
(Victims' Rights Amendment designed to guarantee victims participatory rights in government process). That is why the CVRA states that the
rights must be afforded by government agencies and actors. See 18 U.S.C. § 3771(c)(1) (2006).
567
Communication from Professor Douglas Beloof, Director of the National Crime Victims Law Institute (Jan. 19, 2007) (on file with
author).
568
Warth v. Seldin, 422 U.S. 490, 499 (1975) (internal quotation omitted).
569
See supra notes 206-211 and accompanying text.
570
See supra note 210 and accompanying text.
571
See Cassell, Proposed Amendments, supra note 4, at 1434-37 (explaining how cross-examination of victims at Utah's preliminary
hearings has traumatized victims).
572
The Advisory Committee ultimately agreed with this position, and added language to a Committee Note stating simply that the court
could make findings to resolve any dispute about who was a victim. See infra note 580.
573
See, e.g., Cassell, Proposed Amendments, supra note 4, at 534 ("The "legal culture' … is one that has not made room for crime victims.");
Edna Erez, Victim Participation in Sentencing: And the Debate Goes On … , 3 Int'l Rev. of Victimology 17, 29 (1994) (noting socialization
of legal scholars "in a culture and structure that do not recognize the victim as a legitimate party in criminal proceedings"); see also Stephanos
Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 964 (2006) (suggesting crime victims can effectively
monitor the behavior of "insiders" in the system).
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[*965] Any lack of interest in crime victims is regrettable and might lead to harmful consequences. Congress has decided that
crime victims must be fully integrated into the federal criminal justice system. The Rules of Criminal Procedure are an
important part of that system and must fully reflect the congressionally protected interests of crime victims. If the judiciary will
not do the job, no doubt Congress will step in to finish the task. Indeed, Congress will be looking carefully at the CVRA's
effectiveness in changing the system in 2008, as it directed the General Accounting Office to "prepare and submit to the
appropriate committees a report" on the effectiveness of the act at that time. 574
It would be unfortunate if initiative for rules on crime victims were to pass from the courts to Congress. The courts do have
institutional advantages in assessing changes in the Rules. 575 The rulemaking committees are staffed with judges who have
long experience in applying rules of procedure. And the rulemaking process itself guarantees considerable public involvement
and careful deliberation about any rules that are ultimately adopted.
But having a good rulemaking process is one thing; producing a good product is another. Unfortunately, the Advisory
Committee's current proposals do not treat crime victims fairly and, even more indisputably, do not fully implement Congress's
commands in the CVRA. As the CVRA directs, crime victims are now participants in the federal criminal justice system. The
Federal Rules of Criminal Procedure must faithfully reflect that new reality and ensure that crime victims, no less than
prosecutors and defendants, are treated fairly throughout the process.
VI. Afterword
After this Article was completed in January 2007, several significant developments occurred that are relevant to rule changes
discussed here. First, several members of Congress wrote the Advisory Committee to explain that they were concerned about
the timid approach to implementing the CVRA. Then, in the spring and summer of 2007, the Advisory Committee itself made
several changes to the Rules discussed in this Article. Finally, as anticipated in the conclusion to this Article, Congress has
begun to move on legislation that would finish the task of enshrining crime victims' rights in the federal rules. Rather than
revise the Article in light of these subsequent developments, it seemed to make more sense to let the Article stand as originally
written and supplement it with a brief afterward discussing each of these developments.
[*966]
A. Congressional Public Comment on the Advisory Committee's Proposed Rules
Public comment on the Advisory Committee's proposed rule changes closed in February 2007. As comment was closing,
several members of Congress wrote the Committee, confirming that they too are troubled by the minimalist approach to the
proposed CVRA amendments. On February 15, 2007, Senator Jon Kyl wrote to the Committee to express his "strong concern"
about the proposed amendments. He explained as follows:
As a sponsor of the Act, I believe that passage by overwhelming majorities in both the House and the Senate signifies
Congress's intent to provide crime victims with substantive rights and protections in federal court. But the proposed
amendments do little more than reiterate limited parts of the statute. Crime victims have been mistreated by the federal
criminal justice system for far too long. To comply with Congress's intent, the Advisory Committee must take decisive and …
comprehensive action to thoroughly amend the rules and fully ensure that crime victims are protected in federal courts. 576