Senator Kyl went on to say he "fully endorsed" my specific proposals, indicating that they were, however, in some areas "too
cautious." 577
B. The Advisory Committee's Response to this Article and Other Public Comments
574
Pub. L. No. 108-405, § 104(b)(2), 118 Stat. 2260, 2265 (codified as amended at 18 U.S.C. § 3771 (Supp. 2006)).
575
See generally Peter G. McCabe, Renewal of the Federal Rulemaking Process, 44 Am. U. L. Rev. 1655,1687-91 (1995).
576
Letter from Senator Jon Kyl to Hon. David F. Levi, Chairman, Comm. on Rules of Practice and Procedure 1 (Feb. 16, 2007).
577
Id. at 3.
DAVID SCHOEN
2007 Utah L. Rev. 861, *966
Page 75 of 78
In response to this Article and to other public criticisms of its rules, the Advisory Committee made several modest changes to
its proposed rules. These changes are discussed in numerical order here. Other than these changes, no significant changes were
made to the proposed rules discussed here. The Advisory Committee has submitted them all to the Supreme Court and, unless
the Court takes the unusual step of disavowing them, they will go into effect on December 1, 2008.
Rule 1. In apparent response to my criticism that the definition of "victim" found in Rule 1 intentionally excluded a victim's
"representative," 578 on April 16, 2007, the Advisory Committee amended its proposed Rule 60 to allow a victim's
representative to assert a right. Rule 60(b)(2) now provides: "A victim's rights described in these rules may be asserted by the
victim, the victim's lawful representative, the attorney for the government, or any other person as authorized [*967] by 18
U.S.C. § 3771(d) and (e)." 579 This change insures that victims' representatives will be able to assert victims' rights. The
Advisory Committee also added language to the Committee Note stating that courts could make appropriate findings to resolve
any dispute about who is a victim. 580
Rule 5. At its October 1, 2007 meeting in Utah, the Advisory Committee approved a proposed change to Rule 5 regarding
detention hearings. The proposed addition to Rule 5 reads: "In making the decision to detain or release the defendant, the judge
must consider the right of the victim to be reasonably protected from the defendant." 581 This language was lifted almost
straight from Senator Kyl's proposed legislation implementing the CVRA 582 (which is discussed in the next section). This
seems like a valuable addition to the Rules, helping to protect victims' rights in detention decisions.
Rule 12.1. At its April 16, 2007 meeting, the Advisory Committee apparently agreed with my conclusion that courts lack
authority to force a victim to meet with a defendant 583 and struck language recommending such a meeting from its Committee
note. 584
Rule 12.3. Also at its October 1, 2007 meeting, the Advisory Committee responded to my point that the same language appears
in both Rule 12.1 (alibi defense) and Rule 12.3 (public authority defense) regarding disclosure of addresses of crime victims.
585 It therefore proposed to add the same changes to Rule 12.3 that it added to Rule 12.1. 586 Unfortunately, for the reasons
discussed at length here, now the language in both Rule 12.1 and 12.3 is insufficiently protective of victims' rights. 587
Rule 17. At its April 16, 2007 meeting, the Advisory Committee revised its rule on subpoenas for confidential information to
read: "Before entering the order and unless there are exceptional circumstances, the court must require that notice be given to
the victim so that the victim can move to quash or modify the subpoena or otherwise object." 588 This change responds to
objections from the American Bar Association, other groups, and me that the earlier rule encouraged ex parte [*968] issuance
578
See supra notes 117-126 and accompanying text.
579
Proposed Amendments, supra note 71, R. 60(b)(2), at 17 (emphasis added).
580
Memorandum from Hon. Susan C. Bucklew, Chair, Advisory Comm. on Fed. Rules of Criminal Procedure, to Hon. David F. Levi, Chair,
Standing Comm. on Rules of Practice and Procedure app. a, at 271-72 (May 19, 2007) [hereinafter Bucklew Memo], available at
http://www.uscourts.gov/rules/Reports/CR05-2007.pdf.
581
Memorandum from Professor Sara Sun Beale, Reporter, Advisory Comm. on Fed. Rules of Criminal Procedure, to Members of the
Criminal Rules Advisory Comm. 136 (Sept. 2, 2007) [hereinafter Beale Memo].
582
S. 1749, 110th Cong. § 5 (2007).
583
See supra notes 206-211 and accompanying text.
584
Bucklew Memo, supra note 580, app. a, at 277.
585
See supra notes 202-203 and accompanying text.
586
Beale Memo, supra note 581, app. at 7.
587
See supra notes 187-191 and accompanying text (explaining why changes to Rule 12.1 leave victims' addresses vulnerable to unfair
disclosure).
588
Bucklew Memo, supra note 580, app. a, at 283.
DAVID SCHOEN
2007 Utah L. Rev. 861, *968
Page 76 of 78
of subpoenas for confidential information and thus violated important due process principles. 589 The new rule is an
improvement, in that it limits ex parte procedures to "exceptional circumstances." The Committee note then offers two
illustrations of exceptional circumstances. One is unobjectionable - where "evidence … might be lost or destroyed if the
subpoena were delayed" 590 - a standard exigent circumstance that justifies moving rapidly. But the other illustration - "a
situation where the defense would be unfairly prejudiced by premature disclosure of a sensitive defense strategy" 591 - remains
quite problematic, for reasons discussed earlier. 592
Rule 21. Also at its October 1, 2007 meeting, the Advisory Committee approved a very modest change to Rule 21(b), regarding
transfer of cases for convenience. The change reads:
Rule 21. Transfer for Trial
… .
(b) For Convenience. Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that
defendant to another district for the convenience of the parties, and victim, and the witnesses, and in the interests of justice.
This change is modest, because (in my estimation) relatively few federal cases involving victims are transferred for
"convenience" under Rule 21(b). The more common situation is transfers for prejudice under Rule 21(a). 593 Thus, this change
is, at best, relatively inconsequential.
In any event, the change is defective. While the proposed rule lets the judge consider the victim's interest in determining
whether to transfer, the Advisory Committee did not adopt my recommendation to let crime victims be heard on transfer
decisions. 594 Without a mechanism for passing victim information along to the judge, an instruction to the judge to consider
the victims' interest is essentially meaningless. The Advisory Committee should remedy this defect by giving victims the right
to be heard on transfer decisions.
Rule 32. In possible response to my point that victims deserve the right to be "heard" at sentencing hearings by speaking
directly to the judge, 595 on April 16, 2007, the Advisory Committee modified its note to Rule 32(i)(4). The note now reads:
"Absent unusual circumstances, any victim who is present should be [*969] allowed a reasonable opportunity to speak
directly to the judge." 596 While this is an improvement over earlier language, it still remains unclear what sorts of "unusual
circumstances" the Advisory Committee has in mind that would permit a judge to deny a victim her right under the CVRA to
speak. It is also odd that the Advisory Committee Note would apparently allow a judge to exclude a victim in some
circumstances, when the only two reported decisions on the issue have held directly to the contrary that victims have an
unequivocal right to speak to the judge. 597
Rule 60. In response to public comments, the Advisory Committee made several modest changes to Rule 60. Rule 60(a)(2) was
revised to make clear that the duty to permit full attendance arises in the context of the victim's possible exclusion. 598 As
589
See supra notes 347-351 and accompanying text.
590
Bucklew Memo, supra note 580, app. a, at 282.
591
Id.
592
See supra notes 249-257 and accompanying text.
593
See, e.g., supra notes 366-382 and accompanying text (discussing transfer for prejudice in two cases).
594
See supra note 366 and accompanying text.
595
See supra notes 434-448 and accompanying text.
596
Beale Memo, supra note 580, app. at 7.
597
See Kenna v. U. S. Court for Cent. Dist. of Cal., 435 F.3d 1011, 1016 (9th Cir. 2006); United States v. Degenhardt, 405 F. Supp. 1341,
1343-44 (D. Utah 2005); see also United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (reaching same conclusion).
598
Bucklew Memo, supra note 580, app. a, at 299, 302-03.
DAVID SCHOEN
2007 Utah L. Rev. 861, *969
Page 77 of 78
discussed in connection with Rule 1 above, 599 Rule 60(b)(2) was revised to make clear that a victim's "representative" could
assert a victim's right.
C. The Last Word? Legislation to Fully Implement the CVRA
Unsatisfied with the timid approach taken by the Advisory Committee on the CVRA, Senator Jon Kyl introduced legislation to
comprehensively amend the federal rules on June 29, 2007. Senator Kyl explained that the Advisory Committee's amendments
"do little more than reiterate limited parts of the statute." 600 Agreeing with the major premise of this Article - that crime
victims must be treated fairly in the criminal justice process - Senator Kyl noted: "Of particular importance, the CVRA
guaranteed that crime victims would have the right to be treated with "fairness.' My proposed amendments would add to the
Federal rules the changes needed to treat crime victims fairly." 601 Senator Kyl was also concerned about delay by the
Advisory Committee in moving forward with comprehensive amendments:
Congress enacted the CVRA in October 2004. In the almost 3 years since then, I have waited patiently to give the federal courts
the first opportunity to review the need for rule changes. At the same time, though, I have made clear my position, as one of the
cosponsors of the CVRA, that Congress expected significant reforms in the Federal rules. As I explained to my colleagues at
that time, the crime victims' [*970] community in this country was looking to the CVRA to serve as a model for the states and
a formula to fully protect crime victims. 602
Accordingly, Senator Kyl proposed a long string of direct amendments to the Federal Rules of Criminal Procedure to
comprehensively protect victims' rights.
Some of the legislation that Senator Kyl proposed tracked my proposals in this Article. For example, he proposed amendments
to a number of rules - including Rules 2, 10.1, 603 11(b)(4), 11(c)(1), 11(c)(2), 12.1, 12.3, 15, 21(e), 32(f)(1), 32(h), 43.1, 44,
46, and 50( c) - largely tracking my proposals.
But other proposed changes went well beyond those I propose here. For example, Senator Kyl proposed changing Rule 4's
provision dealing with execution of arrest warrants to require reasonable efforts to give notice to victims about the initial
appearance of an arrested suspect. 604 Along the same lines, Senator Kyl would give victims reasonable notice of any decision
to release a defendant at the initial appearance 605 as well as notice of any pretrial conference. 606 He also would give federal
prosecutors authority to release to a victim any discovery materials that have been released to the defendant. 607 To assist non-
English speaking crime victims, he proposes to give the courts authority to appoint an interpreter for the victim. 608 Senator
Kyl's bill would also require disclosure to the victim of any presentence report "except any portion of such report excised by
the court for compelling reasons or made confidential by law." 609 And his bill would require that the victim be given a
reasonable opportunity to be heard before any motion for a new trial is granted. 610
599
See supra notes 117-126 and accompanying text.
600
153 Cong. Rec., S8746 (daily ed. June 29, 2007) (statement of Sen. Jon Kyl).
601
Id.
602
Id. at S8747.
603
My proposed Rule 10.1 regarding notice to crime victims (which Senator Kyl largely tracked) is discussed in this Article as Rule 60(a)(1).
See supra notes 505-519 and accompanying text.
604
S. 1749, 110th Cong. § 4 (2007).
605
Id. § 5.
606
Id. § 15.
607
Id. § 13.
608
Id. § 18.
609
Id. § 19.
610
Id. § 21.
DAVID SCHOEN
2007 Utah L. Rev. 861, *970
Page 78 of 78
As of this writing, the ultimate disposition of Senator Kyl's bill remains uncertain. But what is certain is that congressional
interest in crime victims' rights will remain strong. Congress has been working on far reaching crime victims' rights legislation
for several decades now and, indeed, many in Congress favor an amendment to the United States Constitution to protect
victims' rights. 611 Against that backdrop, it is unlikely that Congress will permit the Federal Rules of Criminal Procedure to
only haphazardly protect victims' rights. If the Advisory Committee does not complete the task of comprehensively reforming
the Rules to protect victims, Congress almost certainly will - and should - finish the job.
Utah Law Review
Copyright (c) 2007 Utah Law Review Society
End of Document
611
See supra notes 30-35 and accompanying text.
DAVID SCHOEN