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1. ARTICLE: Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light
of the Crime Victims' Rights Act, 2005 B.Y.U.L. Rev. 835
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DAVID SCHOEN
ARTICLE: Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed
Amendments in Light of the Crime Victims' Rights Act
Reporter
2005 B.Y.U.L. Rev. 835 *
2005
Length: 36451 words
Author: Paul G. Cassell*
* Professor of Law for the S.J. Quinney College of Law of the University of Utah and United States District Court Judge for
the District of Utah. Thanks to Doug Beloof, Janna Tucker Davis, Meg Garvin, Wendy Murphy, Judge James Orenstein, and
Steve Twist; to my able law clerks Ann Bauer, Tim Conde, Tyler Green, Felise Thorpe Moll, Justin Starr, and Stewart Young;
and especially to my wife Trish for all her support. I write this article as a law professor, not as a judge. It is not intended to
comment on any pending cases and implies no positive commitment on legal issues that may arise in cases that come before me
in my court.
Text
[*837]
I. Introduction
Crime victims are virtually absent from the Federal Rules of Criminal Procedure. The sixty federal rules comprehensively
cover every aspect of federal criminal proceedings - from initial appearance through preliminary hearing, arraignment,
acceptance of pleas, trial, and sentencing. Yet the rules substantively mention victims only once, briefly recognizing the right
of some victims to speak at sentencing. 1
The federal rules can no longer leave victims unmentioned. In October 2004, Congress passed and President Bush signed into
law the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act (CVRA).
2 The CVRA transforms crime victims into participants in the criminal justice process by (among other things) guaranteeing
them notice of court hearings, the right to attend those hearings, and the opportunity to testify at appropriate points in the
process. These new victims' rights will reshape the federal criminal justice system and force significant changes to the Federal
Rules of Criminal Procedure to reflect the victim's expanded role. This Article offers comprehensive proposals for changing the
federal rules to both implement the CVRA and reflect sound public policy. The CVRA dictates changes like these to the Federal
Rules of Criminal Procedure because only by integrating victims into the federal rules will Congress's goal of making victims
participants in the process be fully realized.
This Article is divided into five parts. Following this introduction, Part II reviews the current absence of victims from the
federal rules. Surprisingly, even where the rules cover issues of great concern to victims, victims somehow go unmentioned.
1
See Fed. R. Crim. P. 32(i)(4)(B); discussion infra note 3 and accompanying text.
2
Crime Victims' Rights Act, Pub. L. No. 108-405, 118 Stat. 2261 (2004) (codified at 18 U.S.C.A. 3771 (West 2004 & Supp. 2005)). The
CVRA was part of a much larger piece of legislation that addressed a variety of subjects, known as the "Justice for All Act." See generally
Steven J. Twist, On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, Nila Lynn Crime
Victims' Rights Act, 9 Lewis & Clark L. Rev. (forthcoming 2005).
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2005 B.Y.U.L. Rev. 835, *837
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Part II then discusses the crime victims' rights movement and concludes with a brief sketch of the events leading to the CVRA's
enactment.
[*838] Part III discusses why it is necessary to amend the federal criminal rules to incorporate victims. Although the CVRA is
a federal statute that automatically trumps any conflicting procedural rule, procedural rules drive day-to-day courtroom
practices. Given that Congress was particularly concerned about integrating victims into the fabric of the criminal justice
system, the Advisory Committee on Criminal Rules should amend the rules to directly reflect the CVRA's requirements.
Part IV provides a rule-by-rule analysis of the changes needed in the Federal Rules of Criminal Procedure to implement the
CVRA. Of particular importance is new language protecting crime victims' rights to be notified of and to be present and heard
at public criminal proceedings. Congress should also implement the right to notice in a new rule mandating that prosecutors
keep victims apprised of criminal proceedings. In addition, the rules should also reflect victims' rights to attend court
proceedings and to testify at bail, plea, and sentencing hearings. Part IV also discusses other significant changes needed to
conform the rules to the CVRA: defining "victim," giving victims notice before confidential information is subpoenaed,
allowing victims to be heard before cases are transferred to remote districts, giving victims access to relevant parts of the presentence
report, permitting courts to appoint counsel for victims, and protecting the victim's right to proceedings free from
unreasonable delay. Part V contains a brief conclusion.
II. The Missing Victims of Crimes
Crime victims are absent from the Federal Rules of Criminal Procedure. Yet this is not because victims lack vital interests in
criminal cases. As the CVRA recognizes, victims have vital concerns throughout the criminal process. This section recounts the
absence of victims from the federal criminal rules, then contrasts that absence with the aims of the victims' rights movement.
The movement has argued successfully before state legislatures and Congress for the recognition of crime victims' rights - with
these efforts culminating in the passage of the CVRA, protecting crime victims' rights in the federal system.
[*839]
A. The Victim's Absence from the Current Federal Criminal Rules
The sixty Federal Rules of Criminal Procedure provide the architecture for the entire federal criminal court process, including
initial appearance, preliminary hearing, arraignment, acceptance of pleas, trial, and sentencing. One would expect that the rules
would frequently mention crime victims, given the subjects - such as bail, scheduling, and restitution - that directly concern
victims. Yet amazingly, the current rules substantively use the word "victim" only a single time.
The single direct reference to victims is Rule 32(i)(4)(B), which directs that before imposing a sentence, "the court must
address any victim of a 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." 3 The word "victim" appears in passing in only two other rules: Rule 12.4 requires
the government to disclose to the court any organizational "victim," 4 and the heading of Rule 38(e) mentions "Restitution"
and "Notice to Victims," but the text of the rule does not contain the term "victim." 5
Victims deserve far more than the single reference in Rule 32. While later parts of this Article work through the rules sectionby-section
to illustrate where victims have been unfairly ignored, 6 a few examples here will prove the point. The rules
currently fail to give victims any right to be heard regarding whether a judge should accept a plea, even though the judge must
evaluate the public interest in deciding whether to do so. 7 The rules fail to require notice to victims before their confidential
3
Fed. R. Crim. P. 32(i)(4)(B).
4
Id. at 12.4(a)(2).
5
Id. at 38(e) (mentioning "victim" in the heading of the rule).
6
See discussion infra Part IV.
7
See Fed. R. Crim. P. 11; discussion infra notes 148-53 and accompanying text.
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2005 B.Y.U.L. Rev. 835, *839
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information is subpoenaed from third parties - such as schools or medical providers - even though victims have compelling
privacy interests to protect. 8 And the rules do not protect the victim's right to attend trials, despite [*840] victims' long
history of having at least some protected interest in observing trials and other proceedings. 9
One provision conveniently encapsulates the surprising absence of victims from the rules: Rule 32(d)(2)(B). The drafters of this
rule 10 appear to have been so afraid to utter the word "victim" that they did not use the term even when describing the person
harmed by a crime. Rule 32(d)(2)(B) directs that a presentence report contain "verified information, stated in a
nonargumentative style, that assesses the financial, social, psychological, and medical impact on any individual against whom
the offense has been committed." 11 The phrasing of this provision is striking for several reasons. It eschews the
straightforward term "victim," preferring instead the obscuring phrase "individual against whom the offense has been
committed." The provision also uses the responsibility-obscuring passive voice in describing the individual "against whom" the
offense has been committed, leaving the reader to wonder who might have committed that offense (the defendant, perhaps?).
Interestingly, the provision requires that information about the victim be "verified." Fair enough - until one realizes that the
directly adjacent provision regarding information about the defendant lacks a similar verification requirement. 12 Why would
information about the victim need to be verified while information about the defendant would not? Finally, the provision
requires that victim information be stated in a "nonargumentative" style. Again, the adjacent defendant's provision contains no
such direction. 13 In short, even a rule that seemingly must mention victims - the rule dictating preparation of a presentence
report describing the crime - manages to avoid mentioning the word.
B. The Victims' Rights Movement
That victims are missing from the Federal Rules of Criminal Procedure exemplifies their treatment in the modern American
[*841] criminal justice system. As one commentator has described the situation, the victim is "seen at best as "the forgotten
man' of the system and, at worst, as being twice victimized, the second time by the very system to which he has turned for
justice." 14 The absence of victims conflicts with "a public sense of justice keen enough that it has found voice in a nationwide
victims' rights movement." 15
The crime victims' rights movement developed in the 1970s because of a perceived imbalance in the criminal justice system.
Led by feminist and civil rights activists, victims' advocates argued that the criminal justice system had become preoccupied
8
See Fed. R. Crim. P. 17; discussion infra notes 177-91, and accompanying text.
9
See Fed. R. Crim. P. 43; discussion infra notes 269-300 and accompanying text.
10
To be clear, Congress, not the Advisory Committee on Criminal Law and Procedure, drafted the language of this rule. See Victims of
Crime Act of 1984, Pub. L. No. 98-473, 98 Stat. 2014 (1984) (directly amending Rule 32).
11
Fed. R. Crim. P. 32(d)(2)(B) (emphasis added).
12
Id. at 32(d)(2)(A).
13
Id.
14
William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649, 650
(1976).
15
Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (internal quotation marks omitted). See generally Douglas Evan
Beloof, Paul G. Cassell & Steve J. Twist, Victims in Criminal Procedure 29-37 (2005); Shirley S. Abrahamson, Redefining Roles: The
Victims' Rights Movement, 1985 Utah L. Rev. 517; Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation
Model, 1999 Utah L. Rev. 289 [hereinafter Beloof, The Third Model of Criminal Process]; Paul G. Cassell, Balancing the Scales of Justice,
1994 Utah L. Rev. 1373, 1380-82; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 Miss. L.J. 514 (1982);
Erin Ana O'Hara, Victim Participation in the Criminal Process, 13 J.L. & Pol'y 229 (2005); William T. Pizzi & Walter Perron, Crime Victims
in German Courtrooms: A Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37 (1996).
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2005 B.Y.U.L. Rev. 835, *841
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with defendants' rights to the exclusion of crime victims' legitimate interests. 16 These advocates urged reforms to give more
attention to victims' concerns, including protecting the victim's right to be notified of court hearings, to attend those hearings,
and to be heard at appropriate points in the process.
The victims' rights movement received considerable impetus with the publication in 1982 of the Report of the President's Task
Force on Victims of Crime. 17 The Task Force concluded that the criminal justice system "has lost an essential balance … .
The system has deprived the innocent, the honest, and the helpless of its protection … . The victims of crime have been
transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed." 18
The Task Force advocated [*842] multiple reforms. It recommended that prosecutors assume the responsibility for keeping
victims notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea
bargains, sentences, and restitution. 19 The Task Force also urged that courts receive victim impact evidence at sentencing,
order restitution in most cases, and allow victims and their families to attend trials even if they are also called as witnesses. 20
In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims.
The Task Force proposed adding to the Sixth Amendment's protections for defendants' rights a provision allowing crime
victims to be present and heard: "Likewise, the victim, in every criminal prosecution shall have the right to be present and to be
heard at all critical stages of judicial proceedings." 21
In the wake of that recommendation, crime victims' advocates considered how best to pursue a federal constitutional
amendment that would protect victims' rights throughout the country. Recognizing the difficulty of obtaining the consensus
required to amend the United States Constitution, advocates decided to go to the states first to pursue state victims' rights
amendments. This "states-first" strategy 22 met with considerable success. To date, some thirty states have adopted victims'
rights amendments to their own state constitutions. 23 While these amendments take various forms, Arizona's amendment
illustrates the types of rights typically protected. The Arizona constitutional provision gives victims the broad right to "be
treated with fairness, respect, and dignity, and to [*843] be free from intimidation, harassment, or abuse, throughout the
criminal justice process." 24 It also specifically confers a right to "be present at, and, upon request, to be informed of all
criminal proceedings where the defendant has the right to be present." 25 The amendment further allows victims to be heard at
bail, plea, and sentencing hearings. 26
16
See generally Beloof, Cassell & Twist, supra note 15, at ch. 1; Douglas E. Beloof, The Third Wave of Crime Victims' Rights: Standing,
Remedy, and Review, 2005 BYU L. Rev. 255 [hereinafter Beloof, The Third Wave of Crime Victims' Rights]; Cassell, supra note 15, at 1381-
82.
17
President's Task Force on Victims of Crime, Final Report 114 (1982).
18
Id.
19
Id. at 63.
20
Id. at 72-73.
21
Id. at 114.
22
See S. Rep. No. 108-191, at 3 (2004), as reprinted in 2004 U.S.C.A.N.
23
Alaska Const. art. I, 24; Ariz. Const. art. II, 2.1; Cal. Const. art. I, 12, 28; Colo. Const. art. II, 16(a); Conn. Const. art. I, 8(b); Fla. Const.
art. I, 16(b); Idaho Const. art. I, 22; Ill. Const. art. I, 8.1; Ind. Const. art. I, 13(b); Kan. Const. art. 15, 15; La. Const. art. 1, 25; Md. Decl. of
Rights art. 47; Mich. Const. art. I, 24; Miss. Const. art. 3, 26(A); Mo. Const. art. I, 32; Neb. Const. art. I, 28; Nev. Const. art. I, 8(2); N.J.
Const. art. I, 22; N.M. Const. art. 2, 24; N.C. Const. art. I, 37; Ohio Const. art. I, 10(a); Okla. Const. art. II, 34; Or. Const. art. I, 42-43; R.I.
Const. art. I, 23; S.C. Const. art. I, 24; Tenn. Const. art. 1, 35; Tex. Const. art. I, 30; Utah Const. art. I, 28; Va. Const. art. I, 8-A; Wash.
Const. art. 1, 35; Wis. Const. art. I, 9(m). These amendments passed with overwhelming popular support.
24
Ariz. Const. art. II, 2.1(A)(1).
25
Id. 2.1(A)(3).
26
Id. 2.1(A)(4).
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The movement also successfully prodded the federal system to recognize victims' rights. In 1982 Congress passed the first
federal victims' rights legislation, the Victim and Witness Protection Act (VWPA). 27 The VWPA had three primary goals: (1)
to expand and protect the role of victims and witnesses in the criminal justice process; (2) to ensure that the federal government
used all available resources to protect and assist victims without infringing defendants' constitutional rights; and (3) to provide
a model for state and local legislation. 28 Since passage of the VWPA, Congress has remained active in this area of the law,
passing several acts further protecting victims' rights, such as the Victims of Crime Act of 1984, 29 the Victims' Rights and
Restitution Act of 1990, 30 the Violent Crime Control and Law Enforcement Act of 1994, 31 the Antiterrorism and Effective
Death Penalty Act of 1996, 32 and the Victim Rights Clarification Act of 1997. 33 Other federal statutes have been passed to
deal with specialized victim situations such as child victims and witnesses. 34
[*844] These statutes spawned guidelines for how federal prosecutors should treat crime victims. The VWPA required the
Attorney General to develop guidelines for the Department of Justice. 35 To implement this Act, the Attorney General
developed guidelines designed to assist victims during the criminal justice process, mandating protocol, separate waiting areas
at court, the prompt return of the victim's property, and victim training for law enforcement personnel. 36 The guidelines also
directed that prosecutors notify victims about available services, major case events, consultations with the prosecutor, and the
opportunity for consultation about the prosecution. 37 In 2000, Attorney General Reno updated and expanded the guidelines.
The revised guidelines heightened the notification requirements, requiring prosecutors and law enforcement agents to notify
victims of important criminal justice events and to confer with victims about important decisions in the process. 38
Among the federal victims' statutes, the Victims' Rights and Restitution Act of 1990 is noteworthy. This Act purported to create
a comprehensive list of victims' rights in the federal criminal justice process. It commanded that "[a] crime victim has the
following rights" and then listed various procedural rights, including the right to "be treated with fairness and with respect for
the victim's dignity and privacy," 39 to "be notified of court proceedings," 40 to "confer with [the] attorney for the Government
in the case," 41 and to attend court proceedings even if called as a witness. 42 The statute also directed the Justice Department
27
Pub. L. No. 97-291, 96 Stat. 1248 (1982) (codified as amended in scattered sections of 18 U.S.C.).
28
Id.
29
Pub. L. No. 98-473, 98 Stat. 2170 (1984) (codified as amended at 42 U.S.C. 10601-03 (2000); 18 U.S.C. 3013; id. 3671).
30
Pub. L. No. 101-647, 104 Stat. 4820 (1990) (codified as amended at 42 U.S.C. 10601, 10606-07).
31
Pub L. No. 103-322, 108 Stat. 1796 (1994) (codified as amended in scattered sections of U.S.C.).
32
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of U.S.C.).
33
Pub. L. No. 105-6, 111 Stat. 12 (codified as amended at 18 U.S.C. 3510).
34
See, e.g., 18 U.S.C. 3509 (protecting rights of child victim-witnesses); Pub L. No. 101-647, 104 Stat. 4789 (1990).
35
Victim and Witness Protection Act, Pub. L. No. 97-291, 6(a), 96 Stat. 1248, 1252 (1982).
36
U.S. Dep't of Justice, Office of the Att'y Gen., Attorney General Guidelines for Victim and Witness Assistance (1995).
37
Id.
38
U.S. Dep't of Justice, Office of the Att'y Gen., Attorney General Guidelines for Victim and Witness Assistance 31-37 (2000) [hereinafter
2000 A.G. Guidelines]. The Guidelines were recently revised. See U.S. Dept. of Justice, Office for Victims of Crime, Attorney General
Guidelines for Victim and Witness Assistance (2005) [hereinafter 2005 A.G. Guidelines].
39
42 U.S.C. 10606(b)(1) (repealed 2004).
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2005 B.Y.U.L. Rev. 835, *844
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to make "its best efforts" to ensure [*845] that victims' rights were protected. 43 Yet this federal statute never successfully
integrated victims into the federal criminal justice process and instead became something of a dead letter. Because Congress
passed the CVRA in 2004 to remedy the problems with the 1990 Act, a brief review of the law's shortcomings is valuable.
Curiously, the 1990 Victims' Rights and Restitution Act was codified in Title 42 of the United States Code - the Title dealing
with "Public Health and Welfare." Such placement effectively limited the Act's effectiveness because federal practitioners
reflexively consult Title 18, the Title that covers "Crimes and Criminal Procedure," 44 for guidance on criminal law issues.
More prosaically, federal criminal enactments are bound together in a single West publication entitled the Federal Criminal
Code and Rules. This publication is carried to court by prosecutors and defense attorneys and is on the desk of most federal
judges. Because West Publishing never included the Victims' Rights Act in this book, the statute was essentially unknown even
to experienced judges and attorneys. 45
The prime illustration of the ineffectiveness of the Victims' Rights and Restitution Act comes from the Oklahoma City
bombing case. 46 While one might expect victims' rights would have been fully protected during such a high profile trial, in
fact victims were denied one fundamental right: the right to observe court proceedings. During a pretrial motion hearing, the
district court sua sponte precluded any victim who wished to provide victim impact testimony at sentencing from observing
proceedings in the case. 47 The court based its ruling on Rule 615 of the Federal Rules of Evidence - the so-called "Rule on
Witnesses." 48 Thirty-five victims and survivors of [*846] the bombing then filed a motion for reconsideration. 49 They
noted that the district court apparently had overlooked the Victims' Rights Act giving victims the right "to be present at all
public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially
affected if the victim heard other testimony at trial." 50 The district court denied the motion for reconsideration. 51 It
concluded that victims present during court proceedings would not be able to separate the "experience of trial" from "the
experience of loss from the conduct in question," and, thus, their testimony at a sentencing hearing would be inadmissible. 52
Unlike the original ruling, which was explicitly premised on Rule 615, the later ruling was more ambiguous, alluding to
concerns under the Constitution, the common law, and the rules of evidence. 53
40
Id. 10606(b)(3) (repealed 2004).
41
Id. 10606(b)(5) (repealed 2004).
42
Id. 10606(b)(4) (repealed 2004). Testifying victims can attend proceedings unless the victim's testimony "would be materially affected" by
hearing other testimony at trial. Id.
43
Id. 10606(a) (repealed 2004).
44
18 U.S.C. (2000).
45
Last year, I wrote a letter to West Publishing requesting that they include the law in their book. That request became moot with the passage
of the CVRA, which moved victims' rights from obscurity in Title 42 to centrality in Title 18, thereby guaranteeing them a spot in the West
publication.
46
See generally Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479,
515-22 (discussing the Oklahoma City bombing case in greater detail).
47
See United States v. McVeigh, No. 96-CR-68, 1996 WL 366268, at 2 (D. Colo. June 26, 1996).
48
Id. at 2-3 (discussing application of Fed. R. Evid. 615).
49
Motion of Marsha and Tom Kight et al. and the National Organization for Victim Assistance Asserting Standing To Raise Rights Under
the Victims' Bill of Rights and Seeking Leave To File a Brief as Amici Curiae, United States v. McVeigh, No. 96-CR-68-M, 1996 WL
570841 (D. Colo. Sept. 30, 1996). I represented a number of the victims on this matter on a pro bono basis, along with able co-counsel Robert
Hoyt, Arnon Siegel, and Karan Bhatia of the Washington, D.C. law firm of Wilmer, Cutler, and Pickering, and Sean Kendall of Boulder,
Colorado.
50
42 U.S.C. 10606(b)(4) (1994) (repealed 2004). The victims also relied on a similar provision found in the authorization for closed circuit
broadcasting of the trial, 42 U.S.C.A. 10608(a) (West Supp. 1998), and on a First Amendment right of access to public court proceedings. See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980) (finding First Amendment right of court access).
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The victims subsequently filed a petition for writ of mandamus in the U.S. Court of Appeals for the Tenth Circuit seeking
review of the district court's ruling. 54 Three months later, a Tenth Circuit panel rejected the victims' claims. 55 The circuit
found "a number of problems with the excluded witnesses' reliance on the Victims' Rights Act." 56 Indeed, the circuit found
that the Act created no obligations for courts:
[*847]
The statute charily pledges only the "best efforts" of certain executive branch personnel to secure the rights listed. The district
court judge, a judicial officer not bound in any way by this pledge, could not violate the Act. Indeed, the Act's prescriptions
were satisfied once the government made its arguments against sequestration - before the district court even ruled. 57
Efforts by both the victims and the Department of Justice to obtain a rehearing were unsuccessful, 58 despite the support of
separate briefs urging such a rehearing from forty-nine members of Congress, all six Attorneys General in the Tenth Circuit,
and some of the leading victims' groups in the nation. 59
In the meantime, the victims, supported by the Oklahoma Attorney General's Office, sought remedial legislation in Congress
clearly providing that victims should not have to decide between testifying at sentencing or watching the trial. A bill was
introduced to provide that watching a trial in a capital case does not constitute grounds for denying a victim the chance to
provide an impact statement. In a matter of weeks, Congress passed the Victims Rights Clarification Act of 1997, 60 but even
that specific statute failed to protect the bombing victims' rights. The district court in the Oklahoma City case found that the
statute had constitutional problems. 61
Because of the difficulty accompanying the statutory protection of victims' rights, victims advocates decided to press for a
federal constitutional amendment. They argued that the statutory [*848] protections could not sufficiently guarantee victims'
rights. In their view, such statutes "frequently fail to provide meaningful protection whenever they come into conflict with
bureaucratic habit, traditional indifference, [or] sheer inertia." 62 As the Justice Department reported:
Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.
Victims' rights advocates have sought reforms at the state level for the past [twenty] years, and many states have responded
51
McVeigh, 1996 WL 366268 at 25.
52
Id. at 24.
53
See id.
54
Petition for Writ of Mandamus, Kight et al. v. Matsch, No. 96-1484 (10th Cir. Nov. 6, 1996) (on file with author).
55
United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997), superseded by statute, 18 U.S.C. 3510.
56
Id. at 334-35.
57
Id. at 335 (internal citation omitted).
58
See Order, United States v. McVeigh, No. 96-1469, 1997 WL 128893, at 3 (10th Cir. Mar. 11, 1997).
59
See Brief for Amici Curiae Washington Legal Foundation and United States Senator Don Nickles and 48 Other Members of Congress,
United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 14, 1997) (No. 96-1469); Brief for Amici Curiae States of Oklahoma, Colorado,
Kansas, New Mexico, Utah, and Wyoming Supporting the Suggestion for Rehearing and the Suggestion for Rehearing En Banc by the
Oklahoma City Bombing Victims and the United States, United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 14, 1997) (No. 96-1469);
Brief for Amici Curiae National Victims Center, Mothers Against Drunk Driving, National Victims' Constitutional Amendment Network,
Justice for Surviving Victims, Inc., Concerns of Police Survivors, Inc., and Citizens for Law and Order, Inc., in Support of Rehearing, United
States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 17, 1997) (No. 96-1469).
60
Pub. L. No. 105-6, 111 Stat. 12 (1997).
61
See generally Cassell, supra note 46, at 519-20 (recounting problems).
62
Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
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2005 B.Y.U.L. Rev. 835, *848
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with state statutes and constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to fully
safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or authoritative
to safeguard victims' rights. 63
To place victims' rights in the Constitution, victims advocates - led most prominently by the National Victims Constitutional
Amendment Network 64 - approached the President and Congress regarding a federal amendment. 65 On April 22, 1996,
Senators Kyl and Feinstein with the backing of President Clinton introduced a federal victims' rights amendment. 66 The
amendment was intended to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of
victim participation in the administration of criminal justice that was the birthright of every American at the founding of our
Nation." 67 A companion resolution was introduced in the House of Representatives. 68 The proposed amendment embodied
seven core principles: (1) the right to notice of proceedings, (2) the right to be present at the proceedings, (3) the right to be
heard, (4) the right to notice of the defendant's [*849] release or escape, (5) the right to restitution, (6) the right to a speedy
trial, and (7) the right to reasonable protection. In a later resolution, an eighth principle was added: the right to standing to
enforce these rights. 69 The 104th Congress did not pass the amendment.
On January 21, 1997, the opening day of the first session of the 105th Congress, Senators Kyl and Feinstein reintroduced the
victims' rights amendment. 70 A series of hearings were held that year in both the House and the Senate. 71 Kyl and Feinstein
reintroduced the amendment the following year. 72 The Senate Judiciary Committee held hearings 73 and passed the proposed
amendment out of committee. 74 Yet again, the full Senate did not consider the amendment.
In 1999, Senators Kyl and Feinstein again proposed the amendment, 75 and on September 30, 1999, the Judiciary Committee
voted, as before, to send the amendment to the full Senate. 76 But on April 27, 2000, after three days of floor debate, the
amendment was shelved when it became clear that its opponents, who objected to constitutionalizing victims' rights, possessed
the necessary votes to sustain a filibuster. 77 At the same time, hearings on the companion measure were held in the House. 78
63
Focusing on the Administration of Justice and the Enforcement of Laws: Dep't of Justice Oversight Hearing Before the S. Judiciary
Comm., 104th Cong. 23-24 (1997) (statement of Janet Reno, Att'y Gen. of the United States).
64
See http://www.nvcan.org. See generally Twist, supra note 2.
65
For a comprehensive history of victims' efforts to pass a constitutional amendment, see Twist, supra note 2.
66
S.J. Res. 52, 104th Cong., 2d Sess. (1996).
67
S. Rep. No. 108-191, at 1-2 (2003); see also S. Rep. No. 106-254 (2000).
68
H.R.J. Res. 174, 104th Cong., 2d Sess. (1996).
69
See S.J. Res. 65, 104th Cong., 2d Sess. (1996).
70
S.J. Res. 6, 105th Cong., 1st Sess. (1997).
71
See, e.g., Victims' Rights Amendment: Hearings Before the Sen. Judiciary Comm., 105th Cong., 2d Sess. (1997).
72
S.J. Res. 44, 105th Cong., 2d Sess. (1998).
73
Victim's Rights Amendment: Hearings Before the Sen. Judiciary Comm., 105th Congress (1998).
74
See 144 Cong. Rec. S11,010 (daily ed. Sept. 28, 1998) (statement of Sen. Kyl).
75
S.J. Res. 3, 106th Cong., 1st Sess. (1999).
76
146 Cong. Rec. S2966 (daily ed. Apr. 27, 2000).
77
See id.
78
H.R.J. Res. 64, 106th Cong., 1st Sess. (2002).
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Discussions about the Amendment began again soon after the 2000 presidential elections. On April 15, 2002, Senators Kyl and
Feinstein reintroduced the Amendment in the Senate, 79 and the following day, President Bush announced his support. 80 On
May 1, [*850] 2002, a companion measure was proposed in the House. 81 On January 7, 2003, Senators Kyl and Feinstein
proposed the amendment as Senate Judiciary Resolution 1. The Senate Judiciary Committee held hearings in April of that year,
82 followed by a written report supporting the Amendment. 83 Shortly thereafter, a motion to proceed to consideration of the
measure was withdrawn when proponents determined they did not have the sixty-seven votes necessary to pass the
amendment. After it became clear that the necessary super-majority votes to amend the Constitution were not attainable,
victims' advocates turned their attention to enacting a comprehensive victims' rights statute.
C. The Crime Victims' Rights Act
The Crime Victims' Rights Act ultimately resulted from a decision by the victims' movement to seek a more comprehensive
and enforceable federal statute rather than to continue pursuing the more ambitious goal of a federal constitutional amendment.
In April 2004, victims advocates met with Senators Kyl and Feinstein to decide whether to push yet again for a federal
constitutional amendment. Conceding that the amendment had only majority support in Congress rather than the necessary
super-majority, the advocates decided to press for a far-reaching federal statute protecting victims' rights in the federal criminal
justice system. 84 In exchange for backing off from the federal amendment in the short term, victims' advocates received nearuniversal
congressional support for a "broad and encompassing" statutory victims' bill of rights. 85 This new approach not only
established a string of victims' rights but also provided funding for victims' legal services and created remedies for the violation
of victims' rights. 86 The victims' [*851] movement is currently evaluating the success of the statute before deciding whether
to continue pushing for a federal amendment. 87
The Crime Victims' Rights Act gives victims "the right to participate in the system." 88 To facilitate such participation, the Act
grants victims eight specific rights:
(1) The right to be reasonably protected from the accused;
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused;
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that
proceeding;
79
S.J. Res. 35, 107th Cong., 2d Sess. (2002).
80
149 Cong. Rec. S82 (daily ed. Jan. 7, 2003) (statement of Sen. Kyl).
81
H.R.J. Res. 91, 107th Cong., 2d Sess. (2002).
82
A Proposed Constitutional Amendment To Protect Crime Victims: Hearing on S.J. Res. 1 Before the S. Judiciary Comm., 108th Congress,
108-189 (2003).
83
S. Rep. No. 108-191 (2003).
84
See Twist, supra note 2.
85
150 Cong. Rec. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
86
Id. at S4263 (statement of Sen. Feinstein).
87
Id. (statement of Sen. Feinstein); see also Att'y Gen. Alberto R. Gonzales, Prepared Remarks at the Hoover Inst. Bd. of Overseers
Conference (Feb. 28, 2005) (indicating that a federal victims' rights amendment remains a priority for President Bush), available at
http://www.usdoj.gov/ag/speeches/2005/02282005 agremarkshov.htm.
88
150 Cong. Rec. S4263 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). For a description of victim participation, see Beloof, The
Third Model of Criminal Process, supra note 15.
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(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any
parole proceeding;
(5) The reasonable right to confer with the attorney for the Government in the case;
(6) The right to full and timely restitution as provided in law;
(7) The right to proceedings free from unreasonable delay;
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 89
Rather than relying merely on the "best efforts" of prosecutors to vindicate rights, the CVRA also contains specific
enforcement [*852] mechanisms. 90 Most importantly, it directly gives victims standing to assert their rights, addressing a
flaw in the earlier enactment. 91 The Act provides that rights can be "asserted" by "the crime victim, the crime victim's lawful
representative, and the attorney for the Government." 92 The victim or the government may appeal any denial of a victim's
right through a writ of mandamus on an expedited basis. 93 The courts are also required to "ensure that the crime victim is
afforded the rights" in the new law. 94
These changes were intended to make the victim "an independent participant in the proceedings." 95 Congress desired to
modify what it viewed as the unfair treatment of crime victims; in particular, congressional sponsors of the CVRA cited the
Oklahoma City bombing case as the kind of decision that they intended the new law to overrule. 96
III. The Need To Place Victims' Rights in the Rules
With the CVRA in place as the law of the land, the Federal Rules of Criminal Procedure should be amended to conform to the
statute. While one court has derisively referred to the Act as mere "mushy, feel good legislation," 97 it in fact substantively
changes the posture of crime victims on a whole host of issues. In the wake of the Act, victims now must be folded into the
process through which federal courts conduct criminal cases, including bail, plea, trial, and sentencing hearings. The Federal
Rules of Criminal Procedure - the "playbook" of the federal courts - should reflect this fact.
Some might agree that victims now have a number of new rights, but nonetheless dispute the need for a rules amendment.
After all, it might be argued, the CVRA in fact creates substantive rights for crime victims. Because nothing in the federal
procedural [*853] rules can modify substantive rights, 98 the CVRA will trump any conflicting provision in the federal rules.
99 In other words, the CVRA will automatically govern federal criminal proceedings even if the rules remain as written.
89
18 U.S.C.A. 3771(a) (West 2004 & Supp. 2005).
90
Id. 3771(d).
91
Cf. Beloof, The Third Wave of Crime Victims' Rights, supra note 16 (identifying the lack of victim standing as a pervasive flaw in victims'
rights enactments).
92
18 U.S.C.A. 3771(d)(1).
93
Id. 3771(d)(3).
94
Id. 3771(b).
95
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
96
Id. at S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
97
United States v. Holland, 380 F. Supp. 2d 1264, 1279 (N.D. Ala. 2005).
98
See 28 U.S.C. 2072(b) (2000).
99
See, e.g., Miguel v. Country Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002).
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While this argument is legally precise, as a practical matter, compelling reasons justify amending the federal rules to include
victims. Congress intended that the CVRA's new rights not be "simply words on paper," but rather "meaningful and functional"
reforms. 100 To that end, Congress mandated that courts shall "ensure" that crime victims are "afforded the rights" conveyed
by the CVRA. 101 To effectively ensure that victims' rights are protected, these rights must become part of the warp and woof
of the criminal process. That can occur only if the federal rules - the day-to-day operations manual of the courts - spell out how
to integrate victims into the process.
Judges and practitioners frequently refer to the Federal Rules of Criminal Procedure for guidance as to how to conduct
hearings. If victims' rights are left out of the federal rules, the strong possibility exists that courts may mistakenly disregard
victims' rights under the CVRA. A good illustration comes from Rule 11, which spells out in some detail how judges should
conduct a hearing accepting a plea. The judge is required to personally inform the defendant of certain specified rights and
ensure that the defendant understands he will be waiving those rights. 102 The judge must also determine that the defendant is
voluntarily entering the plea and that there is a factual basis for the guilty plea. 103 Under the CVRA, victims now also have the
right to be heard before the judge accepts any plea. 104 This is a new right, 105 which judges are not accustomed to
administering. Unless the victim's right to be heard is specifically spelled out in Rule 11's plea procedures, some judges may
inadvertently disregard it.
[*854] The Oklahoma City bombing case further demonstrates how courts sometimes blindly follow the federal rules without
considering superseding statutes. In that case, the court excluded victim-witnesses from certain proceedings, relying solely on
Federal Rule of Evidence 615 in making its determination. In denying the witnesses entrance to the proceedings, the court was
apparently unaware of the provision in the Victims' Rights and Restitution Act protecting a victim's right to attend. 106 This
deficiency was called to the attention of the Advisory Committee on the Federal Rules of Evidence. 107 The committee
acknowledged the need to include victims in the evidence rules and later added a new provision reflecting the victim's right to
attend. 108
One reason for including victims' rights in the rules is to avoid litigation about the negative inferences that might be drawn if
victims' rights are not in the rules. It is a well-settled principle of statutory construction that expressio unius est exclusio alterius
(the expression of one thing implies the exclusion of the other). This canon of construction applies to the federal rules as much
as to statutes. 109 Because the rules repeatedly spell out situations in which the defendant has the right to have his interests
considered but say nothing about victims, it might be argued that the rules have implicitly determined that a victim's interests
are irrelevant. To return to the Rule 11 plea example, given that the criminal rules specify that a court must address the
defendant but lack any comparable requirement for victims, it might be inferred that victims cannot speak at plea hearings. Any
100
150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
101
18 U.S.C.A. 3771(b) (West 2004 & Supp. 2005).
102
Fed. R. Crim. P. 11(b)(1).
103
Id. at 11(b)(2), (b)(3).
104
18 U.S.C.A. 3771(a)(4).
105
Cf. 42 U.S.C. 10606(b) (listing victims' rights; right to be heard at pleas not included) (repealed by 18 U.S.C. 3771).
106
See supra note 45 and accompanying text.
107
See Letter from Paul G. Cassell to Advisory Comm. (on file with author).
108
See Fed. R. Evid. 615 advisory committee's notes (1998 Amendments).
109
See, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).
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such conclusion would be contrary to the plain language of the CVRA. 110 To avoid possible confusion, the rules should be
clear on this point.
An additional reason for integrating victims into the federal rules is that Congress seemingly expects this to happen. Congress
adopted the CVRA with the express goal of making the new law "a formula [*855] for success" and a "model for our States."
111 Congress clearly wants the new law aggressively implemented, thereby avoiding the need for further legislative action or
even, possibly, a federal constitutional amendment. Congress is watching to see whether the Judiciary (and the Executive) will
fully and fairly implement this new Act. As Senator Leahy warned, "Passage of this bill will necessitate careful oversight of its
implementation by Congress." 112
Construing the CVRA to require changes is also appropriate because the Act is remedial legislation. As the Supreme Court has
instructed, "When Congress uses broad generalized language in a remedial statute, and that language is not contravened by
authoritative legislative history, a court should interpret the provision generously so as to effectuate the important congressional
goals." 113 The congressional sponsors described the victims' rights in the CVRA as "broad rights," 114 the significance of
which should not "be whittled down or marginalized by the courts or the executive branch. This legislation is meant to correct,
not continue, the legacy of the poor treatment of crime victims in the criminal process." 115
A final reason for amending the rules is that crime victims' groups are looking for the effective implementation of the CVRA.
They are urging that the federal rules be comprehensively amended to reflect victims' rights; indeed, they have even suggested
that Congress should directly amend the federal rules to include victims' rights. 116 The Judiciary would be well advised not to
ignore these lobbying efforts. Victims have proven very effective at advancing legislation in Congress, particularly where they
have legitimate grievances about how they have been treated. 117
Moreover, allowing the initiative for drafting of rules to pass from the Judiciary to Congress is not ideal. The Advisory
Committee on Federal Rules of Criminal Procedure includes many skilled [*856] members with considerable experience in
drafting rules. The Committee is well aware of the CVRA. Shortly after the passage of the CVRA, the Committee withdrew a
modest victim amendment it was proposing in anticipation of the need to make more extensive changes, 118 and is already
working on proposed amendments to the rules. 119 It is preferable to have victims integrated into the federal rules through
careful drafting by the Committee rather than by the potentially blunderbuss approach of direct congressional action.
For all these reasons, the Federal Rules of Criminal Procedure should be comprehensively amended to recognize the interests
of crime victims and thereby to allow victims to be full participants in the criminal process.
IV. Proposed Amendments to the Federal Rules of Criminal Procedure To Implement the CVRA
With the goal of effectively implementing the CVRA firmly in mind, the remainder of this Article proposes twenty-eight
specific rule changes for consideration by the Advisory Committee on Criminal Rules. The individual sections that follow first
110
18 U.S.C.A. 3771(a)(4) (Victims have "the right to be … heard" at any public proceeding "involving … [a] plea.").
111
150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
112
Id. at S4271 (statement of Sen. Leahy).
113
California v. Am. Stores Co., 495 U.S. 271, 279 n.4 (1990) (quoting Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404,
428 (1st Cir. 1990)).
114
150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
115
Id. (statement of Sen. Feinstein).
116
Interview with Steve J. Twist, Nat'l Victims' Constitutional Amendment Network (March 11, 2005).
117
See supra notes 27-34 and accompanying text (recounting victims' legislation passed by Congress).
118
See infra note 223 and accompanying text.
119
Telephone interview with Judge Susan C. Bucklew, Chair, Adv. Comm. on Fed. Rules of Criminal Procedure (May 2005).
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recite a specific proposed change followed by the rationale for that change as both a matter of law and of policy. For
convenience, this Article discusses the proposed changes sequentially, beginning with Rule 1.
Rule 1 - Definition of "Victim"
The Proposal:
Rule 1 should be amended to include the following definition of a victim:
"Victim" means a person directly and proximately harmed as a result of the commission of a federal offense or an offense in the
District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the
legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons
appointed as [*857] suitable by the court, may assume the crime victim's rights under these rules, but in no event shall the
defendant be named as such guardian or representative.
The Rationale:
The CVRA directly defines "victim" using this language, 120 which ought to be folded into the rules for convenience. The
rules currently define such terms as "attorney for the government," "federal judge," and "petty offense." 121 "Victim" should
likewise be defined.
A definition is required for a second reason: Rule 32 currently contains a differing definition of "victim" as "an individual
against whom the defendant committed an offense for which the court will impose sentence." 122 Because that definition varies
from that mandated by the CVRA, it must be changed. Furthermore, the CVRA's definition comes with an interpretative
history. 123 The CVRA's definition of "victim" is taken almost verbatim from the 1996 Mandatory Victims Restitution Act
(MVRA). 124 In turn, the MVRA drew on the 1982 Victim Witness Protection Act (VWPA). 125 As a result, the CVRA uses a
definition of "victim" that is more than twenty-two years old and that has not produced major administrative or definitional
problems. Courts will be able to draw from that history to determine who qualifies as a "victim." 126
120
18 U.S.C.A. 3771(e) (West 2004 & Supp. 2005).
121
See Fed. R. Crim. P. 1(b)(1), 1(b)(3), 1(b)(8).
122
Id. at 32(a)(2).
123
See generally Beloof, Cassell & Twist, supra note 15, at 49-69 (reviewing different definitions of "victim" for purposes of crime victims'
legislation).
124
See 18 U.S.C. 3663A(a)(2). For differences from the old law, see Twist, supra note 2.
125
See 18 U.S.C. 3663(a)(2).
126
See, e.g., Hughey v. United States, 495 U.S. 411 (1990) (holding that VWPA limited "victim" to victims of the actual offense of
conviction so that district court could not order restitution on basis of charges that were dropped as part of plea agreement); United States v.
Follet, 269 F.3d 996 (9th Cir. 2001) (holding that a free clinic was not a "victim" of the defendant's rape of his niece); Moore v. United
States, 178 F.3d 994 (8th Cir. 1999) (holding that a bank customer was "victim" of attempted bank robbery under MVRA where defendant
pointed a sawed-off shotgun at the customer and the teller, who were standing only two feet apart, while demanding money), cert. denied,
528 U.S. 943 (1999); United States v. Sanga, 967 F.2d 1332 (9th Cir. 1992) (holding that foreign national who conspired to be brought into
United States illegally was still a "victim" of the conspiracy where her smuggler threatened her life and forced her to work as live-in maid
once she had arrived); United States v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah 2004) (holding that "victim" in manslaughter case under
MVRA was murdered person himself and not the estate), rev'd on other grounds, United States v. Serawop, 410 F.3d 656 (10th Cir. 2005).
See generally John F. Wagner, Jr., Annotation, Who Is a "Victim," So as To Be Entitled to Restitution Under Victim and Witness Protection
Act, 108 A.L.R. Fed. 828 (2005).
A few new issues will need to be litigated. For example, the Hughey case noted above conflicts with the views of Senator Jon Kyl, cosponsor
of the CVRA, who explained that the definition of "victim" in the CVRA is an intentionally broad definition because "all victims of
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[*858] Rule 1 also appears to be the best place to include the CVRA's language about a "representative" of a victim. This
language, too, draws from the restitution statutes. 127
Rule 2 - Fairness to Victims in Construction
The Proposal:
Rule 2 should be amended to require fairness to victims in construing the rules as follows:
These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in
procedure and fairness in administration to the government, defendants, and victims, and to eliminate unjustifiable expense and
delay.
The Rationale:
The CVRA broadly mandates that victims have the right to "be treated with fairness and with respect for the victim's dignity
and privacy." 128 This creates a substantive right to fairness, similar to that found in various state victims' rights amendments -
including the [*859] amendment found in Senator Kyl's home state of Arizona. 129 This broad reading was explained by
Senator Kyl, who, along with Senators Feinstein and Hatch, was the primary legislative sponsor of the CVRA: "The broad
rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these
rights is the right to be treated with fairness. Of course, fairness includes the notion of due process." 130
In light of victims' new substantive right to fairness, Rule 2 should be amended to make clear that all of the rules must be
construed to be fair to victims no less than to the government and defendants.
(New) Rule 10.1 - Notice of Proceedings for Victims
The Proposal:
A new Rule 10.1 should be added to guarantee victims their right to notice of proceedings as follows:
Rule 10.1 Notice to Victims.
crime deserve to have their rights protected, whether or not they are the victim of the count charged." See 150 Cong. Rec. S10,910-01 (daily
ed. Oct. 9, 2004) (statement of Sen. Kyl). At least one court has suggested that, as a matter of discretion, it is desirable to notify even victims
of uncharged conduct under the CVRA. See United States v. Turner, 367 F. Supp. 2d 319, 327 (E.D.N.Y. 2005) (concluding that, absent
reason to think otherwise, any person who the government asserts has been harmed by a crime or who self-identifies as such qualifies as a
"victim"); cf. In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 561 (2d Cir. 2005) (holding that the CVRA does not grant victims any rights
against individuals not convicted of a crime, but the government can attempt to obtain voluntary restitution from such persons).
127
See, e.g., 18 U.S.C. 3663A(a) (same definition of victim "representative").
128
18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005).
129
See, e.g., Ariz. Const. art. II, 2(A)(1) (victim's right "to be treated with fairness, respect, and dignity"); see also Alaska Const. art. I, 24
(victim's right "to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process"); Idaho Const.
art. I, 22 (victim's right "to be treated with fairness, respect, dignity and privacy throughout the criminal justice process"); Ill. Const. art. I, 8.1
(victims "to be treated with fairness and respect for their dignity"); Mich. Const. art. I, 24 (victims "to be treated with fairness and respect for
their dignity and privacy throughout the criminal justice process"); N.J. Const. art. I, P 22 (victim's right to "be treated with fairness,
compassion and respect by the criminal justice system"); N.M. Const. art. II, 24 (the "right to be treated with fairness and respect for the
victim's dignity and privacy throughout the criminal justice process"); Ohio Const. art. I, 10a (victims "shall be accorded fairness, dignity,
and respect in the criminal justice process"); Tex. Const. art. I, 30(a)(1) ("right to be treated with fairness and with respect for the victim's
dignity and privacy throughout the criminal justice process"); Utah Const. art. I, 28(1)(a) (victim's right to be "treated with fairness, respect,
and dignity"); Wis. Const. art. I, 9m (victim's right to be treated with "fairness, dignity and respect for their privacy"). See generally Cassell,
supra note 15, at 1387-88 (discussing victims' right to fairness in Utah).
130
150 Cong. Rec. 4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
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(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.
[*860]
(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:
(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;
(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.
The Rationale:
This proposed change stems from the CVRA's requirement that victims have the "right to reasonable, accurate, and timely
notice of [*861] any public court proceeding … involving the crime." 131 Senator Feinstein explained the importance of
giving victims notice:
Victims are the persons who are directly harmed by the crime and they have a stake in the criminal process because of that
harm. Their lives are significantly altered by the crime and they have to live with the consequences for the rest of their lives. To
deny them the opportunity to know of and be present at proceedings is counter to the fundamental principles of this country. It
is simply wrong. 132
Under the CVRA, then, victims of the crime allegedly committed by the defendant 133 are entitled to notice of court
proceedings. The tricky issue is who should provide that notice to victims. This responsibility must fall on prosecutors and their
investigative agents for several reasons. First, prosecutors and their agents are the only parties who know the identity of the
victims at the outset of the case. After a bank robbery, for example, it is the FBI agents who respond and interview the tellers.
131
18 U.S.C.A. 3771(a)(2).
132
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein); see also id. at S4267 (statement of Sen. Kyl) ("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.").
133
See United States v. Guevara-Toloso, 2005 U.S. Dist. LEXIS 9762 (E.D.N.Y. 2005) (noting that CVRA requires notice to victims of the
crime charged against the defendant but not notice to victims of any previous crimes the defendant may have committed).
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Second, prosecutors and their agents continue dealing with victims throughout the course of a prosecution. They work with
victims in investigating the crime, identifying potential defendants, preparing the indictment, and presenting evidence to the
grand jury and at trial. Because of this working relationship, prosecutors are best situated to provide notice in most cases.
Third, most crime victims lack legal counsel and are unfamiliar with federal criminal proceedings. They may need assistance
from someone familiar with the process to understand what is happening. United States Attorneys' offices, including the victimwitness
components in those offices, are well situated to provide that assistance. As the President's [*862] Task Force of
Victims of Crime concluded, the prosecutor is "in the best position to explain to victims the legal significance of various
motions and proceedings." 134 For all these reasons, prosecutors should notify victims of their rights and of upcoming
hearings. 135 Most states that have addressed the issue follow this approach. 136
The Justice Department appears to agree that it should notify victims. In the 2000 Attorney General Guidelines for Victim and
Witness Assistance, the Department required prosecutors and their [*863] agents to provide notice to crime victims. In
particular, the Guidelines currently obligate prosecutors to provide victims with "the earliest possible notice" of:
(a) The release or detention status of an offender or suspected offender … .
(b) The filing of charges against a suspected offender, or the proposed dismissal of all charges … .
(c) The scheduling, including scheduling changes and/or continuances, of each court proceeding that the victim or witness is
either required to attend or entitled to attend … .
(d) The acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial … .
(e) If the offender is convicted, the date set for sentencing, the sentence imposed … . 137
134
President's Task Force on Victims of Crime, Final Report 64 (1982).
135
But cf. United States v. Turner, 367 F. Supp. 2d 319, 328 (E.D.N.Y. 2005) (concluding that, in the absence of a national rule requiring
prosecutors to provide notice to victims, the court would direct the prosecutor to provide the name and contact information of each victim so
that the court can ensure that notice is properly given).
136
See, e.g., Ala. Code 15-23-62(8) (2000) (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"); Ariz. Rev. Stat. 13-4409 (2001)
(requiring prosecutor to provide notice to victim of criminal proceedings; Conn. Gen. Stat. Ann. 51-286e (2000) (requiring prosecutor to
notify victim of any judicial proceedings related to the case); Del. Code Ann. tit. 11, 9411 (2001) (requiring Attorney General to provide
information to victim including "notice of the scheduling of court proceedings and changes including trial date, case review and sentencing
hearings"); Ga. Code Ann. 17-17-8(b) (2004) (requiring prosecutor where possible to give victim "prompt advance notification of any
scheduled court proceedings"); Ky. Rev. Stat. Ann. 421.500.5 (LexisNexis 1992) (requiring prosecutor to provide victim "prompt notification,
if possible, of judicial proceedings relating to the case"); Me. Rev. Stat. Ann. tit. 15, 6101 (2003) (requiring prosecutor to provide victims of
certain crimes notice of any plea agreement and of trial date); Mass. Gen. Laws Ann. ch. 258B, 3 (West 2004) (requiring prosecutor to give
victims notice of various rights); Mich. Comp. Laws Ann. 780.755(1) (West 1998) (requiring prosecutor to give victims notice of court
proceedings); Minn. Stat. Ann. 611A.03 (West 2003) (requiring prosecutor to give victim notice of plea agreement and sentencing hearing);
N.M. Stat. Ann. 31-26-9(B) (LexisNexis 2004) (requiring prosecutor to provide victim with notice of scheduled court proceedings); N.Y.
[Executive] Law. 646a (McKinney 2005) (requiring prosecutor to provide notice of court proceedings); S.D. Codified Laws 23A-28C-1
(2004) (requiring prosecutor to notify victim of certain hearings); Tenn. Code Ann. 40-38-103 (2003) (requiring prosecutor to notify victim of
"times, dates, and locations of all pertinent stages in the proceedings"); Tex. Code Crim. Proc. Ann. art. 56.08(b) (Vernon 2004) (requiring
prosecutor to give victim notice of court proceedings); Utah Code Ann. 77-38-3 (2004) (requiring prosecutor to give victim notice of
"important criminal justice hearings"); Wis. Stat. Ann. 972.14(2m) (West 1998) ("Before pronouncing sentence, the court shall inquire of the
district attorney whether he or she has complied with 971.095(2) and with sub. (3)(b), whether any of the victims of a crime considered at
sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the
victim notice of the date, time and place of the sentencing hearing."); Wyo. Stat. Ann. 1-40-204(b)(i) (2004) (requiring prosecutor to inform
victim about all hearings). But see Ohio Rev. Code Ann. 2930.06(C) (2005) (requiring court to give notice to victim of court proceedings).
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To avoid creating only significant new responsibilities for prosecutors and their agents, the proposed new Rule 10.1 is lifted
essentially verbatim from the 2000 Attorney General Guidelines for Victim and Witness Assistance. The 2005 revisions to the
Guidelines continue essentially the same requirements. 138
The drafters of the CVRA also appear to believe that the notification obligations will fall primarily on prosecutors' offices, as
the CVRA authorizes an appropriation of $ 22,000,000 over the next five fiscal years to the Office for Victims of Crime of the
Department of Justice for enhancement of victim notification systems. 139 [*864] Presumably, those enhanced new
notification systems can be used to keep victims apprised of court proceedings. Moreover, the CVRA directs that the
Department of Justice and its investigative agencies "shall make their best efforts to see that crime victims are notified of, and
accorded, the rights described in subsection (a)." 140
Proposed new Rule 10.1 adds only two new obligations beyond those found in the 2000 Attorney General Guidelines: (1)
notice to victims of their right to make a statement regarding any proposed plea, and (2) notice to victims of their right to attend
public proceedings. Both of these obligations are currently found in the 2005 Guidelines. 141
One last issue deserves brief discussion: Is it proper for the Judiciary, through the rule-making process, to command another
branch of government to take certain actions? 142 The starting point for analyzing this question is the congressional command
in the CVRA that the executive branch must protect victims' rights. 143 Consequently, implementing these rights through rule
changes presents no question of the courts inventing new rights or exercising some kind of "supervisory" power over federal
agents. 144 Instead, the implementation is simply enforcing congressionally created rights through the Judiciary's
congressionally authorized rulemaking authority - an uncontroversial exercise of judicial power. 145 Moreover, in the CVRA,
Congress commanded the courts to "ensure that the crime victim is afforded the rights described [in the CVRA]." 146 Rule
changes needed to implement the CVRA thus rest [*865] on this statutory authority as well. Additionally, this Article's
proposals affecting prosecutors are closely connected to court proceedings; they deal with such things as prosecutors notifying
victims of hearings and conferring with victims in anticipation thereof. It is difficult to see new separation of powers concerns
arising in such contexts so closely connected to the courtroom.
137
See 2000 A.G. Guidelines, supra note 38; see also U.S. Dept. of Justice, Office for Victims of Crime, New Directions from the Field:
Victims' Rights and Services for the 21st Century 82 (1998) ("Prosecutors' offices should notify victims in a timely manner" of all significant
hearings.).
138
See 2005 A.G. Guidelines, supra note 38, at 27-29 (providing for notice to victims, although relying on the department's Victim
Notification Systems (VNS) to do this).
139
See 118 Stat. 2260, 2264 (2004); see also 150 Cong. Rec. S4267 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) ("We authorized an
appropriation of funds 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 statements of development) (emphasis added). But cf. id. (discussing court notification of attorneys of record and
concluding "it is a relatively simple matter to add another name and telephone number or address to that list").
140
18 U.S.C.A. 3771(c)(1) (West 2004 & Supp. 2005) (emphasis added).
141
See 2005 A.G. Guidelines, supra note 38, at 27 (prosecutors to notify victims of all their rights under the CVRA).
142
Victims cannot rely on the provisions of the Attorney General Guidelines to protect their rights because the Guidelines themselves state
that they "are not intended to … and may not be relied upon to create any rights … enforceable at law by any person in a matter civil or
criminal." 2005 A.G. Guidelines, supra note 38, at 27.
143
18 U.S.C.A. 3771(c)(1).
144
Cf. Sarah Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the
Federal Courts, 84 Colum. L. Rev. 1433 (1984) (discussing more problematic applications of judicial power).
145
See id. at 1476-77; 28 U.S.C. 2071, 2072 (establishing court rule-making power).
146
18 U.S.C. 3771(b) (emphasis added).
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Furthermore, the Federal Rules of Criminal Procedure already direct executive branch actions less directly connected to court
hearings. For instance, Rule 16 directs that prosecutors must turn over various discoverable items to the defendant. 147 Rule 41
directs federal agents serving a warrant to leave a copy for the person whose premises are searched. 148 And, most
controversially, Rule 5 directs that federal agents making an arrest "must take the defendant without unnecessary delay" before
a judicial officer. 149 The kinds of rule changes discussed in this Article are far less invasive than these commands. Finally, it
should be remembered that federal prosecutors serve as "officers of the court." 150 In that capacity, the court can be reasonably
expected to facilitate victims' involvement in the criminal justice process. 151 For all of these reasons, this proposed rule breaks
no new ground in directing prosecutors to notify victims of courtroom proceedings.
Rule 11(a)(3) - Victims' Views on Nolo Contendere Pleas
The Proposal:
Rule 11's procedures on pleas should be revised to allow victims to express their views on any plea of nolo contendere before
the court decides whether to accept it as follows:
[*866]
(a)(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties' and victims' views
and the public interest in the effective administration of justice.
The Rationale:
As discussed at greater length in the immediately following sections, the CVRA gives victims the right to be heard regarding
any plea, presumably including any nolo contendere plea. It is a natural corollary that the court should consider the victim's
views before accepting any such plea.
Rule 11(b)(4) - Victims' Right To Be Heard on Pleas
The Proposal:
The court should address any victim present in court when taking a plea in order to determine whether the victim wishes to
make a statement and to consider the victim's view before accepting a plea as follows:
(4)[cfn ]Victims' Views. Before the court accepts a plea of guilty or nolo contendere or allows any plea to be withdrawn, the
court must address any victim who is present personally in open court. During this address, the court must determine whether
the victim wishes to present views regarding the proposed plea or withdrawal and, if so, what those views are. The court shall
consider the victim's views in acting on the proposed plea or withdrawal.
The Rationale:
The CVRA gives victims the right "to be reasonably heard at any public proceeding in the district court involving … [a] plea."
152 Many states afford victims similar rights. 153 The rationale for a [*867] victim's right to be heard regarding a plea is to
147
Fed. R. Crim. P. 16(a)(1).
148
Id. at 41(f)(3).
149
Id. at 5(a)(1). See generally, Office of Legal Policy, Report to the Att'y Gen. on the Judiciary's Use of Supervisory Power To Control Law
Enforcement Action (Dec. 15, 1986), reprinted in 22 Mich. J.L. & Reform 773 (1989).
150
See United States v. Sells Eng., Inc., 463 U.S. 418, 466 (Burger, C.J., dissenting).
151
See, e.g., State v. Casey, 44 P.3d 756 (Utah 2002), discussed infra notes 163-66 and accompanying text.
152
18 U.S.C.A. 3771(a)(4) (West 2004 & Supp. 2005); see In re Kari Ann Jacobsen, 2005 U.S. App. LEXIS 13990 (D.C. Cir. 2005) (noting
victim's right to be heard on pleas).
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provide the judge with as much information as possible. The court is under no obligation to accept a plea proposed by the
parties. 154 After hearing from the victim about the plea, the court can determine what weight to give to the victim's views. 155
To implement the victim's right to be heard regarding a plea, the proposed rule change requires the court to directly address any
victim present in court. This is consistent with the CVRA's legislative history that explains that "this provision is intended to
allow crime victims to directly address the court in person." 156 The language of the proposed rule is lifted from an earlier
paragraph in Rule 11, which requires the court to "address the defendant personally in open court" "before accepting a plea of
guilty." 157 Victims should be treated even-handedly. It may be important for the judge to address victims directly because
many victims will lack the assistance of counsel. As novices in legal proceedings, victims may be uncertain about exactly when
in the process they should present their views. By addressing victims, the court will eliminate that uncertainty and ensure that
the victim's right to be heard is vindicated.
[*868]
Rule 11(c)(1) - Prosecution To Consider Victims' Views on Pleas
The Proposal:
The prosecution should be required to consider the victims' views in developing any proposed plea arrangement as follows:
(1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may
discuss and reach a plea agreement. The court must not participate in these discussions. The attorney for the government shall
make reasonable efforts to notify identified victims of, and consider the victims' views about, any proposed plea negotiations. If
the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may
specify that an attorney for the government will … .
The Rationale:
The proposed change requires prosecutors to make reasonable efforts to notify victims about possible plea bargains and to
consider the victim's views regarding those pleas. This requirement is taken essentially verbatim from the Attorney General
Guidelines for Victim and Witness Assistance, which direct prosecutors to "make reasonable efforts to notify identified victims
153
See, e.g., Conn. Const. art. 1, 8 (giving victim right to be heard and to object to plea agreement); Mo. Const. art. 1, 32 (giving victim right
to be heard at plea hearing); Utah Const. art. I, 28(1)(b) (giving victim the "right to be heard at important criminal justice hearings related to
the victim"); Ala. Code 15-23-71 (2000) (giving victim right to be present at plea hearing and requiring prosecutor to confer with victim
about plea); Ariz. Rev. Stat. 13-4423 (2001) (giving victim right to be present and heard at plea hearing and requiring prosecutor to confer
with victim about plea); Minn. Stat. Ann. 611A.03 (West 2003) (giving victim right to be heard at plea hearing); Miss. Code Ann. 99-43-33
(2000) (giving victim right to make statement at plea hearing); N.H. Rev. Stat. 21-M:8-k (2000) (giving victim right to be heard at plea
hearing); R.I. Stat. 12-28-4.1 (2000) (giving victim right to make statement at plea hearing). See generally Beloof, Cassell & Twist, supra
note 15, at 476-94 (discussing victims and pleas); Sarah N. Welling, Victim Participation in Plea Bargains, 65 Wash. U. L.Q. 301 (1987).
154
See, e.g., United States v. Bean, 564 F.2d 700 (5th Cir. 1977).
155
But cf. George P. Fletcher, With Justice for Some: Victims' Rights in Criminal Trials 252, 257-58 (1995) (proposing that victims have a
veto over any plea); Bennett L. Gershman, Crimes Against Victims: The Prosecutor's Duty of Neutrality, 9 Lewis & Clark L. Rev.
(forthcoming 2005) (discussing situations in which victims have effectively been given a veto over pleas); Karen L. Kennard, Comment, The
Victim's Veto: A Way To Increase Victim Impact on Criminal Case Dispositions, 77 Cal. L. Rev. 417, 437 (1989) (advocating that victims be
given a veto over any plea).
156
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
157
Fed. R. Crim. P. 11(b)(2).
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of, and consider victims' views about, prospective plea negotiations." 158 Twenty-nine states already require prosecutors to
"consult with" or "obtain the views of" victims at the plea agreement stage. 159
The proposed rule helps to implement not only a victim's right to be heard at plea proceedings but also the right to "confer with
the attorney for the Government." 160 Given that victims have the right to confer, the conferring should take place at the most
salient points in the process. As Senator Feinstein explained, "This right [to confer] is intended to be expansive. For example,
the victim has the [*869] right to confer with the Government concerning any critical stage or disposition of the case." 161
Because the overwhelming majority of federal criminal cases are resolved by a plea, a conference between the victim and the
prosecutor regarding the plea will be critical in most cases. Reflecting that fact, the rules should follow the approach taken by
the majority of states, directing prosecutors to consult with victims about pleas.
Rule 11(c)(2) - Court To Be Advised of Victim Objections to Plea
The Proposal:
Prosecutors (and victims' attorneys) should be required to advise the court whenever they are aware that the victim objects to a
proposed plea agreement as follows:
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless
the court for good cause allows the parties to disclose the plea agreement in camera. When a plea is presented in open court, the
attorney for the government or the attorney for any victim shall advise the court when the attorney is aware that the victim has
any objection to the proposed plea agreement.
The Rationale:
When an attorney for the victim or for the government is aware that a victim objects to a plea, that information should be
relayed to the court. In those rare cases where the victim has an attorney, the attorney will obviously raise the victim's
objection. The proposed rule change clarifies the prosecutor's corresponding and equal obligation to communicate this
information to the court.
The CVRA appears to obligate prosecutors to relay a victim's objection to the court, commanding them to use their "best
efforts" to enforce victims' rights. 162 Part of those "best efforts" would seem to be conveying objections to the court. Victims
are often untrained in the law and unexpectedly thrust into criminal proceedings; they may well believe that prosecutors
automatically relay to the court [*870] their objections to the plea. The proposed rule avoids such confusion by requiring the
prosecutor to notify the court of a victim's concern. The rule is limited to situations where the prosecutor is aware of an
objection.
This approach is consistent with the instructive case of State v. Casey, 163 which considered whether a victim's objection to a
plea made to a prosecutor was sufficient to trigger the victim's right to be heard under the Utah Constitution. 164 In Casey, the
victim told the prosecutor that she opposed a plea arrangement. The prosecutor refused to convey the victim's concern to the
158
2005 A.G. Guidelines, supra note 38, at 30 (defining what can be considered in determining whether notice is reasonable in a particular
case); see also Office for Victims of Crime, supra note 137, at 75 ("Prosecutors should make every effort … to consult with the victim on the
terms of any negotiated plea … .").
159
Office for Victims of Crime, supra note 137, at 75.
160
18 U.S.C.A. 3771(a)(5) (West 2004 & Supp. 2005).
161
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
162
18 U.S.C.A. 3771(c).
163
44 P.3d 756 (Utah 2002). I represented the victim in this case.
164
See generally Nicole G. Farrell, Recent Case Development, 2003 Utah L. Rev. 716.
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court, and the trial judge accepted the plea. The victim then obtained legal counsel and appealed to the Utah Supreme Court,
urging that under the Utah Victims' Rights Amendment, her right to be heard regarding a plea had been violated. The State
responded that the victim was obligated to ask the trial court directly to be heard rather than relying on the prosecutor to pass
that information along. In rejecting the State's argument, the Utah Supreme Court explained that prosecutors, no less than other
actors in the criminal justice system, were required to assist victims throughout the process. 165 More important for present
purposes, the court also concluded that prosecutors had ethical obligations as officers of the court to convey that information to
the judge:
Prosecutors must convey such requests [to be heard] because they are obligated to alert the court when they know that the court
lacks relevant information. This duty, which is incumbent upon all attorneys, is magnified for prosecutors because, as our case
law has repeatedly noted, prosecutors have unique responsibilities… . The prosecutor is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest … in a criminal prosecution is not that it shall win … but that justice shall be done. 166
Applying the reasoning of Casey to analogous rights in the CVRA, federal prosecutors must, as officers of the court, convey a
[*871] victim's request to be heard regarding a plea. Indeed, the prosecutor should convey not only the request to be heard but
also the fact that the victim objects to the plea. In deciding whether to accept a plea, the court must consider the public interest.
167 As the Tenth Circuit has explained, ""Rule 11 also contemplates the rejection of a negotiated plea when the district court
believes that bargain is too lenient, or otherwise not in the public interest.'" 168 When the prosecutor is aware of an objection
from a keenly interested member of the public - the victim - the court should not be left in the dark about it.
An alternative way of drafting the rule is to require courts to inquire of prosecutors whether the victim has been advised of the
proposed plea and whether the victim wishes to make a statement concerning it. 169 For example, Oregon requires the court to
ask the prosecutor whether the victim has been consulted about a plea and, if so, what the victim's view is:
Before the judge accepts a plea of guilty or no contest, the judge shall ask the district attorney if the victim requested to be
notified and consulted regarding plea discussions. If the victim has made such a request, the judge shall ask the district attorney
if the victim agrees or disagrees with the plea discussions and agreement and the victim's reasons for agreement or
disagreement. 170
South Dakota law contains a similar requirement that prosecutors disclose "any comments" by the victim about the plea. 171
Texas law requires the court to ask the prosecutor whether a victim impact statement has been submitted; 172 if so, the court
165
Casey, 44 P.3d at 763.
166
Id. at 764 (internal quotations and citations omitted).
167
See, e.g., United States v. Bean, 564 F.2d 700 (5th Cir. 1977).
168
United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir. 1985) (emphasis added) (quoting United States v. Miller, 722 F.2d 562, 563
(9th Cir. 1983)).
169
See Office for Victims of Crime, supra note 137, at 108 ("Judges should facilitate the input of crime victims into plea agreements … and
they should request that prosecuting attorneys demonstrate that reasonable efforts were made to confer with the victim.").
170
Or. Rev. Stat. 135.406(1)(b) (2003).
171
S.D. Codified Laws 23A-7-9 (2004) ("The prosecuting attorney shall disclose on the record any comments on the plea agreement made by
the victim, or his designee, of the defendant's crime to the prosecuting attorney.").
172
Tex. Code Crim. Proc. Ann. art. 26.13(e) (Vernon Supp. 2004) ("Before accepting a plea of guilty or a plea of nolo contendere, the court
shall inquire as to whether a victim impact statement has been returned to the attorney representing the state and ask for a copy of the
statement if one has been returned.").
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must review that [*872] statement. 173 Finally, before an Arizona court accepts a plea, the prosecutor must advise the court
that reasonable efforts were made to confer with the victim about the plea and the victim's view regarding it. 174
The rule proposed here is narrower than these state formulations: it requires only that a prosecutor confer with the victim about
the plea and inform the court if the victim objects. For many significant categories of federal cases (e.g., typical drug
trafficking offenses, felons in possession of a firearm, etc.), there will be no victim, much less a victim objection. In such cases,
to require some sort of victim inquiry by the court or victim certification by the prosecutor would unnecessarily waste time.
The proposed rule requires only that the prosecutor report a victim's objection - in which case the court will presumably want to
more carefully consider whether to accept a plea.
Rule 12.1 - Victim Addresses and Phone Numbers Not Disclosed for Alibi Purposes
The Proposal:
The Government currently must disclose the address and telephone numbers of any witnesses, including the victim, that it
plans to use to disprove an alibi. This rule should be changed to protect the victim's privacy, excluding their information from
this requirement.
(b) Disclosing Government Witnesses.
(1) Disclosure. If the defendant serves a Rule 12.1(a)(2) notice [regarding intent to present an alibi defense], an attorney for the
government must disclose in writing to the defendant or the defendant's attorney:
(A) the name, address, and telephone number of each witness and the address and telephone number of each witness (other than
a victim) that the government intends [*873] to rely on to establish the defendant's presence at the scene of the alleged
offense; and
(B) each government rebuttal witness to the defendant's alibi defense
… .
(c) Continuing Duty to Disclose. Both an attorney for the government and the defendant must promptly disclose in writing to
the other party the name of each additional witness, and the address and telephone number of each additional witness (other
than a victim) if:
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier.
In addition, a similar change should be made to Rule 12.3 regarding the addresses and telephone numbers of victims who will
be used to disprove a public-authority defense.
The Rationale:
This proposed change implements the victim's right to be "reasonably protected from the accused." 175 The victim cannot be
reasonably protected if the defendant, without good reason, is given the victim's address and telephone number. The proposed
rule strikes the current requirement that the prosecutor must automatically give the defendant the victim's address and telephone
173
See id.
174
Ariz. Rev. Stat. Ann. 13-4423(b)(1) (2001).
175
18 U.S.C.A. 3771(a)(1) (West 2004 & Supp. 2005).
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number even without any showing of need. Nothing in the rule, however, would bar the defendant from requesting that
information by filing an appropriate motion. The court could then determine whether any such motion had merit. 176
[*874]
Rule 15 - Victims' Right To Attend Pre-Trial Depositions
The Proposal:
Rule 15 should allow victims to attend any public deposition in a case as follows:
(i) Victims Can Attend. A Victim can attend any public deposition taken under this rule under the same conditions as govern a
victim's attendance at trial.
The Rationale:
Victims have the right "not to be excluded from any … public court proceeding," except in rare cases where their testimony
will be materially affected. 177 Depositions authorized by Rule 15 are for the purpose of preserving evidence for trial, 178 and
thus are effectively an extension of the trial. Victims accordingly have the right to attend such proceedings, if public, under the
same conditions governing their attendance at trial. To avoid any confusion over this issue, the proposed rule change directly
states that conclusion.
Because victims can be excluded from the trial in certain rare situations where their testimony would be materially affected,
179 they can likewise be excluded from a deposition in those situations. The proposed rule simply applies the limitations on
attending trial to the deposition setting by providing that the "same conditions" apply to the victim's attendance at the
deposition.
[*875]
Rule 17 - Victims' Right to Notice of Subpoena of Confidential Information
The Proposal:
Rule 17 regarding subpoenas should be modified to give victims notice before personal or confidential information is
subpoenaed and to allow victims to file a motion to quash such a subpoena as follows:
(h)(2) Victim Information. After indictment, no record or document containing personal or confidential information about a
victim may be subpoenaed without a finding by the court that the information is relevant to trial and that compliance appears to
be reasonable. If the court makes such a finding, notice shall then be given to the victim, through the attorney for the
government or for the victim, before the subpoena is served. On motion made promptly by the victim, the court may quash or
modify the subpoena if compliance would be unreasonable or oppressive.
The Rationale:
The existing rules governing subpoenas are flawed because they allow the parties to subpoena personal or confidential
information about a victim from third parties without the victim's knowledge. This issue arose recently in the Utah state
176
Cf. United States v. Wills, 88 F.3d 704, 709-10 (9th Cir. 1996) (allowing delayed disclosure of alibi witness because witness feared for
safety and defendant had violent history and allowing ex parte hearing because of need to keep identity of witness from the defendant).
177
18 U.S.C.A. 3771(a)(3).
178
See, e.g., United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1995).
179
18 U.S.C.A. 3771(a)(3), discussed infra notes 276-308 and accompanying text.
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criminal proceedings involving the kidnapping of Elizabeth Smart. Elizabeth was kidnapped from her home in Salt Lake City,
Utah. She was found nearly nine months later with a local transient and his wife, who had taken Elizabeth at knifepoint. 180
Attorneys for Elizabeth's alleged kidnapper subpoenaed class records from her high school - class and teacher lists, report
cards, and disciplinary and attendance records - and medical records from her hospital. 181 While the hospital refused to turn
over the requested records, the school willingly turned over the requested records without notice to the Smart family.
Elizabeth's father learned about the subpoena only after her school records had already been turned over to defense counsel.
The Smart family [*876] attorney then filed a motion to return the records to the school. Prosecutors in the case have objected
to the fact that they were not given an opportunity to file a motion to quash. 182 The matter is still under review in state court.
The problem that occurred in the Smart case under the Utah rules could also occur under the federal rules. 183 The federal rules
currently allow the witness to whom the subpoena is issued to object, 184 but there is no provision for notifying the victim
when personal or confidential information has been subpoenaed from another witness.
Serving such subpoenas without notice to the victim violates the provisions of the CVRA guaranteeing victims the rights to be
treated "with respect for the victim's dignity and privacy" and "with fairness." 185 Allowing subpoenas to go directly to thirdparty
custodians of records can fail to protect privacy if the custodian is disinterested or disinclined to protect the victim's
privacy. Such a scenario is not far-fetched; a third party who is subpoenaed will often have no interest in incurring legal fees to
protect a victim's rights. Even if interested, third parties may not fully understand the sensitive nature of certain victim
information. Victims may also have important statutory rights to protect. In the Elizabeth Smart case, for example, the school
may have violated the Family Educational Rights and Privacy Act by turning over private information about Elizabeth. 186
Subpoenas served without notice to victims may also raise constitutional concerns. 187 It is well settled that a right to privacy
is implicitly incorporated within the protections guaranteed under the [*877] United States Constitution. The Supreme Court
"has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the
Constitution." 188 Supreme Court precedent establishes two lines of privacy interests: (1) the "individual interest in avoiding
disclosure of personal matters" and (2) "the interest in independence in making certain kinds of important decisions." 189 In
essence, the right to privacy includes an individual's interest in making certain decisions that fundamentally affect his or her
person "free from unwarranted governmental intrusion." 190 In light of interests such as these, several courts have held that
crime victims' records - such as rape crisis counseling records - are not subject to subpoena. 191
180
See generally Ed Smart & Lois Smart with Laura Morton, Bringing Elizabeth Home: A Journey of Faith and Hope (2003).
181
Stephen Hunt, Defense Blasted for Obtaining Smart's School Records, Salt Lake Trib., Jan. 14, 2005, at B2.
182
Pat Reavy, Quash Smart Subpoenas, DA Says, Deseret Morning News, Feb. 1, 2005, at B3.
183
See Letter from Gregory G. Skordas, attorney for Elizabeth Smart, to Judge Susan Bucklew (May 23, 2005) (on file with author)
(proposing changes to the federal rules to avoid recurrence of this problem in federal court).
184
Fed. R. Crim. P. 17(c).
185
18 U.S.C.A. 3771(a)(8).
186
Pat Reavy, Elizabeth Wants Records Returned, Deseret Morning News, Jan. 15, 2005, at B3; see 20 U.S.C. 1232g (2000) (establishing
rights of privacy in educational records).
187
See generally Wendy J. Murphy, Using the Federal Courts To Make State Courts Respect Victims' Rights, 9 Lewis & Clark L. Rev.
(forthcoming 2005) (discussing federal constitutional rights of privacy for victims' confidential records).
188
Roe v. Wade, 410 U.S. 113, 152 (1973).
189
Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
190
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977).
DAVID SCHOEN
2005 B.Y.U.L. Rev. 835, *877
Page 25 of 52
The proposed new rule protects victims' statutory and potential constitutional interests in two ways. First, the court is required
to make a preliminary determination that the subpoena seeks information relevant at trial and that compliance appears to be
reasonable. This is consistent with the trial court's existing power to quash unreasonable subpoenas, including subpoenas
directed at crime victims. 192 Second, if the court makes a preliminary determination that the subpoena is appropriate, the
victim would then receive notice of the subpoena. To avoid harassment, the notice would be provided either through the
victim's own attorney or, more commonly, through the prosecutor.
The proposed rule makes no substantive change in the right of the party to obtain appropriate information through a subpoena.
Instead, it merely changes procedures to ensure victims are treated fairly by having the opportunity to file a motion to quash
where such [*878] a motion is appropriate. The court is then authorized to grant the victim's motion to quash under the same
standards that already apply to other motions to quash - where compliance would be "unreasonable or oppressive." 193
The proposed change does not interfere with the legitimate interests of the government or defendants. The change will not
hamper government investigations because it applies only to subpoenas issued after indictment. Before indictment, a victim's
privacy is protected through grand jury secrecy. After indictment, the only legitimate purpose for a subpoena by either the
government or the defendant is to obtain testimony or evidence for trial or similar court hearing. Rule 17 does not permit a
subpoena for discovery purposes, 194 although upon a proper showing a party can obtain pre-trial access to materials. 195
Therefore, when challenged by a victim on a motion to quash, the party seeking the evidence will prevail upon a proper
showing that the subpoena is appropriate. The only change made by the rule, then, is to require preliminary screening by the