court when confidential information is involved and give the victim the opportunity for court review in cases where legitimate
interests are at stake. Constitutional interests in privacy and the victim's right to be treated "with fairness" require nothing less.
Rule 18 - Victims' Interests Considered in Setting Place of Prosecution
The Proposal:
Rule 18 should be amended to require the court to consider the convenience of victims in setting the place of prosecution as
follows:
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was
committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any
victim, and the witnesses, and the prompt administration of justice.
[*879]
The Rationale:
191
See, e.g., State ex rel. Romley v. Superior Courts, 836 P.2d 445, 451-52 (Ariz. Ct. App. 1992) (crime victim had the right to deny
defendant access to medical records); Commonwealth v. Wilson, 602 A.2d 1290, 1296-97 (Pa. 1992). See generally Tera Jckowski Peterson,
Distrust and Discovery: The Impending Debacle in Discovery of Rape Victims' Counseling Records in Utah, 2001 Utah L. Rev. 695; Anna Y.
Joo, Note, Broadening the Scope of Counselor-Patient Privilege To Protect the Privacy of the Sexual Assault Survivor, 32 Harv. J. on Legis.
255 (1995).
192
See, e.g., Amsler v. United States, 391 F.2d 37, 51 (9th Cir. 1967) (upholding trial court's decision to quash subpoena directed to
kidnapping victim's father for lack of materiality).
193
See Fed. R. Crim. P. 17(c)(2).
194
See generally United States v. Nixon, 418 U.S. 683, 689 (1974).
195
See id. at 699.
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This change helps to implement a victim's right under the CVRA to be treated "with fairness." 196 The rule change is modest.
Rule 18 already requires the court to consider the convenience of the "witnesses" in a case. In many cases, of course, the victim
will be a witness. But for clarity in those cases, and to account for cases in which the victim will not be a witness, the rule
should be amended to refer specifically to victims.
Rule 20 - Victims' Views Considered Regarding Consensual Transfer
The Proposal:
Rule 20 should be amended to allow the court to consider the victims' views in any decision to transfer a case as follows:
(a) Consent to Transfer. A prosecution may be transferred from the district where the indictment or information is pending, or
from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present if:
(1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive trial in the district where the
indictment, information, or complaint is pending, consents in writing to the court's disposing of the case in the transferee
district, and files the statement in the transferee district; and
(2) the United States attorneys in both districts approve the transfer in writing after consultation with any victim. If any victim
objects to the transfer, the United States attorney in the transferring district or the victim's attorney shall advise the court where
the indictment or information is pending of the victim's concerns.
A similar change should be made to Rule 20(d) regarding transfer of juvenile proceedings.
[*880]
The Rationale:
As with the previous proposal, this change implements the victim's right under the CVRA to be "treated with fairness." 197
The procedure for transferring a case for a plea is not constitutionally required, but rather is designed for the convenience of the
defendant and the government. 198 In considering whether such administrative reasons justify a transfer, the concerns of the
victim appropriately enter into the balance. For reasons similar to those discussed above in connection with changes regarding
plea procedures, the prosecution would be directed to confer with the victim and to advise the court of any objection to the
transfer. 199
Rule 21 - Victims' Views Considered Regarding Transfer for Prejudice
The Proposal:
Rule 21 should be amended as follows to require consideration of the victim's interest in whether a case should be transferred:
(e) Victims' Views. The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court
shall consider the views of the victim in making any transfer decision.
The Rationale:
Rule 21 authorizes the trial judge to transfer a case to avoid prejudice or for the convenience of the parties. The proposed rule
would require that the court consider the victim's concerns in making any such transfer decision. Such consideration would
seem to be part and parcel of protecting the victim's right to be "treated with fairness." In addition, the vicinage provision of
196
18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005).
197
Id. 3771(a)(8).
198
See generally Wright, Federal Practice and Procedure 321, at 357-58.
199
See supra notes 158-174 and accompanying text.
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Article III and the public's First Amendment right of access to trials give constitutional dimensions to the victim's interest in
transfer decisions.
[*881] Victims may have compelling interests in observing the trial in their local community. 200 Traveling to a remote
location to watch the trial may be financially difficult for many victims and impossible for indigent victims. Moreover, forcing
victims to travel to distant communities alone may deprive them of the accompaniment and support of family and friends,
which may be especially important when observing emotionally charged court proceedings.
Defendants, too, have the right to have cases tried locally. Under the Sixth Amendment, "in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed … ." 201 This right might be viewed as the defendant's to assert or waive as circumstances dictate. For
federal cases, however, the vicinage right is not exclusively placed in the hands of the defendant. Instead, Article III provides
that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where
the said Crimes have been committed." 202
This difference in language supports the reading that the federal provision is a structural guarantee designed to protect broader
interests than the defendant's alone. 203 Moreover, the provision provides for trial in the state where the crime was committed.
In most cases, this state would be where the victim resided; whether the defendant also resided in that state would be incidental.
An understanding of the Article III provision as protecting the community's interest is bolstered by the Supreme Court's
decisions on right of public access to trials. In cases such as Richmond Newspapers, Inc. v. Virginia, 204 the Court has held
that a guarantee of the public's right to attend trials is implicit in the First Amendment. Compelling victims' interests underlie
this guarantee. As the Court has explained, "the presence of interested spectators [*882] may keep [the defendant's] triers
keenly alive to a sense of their responsibility and to the importance of their functions." 205 In addition, "public proceedings
vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their
criminal conduct." 206 As Justice Blackmun has emphasized, "The victim of the crime, the family of the victim, [and] others
who have suffered similarly … have an interest in observing the course of a prosecution." 207 Victims are vitally interested in
observing criminal trials because society has withdrawn "both from the victim and the vigilante the enforcement of criminal
laws, but [it] cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge
for retribution." 208 To be sure, transferring a trial to a distant city may not flatly violate the public right of access to a trial, but
it can surely burden the rights of the public, including the victim, which suggests that victims ought to be heard before any such
decision is made.
The Article III vicinage provision and the public right of access to trials provide constitutional underpinnings for construing the
victim's rights under the CVRA to include a right to be heard on transfer proceedings. In addition, Congress has mandated that
200
See generally Beloof, Cassell & Twist, supra note 15, 392-99 (reviewing case law on the victim's interest in venue decisions).
201
U.S. Const. amend. VI (emphasis added).
202
Id. art. III, 2, cl. 3 (emphasis added).
203
See Steven A. Engel, The Public's Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. Rev. 1658, 1687 (2000); see also Drew L.
Kirshen, Vicinage, 29 Okla. L. Rev. 803 (1976).
204
448 U.S. 555 (1980).
205
Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (internal citation omitted).
206
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984).
207
Gannett Co., 443 U.S. at 428 (Blackmun, J., concurring in part and dissenting in part).
208
Richmond Newspapers, 448 U.S. at 571.
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victims be treated with fairness. This is a broad provision intended to be broadly construed and to give victims a right to due
process. As Senator Kyl has stated,
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. Too often victims of
crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct
Government agencies and employees, whether they are in executive or judicial branches, to treat victims of crime with the
respect they deserve and to afford them due process. 209
[*883] Clearly, Congress intended to afford crime victims a broad right to due process in criminal proceedings. Due process,
of course, uncontroversially includes a right to be heard. 210 Thus, victims should be heard before the court makes a transfer
decision.
Concluding that victims have a right to be heard on transfer decision does not mean, of course, that they will dictate the transfer
decision. In some cases, the defendant will be able to establish sufficiently pervasive prejudice in a particular community to
entitle him to a change of venue to protect his constitutional rights. 211 But the limited point here is that victims may provide
an important perspective that the judge ought to consider in reaching a decision. Moreover, even if the judge decides to transfer
a case, the victims may have valuable information for the judge on where to transfer the case to (e.g., to an adjacent state rather
than a distant one).
An illustration of the general approach of the proposed rule comes from State v. Timmendequas, 212 a capital case decided by
the New Jersey Supreme Court. In Timmendequas, the trial judge imported a jury from a distant community rather than force
the family of a murdered young girl to travel to another district. Construing New Jersey state law provisions similar to the
CVRA's, the New Jersey Supreme Court explained that the trial judge properly considered the views of the victim's family:
Over the past decade, both nationwide and in New Jersey, a significant amount of legislation has been passed implementing
increased levels of protection for victims of crime. Specifically, in New Jersey, the Legislature enacted the "Crime Victim's Bill
of Rights." That amendment marked the culmination of the Legislature's efforts to increase the participation of crime victims in
the criminal justice system.
[*884]
The purpose of the Victim's Rights Amendment was to "enhance and protect the necessary role of crime victims and witnesses
in the criminal justice process. In furtherance of [that goal], the improved treatment of these persons should be assured through
the establishment of specific rights." One of the enumerated rights guaranteed for victims is "to have inconveniences associated
with participation in the criminal justice process minimized to the fullest extent possible."
… .
… The [trial] court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was
simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim's family into
209
150 Cong. Rec. S10,910-11 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphases added).
210
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (acknowledging that "the fundamental requisite of due process
of law is the opportunity to be heard" (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914))).
211
See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961) (holding that prisoner should have been granted change of venue where pre-trial publicity
caused prejudice). But cf. Fletcher, supra note 155, at 252 (calling for abolition of a defendant's right to change venue because it "is, in effect,
to accord the defense a whole peremptory challenge against the entire community").
212
737 A.2d 55 (N.J. 1999).
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account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that
decision. 213
Just as the New Jersey courts have recognized that victims' interests should be considered in transfer decisions, the federal
courts should do the same. Therefore, Rule 21 should be amended to allow victims to provide information to the judge on
transfer decisions.
Rule 23 - Victims' Views Considered Regarding Non-Jury Trial
The Proposal:
The court should be required to consider the views of victims before allowing waiver of a jury trial as follows:
Rule 23. Jury or Nonjury Trial
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves after considering the views of any victims.
[*885]
The Rationale:
In the federal courts the "preferred" trial method is a jury trial. 214 As Justice Blackmun has explained, the public has interests,
independent of a criminal defendant, in monitoring judges, police, and prosecutors - and in being educated about "the manner
in which criminal justice is administered." 215 Nonetheless, the Supreme Court has concluded that defendants can waive their
right to a jury trial. 216 To help protect the general public interest in trial by jury, Rule 23 requires not only prosecutor approval
217 but also judicial approval before proceeding by way of bench trial. This approval requires careful weighing of the
competing concerns. The Supreme Court has instructed that
213
Id. at 76 (internal citations omitted). The hardship to the victim was established via affidavits from the victim's family provided to the
court by the prosecutor.
214
See Singer v. United States, 380 U.S. 24, 35 (1965) ("Trial by jury has been established by the Constitution as the "normal and preferable
mode of disposing of issues of fact in criminal cases.'" (citation omitted)). See generally Rachel E. Barkow, Recharging the Jury: The
Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 68 (2003).
215
Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., dissenting in part).
216
See Patton v. United States, 281 U.S. 276 (1930). But cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131,
1196-98 (1991) (mounting a strong argument against Patton and noting that before 1930 court decisions had held jury trial could not be
waived).
217
Fed. R. Crim. P. 23(a)(2). But cf. Adam H. Kurland, Providing a Criminal Defendant with a Unilateral Right to a Bench Trial: A
Renewed Call To Amend Federal Rule of Criminal Procedure 23(a), 26 U.C. Davis L. Rev. 309 (1993) (suggesting that prosecutorial
consent should be eliminated by the legislature). See generally ABA Standards for Criminal Justice 15-1.2, cmt. at 15.17 (2d ed. 1980)
(concluding that arguments in favor of requiring prosecutorial approval of jury trial waivers outweigh those against).
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the duty of the trial court [in considering whether to approve a jury trial waiver] is not to be discharged as a mere matter of rote,
but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from
any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. 218
This is a "serious and weighty responsibility." 219
[*886] To discharge that serious and weighty responsibility, the trial court should receive as much information as possible.
The victim is often well situated to provide information about how the public will view a non-jury trial. The proposed rule
change takes the modest step of requiring the court to hear the victim before approving any non-jury trial, a step that is
consistent with the CVRA's command that victims be treated with fairness.
Importantly, this change would not interfere with defendants' rights. The Supreme Court has squarely held that the defendant
lacks any constitutional right to unilaterally elect a bench trial. 220 Of course, in some circumstances, despite a victim's
objection, a non-jury trial nonetheless will be appropriate. Moreover, in extreme cases, the defendant may have a right to a nonjury
trial where pretrial publicity has pervasively tainted the jury pool. 221 Nothing in the proposed rule change would interfere
with a court's right to approve a bench trial in such circumstances, so long as the court considers the victim's perspective as part
of the approval process.
Rule 32(a) - Deleting Old Definition of "Victim"
The Proposal:
The definition of "victim" currently contained in Rule 32 should be stricken as follows:
Rule 32. Sentencing and Judgment
(a) Definitions. The following definitions apply under this rule:
(1) "Crime of violence or sexual abuse" means:
(A) a crime that involves the use, attempted use, or threatened use of physical force against another's person or property; or
(B) a crime under 18 U.S.C. 2241-2248 or 2251-2257.
[*887]
(2) "Victim" means an individual against whom the defendant committed an offense for which the court will impose sentence.
The Rationale:
The old definition of victim in Rule 32 is now too narrow, as it is limited to crimes of violence or sexual abuse. The CVRA, in
contrast, includes all victims within its protections. In the proposed new rules, "victim" would be defined in Rule 1. 222
Accordingly, the narrower definition found here can simply be eliminated. The Advisory Committee on Criminal Rules is well
218
Patton, 281 U.S. at 312-13.
219
United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir. 1985) (internal quotation omitted).
220
Singer v. United States, 380 U.S. 24, 36 (1965) (finding that waiver of jury trial may be conditioned on consent of prosecutor); cf.
Kurland, supra note 217, at 340-46 (urging that the rules be amended to create such a right, but not considering in any way the victim's
interests involved).
221
See Singer, 380 U.S. at 37-38 (leaving this question open).
222
See supra notes 120-27 and accompanying text.
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aware of this issue, having withdrawn a previous proposal to expand Rule 32 to include all victims in the wake of the CVRA.
223
Rule 32(c)(1)(B) - Presentence Report Considering Restitution in All Cases
The Proposal:
Rule 32(c)(1)(B) should be amended to require that the presentence report contain restitution information in all cases as
follows:
(c) Presentence Investigation.
(1) Required Investigation.
(A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it
imposes sentence unless:
(i) 18 U.S.C. 3593(c) or another statute requires otherwise; or
(ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C.
3553, and the court explains its finding on the record.
[*888]
(B) Restitution. If the law requires permits restitution, the probation officer must conduct an investigation and submit a report
that contains sufficient information for the court to order restitution.
The Rationale:
As currently written, the rule directs that a presentence report contain information about restitution only when the law
"requires" restitution. The proposed amendment directs that all presentence reports contain appropriate restitution information
whenever the law "permits" restitution. If the law permits restitution, the court ought to receive information sufficient to allow
it to determine whether to order such restitution. Only with such knowledge can the court appropriately exercise its discretion.
In most cases, restitution is covered by one of two federal statutes: the Mandatory Victims Restitution Act of 1996 (MVRA),
224 and its predecessor, the Victim and Witness Protection Act of 1982 (VWPA). 225 For all crimes of violence and certain
crimes against property, the MVRA firmly directs that "notwithstanding any other provision of law, when sentencing a
defendant convicted of [certain offenses such as crimes of violence] … the court shall order … that the defendant make
restitution to the victim of the offense or, if the victim is deceased, to the victim's estate." 226 For other crimes, the earlier
VWPA controls. It permits the court to order restitution in its discretion after considering various relevant factors. 227
223
See Letter from Ed Carnes, Chair of the Advisory Comm. on Federal Rules of Criminal Procedure, to Hon. David F. Levi, Chair of the
Standing Committee on Rules of Practice and Procedure (May 18, 2004) (on file with the author) (noting that proposed expansion of Rule 32
should be withdrawn if the CVRA was passed).
224
18 U.S.C. 3663A, 3664 (2000).
225
Id. 3663, 3664. See generally United States v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah 2004) (discussing different statutes), rev'd on other
grounds, United States v. Serawop, 410 F.3d 656 (10th Cir. 2005).
226
18 U.S.C. 3663A(a)(1) (emphasis added); see United States v. Monts, 311 F.3d 993, 1001 (10th Cir. 2002) (holding that restitution under
the MVRA is mandatory).
227
18 U.S.C. 3663A(a)(3); see United States v. Fountain, 768 F.2d 790, 801 (7th Cir. 1985) (holding that restitution under the VWPA is
discretionary).
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In its current form, Rule 32(c)(1)(B) suggests that the probation officer is required to include restitution information only in a
case covered by the MVRA because only then is restitution (in the language of the current rule) "required." 228 No sound
reason exists [*889] for such a limitation, particularly after the enactment of the CVRA. The CVRA guarantees that victims
have "the right to full and timely restitution as provided in law." 229 Even when the court is proceeding under the discretionary
VWPA, without appropriate information in the presentence report, the court cannot determine whether to exercise its discretion
to award restitution. Therefore, the rule should be changed to require that the presentence report contain restitution information,
from which the court can determine whether to make a restitution award.
(New) Rule 32(c)(3) - Probation Officer To Seek Out Victim Information
The Proposal:
The probation officer preparing a presentence report should be directed to determine whether a victim wishes to provide
information for the report as follows:
(3) Victim Information. The probation officer must determine whether any victim wishes to provide information for the
presentence report.
The Rationale:
Under the CVRA, the victim has "the right to be reasonably heard at any public proceeding in the district court involving …
sentencing … ." 230 This right clearly encompasses the victim's right to allocate, or make an oral statement at sentencing, as
discussed below in connection with Rule 32(i). 231 However, the right to be "reasonably heard" also appears to include the
opportunity to provide information to the probation office during preparation of the presentence report.
As Senator Kyl explained, the victim's right to be heard at sentencing should be broadly construed:
[*890]
[The CVRA] provides victims the right to reasonably be heard at any public proceeding involving … sentencing. This provision
is intended to allow crime victims to directly address the court in person. It is not necessary for the victim to obtain the
permission of either party to do so … . When a victim invokes this right during … sentencing proceedings, it is intended that …
he or she be allowed to provide all three types of victim impact: the character of the victim, the impact of the crime on the
victim, the victims' family and the community, and sentencing recommendations … .
It is not the intent of the term "reasonably" in the phrase "to be reasonably heard" to provide any excuse for denying a victim
the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to
appear personally and directly address the court. This section would fail in its intent if courts determined that written, rather
than oral communication, could generally satisfy this right. On the other hand, the term "reasonably" is meant to allow for
alternative methods of communicating a victim's views to the court when the victim is unable to attend the proceedings. Such
circumstances might arise, for example, if the victim is incarcerated on unrelated matters at the time of the proceedings or if a
victim cannot afford to travel to a courthouse. In such cases, communication by the victim to the court is permitted by other
reasonable means. 232
In light of this legislative history, victims undoubtedly have a right to make an in-court statement at sentencing as part of their
right "to be heard." But they also have the right to communicate in other ways with the court. At sentencing, an obvious
228
Fed. R. Crim. P. 32(c)(1)(B).
229
18 U.S.C.A. 3771(a)(6) (West 2004 & Supp. 2005).
230
18 U.S.C.A. 3771(a)(4).
231
See infra notes 273-75 and accompanying text.
232
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphases added); see also id. (statement of Sen. Feinstein).
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alternative way is via the probation officer. If there is any doubt about whether the right "to be heard" covers communications
to the probation officer, the right "to be treated with fairness" comfortably covers such a requirement.
The proposed rule requires that the probation office affirmatively seek out the victim. It is unlikely that a probation officer
could properly prepare a thorough presentence report without obtaining the victim's views. Indeed, the rules already require the
officer to include victim information in the report. 233 Because there is no way [*891] to know in advance whether the victim
will have relevant information for the report, the probation officer should be required to investigate that possibility. Of course,
nothing in the proposed rule change would require the probation officer to include irrelevant or argumentative information in
the report.
Rule 32(d)(2)(B) - Presentence Report To Contain Victim Information
The Proposal:
Rule 32(d)(2)(B) should be amended to refer directly to victims in describing the content of the presentence report and to
conform to the style used for information about defendants as follows:
(2) Additional Information. The presentence report must also contain the following information:
(A) the defendant's history and characteristics, including:
(i) any prior criminal record;
(ii) the defendant's financial condition; and
(iii) any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment;
(B) 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 any victim of the crime …
The Rationale:
As discussed at the outset of this article, 234 Rule 32(d)(2)(B) typifies the victim's absence from the current federal rules by
failing to use the word "victim" in describing what information belongs in a presentence report. In addition, the rule should be
amended to conform to the style used in describing the presentence report's information about the defendant. The rule dealing
with the [*892] defendant's background 235 contains no requirement that information be "verified" or stated in a "nonargumentative
style." As a matter of even-handedness, no such requirement should be listed for victim information. Of course,
well-trained federal probation officers will no doubt attempt to verify all information in the presentence report and phrase all of
the report in a non-argumentative style. The peculiarity in the current rule is that, among the numerous subjects covered by the
rules, the verification and non-argumentative style requirements apply to victim information alone.
Rule 32(e) - Prosecutor To Disclose Presentence Report to Victim
The Proposal:
The prosecutor should be required to disclose relevant parts of the presentence report to victims as follows:
(e) Disclosing the Report and Recommendation.
233
See supra notes 10-13 and accompanying text (discussing Rule 32(d)(2)(B)).
234
See supra notes 10-13 and accompanying text.
235
Fed. R. Crim. P. 32(d)(2)(A).
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(1) Time to Disclose. Unless the defendant has consented in writing, the probation officer must not submit a presentence report
to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found
guilty.
(2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's
attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum
period. The attorney for the government shall, if any victim requests, communicate the relevant contents of the presentence
report to the victim.
The Rationale:
The presentence report plays a critical role in the federal sentencing process. The report contains information about the crime,
the background of the defendant, the impact of the crime on the victim, and other matters relevant to sentencing. Most
important, the report also contains a calculation under the Federal [*893] Sentencing Guidelines specifying a range for any
recommended prison sentence (e.g., forty-six to fifty-seven months). While judges need not slavishly impose a sentence within
this range, 236 most trial judges give significant weight to the Guidelines calculation, 237 and appellate courts have
discouraged straying too far from the Guidelines without good reason. 238
The CVRA entitles victims to be heard on disputed Guidelines issues and, as a corollary, entitles them to the right to review
parts of the presentence report relevant to those issues. The CVRA gives victims "the right to be reasonably heard at any public
proceeding in the district court involving … sentencing … ." 239 This codifies the right of crime victims to provide what is
known as a "victim impact statement" to the court. 240 The victim's right to be heard, however, is not narrowly circumscribed
to just impact information. To the contrary, the right conferred is a broad one - to be "reasonably heard" at the sentencing
proceeding.
The victim's right to be "reasonably heard" is best understood as giving the victim the opportunity to speak about disputed
issues regarding the Sentencing Guidelines calculation. As Senator Kyl explained, the right to be heard includes the right to
make sentencing recommendations:
When a victim invokes this right [to be heard] during … sentencing proceedings, it is intended that the [sic] he or she be
allowed to provide all three types of victim impact [information]: the character of the victim, [*894] the impact of the crime
on the victim, the victim's family and the community, and sentencing recommendations. 241
A "sentencing recommendation" will often directly implicate Guidelines issues. For example, if the victim wishes to
recommend a hundred-month sentence when the maximum guideline range is only fifty-seven months, that sentencing
recommendation is essentially meaningless unless a victim can provide a basis for recalculating the Guidelines or departing or
varying from them. 242
236
See United States v. Booker, 125 S. Ct. 738 (2005).
237
See, e.g., United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005) (giving "heavy weight" to Guidelines recommendation).
238
See, e.g., United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005); United States v. Rogers, 400 F.3d 640 (8th Cir. 2005).
239
18 U.S.C.A. 3771(a)(4) (West 2004 & Supp. 2005).
240
See generally Beloof, Cassell & Twist, supra note 15, at 625-67 (discussing victim impact statements); Paul G. Cassell, Balancing the
Scales of Justice: The Case for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L. Rev. 1373, 1395-96; cf. Dan Narled,
State, Be Not Proud: A Retroactive Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. L.
Rev. 407 (2005).
241
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added). See generally Beloof, Cassell & Twist, supra
note 15, at ch. 10 (discussing three types of victim impact information).
242
See United States v. Wilson, 355 F. Supp. 2d 1269, 1272-73 (D. Utah 2005) (discussing departures and variances from the Guidelines).
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Because a victim has the right to be heard on a Guidelines issue, a victim also has the right to see the document which contains
the Guidelines calculations - the presentence report. 243 Congress intended the victim's right to be heard to be construed
broadly, as Senator Feinstein stated: "The victim of crime, or their counsel, should be able to provide any information, as well
as their opinion, directly to the court concerning the … sentencing of the accused." 244 It is hard to see how victims can
meaningfully provide "any information" that would have a bearing on the sentence without being informed of the Guidelines
calculations that likely will drive the sentence and reviewing the document that underlies those calculations.
An independent basis for victims reviewing presentence reports is within the victim's broad right under the CVRA to be
"treated with fairness." 245 This right easily encompasses a right of access to relevant parts of the presentence report. The
victim's right to fairness gives victims a free-standing right to due process. As Senator Kyl instructed, "Of course, fairness
includes the notion of due process … . [*895] This provision is intended to direct government agencies and employees,
whether they are in the executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them
due process." 246 Due process principles dictate that victims have the right to be apprised of Guidelines calculations and
related issues. The Supreme Court has explained that "it is … fundamental that the right to … an opportunity to be heard "must
be granted at a meaningful time and in a meaningful manner.'" 247 It is not "meaningful" for victims to make sentencing
recommendations without the benefit of knowing what everyone else in that courtroom knows: the recommended Guidelines
range and how that range was derived. Congress plainly intended to pass a law establishing "fair play for crime victims,
meaningful participation of crime victims in the justice system, [and] protection against a government that would take from a
crime victim the dignity of due process." 248 In federal sentencing today, meaningful participation means participation
regarding Guidelines issues.
It is interesting that the federal law allowing appointment of a guardian ad litem for juvenile victims appears to allow for access
to the presentence report. The law guarantees that, upon appointment, a guardian ad litem "may have access to all reports,
evaluations and records, except attorney's work product, necessary to effectively advocate for the child." 249 In a recent federal
"shaken baby" case in Arizona, a guardian for the child victim received access to the presentence report under this provision.
250 The guardian in that case found it exceedingly difficult to formulate an appropriate sentencing recommendation without
access to the presentence report. After successfully gaining access to the report, she found a need to change her original
recommendation. She later reported that "but for the [*896] disclosure, I would have ended up making a mis-informed
recommendation." 251
A victim's right to review the presentence report is also important to ensure proper restitution. Federal law guarantees most
victims of serious crimes the right to restitution. 252 Reinforcing those laws, the CVRA guarantees that victims have "the right
243
Magistrate Judge Orenstein of the Eastern District of New York, who has written many thoughtful opinions on the CVRA, has taken a
contrary position. See Report and Recommendation, United States v. Ingrassis, No. CR 04-0455 at 31 (E.D.N.Y. Sept. 7, 2005) ("In the
absence of any change to applicable rules or the Guidelines, the court is under no legal obligation to ensure such disclosure" of the
presentence report.). For the reasons explained here, I think he takes too narrow a view of the victim's rights at sentencing.
244
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added).
245
18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005).
246
150 Cong. Rec. S10,911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphases added).
247
Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
248
150 Cong. Rec. S4264 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added).
249
See 18 U.S.C. 3509(h)(2) (2000).
250
See United States v. James, No. CR-04-0651-PCT-JAT (D. Ariz. 2005).
251
E-mail from Keli Luther, Arizona Voice for Victims, to Paul G. Cassell (June 20, 2005) (on file with author).
252
See 18 U.S.C. 3663A (Mandatory Victims Restitution Act); see also id. 3663 (Victim Witness Protection Act).
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to full and timely restitution as provided in law." 253 As a practical matter, many of the calculations supporting a restitution
award will rest on information in the presentence report. While the restitution statutes have their own detailed procedural
provisions, 254 the presentence report is clearly a central part of the restitution process. If a presentence report fails to
accurately recount restitution figures, crime victims may be short-changed. For all these reasons, the CVRA should be
understood as giving victims the right to review relevant parts of the presentence report and to be heard before a court makes
any final conclusions about Guidelines calculations and other sentencing issues. Many states follow a similar approach and
give victims access to the presentence report. 255
In February 2005, I testified before the Sentencing Commission to recommend a change in the U.S. Sentencing Commission
Guidelines Manual along the lines of the proposals contained in this [*897] Article. 256 In particular, I suggested that the
Commission change its current rule, which allows only the parties to see the presentence report. 257 The Practitioners'
Advisory Group to the Sentencing Commission later disputed my proposal. In a letter to the Commission, 258 they argued that
"nothing in the CVRA or its legislative history states that crime victims should be permitted to review portions of the
presentence report, dispute guidelines calculations, raise grounds for departure, or, as such rights would seem to imply, appeal a
sentence on factual or legal grounds." 259 The Practitioners' Group also cited the drafting history of the proposed constitutional
amendment protecting victims' rights, which they thought was limited to giving a victim merely the right to "allocute" at
sentencing - that is, merely to provide victim impact information. 260
The Practitioners' Group's arguments are flawed for several reasons. First, the Group too narrowly views the relevant legislative
history of the CVRA. As explained above, Congress intended for victims to have broad rights in the sentencing process,
including rights to be reasonably heard in a meaningful manner. 261 It is not reasonable to deprive victims of the critical
information in the presentence report. Second, the Practioners' Group inaccurately describes the relevant history of the Victims'
Rights Amendment. It is true that the proposed constitutional amendment contained a right to be "reasonably heard," just as the
CVRA does. However, the Practitioner's Group fails to recognize that the legislative history of the amendment suggests that
253
18 U.S.C.A. 3771(a)(6) (West 2004 & Supp. 2005).
254
18 U.S.C. 3664.
255
Ala. Code 15-23-73 (1975) ("victim shall have the right to review a copy of the pre-sentence investigative report, subject to the applicable
federal or state confidentiality laws"); Alaska Stat. 12.55.023 (2004) (giving victim right to look at portions of sentencing report); Ariz.
Const. art. 2, 2.1 (giving victim right to review presentence report when available to the defendant); Ariz. Rev. Stat. Ann. 13-4425 (2004)
(giving victim right to review presentence report "except those parts excised by the court or made confidential by law"); Fla. Stat. Ann.
960.001 (2000) (giving victim right to review presentence report); Idaho Code 19-5306 (2004) (giving victim right to review presentence
report); Ind. Stat. Ann. 35-40-5-6(b) (2004) (giving victim right to read and "respond to" material contained in the presentence report); La.
Const. art. 1, 25 (giving victim "right to review and comment upon the presentence report"); Mont. Code Ann. 46-18-113 (2005) (giving
prosecutor discretion to disclose contents of presentence report to victim); Or. Rev. Stat. Ann. 137.077 (2003) (presentence report may be
made available to victim); see also Colo. Rev. Stat. 24-72-304(5) (2005) (giving prosecutor discretion to allow victim or victim's family to see
presentence report).
256
See The Effect of United States v. Booker on the Federal Sentencing Guidelines: Hearing Before the U.S. Sentencing Comm'n (Feb. 15,
2005) (statement of Paul G. Cassell, United States Judge for the District of Utah), available at http://www.ussc.gov/hearings/ 02 15 05/cassell
testimony.pdf.
257
U.S. Sentencing Comm'n, 1 Federal Sentencing Guidelines 6A1.2 (West 2004).
258
Letter from Amy Baron-Evans & Mark Flanagan to Hon. Ricardo H. Hinojosa (Feb. 28, 2005), available at
http://sentencing.typepad.com/sentencing law and policy/ files/pag letter.doc.
259
Id. at 2.
260
Id.
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Congress was taking an expansive view of the victim's right to be heard at sentencing, including a view that [*898] would
embrace a victim's right to make a specific sentencing recommendation. 262
Most important, the Practitioners' Group's letter fails to consider the impact of denying the victim access to the presentence
report on the victim's right to fairness. Presumably the Group, comprised primarily of defense attorneys, would be outraged if
defendants were sentenced without receiving notice about relevant parts of the presentence report, because of the defendant's
due process rights. But victims now also have due process rights during sentencing, which make it clear that they should
receive the same information.
The Practitioners' Group raises one concern that can be readily dispelled. The Group wonders whether a victim's right to be
heard on Guidelines issues implies a general right to appeal a sentence. It would not. The CVRA contains its own specific
remedial provision, which permits victims to appeal only denials of their rights. 263 It specifically allows a victim to file a
motion "to re-open … a sentence" only for violations of the victim's "right to be heard." 264 Moreover, while victims possess
due process protections, due process does not guarantee a right to an appeal. 265 Finally, the Sentencing Reform Act spells out
the limited rights of appeal on Guidelines issues available to only the government and the defense. 266 For all these reasons,
victims have the right to review relevant parts of the [*899] presentence report and to be heard on Guidelines issues in the trial
court, but if the court properly hears them on the Guidelines issues, victims would not have the right to appeal the sentence the
court ultimately imposes.
Because victims have a right of access to the presentence report, the question arises of how to provide that access. Nothing in
current law precludes releasing presentence reports to victims. While 18 U.S.C. 3552 requires disclosure to government and
defense counsel, it does not forbid further dissemination. Several federal courts have held that circulation of reports to third
parties is proper on a showing of particularized need approved by the court. 267 Some courts' local rules also allow additional
distribution with court approval. 268 Victims always have a particularized need for access to the Guidelines calculations and
261
See supra notes 239-44 and accompanying text.
262
The Group cites a 2000 Senate Judiciary Committee Report regarding the Victims' Rights Amendment, which referenced a Tenth Circuit
decision restricting the right of victims to present a sentencing recommendation. See Letter from Amy Baron-Evans, supra note 258 (citing S.
Rep. No. 106-254, at 12 (2000) (discussing Robinson v. Maynard, 943 F.2d 1216 (10th Cir. 1991))). By 2003, however, the same passage in
the Senate Judiciary Committee Report was changed to remove the citation to that case and instead to cite a leading proponent of expansive
rights for victims to give judges specific sentencing recommendations:
Victim impact statements concerning the character of the victim and the impact of the crime remain constitutional. See Douglas E. Beloof,
Constitutional Implications of Crime Victims as Participants, 88 Cornell L. Rev. 282 (2003). The Committee does not intend to alter or
comment on laws existing in some States allowing for victim opinion as to the proper sentence.
S. Rep. No. 108-191, at 38 (2003). It is hard to see anything in this history suggesting that Congress wanted victims to be deprived of the
chance to review presentence reports.
263
18 U.S.C.A. 3771(d)(5) (West 2004 & Supp. 2005). See generally In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 561-64 (2d Cir. 2005)
(discussing appeals under CVRA).
264
18 U.S.C.A. 3771(d)(5).
265
See McKane v. Durston, 153 U.S. 684 (1894).
266
18 U.S.C. 3742 (2000).
267
See, e.g., United States v. Corbitt, 879 F.2d 224, 238 (7th Cir. 1989) (compelling, particularized need standard); United States v. Schlette,
842 F.2d 1574, 1579 (9th Cir. 1988) (interests of justice standard); United States v. Charmer Indus., Inc., 711 F.2d 1164, 1174 (2d Cir. 1983)
(compelling need standard).
268
See, e.g., D. Utah Crim. Local R. 32-1(c) (presentence reports not released without order of the court).
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related parts of the presentence report; without such access they are unable to effectively make their sentencing
recommendation.
In view of that legal landscape, there are three ways in which the Federal Rules of Criminal Procedure might deal with
disclosure of the presentence reports to victims:
(1) Complete Disclosure. The rules could direct full disclosure of the presentence report to the victim. While no statute bars this
approach, legitimate policy objections might be raised. Some reports may contain sensitive private information about the
defendant such as results of psychiatric examinations, prior history of drug use, or childhood sexual abuse. Some reports may
also reveal confidential law enforcement information that should not be widely circulated. Victims may not always need access
to these parts of the report. While a number of states give victims unfettered right to access the presentence report, 269 a more
limited approach seems appropriate in the federal system.
[*900] (2) Selective Disclosure. The rules could direct that the probation office redact any presentence report to remove
confidential information and then provide the redacted report to the victim. This approach, too, is problematic; it would require
considerable work by busy probation officers to prepare an additional document - a redacted report - presumably only after
consulting with the attorneys on both sides of the case about what might be viewed as confidential.
(3) Disclosure through Prosecutors. The simplest solution to the competing concerns is to disclose the report to victims through
an intermediary: the prosecutor. The prosecutor would serve as the filter for confidential information and assist the victim by
highlighting critical parts of the report. Opponents might object that this approach would burden prosecutors, who are no less
busy than probation officers. But the CVRA already gives victims the right to "confer" with prosecutors, 270 and presumably
they will confer regarding the important topic of sentencing. Moreover, many U.S. Attorney's Offices already have Victim-
Witness Coordinators who communicate with victims regarding impact statements. The CVRA also authorizes increased
funding of $ 22 million for the Victim-Witness Assistance Programs in U.S. Attorney's Offices, presumably enabling those
offices to expand their victim services. 271
It might be burdensome to require that prosecutors disclose presentence reports to victims in all cases, even when they are not
interested in such disclosure. Accordingly, disclosure of the report should be required only upon request of a victim.
For all those reasons, the Commission should amend the rules to give requesting victims access to presentence reports through
the prosecutor. In addition, some of the aspects of preparing and disclosing presentence reports are covered in Chapter 6.A of
the United States Sentencing Guidelines Manual. 272 The Manual falls within the jurisdiction of the U.S. Sentencing
Commission. Accordingly, the Advisory Committee on Criminal Rules should [*901] coordinate with the Commission to
ensure that any changes in the Criminal Rules are consistent with the provisions of the Manual.
Rule 32(f), (h), (i) - Victim Opportunity To Object to Presentence Report
The Proposal:
Rule 32(f), (h), and (i) should be amended to allow the victim to object to the presentence report as follows:
(f) Objecting to the Report.
(1) Time To Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections,
including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from
the report. The attorney for the government or for the victim shall raise for the victim any reasonable objection by the victim to
the presentence report.
269
See supra note 255.
270
18 U.S.C.A. 3771(a)(5) (West 2004 & Supp. 2005).
271
See 118 Stat. 2260, 2264 (2004).
272
See supra note 257 and accompanying text.
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(2) Serving Objections. An objecting party must provide a copy of its objections to the opposing party and to the probation
officer.
(3) Action on Objections. After receiving objections, the probation officer may meet with the parties and the victim to discuss
the objections. The probation officer may then investigate further and revise the presentence report as appropriate.
… .
(h) Notice of Possible Departure from Sentencing Guidelines. Before the court may depart from the applicable sentencing
range on a ground not identified for departure either in the presentence report or in a party's prehearing submission or in a
victim impact statement, the court must give the parties reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a departure. The attorney for the government or for the victim
shall advise defense counsel and the court of any ground identified by the victim that might reasonably serve as a basis for
departure.
(i) Sentencing.
[*902]
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any
addendum to the report;
(B) must give to the defendant and an attorney for the government a written summary of - or summarize in camera - any
information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them
a reasonable opportunity to comment on that information;
(C) must allow the parties' attorneys and any victims to comment on the probation officer's determinations and other matters
relating to an appropriate sentence; and
(D) may, for good cause, allow a party or any victim to make a new objection at any time before sentence is imposed.
(2) Introducing Evidence; Producing a Statement. The court may permit the parties or the victim to introduce evidence on the
objections. If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies. If a party fails to comply with a Rule 26.2 order
to produce a witness's statement, the court must not consider that witness's testimony.
(3) Court Determinations. At sentencing, the court:
(A) may accept any undisputed portion of the presentence report as a finding of fact;
(B) must - for any disputed portion of the presentence report or other controverted matter - rule on the dispute or determine that
a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in
sentencing; and
(C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the
Bureau of Prisons.
The Rationale:
For the reasons explained in the preceding section, the victim's right to be "reasonably heard" at a sentencing hearing
encompasses the right to be heard on Sentencing Guidelines issues. Congress [*903] intended that the victim become a
participant in the process with rights "independent of the Government or the defendant." 273 Those independent rights include
273
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
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the opportunity to make "sentencing recommendations." 274 Given that matters in the presentence report may often determine
what effect a sentencing recommendation will have, the victim's right presumably extends to participating in the process that
determines the Guideline range.
The changes in Rule 32 noted above simply incorporate the victim in the Guidelines process. Changing the rule in this fashion
would also clarify the appropriate sequencing of sentencing hearings. Rule 32(i) already allows the victim to submit "any
information" about the sentencing. 275 Yet if the experience in my court is any guide, the victim's allocution frequently occurs
only after the court has decided all the issues surrounding the presentence report. For the victim's right to provide information
to the court to truly have meaning, the victim's information must be presented early enough to potentially affect critical
sentencing issues, including issues about Guidelines calculations.
As with the changes discussed in the previous section, changes in the Sentencing Guidelines Manual are also required here. The
Advisory Committee also should coordinate with the Sentencing Commission to ensure that its actions are consistent.
Rule 32(i)(4) - Conforming Amendment to Victims' Right To Be Heard
The Proposal:
Rule 32(i)(4) should be amended to conform the definition of victim to that found in the CVRA as follows:
(B) By a Victim. Before imposing sentence, the court must address any victim of a the crime of violence or sexual abuse who is
present at sentencing and must permit the victim to speak or submit any information about the sentence. Whether or not the
victim is [*904] present, a victim's right to address the court may be exercised by the following persons if present:
(i) a parent or legal guardian, if the victim is younger than 18 years or is incompetent; or
(ii) one or more family members or relatives the court designates, if the victim is deceased or incapacitated.
The Rationale:
As noted earlier, 276 Rule 32 currently contains a definition of "victim" that is narrower than the CVRA's definition. The
simplest fix is simply to strike the definition of victim and victim's representative here and include an appropriate definition in
Rule 1.
(New) Rule 43.1 - Victim's Right To Attend Trials
The Proposal:
A new rule implementing the victim's right to be present at trials and other proceedings should be added as follows:
Rule 43.1 Victim's Presence
(a) Victim's Right To Attend. A victim has the right to attend any 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. Before making any determination to exclude a victim, the court shall make every effort to permit
the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the
criminal proceeding. The reasons for any decision to exclude a victim shall be clearly stated on the record.
(b) Proceeding With and Without Notice. The court may proceed with a public proceeding without a victim if proper notice has
been provided to that victim under Rule 10.1. The court may proceed with a public proceeding (other than a trial or sentencing)
274
Id.
275
Fed. R. Crim. P. 32(i)(4)(B).
276
See discussion supra notes 120-27, 220-23 and accompanying text discussing Rules 1 and 32(a).
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[*905] without proper notice to a victim only if doing so is in the interest of justice, the court provides prompt notice to that
victim of the court's action and of the victim's right to seek reconsideration of the action if a victim's right is affected, and the
court ensures that notice will be properly provided to that victim for all subsequent public proceedings.
(c) Numerous Victims. If the court finds that the number of victims makes it impracticable to accord all of the victims the right
to be present, the court shall fashion a reasonable procedure to facilitate victims' attendance.
(d) Right To Be Heard on Victims' Issues. In addition to rights to be heard established elsewhere in these rules, at any public
proceeding at which a victim has the right to attend, the victim has the right to be heard on any matter directly affecting a
victim's right.
The Rationale:
The rules should reflect the CVRA's command that victims have the right to attend public proceedings in all but the most
unusual circumstances. The CVRA guarantees victims the right to attend a 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." 277 This is a fundamental right for victims. A crime is often a very significant event in the life of
a victim, and the trial, too, may be extremely important. Victims deserve to see in person whether justice is being done and
should be exempted from the rule requiring trial witnesses to sit outside the courtroom. 278 The CVRA adopts this approach by
allowing crime victims, in the vast majority of cases, to attend the hearings and trial of the case involving their victimization.
This is so important because crime victims share an interest with the [*906] government in seeing that justice is done in a
criminal case and this interest supports the idea that victims should not be excluded from public criminal proceedings, whether
these are pretrial, trial, or post-trial proceedings. 279
Most states have also adopted language affirming a victim's right to attend court proceedings, including the trial. 280
One way of addressing the victim's right to attend would be to leave the matter to the Federal Rules of Evidence. Federal Rule
of Evidence 615 - the so-called "rule on witnesses" - requires exclusion of witnesses with certain exceptions, including the
fourth exception for "a person authorized by statute to be present." 281 This exception was added to cover crime victims, 282
277
18 U.S.C.A. 3771(a)(3) (West 2004 & Supp. 2005).
278
See generally President's Task Force on Victims of Crime, Final Report 80 (1982) (urging that victims be able to attend trial); Douglas E.
Beloof & Paul G. Cassell, The Victim's Right To Attend the Trial: The Reascendant National Consensus, 9 Lewis & Clark L. Rev. 481 (2005)
(developing this argument at length).
279
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
280
See, e.g., Ariz. Const. art. II, 2.1(A) ("To preserve and protect victims' rights to justice and due process, a victim of crime has 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."); Colo. Const.
art. II, 16a ("Any person who is a victim of a criminal act, or such person's designee, legal guardian, or surviving immediate family members
if such person is deceased, shall have the right to be heard when relevant, informed, and present at all critical stages of the criminal justice
process." (emphasis added)); Idaho Const. art. I, 22 ("A crime victim, as defined by statute, has the following rights: … (4) to be present at all
criminal justice proceedings … .") (emphasis added); La. Const. art. I, 25 ("As defined by law, a victim of crime shall have the right to … be
present … during all critical stages of preconviction … proceedings … ." (emphasis added)); Mich. Const. art. I, 24 ("Crime victims … shall
have the following rights … The right to attend trial and all other court proceedings the accused has the right to attend." (emphasis added));
Miss. Const. Ann. art. III, 26A (2000) ("Victims of crime … shall have the right … to be present … when authorized by law, during public
hearings." (emphasis added)); Mo. Const. art. I, 32 ("Crime victims, as defined by law, shall have the following rights … (1) the right to be
present at all criminal justice proceedings at which the defendant has such right … ." (emphasis added)); Miss. Code Ann. 99-43-21 (2000)
("The victim has the right to be present throughout all criminal proceedings as defined in Section 99-43-1." (emphasis added)). See generally
Beloof & Cassell, supra note 278, (collecting all state statutes and rules pertaining to the victim's right to attend).
281
Fed. R. Evid. 615(4).
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who had a right to attend trials subject to certain conditions even before the passage of the CVRA. 283 Without the explicit
listing of this exception, some trial courts simply overlooked the victim's right to attend - most notoriously in the Oklahoma
City bombing trial. 284
[*907] Merely relying on Rule 615 to protect the victim's right to attend proceedings, however, would be inadequate. First, the
defendant's right to attend proceedings is deemed sufficiently important to merit treatment in a specific rule in the Federal
Rules of Criminal Procedure - Rule 43. This proposed victim's rule, Rule 43.1, would even-handedly mirror that treatment for
victims.
Second, Federal Rule of Evidence 615 does not comprehensively address the victim's right to attend proceedings. For starters, it
would seem that the Advisory Committee Notes in the Federal Rules of Evidence now need a revision to reference the CVRA.
Otherwise, judges, prosecutors, and defense counsel might simply be unaware that a victim is now "authorized by statute" - the
CVRA - to be present. 285 Even if legal professionals realize the CVRA's ramifications, most crime victims are not lawyers and
lack experience in the criminal justice system. Therefore, their rights need to be laid out in the most direct manner possible by
listing their right to attend any public court proceeding in the criminal rules.
Finally, providing the details of the victim's right to attend is important for practical reasons. The CVRA qualifies the victim's
right to attend by requiring exclusion in those rare cases when the victim's testimony "would be materially altered if the victim
heard other testimony at that proceeding." 286 The CVRA, however, contains additional procedural requirements that judges
must follow before excluding a victim in such situations: "Before making a determination … [to exclude a victim], the court
shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the
exclusion of the victim from the criminal proceeding." 287 Presumably, these reasonable alternatives include having the victim
testify first and then watching all the following witnesses testify, 288 something judges are authorized to require. 289 The Act
also requires that "the reasons for any decision denying relief under this chapter shall be clearly stated on [*908] the record."
290 These procedural requirements are new and potentially complex. Moreover, issues surrounding victim attendance at
criminal proceedings are likely to occur frequently. Victims can appeal any exclusion order, and appellate courts must take up
those appeals expeditiously. 291 Accordingly, it is important that lawyers, judges, and victims have the new rule and its
procedural requirements at their fingertips, rather than being forced to dig it out through some cross-reference to the United
States Code. For all these reasons, subsection (a) of the proposed rule simply tracks verbatim the substantive and procedural
requirements of the CVRA.
Proposed Rule 43.1(a) also limits the victim's right to attend "public" proceedings. It is clear that the CVRA intended to make
no change in the circumstances in which proceedings could be closed to the public. As Senators Kyl and Feinstein explained in
a colloquy regarding the law: "The Government or the defendant can request, and the court can order, judicial proceedings to
282
See Fed. R. Evid. 615, Adv. Comm. Notes, 1998 Amendments.
283
See 42 U.S.C. 10606 (1990) (replaced by the CVRA).
284
See supra notes 35-58 and accompanying text; Beloof & Cassell, supra note 278, at 514-17.
285
The current Advisory Committee Notes reference the old Victims Rights Act, which contains a narrower formulation of the victim's right
to attend than found in the CVRA. See Beloof & Cassell, supra note 278, at 514-19.
286
18 U.S.C.A. 3771(a)(3) (West 2004 & Supp. 2005).
287
Id. 3771(b).
288
See Beloof & Cassell, supra note 278, at 540-43 (discussing this approach).
289
See Fed. R. Evid. 611(a) (judge controls "order" of evidence).
290
18 U.S.C.A. 3771(b).
291
Id. 3771(d)(3).
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be closed under existing laws. This provision [of the CVRA] is not intended to alter those laws or their procedures in any way
… ." 292
Proposed Rule 43.1(b) turns to the potentially complex subject of whether the court may go forward with a proceeding when
the victim is not present. Of course, if the victim has been properly notified but has elected not to attend the proceeding, no
problem arises. The difficult issue is what to do when the victim is absent because of lack of notice of the proceeding. It could
be argued that the court has no choice but to reschedule such a proceeding, just as it would be required to reschedule a
proceeding when the defendant had not received notice. The CVRA mandates that courts "shall ensure" that crime victims are
accorded their rights, 293 and one of the rights is notice for court proceedings. 294 If the victim has not received notice of a
proceeding, then going forward with the proceeding arguably violates the victim's rights under the CVRA. As Senator Kyl
explained:
[*909]
It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at
which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is
equivalent to a violation of the right itself. 295
Proposed Rule 43.1(b) stakes out a position more limited than an absolute requirement of proper victim notification. Except for
trials and sentencings (which are discussed below), proposed Rule 43.1(b) would allow the court to move forward with a
proceeding without notice to the victim provided that three conditions are met: (1) doing so is in the interests of justice, (2) the
court provides prompt notice to the victim of the court's action and of the victim's right to seek reconsideration of the action if a
victim's right is affected, and (3) the court ensures that notice will be properly provided to the victim for all subsequent public
proceedings.
Each of these three conditions serves an important purpose. To begin with, the court should not go forward unless the interests
of justice are served - the first requirement. The court should also notify the victim of the opportunity to seek reconsideration of
the court's action if a victim's right is affected - the second requirement. For example, if the court holds a bail hearing without
proper notice to the victim and decides to release a defendant, the victim should be advised of this fact and of the right to ask
the court to reconsider that bail decision. (The CVRA, as noted earlier, gives victims the right to provide information regarding
bail decisions. 296 ) Finally, if the court is moving forward without proper notice to a victim at a particular proceeding, it seems
only fair that the problem be solved for future proceedings - the third requirement.
For two important proceedings - trial and sentencing - the proposed rule would bar a court from moving forward without proper
notice to the victim. This is consistent with the CVRA's directive that "in any court proceeding involving an offense against a
crime victim, the court shall ensure that the crime victim is afforded the rights [in the CVRA]." 297 If the victim has not been
notified of a [*910] trial or sentencing, the only way the court can "ensure" that the victim's right is protected is to delay the
trial or sentencing until the victim receives notice. This is entirely appropriate; a victim of a crime deserves the opportunity to
see the trial of her victimizer and to speak at sentencing. A modest delay in these proceedings is a small price to pay for
respecting the victim's rights. Moreover, neither a trial nor a sentencing can be repeated. Double jeopardy principles may well
292
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (colloquy between Sen. Kyl and Sen. Feinstein) (explaining that "in this regard, it is not
our intent to alter 28 C.F.R. Sec. 50.9 in any respect").
293
18 U.S.C.A. 3771(b).
294
Id. 3771(a)(2).
295
150 Cong. Rec. S10,910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
296
See 18 U.S.C.A. 3771(a)(4) (discussed at supra notes 104-10 and accompanying text).
297
Id. 3771(b) (emphasis added).
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forbid retrial even when a victim has received no notice, 298 and the CVRA itself bars a new trial remedy. 299 Sentencings
would appear to be subject to limitations that might prevent a crime victim from obtaining a resentencing 300 - although the
CVRA directly allows for re-sentencings in certain limited circumstances. 301
While neither trial nor sentencing could proceed without proper notice to the victim, this restriction will affect only a small
number of cases for a short period of time. Many federal cases lack a specifically identifiable victim (e.g., drug and
immigration offenses) and thus are not covered by the CVRA. In those cases with a victim, a significant percentage of victims
may waive any right to receive notice. In cases where victims choose to receive notice, presumably the notice will be properly
given the vast majority of the time. Even apart from notice requirements, most victims will be trial witnesses and therefore will
have been notified of the trial by a subpoena. Victims will also often be aware of sentencings through the work of probation
officers in preparing presentence reports. 302 In the tiny fraction of cases where notice has not been properly provided, notice
will often be only a [*911] telephone call away. While the burdens of delaying a trial or sentencing are not trivial, Congress
has determined that the victim's rights must take precedence. Proposed subsection (b) faithfully implements that determination.
Subsection (c) of the proposed rule deals with the victim's right to attend in situations involving multiple victims. Congress has
recognized that in some cases, such as the Oklahoma City bombing case, it is impossible to afford all victims the opportunity to
attend trials. Accordingly, the CVRA provides that where "the number of crime victims makes it impracticable" to protect
rights for all victims, the court "shall fashion a reasonable procedure" to give effect to victims' interests. 303 Possible
procedures include closed-circuit transmission of the proceedings to a ceremonial courtroom, auditorium, or other facility that
can accommodate many people. To permit such transmission, an amendment to Rule 53 is proposed below. 304
Subsection (d) gives victims a general right to be heard on issues "directly affecting" their rights. The CVRA specifically
mandates that victims have the right to be heard with regard to release of the defendant, a plea, or a sentence. 305 The right to
be heard at these hearings has been addressed elsewhere in these proposed rules, 306 but courts will sometimes consider other
issues that directly affect victims' rights. For example, courts may consider whether to release the address and telephone
number of the victim to the defendant. 307 It makes little sense for the court to decide this issue without hearing from the
victim, particularly since the CVRA gives victims the right "to be reasonably protected from the accused." 308 Subsection (d)
298
See U.S. Const. amend. V. See generally Beloof, The Third Wave of Crime Victims' Rights, supra note 16, at 303-04 (discussing double
jeopardy barriers to remedying violations of victim's rights).
299
18 U.S.C.A. 3771(d)(5).
300
See Fed. R. Crim. P. 35(c) (correction of sentence allowed only for technical or other clear error). Whether denial of a victim's right
constitutes "clear error" subject to correction presumably will need to be resolved in future cases. Cf. United States v. Bedonie, 413 F.3d 1126
(10th Cir. 2005) (remedying error in restitution award not permitted after imposition of sentence).
301
18 U.S.C.A. 3771(d)(5) (authorizing a victim motion to "re-open a … sentence" if the victim's right to be heard was denied); see 150
Cong. Rec. S10,910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (discussing this provision). In light of these provisions, the Advisory
Committee may need to consider redrafting Rule 35 to allow reopening of sentences imposed in violation of victims' rights.
302
See supra notes 231-34 and accompanying text (discussing probation officers collecting victim information for presentence reports).
303
18 U.S.C.A. 3771(d)(2).
304
See infra notes 340-42 and accompanying text.
305
18 U.S.C.A. 3771(a)(4) (discussed at supra notes 104, 230 and accompanying text).
306
See supra note 296 and accompanying text (bail hearings); supra note 110 and accompanying text (plea hearings); supra note 275 and
accompanying text (sentencing hearings).
307
See supra notes 175-76 and accompanying text (discussing changes to Rule 12.1).
308
18 U.S.C.A. 3771(a)(1).
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would cover such situations by allowing victims who are present at a hearing to be heard on issues "directly" affecting their
rights.
[*912]
Rule 44.1 - Discretionary Appointment of Counsel for Victim
The Proposal:
The court's discretionary authority to appoint counsel for a victim should be included in a new rule as follows:
Rule 44.1 Counsel for Victims.
When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising his or her
rights.
The Rationale:
An argument could be made that the CVRA guarantees crime victims the right to appointed counsel. After all, the CVRA
guarantees victims the right to be "treated with fairness" and fairness can be understood as embracing the assistance of counsel.
309 But on closer examination, it becomes clear that nothing in the CVRA directly mandates counsel for victims. As Senator
Kyl explained, "This bill does not provide victims with a right to counsel but recognizes that a victim may enlist counsel on
their own." 310
While the CVRA does not require judges to appoint counsel for victims, nothing in it prevents judges from doing so in
appropriate cases, particularly under prevailing case law demonstrating that federal courts have inherent authority to make such
appointments. Because this authority may not be well known to judges (or to victims), the authority should be clearly laid out
in the Federal Rules of Criminal Procedure.
A number of federal courts have recognized inherent judicial authority to appoint lawyers for indigent litigants in both civil and
criminal cases. 311 While these cases do not directly involve [*913] appointment of counsel for crime victims, their principles
309
Cf. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (discussing "fairness" to the defendant as a reason for recognizing a right to
appointed counsel).
310
150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
311
See, e.g., Powell v. Alabama, 287 U.S. 45, 73 (1932) (holding, in a capital case, that courts have the power to appoint counsel and that
"attorneys are officers of the court, and are bound to render service when required by such an appointment"); United States v. Bertoli, 994
F.2d 1002, 1015-18 (3d Cir. 1993) (holding that the court has inherent power to order defendant's retained law firm to remain as standby
counsel at a criminal trial when defendant elects to represent himself pro se); United States v. Accetturo, 842 F.2d 1408, 1412-16 (3d Cir.
1988) (holding that courts have inherent power to appoint counsel during a criminal trial proceeding but that the power does not extend to
appointing lawyers licensed in other states); United States v. Bowe, 698 F.2d 560, 566-67 (2d Cir. 1983) (noting that a court has inherent
authority to appoint counsel for an indigent witness who may incriminate herself during testimony in a criminal case); Williamson v.
Vardeman, 674 F.2d 1211, 1212-16 (8th Cir. 1982) (upholding a state court judge's appointment of pro bono counsel in criminal case as
constitutional although noting that forcing an attorney to advance his own funds may be unconstitutional); Tyler v. Lark, 472 F.2d 1077, 1079
(8th Cir. 1973) (noting that in civil rights cases, "representation of indigents upon court order has been a traditional obligation of the lawyer
which he assumes when he becomes a member of the bar"); Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965) (holding, in a criminal
case, that lawyers implicitly consent to be appointed by courts pro bono when accepting a license to practice law); United States v. Dillon,
346 F.2d 633, 635-36 (9th Cir. 1965) (holding, in a criminal case, that there is "an obligation on the part of the legal profession to represent
indigents upon court order, without compensation"). But cf. Colbert v. Rickmon, 747 F. Supp. 518, 527 (W.D. Ark. 1990) (holding that courts
have no inherent power to order attorneys to represent indigent clients). See generally Jerry L. Anderson, Court-Appointed Counsel: The
Constitutionality of Uncompensated Conscription, 3 Geo. J. Legal Ethics 503 (1989) (discussing the trend against requiring lawyers to take
uncompensated court appointments); Bruce Andrew Green, Court Appointment of Attorneys in Civil Cases: The Constitutionality of
Uncompensated Legal Assistance, 81 Colum. L. Rev. 366 (1981) (discussing the constitutionality of pro bono court appointments); Judy E.
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clearly apply to victims. Illustrative of these decisions is the thoughtful analysis by the U.S. District Court for the District of
Nebraska in Bothwell v. Republic Tobacco Co. 312 Bothwell presented four grounds for its holding that courts have inherent
power to appoint attorneys to represent indigent litigants:
1) courts possess the inherent power to bring to their assistance those "instruments" necessary to ensure a "fair and just"
adjudicative process in individual cases; 2) in many, if not most, cases, due to the adversarial nature of our system, lawyers are
a necessary component in ensuring such a "fair and just" process; 3) to a significant degree, neither the private marketplace nor
public or charitable efforts provide indigent litigants with adequate access to legal assistance; and 4) to that extent, such failure
threatens the reliability of the results of the adversarial process. 313
These grounds readily apply to appointing attorneys for indigent victims when important rights under the CVRA are at stake.
Without [*914] an attorney to press her claims, a victim may be unable to obtain a "fair and just" adjudicative process. 314
Moreover, crime victim representation appears to be a prime example of a situation where "neither the private marketplace nor
public or charitable efforts provide indigent litigants with adequate access to legal assistance." 315 No financial incentive will
drive lawyers to represent victims in criminal cases. 316 And while pro bono representation for victims is expanding, 317 it still
falls far short of the needs of victims in the federal system. The fourth and final requirement - that the failure of attorneys to
represent the indigent client threatens the reliability of the system - is also present where rights under the CVRA are at stake.
Neither the prosecutor nor the defendant has a personal stake in the victim's rights, and, frequently, they will have other
priorities and interests that may even be adverse to the rights of the victim. 318 Accordingly, courts have inherent authority to
appoint counsel to represent indigent victims and, indeed, may even be able to require [*915] counsel to serve without
compensation. 319 The local rules of some federal courts already explicitly recognize this power. 320
In addition to this inherent authority, federal courts appear to possess statutory authority to make such an appointment. Title 28
broadly permits the court in both civil and criminal cases to "request an attorney to represent any person unable to afford
counsel." 321 Moreover, at least one statute already directly authorizes federal courts to appoint counsel for child victims in
Zelin, Court Appointment of Attorney To Represent, Without Compensation, Indigent in Civil Action, 52 A.L.R. 4th 1063 (1987 & Supp.
2004).
312
912 F. Supp. 1221 (D. Neb. 1995).
313
Id. at 1229.
314
See generally John W. Gillis & Douglas Beloof, The Next Step for a Maturing Victim Rights Movement: Enforcing Crime Victim Rights
in the Courts, 33 McGeorge L. Rev. 689, 692 (2002).
315
Bothwell, 912 F. Supp. at 1229.
316
See Gillis & Beloof, supra note 314, at 698-700.
317
See infra note 324 and accompanying text (discussing funding in the CVRA for the National Crime Victims Law Institute and other legal
clinics for victims).
318
See Gillis & Beloof, supra note 314, at 692.
319
See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307 & n.8 (1989) (leaving open the question of whether federal courts possess the inherent
authority to require counsel to provide legal services to the poor). Several lower courts have concluded that appointment without
compensation is proper. See Bothwell, 912 F. Supp. at 1230-34 (counsel have a duty to serve without compensation); Family Division Trial
Lawyers of the Superior Court-D.C. v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984) (rejecting argument that pro bono appointment violates
the Thirteenth Amendment because attorneys can take steps to avoid the pro bono appointments and holding that pro bono court
appointments are not per se "takings," as accepting court ordered representation of indigents is a condition of receiving a law license, but
excessive burden could present takings problem); Williamson v. Vardeman, 674 F.2d 1211, 1211 (8th Cir. 1982) (noting that pro bono
service is a voluntary obligation undertaken by attorneys when they apply for a license to practice law); Tyler v. Lark, 472 F.2d 1077, 1079-
80 (8th Cir. 1973) (no takings problem with appointment); United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir. 1965) (no taking problems
with appointment). But see State ex rel. Scott v. Roper, 688 S.W.2d 757, 759-70 (Mo. 1985) (questioning power of courts to appoint counsel
without providing compensation).
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certain cases. Title 18 U.S.C. 3509 provides, "The court may appoint a guardian ad litem for a child who was a victim of, or a
witness to, a crime involving abuse or exploitation to protect the best interests of the child." Congress, however, has not yet
provided funding for this particular right. 322 Finally, in unusual circumstances where a crime victim may also face possible
criminal charges of his or her own, the Criminal Justice Act would authorize appointment of and payment for defense counsel.
323
Proposed Rule 44.1 would confirm the existing discretionary power of the courts to appoint volunteer counsel. The rule is
purely discretionary (the court "may" appoint counsel) and is limited to [*916] situations where the interests of justice require
appointment. The rule does not address payment for counsel, as this matter must be left to subsequent appropriations from
Congress. The court, however, can ask for volunteer counsel to assist victims on a pro bono basis.
There is reason to expect that some attorneys will volunteer. Not only are many attorneys willing to undertake pro bono
representation, but the CVRA itself authorizes millions of dollars in funding for victim representation around the country. The
authorization includes support for the National Crime Victims Law Institute at the Northwestern School of Law at Lewis and
Clark College to help establish eleven legal offices around the country representing crime victims. 324
Finally, it might be argued that it is unnecessary to address this subject in a rule because the court's inherent authority to
appoint counsel exists even without a rule. Both courts and victims, however, will find it useful to have this authority spelled
out in the criminal rules to eliminate any lingering doubt. In addition, the CVRA obliges prosecutors to eliminate any lingering
doubt in the event of any material conflict of interest between the prosecutor and the victim by "advising the crime victim that
the crime victim can seek the advice of an attorney." 325 This requirement may frequently require prosecutors to help victims
obtain legal counsel. Accordingly, a separate rule on this subject is appropriate.
For all these reasons, the rules should be amended to recognize the court's authority to appoint volunteer counsel to represent a
crime victim.
[*917]
Rule 46 - Victims' Right To Be Heard Regarding Defendant's Release from Custody
The Proposal:
Victims should be explicitly given the right to be heard regarding the defendant's release from custody as follows:
(k) Victims' Right To Be Heard. A victim has the right to be heard regarding any decision to release the defendant. The court
shall consider the views of victims in making any release decision, including such decisions in petty cases. In a case where the
court finds that the number of victims makes it impracticable to accord all of the victims the right to be heard in open court, the
court shall fashion a reasonable procedure to facilitate hearing from representative victims.
The Rationale:
320
See, e.g., D. Utah Civ. R. 83-1.1(b)(3) (1997) ("Any attorney who is admitted to the bar of this court must agree, as a condition of such
admission, to engage in a reasonable level of pro bono work when requested to do so by the court.").
321
28 U.S.C. 1915(e)(1) (2000) (emphasis added).
322
Memorandum from the Administrative Office of the United States Courts to the United States District Court Judges and the United States
Magistrate Judges (March 19, 1991) (available from the Administrative Office).
323
See 18 U.S.C. 3006A(a)(1).
324
See 42 U.S.C. 10603(d) (2000); see also 150 Cong. Rec. S4266 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (noting appropriations
for the National Crime Victims Law Institution "to provide grants and assistance to lawyers to help victims of crime in court" with funding
sufficient to "provide for two new regional offices and nine specific clinics"). For more information on NCVLI, see http://www.ncvli.org.
325
18 U.S.C.A. 3771(c)(2) (West 2004 & Supp. 2005).
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The CVRA guarantees victims the right "to be reasonably heard" at "any public proceeding … involving release." 326 A
similar right already exists for victims of stalking offenses. 327 This proposed rule simply recognizes a victim's right "to be
reasonably heard" and further directs the court to consider the victim's input. The victim's right to be heard would be
meaningless if the court did not consider the victim's views. Moreover, existing law appears to recognize that the court should
consider the victim's concerns. 328
Rule 48 - Victims' Views on Dismissal To Be Considered
The Proposal:
The court should be required to consider the views of victims in deciding whether to grant a government motion to dismiss
charges as follows:
[*918]
Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The
government may not dismiss the prosecution during trial without the defendant's consent. In deciding whether to grant the
government's motion to dismiss, the court shall consider the views of any victims.
The Rationale:
This proposed change would implement a victim's right to be "treated with fairness" and to be heard at any proceeding
"involving release" of the defendant by requiring the court to consider the views of the victim before granting a government
motion to dismiss a charge. The rule already requires leave of court before a dismissal can be approved. In determining whether
to grant leave, the court should consider whether dismissal is "clearly contrary to manifest public interest." 329 Among the
relevant factors in making this public interest determination is whether the prosecution's motion to dismiss is motivated by
"animus towards the victim." 330 The proposed rule would simply require the court to consider the views of the victim in
making this determination, leaving the weight to afford those views up to the court.
Rule 50 - Victims' Right to Proceedings Free from Unreasonable Delay
The Proposal:
A victim's right to proceedings free from unreasonable delay should be recognized as follows:
Rule 50. Prompt Disposition
(a) Scheduling Preference. Scheduling preference must be given to criminal proceedings as far as practicable.
[*919]
(b) Defendant's Right Against Delay. The court shall assure that the defendant's right to a speedy trial is protected, as provided
by the Speedy Trial Act.
326
18 U.S.C.A. 3771(a)(4).
327
18 U.S.C. 2263.
328
See, e.g., 18 U.S.C. 3142(c) (court to consider whether release of the defendant "will endanger the safety of any other person").
329
United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
330
In re Richards, 213 F.3d 773, 787 (3d Cir. 2000).
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(c) Victim's Right Against Delay. The court shall assure that a victim's right to proceedings free from unreasonable delay is
protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to
continue over the objection of a victim, the court shall state its reasons in the record.
The Rationale:
Under the CVRA, a victim has a right "to proceedings free from unreasonable delay." 331 A number of states have similar
provisions. 332
[*920] The proposed rule would give effect to this right. Of course, in some situations, delay is reasonable. In others,
however, the court should deny a motion to continue in order to wrap up the proceedings and possibly bring closure to a victim.
As Senator Feinstein has explained,
This provision does not curtail the government's need for reasonable time to organize and prosecute its case. Nor is the
provision intended to infringe on the defendant's due process right to prepare a defense. Too often, however, delays in criminal
proceedings occur for the mere convenience of the parties and those delays reach beyond the time needed for defendant's due
process or the government's need to prepare. The result of such delays is that victims cannot begin to put the crime behind them
and they continue to be victimized. It is not right to hold crime victims under the stress and pressure of future court proceedings
merely because it is convenient for the parties or the court. 333
The proposed rule gives victims a right against unreasonable delay in subsection (c). To ensure that defendants' rights are
reasonably protected, a new subsection (b) is added recognizing defendants' rights in the Speedy Trial Act. 334 The existing
rule's direction to give scheduling preference to criminal cases would remain in subsection (a).
The proposal also gives victims the right to be heard on any continuance. This is consistent with the drafters' intent, as at least
one court has already opined. 335 As Senator Kyl stated, "This provision [in the CVRA] should be interpreted so that any
331
18 U.S.C.A. 3771(a)(7). Even before the adoption of the CVRA, child victims had the right to a "speedy trial" in certain situations. 18
U.S.C. 3509(j).
332
See, e.g., Ariz. Rev. Stat. 13-4435 (2001) ("In any criminal proceeding in which a continuance is requested, the court shall consider the
victim's views and the victim's right to a speedy trial."); Cal. Penal Code 1050(a) (2005) (stating policy of the California legislation that
"excessive continuances … cause substantial hardship to victims and other witnesses … . It is therefore recognized that the people, the
defendant, and the victims and other witnesses have the right to an expeditious disposition … ."); Del. Code Ann. tit. 11, 9423 (2001) ("In
ruling on any motion or other request for a delay or continuance … the court shall consider and give weight to any adverse impact such delay
or continuance might have on the well-being of any victim … ."); 730 Ill. Comp. Stat. Ann. 5/5-4-3.1(c) (West 2005) ("Victim shall be
notified of the date and time of hearing [on any motion for continuance] and shall be provided an opportunity to address the court on the
impact the continuance may have on the victim's well-being."); La. Rev. Stat. Ann. 46:1844 (1999) ("When ruling on a defense motion for
continuance, the court shall consider the impact on the victim."); Miss. Code Ann. 99-43-19 (2000) ("The court … should make every
reasonable effort to consider whether granting [a] continuance shall be prejudicial to the victim."); R.I. Gen. Laws 11-37-11.2 (2000) ("The
court shall consider any adverse impact the delay or continuance may have on the well-being of the victim … ."); Tenn. Code 40-38-116(a)
(2003) ("In any criminal proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a
speedy trial. If the continuance is granted over the victim's objection, the court shall state on the record the reason for the continuance and the
procedures that have been taken to avoid further delays."); Wyo. Stat. Ann. 1-40-207 (2004) ("The court shall consider the victim's interest
and circumstances when … granting or denying continuances.").
Some states limit speedy trial rights to child victims. See, e.g., Ala. Code 15-25-6 (2000) ("In ruling on any motion … for … continuance …
the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or
witness."); Del. Code Ann. tit. 11, 5133 (2001) (same); Idaho Code Ann. 19-110 (2004) (same); Ky. Rev. Stat. Ann. 421.510 (LexisNexis
1992) (same); N.Y. Penal Law 642-a (2005) (same); N.D. Cent. Code 12.1-35-05 (2003) (same); Wis. Stat. 971.105 (2005) (same). For
general review of the victim's right to a speedy trial, see generally Beloof, Cassell & Twist, supra note 15, at 383-91; Cassell, Balancing the
Scales of Justice, supra note 15, at 1406.
333
150 Cong. Rec. S4268-69 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
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decision to schedule, reschedule, or continue criminal cases should include victim input through the victim's assertion of the
right to be free from unreasonable delay." 336
[*921] The proposed rule also requires that the court state its reason for granting any continuance. This requirement stems
from a recommendation from the President's Task Force on Victims of Crime, which noted "the inherent human tendency to
postpone matters, often for insufficient reason," and accordingly recommended that "reasons for any granted continuance … be
clearly stated on the record." 337 Several states have adopted similar provisions. 338
Rule 51 - Claiming Error Regarding Victims' Rights
The Proposal:
The procedures for a victim to assert error should be spelled out in the rules as follows:
Rule 51. Preserving Claimed Error
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.
(b) Preserving a Claim of Error. A party or a victim may preserve a claim of error by informing the court - when the court
ruling or order is made or sought - of the action the party wishes the court to take, or the party's objection to the court's action
and the grounds for that objection. If a party or a victim does not have an opportunity to object to a ruling or order, the absence
of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal
Rule of Evidence 103.
The Rationale:
The CVRA authorizes victim appeals and includes procedures for expedited handling of those appeals. 339 The proposed rule
would [*922] incorporate victims into the existing rule regarding preservation of errors.
Rule 53 - Closed-Circuit Transmission of Proceedings for Victims
The Proposal:
Closed-circuit transmission of court proceedings for victims should be authorized as follows:
Rule 53. Courtroom Photographing and Broadcasting Prohibited