(a) General Rule. Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs
in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
334
18 U.S.C. 3161-3174.
335
United States v. Turner, 367 F. Supp. 2d 319, 334 n.14 (E.D.N.Y. 2005) (recognizing victim's "participatory right" with respect to delays
in a criminal case).
336
150 Cong. Rec. S10,911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added).
337
President's Task Force on Victims of Crime, Final Report 76 (1982).
338
See, e.g., Ariz. Rev. Stat. Ann. 13-4435(B) (2001) (courts required to "state on the record the reason for [any] continuance"); Utah Code
Ann. 77-38-7(3)(b) (2004) (court required to "enter in the record the specific reason for the continuance and the procedures that have been
taken to avoid further delays").
339
See 18 U.S.C.A. 3771(d)(3) (West 2004 & Supp. 2005).
DAVID SCHOEN
2005 B.Y.U.L. Rev. 835, *922
Page 51 of 52
(b) Closed-Circuit Transmission for Victims. In order to permit victims of crime to watch criminal trial proceedings, the court
may authorize closed-circuit televising of the proceedings for viewing by victims or other persons the court determines have a
compelling interest in doing so.
The Rationale:
The CVRA grants victims the right to attend trials, as noted previously in connection with proposed Rule 43.1. 340 At the same
time, however, the CVRA recognizes that in situations with numerous victims, the court may have to craft "a reasonable
procedure" to protect victims' rights. 341 One such reasonable procedure would appear to be closed-circuit transmission of
court proceedings to a facility sufficiently large to accommodate all the victims. This was the procedure followed in the
Oklahoma City bombing case. 342
[*923] The proposed rule would authorize such transmission in appropriate cases. The language for the proposed rule comes
from 42 U.S.C. 10608(a), which authorizes closed-circuit transmissions "notwithstanding any provision of the Federal Rules of
Criminal Procedure to the contrary" in cases in which a proceeding has been transferred more than 350 miles - as was the case
with the Oklahoma City bombing trial. In light of the CVRA's mandate that the court must always craft "a reasonable
procedure" to protect the rights of multiple victims, there is no compelling reason to tie the device to such geographical
circumstances. The proposed rule authorizes courts to allow such transmissions in any appropriate case.
Rule 58 - Victims and Petty Offenses
The Proposal:
Courts should hear from victims regarding sentences in petty cases as follows:
Rule 58. Petty Offenses and Other Misdemeanors.
…
(3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation and then proceed immediately to
sentencing. The court must also give victims an opportunity to be heard. The court may, however, postpone sentencing to allow
the probation service to investigate or to permit either party to submit additional information.
The Rationale:
The CVRA gives a "victim" the right to be heard at sentencing. The CVRA defines "victim" as including anyone who is
directly and proximately harmed by "a Federal offense." 343 The Act does not limit those offenses to felonies or
misdemeanors. Accordingly, a victim has a right to be heard at sentencing for any petty offense, as would be reflected in the
proposed rule.
[*924]
Conclusion
The CVRA commands that victims be made participants in the federal criminal process and thus requires significant changes to
the Federal Rules of Criminal Procedure. This Article has provided one possible and comprehensive way to implement that
congressional command with specific language and supporting analysis for each change. Undoubtedly there are other ways of
340
See supra notes 277-308 and accompanying text.
341
18 U.S.C.A. 3771(d)(2).
342
See Paul G. Cassell & Robert F. Hoyt, The Tale of Victims' Rights, Legal Times, Dec. 23, 1996, at 32; Jo Thomas, Trial to Be Shown in
Oklahoma for Victims, N.Y. Times, Jan. 30, 1997, at A14.
343
18 U.S.C.A. 3771(e).
DAVID SCHOEN
2005 B.Y.U.L. Rev. 835, *924
Page 52 of 52
implementing the CVRA. However, since the Advisory Committee will be making many decisions about how to best change
the rules, one concluding thought may be worth highlighting.
Congress will be paying close attention to how courts protect the rights of future victims. Indeed, the CVRA directs the
Administrative Office for the U.S. Courts to report each year the number of times that victims have attempted to assert their
rights and been denied the requested relief. 344 More generally, Congress views the new Act as an important step to protecting
crime victims - a "new and bolder approach, than has ever been tried before in our Federal system." 345 Congress is eagerly
awaiting the results of this approach. As Senator Leahy warned, "Passage of this bill will necessitate careful oversight of its
implementation by Congress." 346 Victims' advocates, too, will be watching carefully. 347
In light of this thorough and ongoing interest, the judiciary should not merely attempt a "quick fix" or minimalist approach to
implementing the CVRA, but should comprehensively protect crime victims' rights by changes in court rules. If Congress
believes that the federal rules fail to faithfully reflect crime victims' concerns, it can directly amend the rules. But such direct
amendments may not sufficiently attend to the needs of the judicial branch or others involved in the criminal justice process. It
is in that spirit of eliminating any need for congressional intervention that this Article [*925] offers proposals to fully and
faithfully implement the congressional directive that victims be integrated into the criminal justice process.
In the final analysis, whether the courts or Congress redraft the rules is less important than that the redrafting occur. As
commanded in the CVRA, crime victims are now participants in federal criminal cases. That new reality must be reflected
throughout the Federal Rules of Criminal Procedure.
Brigham Young University Law Review
Copyright (c) 2005 Brigham Young University Law Review
End of Document
344
18 U.S.C.A. 3771, Historical and Statutory Notes (requiring the Administrative Office of the courts to file an annual report with Congress
concerning the number of times a victim's right is asserted and denied by federal courts).
345
150 Cong. Rec. S4263 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
346
Id. at S4271 (daily ed. Apr. 22, 2004) (statement of Sen. Leahy).
347
United States v. Turner, 367 F. Supp. 2d 319, 337 (E.D.N.Y. 2005) (noting that victims' advocates "will be watching to see how federal
courts and prosecutors carry out the new law's mandate").
DAVID SCHOEN