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1. ARTICLE: Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure,
2007 Utah L. Rev. 861
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DAVID SCHOEN
ARTICLE: Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of
Criminal Procedure
Reporter
2007 Utah L. Rev. 861 *
2007
Length: 59852 words
Author: Paul G. Cassell*
* Professor of Law, S.J. Quinney College of Law of the University of Utah, Judge, U.S. District Court for the District of Utah,
2002-07. Thanks to Sara Sun Beale, Doug Beloof, Doug Berman, Russell Butler, Matt Cannon, Meg Garvin, Nancy King, Erik
Luna, Peter McCabe, Benjamin McMurray, Ross McPhail, Dan Medwed, Wendy Murphy, Daphne Oberg, Jim Oleson, Judge
James Orenstein, Alice Ristroph, Greg Skordas, Felise Thorpe Moll, Steve Twist, Stewart Young, and especially my wife
Trish.
Text
[*863]
I. Introduction
Federal courts should treat crime victims fairly in the criminal process. In a nod to that goal, the Advisory Committee on the
Federal Rules of Criminal Procedure (Advisory Committee) has circulated for public comment proposed amendments to the
Federal Rules of Criminal Procedure (the Rules) regarding crime victims' rights. These amendments attempt to implement the
recently-enacted Crime Victims' Rights Act (CVRA), 1 which guarantees crime victims a series of rights, including the right to
be treated fairly. Unfortunately, the proposed amendments are mere tentative, half measures that do not begin to fully protect
crime victims.
This Article contends that the Advisory Committee should broaden its vision of the proper role for crime victims and
recommend far more expansive victim protections. In the CVRA, Congress articulated specific rights for crime victims, such as
the right to be notified of court hearings, to attend those hearings, and to speak at appropriate points in the process. 2 But along
with these specific rights came the sweeping requirement that crime victims "be treated with fairness and with respect for the
victim's dignity and privacy." 3 This congressional command must not be ignored. In addition, entirely apart from any
congressional dictate, crime victims deserve fair treatment in the federal system. Acting for the federal judiciary, the Advisory
Committee should make certain that the Rules fully reflect victims' interests rather than allow the initiative for protecting
victims to pass to other branches of government.
This Article proceeds in five parts. Following this Introduction, Part II reviews events leading to the recently circulated
amendments. The amendments were prompted by the CVRA - an act passed by Congress in 2004 to protect victims' rights
through the federal criminal process. To comply with the CVRA, the federal criminal rules had to be amended in many places,
1
Pub. L. No. 108-405, § 102(a), 118 Stat. 2260, 2261-62 (codified as amended at 18 U.S.C. § 3771 (Supp. 2006)).
2
18 U.S.C. § 3771 (a)(2)-(4).
3
Id. § 3771(a)(8).
DAVID SCHOEN
2007 Utah L. Rev. 861, *863
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as I argued at length in an earlier article. 4 After receiving my suggested changes, the Advisory Committee agreed with some,
but declined to adopt many of the others. At issue for the Advisory Committee was whether to proceed narrowly by changing
only a few rules to track specific congressional directives or to proceed more broadly by reworking the entire body of federal
criminal rules to ensure that they are all fair to crime victims. The Committee opted for the narrower approach.
Part III of this Article disputes the Advisory Committee's limited vision. Congress has required that the courts must treat crime
victims "with fairness" throughout the process. 5 The only way to fully implement that command is a [*864] thorough
reworking of the federal criminal rules to integrate victims into the day-to-day workings of the process. The Committee's
parsimonious amendments simply ignore that congressional directive and mean that, in practice, many of the federal criminal
rules will continue to overlook the legitimate interests of crime victims.
Part IV of this Article contains a rule-by-rule analysis of changes that should be made to the federal rules. The following
changes are of particular importance:
1. Ensuring that crime victims' attorneys can appear in court (Rule 1);
2. Providing for victim participation in the plea bargain process (Rule 11);
3. Protecting victims' addresses and telephone numbers from improper disclosure (Rule 12);
4. Guaranteeing victims the right to attend criminal depositions (Rule 15);
5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17);
6. Considering victims' interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23);
7. Integrating victims into the sentencing process (Rule 32);
8. Articulating victims' right to discretionary appointment of counsel (Rule 44.1);
9. Giving victims the right to be heard at bail decisions (Rule 46);
10. Requiring victims' views be considered before a case is dismissed (Rule 48);
11. Protecting victims' right to a speedy trial (Rule 50);
12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1));
13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2));
14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).
Finally, Part V briefly concludes by explaining that the likely consequence of the Advisory Committee failing to fully
implement Congress's vision will be that Congress itself will step in to do the job. It would be unfortunate if the Judiciary were
to abdicate its responsibilities to protect crime victims and leave the task to another branch of government.
This Article also contains a short Afterword, which recounts developments subsequent to the drafting of this Article in January
2007.
[*865]
II. Victims' Rights, the CVRA, and Amendments to the Rules
4
See Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime
Victims' Rights Act, 2005 BYU L. Rev. 835, 852-924 [hereinafter Cassell, Proposed Amendments].
5
18 U.S.C. § 3771(a)(8).
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2007 Utah L. Rev. 861, *865
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A. The Crime Victims' Rights Movement
The Crime Victims' Rights Movement developed in the 1970s because of a perceived imbalance in the criminal justice system.
The victims' absence from criminal processes conflicted with "a public sense of justice keen enough that … it has found voice
in a nationwide "victims' rights' movement." 6 Victims advocates argued that the criminal justice system had become
preoccupied with defendants' rights to the exclusion of considering the legitimate interests of crime victims. 7 These advocates
urged reforms to give more attention to victims' concerns, including protecting victims' rights to be notified of court hearings,
to attend those hearings, and to be heard at appropriate points in the process.
The victims movement received considerable impetus in 1982 with the publication of the report of the President's Task Force
on Victims of Crime ("Task Force"). The Task Force concluded that "the criminal justice system has lost an essential balance…
. The system has deprived the innocent, the honest, and the helpless of its protection… . The victims of crime have been
transformed into a group oppressively burdened by a system designed to protect them. This oppression must be reddressed." 8
The Task Force advocated multiple reforms. It recommended that prosecutors assume the responsibility for keeping victims
notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea bargains,
sentences, and restitution. 9 It also urged that courts receive victim-impact evidence at sentencing, order restitution in most
cases, and allow victims and their families to attend trials even if they would [*866] be called as witnesses. 10 In its most
sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be
present and to be heard at all critical stages of judicial proceedings." 11
In the wake of the recommendation for a constitutional amendment, crime victims' advocates considered how best to pursue
that goal. Realizing the difficulty of achieving the consensus required to amend the United States Constitution, advocates
decided to go first to the states to enact state victims' rights amendments. They have had considerable success with this "statesfirst"
strategy. 12 To date, about thirty states have adopted amendments to their own state constitutions, 13 which protect a
wide range of victims' rights.
6
Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (internal quotations omitted). See generally Douglas E. Beloof, Paul
G. Cassell & Steven J. Twist, Victims in Criminal Procedure 638-39 (2d ed. 2005) (discussing the need for victims' participation in the
criminal justice system); see also Shirley S. Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah L. Rev. 517;
Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289; Paul G. Cassell,
Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479 [hereinafter Cassell, Barbarians at
the Gates]; 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 [hereinafter Cassell, Balancing the Scales]; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52
Miss. L.J. 514 (1982); William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American
Problems, 32 Stan. J. Int'l L. 37 (1996); Steven J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect Things, 1999
Utah L. Rev. 369.
7
See generally Beloof, Cassell & Twist, supra note 6, at 29-38; Douglas Evan Beloof, The Third Wave of Victims' Rights: Standing,
Remedy and Review, 2005 BYU L. Rev. 255; Cassell, Balancing the Scales, supra note 6, at 1380-82 (arguing for increased rights of crime
victims in criminal justice systems).
8
President's Task Force on Victims of Crime, Final Report 114 (1982).
9
Id. at 63.
10
Id. at 72-73.
11
Id. at 114 (emphasis omitted).
12
See S. Rep. No. 108-191, at 3 (2003).
13
See Ala. Const. amend. 557; Alaska Const. art. I, § 24; Ariz. Const. art. II, § 2.1; Cal. Const. art. I, §§12, 28; Colo. Const. art. II, § 16a ;
Conn. Const. art. I, § 8(b); Fla. Const. art. I, § 16(b); Idaho Const. art. I, § 22; Ill. Const. art. I, § 8.1; Ind. Const. art. I, § 13(b); Kan. Const.
art. 15, § 15; La. Const. art. 1, § 25; Md. Decl. of Rights art. 47; Mich. Const. art. I, § 24; Miss. Const. art. 3, § 26A; Mo. Const. art. I, § 32;
Neb. Const. art. I, § 28; Nev. Const. art. I, § 8; N.J. Const. art. I, § 22; N.M. Const. art. 2, § 24; N.C. Const. art. I, § 37; Ohio Const. art. I, §
10a; Okla. Const. art. II, § 34; Or. Const. art. 1, § 42; R.I. Const. art. I, § 23; S.C. Const. art. I, § 24; Tenn. Const. art. 1, § 35; Tex. Const. art.
I, § 30; Utah Const. art. I, § 28; Va. Const. art. I, § 8-A; Wash. Const. art. 2, § 33; Wis. Const. art. I, § 9m.
DAVID SCHOEN
2007 Utah L. Rev. 861, *866
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The Crime Victims' Rights Movement was also able to prod the federal system to recognize victims' rights. In 1982, Congress
passed the first federal victims' rights legislation, the Victim and Witness Protection Act, which gave victims the right to make
an impact statement at sentencing and provided expanded restitution. 14 Since then, Congress has passed several acts that
further protected victims' rights, including the Victims of Crime Act of 1984, 15 the Victims' Rights and Restitution Act of
1990, 16 the Violent Crime Control and Law Enforcement Act of 1994, 17 the Antiterrorism and Effective Death Penalty Act
of 1996, 18 and the Victim Rights Clarification Act of 1997. 19 Other federal statutes have been passed to deal with
specialized victim situations, such as child victims and witnesses. 20
Among these, the Victims' Rights and Restitution Act of 1990 is worth briefly highlighting. This act purported to create a
comprehensive list of victim's rights in the federal criminal justice process. The act commanded that "[a] crime victim has the
following rights" 21 and then listed various rights in the process. Among the [*867] rights were the right to "be treated with
fairness and with respect for the victims' dignity and privacy," 22 to "be notified of court proceedings," 23 to "confer with [the]
attorney for the Government in the case," 24 and to attend court proceedings, even if called as a witness, unless the victim's
testimony "would be materially affected" by hearing other testimony at trial. 25 The statute also directed the Justice
Department to make its "best efforts" to ensure that victims received their rights. 26 Yet this act never successfully integrated
victims into the federal criminal justice process and was generally regarded as something of a dead letter. Because Congress
passed the CVRA in 2004 to remedy the problems with this law, it is worth briefly reviewing why it was largely unsuccessful.
Curiously, the Victims' Rights Act was codified in Title 42 of the United States Code - the title dealing with "Public Health and
Welfare." As a result, the statute was generally unknown to federal judges and criminal law practitioners. Federal practitioners
reflexively consult Title 18 for guidance on criminal law issues. More prosaically, federal criminal enactments are bound
together in a single West publication - the Federal Criminal Code and Rules. This single publication is carried to court by
prosecutors and defense attorneys and is on the desk of most federal judges. Because West Publishing never included the
Victims' Rights Act in this book, the statute was essentially unknown even to the most experienced judges and attorneys. The
prime illustration of the ineffectiveness of the Victims' Rights Act comes from the Oklahoma City bombing case, where victims
were denied rights protected by statute in large part because the rights were not listed in the criminal rules. 27
Because of such problems with the statutory protection of victims' rights, victims advocates decided in 1995 the time was right
to press for a federal constitutional amendment. They argued that the statutory protections could not sufficiently guarantee
14
Pub. L. No. 97-291, 96 Stat. 1248 (1982).
15
Pub. L. No. 98-473, 98 Stat. 2170 (1984).
16
Pub. L. No. 101-647, 104 Stat. 4820 (1990).
17
Pub. L. No. 103-322, 108 Stat. 1796 (1994).
18
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
19
Pub. L. No. 105-6, 111 Stat. 12 (1997).
20
See, e.g., 18 U.S.C. § 3509 (2006) (protecting rights of child victim-witnesses).
21
Pub. L. No. 101-647, § 502(b) (1996).
22
Id. § 502(b)(1).
23
Id. § 502(b)(3).
24
Id. § 502(b)(5).
25
Id. § 502(b)(4).
26
Id. § 502(a).
27
United States v. McVeigh, 157 F.3d 809, 814-815 (10th Cir. 1998). See generally Cassell, Barbarians at the Gates, supra note 6, at 515-22
(discussing this case in greater detail).
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2007 Utah L. Rev. 861, *867
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victims' rights. In their view, such statutes "frequently fail to provide meaningful protection whenever they come into conflict
with bureaucratic habit, traditional indifference, [or] sheer inertia." 28 As the Justice Department reported:
Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.
Victims' rights advocates have sought reforms at the state level for the past twenty years, and many states have responded with
state statutes and [*868] constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to
fully safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or
authoritative to safeguard victims' rights. 29
To place victims' rights in the constitution, victims advocates (led most prominently by the National Victims Constitutional
Amendment Network 30 ) approached the President and Congress about a federal amendment. 31 In April 22, 1996, Senators
Kyl and Feinstein introduced a federal victims' rights amendment with the backing of President Clinton. 32 The intent of the
amendment was to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim
participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation."
33 A companion resolution was introduced in the House of Representatives. 34 The proposed amendment embodied seven core
principles: (1) the right to notice of proceedings, (2) the right to be present, (3) the right to be heard, (4) the right to notice of
the defendant's release or escape, (5) the right to restitution, (6) the right to a speedy trial, and (7) the right to reasonable
protection. In a later resolution, an eighth principle was added: standing. 35
The amendment failed to pass in the 104th Congress. On January 21, 1997, the opening day of the first session of the 105th
Congress, Senators Kyl and Feinstein reintroduced the amendment. 36 A series of hearings were held that year in both the
House and the Senate. 37 Responding to some of the concerns raised in these hearings, the amendment was reintroduced the
following year. 38 The Senate Judiciary Committee held hearings 39 and passed the proposed amendment. 40 However, the
full Senate did not consider the amendment. In 1999, Senators Kyl [*869] and Feinstein again proposed the amendment. 41
On September 30, 1999, the Judiciary Committee again voted to send the amendment to the full Senate. 42 But on April 27,
28
Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
29
Victims' Rights Amendment: Hearing on S.J. Res. 6 Before the S. Judiciary Comm., 105th Cong. 64 (1997) (statement of Janet Reno, U.S.
Att'y Gen.).
30
See www.nvcap.org (last visted Dec. 30, 2007).
31
For a comprehensive history of victims' efforts to pass a constitutional amendment, see Jon Kyl, Steven J. Twist & Stephen Higgins, On
the Wings of Their Angels, the Scott Campbell, Stephanie Roper, Wendy Preseon, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act,
9 Lewis & Clark L. Rev. 581, 583-91 (2005).
32
S.J. Res. 52, 104th Cong. (1996).
33
S. Rep. No. 108-191, at 1-2 (2003); see also S. Rep. No. 106-254 (2000) (listing recommendations for the federal victims' rights
amendment).
34
H.R.J. Res. 174, 104th Cong. (1996).
35
S.J. Res. 65, 104th Cong. (1996).
36
S.J. Res. 6, 105th Cong. (1997).
37
See, e.g., Victims' Rights Amendment: Hearing on S.J. Res. 6 Before the S. Judiciary Comm., 105th Cong. (1997).
38
S.J. Res. 44, 105th Cong. (1998).
39
Crime Victim's Rights Constitutional Amendment: Hearings on S.J. Res. 44 Before the S. Judiciary Comm., 105th Cong. (1998).
40
See 144 Cong. Rec. S11,010 (daily ed. Sept. 28, 1998).
41
S.J. Res. 3, 106th Cong. (1999).
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2000, after three days of floor debate, the amendment was shelved when it became clear that its opponents had the votes to
sustain a filibuster. 43 At the same time, hearings were held in the House on the companion measure there. 44
Discussions about the amendment began again after the 2000 presidential elections. On April 15, 2002, Senators Kyl and
Feinstein again introduced the amendment. 45 The following day, President Bush announced his support. 46 On May 1, 2002,
a companion measure was proposed in the House. 47 On January 7, 2003, Senators Kyl and Feinstein proposed the amendment
as Senate Joint Resolution 1. The Senate Judiciary Committee held hearings in April of that year, 48 followed by a written
report supporting the amendment. 49 On April 20, 2004, a motion to proceed to consider the amendment was filed in the
Senate. Shortly thereafter, the motion to proceed was withdrawn when proponents determined they did not have the sixty-seven
votes necessary to pass the measure. After it had become clear that the necessary super-majority votes were not available to
amend the Constitution, victims advocates turned their attention to enactment of a comprehensive victims' rights statute.
B. The Crime Victims' Rights Act
The Crime Victims' Rights Act ultimately resulted from a decision by the victims' movement to seek a more comprehensive
and enforceable federal statute rather than to pursue the dream of a federal constitutional amendment. In April 2004, victims
advocates met with Senators Kyl and Feinstein to decide whether to push again for a federal constitutional amendment.
Concluding that the amendment lacked the required supermajority, the advocates decided to press for a far-reaching federal
statute protecting victims' rights in the federal criminal justice system. 50 In exchange for backing off from the constitutional
amendment in the short term, victims advocates received near universal congressional support for a "broad and encompassing"
statutory victims' bill of rights. 51 This "new and bolder" approach not only created a bill of rights for victims, but also
provided funding for victims' [*870] legal services and created remedies when victims' rights were violated. 52 The victims'
movement would then see how this statute worked in future years before deciding whether to continue to push for a federal
amendment. 53
The legislation that ultimately passed - the Crime Victims' Rights Act - gives victims "the right to participate in the system." 54
It lists various rights for crime victims in the process of prosecuting the accused, including the right to be notified of court
hearings, the right to attend those hearings, the right to be heard at appropriate points in the process, and the right to be treated
with fairness. 55 Rather than relying merely on the "best efforts" of prosecutors to vindicate the rights, the CVRA also contains
42
146 Cong. Rec. S2986 (daily ed. Apr. 27, 2000) (statement of Sen. Kyl).
43
Id. at S2966 (statement of Sen. Kyl).
44
H.R.J. Res. 64, 106th Cong. (2000).
45
S.J. Res. 35, 107th Cong. (2002).
46
149 Cong. Rec. 582 (daily ed. Jan. 7. 2003) (statement of Sen. Kyl).
47
H.R.J. Res. 91, 107th Cong., (2002).
48
A Proposed Constitutional Amendment to Protect Crime Victims, S.J. Res. 1: Hearings Before the S. Comm. on the Judiciary, 108th Cong.
(2003).
49
S. Rep. No. 108-191 (2003).
50
Kyl et al., supra note 31, at 591-92.
51
150 Cong. Rec. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
52
Id. at S4263 (statement of Sen. Feinstein).
53
Id. at S4260 (statement of Sen. Kyl); see also Prepared Remarks of Attorney General Alberto R. Gonzales, Hoover Inst. Bd. of Overseers
Conference (Feb. 28, 2005) (indicating a federal victims' rights amendment remains a priority for President Bush).
54
150 Cong. Rec. S4263 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). For a description of victim participation, see Beloof, supra
note 6.
55
18 U.S.C. § 3771(a) (2006).
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specific enforcement mechanisms. 56 Most important, the CVRA directly confers standing onto victims to assert their rights, a
flaw in the earlier enactment. 57 The act provides that rights can be "asserted" by "the crime victim or the crime victim's lawful
representative, and the attorney for the Government." 58 The victim (or the government) may appeal any denial of a victim's
right through a writ of mandamus on an expedited basis. 59 The courts are also required to "ensure that the crime victim is
afforded" the rights given by the new law. 60 These changes were intended to make victims "an independent participant in the
proceedings." 61
C. My Proposed Amendments to the Federal Rules of Criminal Procedure
In the wake of the CVRA, the Federal Rules of Criminal Procedure needed to be significantly amended to comply with the
statute's mandates. With this goal in mind, I prepared a comprehensive set of proposed amendments to the Rules and submitted
them to the Advisory Committee on the Federal Rules of Criminal Procedure. 62
My proposals began from the premise that "victims now must be folded into the process through which federal courts conduct
criminal cases, including bail, plea, trial, and sentencing hearings." 63 Because the federal rules are the "playbook" [*871] of
the federal courts, it seemed advisable to reflect the new role of victims throughout the Rules. Moreover, Congress intended the
CVRA to be "a formula for success" and a "model for our States." 64 The only way the federal rules could serve as a model, I
argued, was by fully implementing victims' rights. I then proposed twenty-eight specific changes to the Federal Rules of
Criminal Procedure to integrate crime victims into the federal process. 65 Each of these proposals included both specific text
for an amendment and a legal justification for the change.
D. The Criminal Rules Committee Proposals
The Advisory Committee took up my proposed rule changes in the summer of 2005. The distinguished chair of the committee,
Judge Susan Bucklew, appointed a subcommittee, chaired by Judge James Jones, to consider changes to the federal rules to
implement the CVRA. The Subcommittee, including its reporter, Professor Sara Sun Beale, prepared a report to the full
committee recommending only a few changes to the Rules. 66 The Subcommittee "felt that it would not be appropriate to
create new victim rights not based upon the statute." 67 Accordingly, the Subcommittee recommended just a few changes to
the Rules, essentially parroting a few parts of the CVRA's language.
56
Id.
57
Cf. Beloof, supra note 7, at 283 (identifying this as a pervasive flaw in victims' rights enactments).
58
18 U.S.C. § 3771(d)(1).
59
Id. § 3771(d)(3).
60
Id. § 3771(b)(1).
61
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
62
See Cassell, Proposed Amendments, supra note 4.
63
Id. at 852.
64
Id. at 854-55 (quoting 150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)).
65
Id. at 856-923.
66
Memorandum from Professor Sara Sun Beale, Reporter, to the Members of the Crim. Rules Advisory Comm. (Sept. 19, 2005) [hereinafter
CVRA Subcommittee Memo]. This document does not appear on the helpful website regarding federal rulemaking - www.uscourts.gov/rules.
To make the document more widely available, I have posted the report on my website -http://www.law.utah.edu/paul-cassell.
67
CVRA Subcommittee Memo, supra note 66, at 2.
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The full Advisory Committee took up the Subcommittee's proposals at its meeting on October 24-25, 2005. 68 It largely agreed
with the Subcommittee's proposals, approving a limited set of changes to the Rules to implement the CVRA. The Advisory
Committee sent a report of its proposed changes to the Standing Committee on Rules of Practice and Procedure in December,
2005. 69 The Advisory Committee described its changes as seeking "to incorporate, but not go beyond, the rights created by
the statute." 70 The rules were then circulated for nationwide public comment. 71 The Advisory Committee held a public
hearing on [*872] the rule change in Washington, D.C. on January 26, 2007. I testified at the hearing, presenting this Article
as my testimony. 72
III. The CVRA's Right to Fairness Requires Comprehensive Changes to Protect Victims
The CVRA requires fundamental changes in the Federal Rules of Criminal Procedure. The CVRA makes crime victims
participants in the criminal justice process and commands in sweeping terms that the courts must treat victims "with fairness
and with respect for the victim's dignity and privacy." 73 To faithfully implement that directive, it is necessary to assess each of
the existing rules against a fairness standard and then make changes and additions where the Rules do not guarantee fair
treatment to victims.
The Advisory Committee has made some useful progress in that direction. It should be commended for the careful drafting of
its proposed changes and the thoroughness with which it explored the topic. Moreover, it is the nature of articles such as this
one to highlight points of disagreement rather than points of agreement. The Advisory Committee has seen fit to adopt several
of the proposals that I recommended, 74 a fact that should not be overlooked.
Unfortunately, the Advisory Committee acted timidly. Instead of reviewing all the Rules to determine whether they treated
victims fairly, the Advisory Committee decided it would not venture beyond parroting specifically described rights in the
CVRA. The committee's reporter, well-regarded Duke law professor Sara Sun Beale, articulated the Advisory Committee's
drafting technique as simply incorporating rights created by Congress:
The most basic decision was how far beyond the statutory provisions the rules should go at this time. Although the CVRA
enumerates a number of specific rights, it also contains general language stating that victims have a "right to be treated with
fairness." Judge Cassell advocates using this general right to fairness as a springboard for a variety of victim rights not
otherwise provided for in the CVRA.
[We] concluded that the rules should incorporate, but not go beyond, the specific statutory provisions. The CVRA reflects a
careful Congressional balance between the rights of the defendant, the discretion afforded to prosecution, and the new rights
afforded to victims. In light of this careful statutory balance, [we] felt that it would not be appropriate to create new victim
rights not based upon the statute. Rather, [we] [*873] sought to incorporate the rights Congress did afford into the rules. In so
doing, [we] attempted, to the degree possible, to use the statutory language. [We] anticipate[] that the courts will develop the
68
Judicial Conference of the United States, Minutes of the Advisory Committee on the Rules of Criminal Procedure (Oct. 24-25, 2005),
available at http://www.uscourts.gov/rules/Minutes/CR10-2005-min.pdf [hereinafter Advisory Committee Minutes].
69
Judicial Conference of the United States, Report of the Advisory Committee on Criminal Rules (Dec. 8, 2005), available at
http://www.uscourts.gov/rules/Reports/CR12-2005.pdf [hereinafter Advisory Committee Report].
70
Id. at 2.
71
Committee on Rules of Practice & Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments
to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure (Aug. 2006), www.uscourts.gov/ rules/newrules1.html
[hereinafter Proposed Amendments] (last visted Dec. 30, 2007).
72
All testimony and other comments about the proposed changes can be found at www.uscourts.gov/rules/Proposed0206-1.htm.
73
18 U.S.C. § 3771(a)(8) (2006) (emphasis added).
74
See, e.g., infra notes 96-97 and accompanying text (discussing amendment to Rule 18).
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meaning of the statutory terms on a case-by-case basis, and [we] did not attempt to use the rules to anticipate and resolve the
interpretative questions that will arise. 75
Before debating the merits of the Advisory Committee's position, it is useful to step back and look at the forest rather than the
trees. Regardless of how the CVRA's language on fairness is interpreted, should we really debate treating crime victims fairly?
Presumably the general public expects the nation's criminal rules to be fair to all concerned - the government, defendants, and
victims. Reflecting that view, for the last twenty years Congress has passed a series of laws extending rights to crime victims.
76 Even without a single word in the CVRA mentioning fairness, the Advisory Committee should carefully review the existing
rules to ensure fairness for victims.
In any event, Congress has spoken. The Advisory Committee's general approach does not faithfully implement the
congressional command of fair treatment, as the following sections demonstrate.
A. The CVRA's Text and Legislative History Create a Substantive Right to Fairness
Turning to the Advisory Committee's specific justifications for not implementing the right to fairness, perhaps its most striking
claim is that the right is merely some sort of a "springboard" for other specific rights. The Advisory Committee declines to
implement this right because this would "go beyond … the specific statutory provisions" in the CVRA. 77 But the right to
fairness is itself one of the specific provisions in the CVRA. The CVRA grants victims the following rights:
1. The right to be reasonably protected from the accused
2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused
3. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that
proceeding
[*874] 4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or
any parole proceeding
5. The reasonable right to confer with the attorney for the Government in the case
6. The right to full and timely restitution as provided in law
7. The right to proceedings free from unreasonable delay
8. The right to be treated with fairness and with respect for the victim's dignity and privacy 78
As in the various state victims' bills of rights, 79 the fairness right is not mere hortatory language. The CVRA introduced these
rights in the statute with the introductory clause: "A crime victim has the following rights … ." 80 Thus, the right to fairness is
75
CVRA Subcommittee Memo, supra note 66, at 1-2. The Advisory Committee largely adopted the recommendation of the subcommittee.
To simplify this Article, I will generally ascribe the views of the subcommittee to the Advisory Committee.
76
See supra notes 14-20 and accompanying text.
77
CVRA Subcommittee Memo, supra note 66, at 1.
78
18 U.S.C. § 3771(a) (2006) (emphasis added).
79
See, e.g., Alaska Const. art. I, § 24 (victim's right "to be treated with dignity, respect, and fairness during all phases of the criminal and
juvenile justice process"); Ariz. Const. art. II, § 2.1(A)(1) (victim's right "to be treated with fairness, respect, and dignity"); Idaho Const. art.
I, § 22(1) (victim's right "to be treated with fairness, respect, dignity and privacy throughout the criminal justice process"); Ill. Const. art. I, §
8.1(a)(1) (victim's right "to be treated with fairness and respect for their dignity"); Mich. Const. art. I, § 24(1) (victim's right "to be treated
with fairness and respect for their dignity and privacy throughout the criminal justice process"); N.J. Const. art. I, § 22 (victim's right to "be
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to be given real world application. To be sure, it is a broad right - akin to the defendant's broad right to "due process of law." 81
But to implement that right in the criminal rules is not "creating new victims rights not based upon the statute," as the Advisory
Committee puts it, but simply implementing a clearly articulated congressional command.
It is a "cardinal principle of statutory construction" that effect must be given to every word in a statute. 82 Under the Advisory
Committee's approach, the congressional directive that crime victims be treated fairly will have no effect on [*875] any of the
Rules. The fairness directive will, in other words, be rendered mere surplusage - something that the Supreme Court has
repeatedly cautioned against. 83
The Advisory Committee also admits that it is interpreting the CVRA narrowly, contrary to the standard rule that remedial
legislation is to be construed broadly. 84
In addition, the Advisory Committee's approach flouts the declared intentions of the Act's drafters. There is no need to guess
about Congress's intent on the right of fairness. Senator Kyl, who cosponsored the CVRA with Senator Feinstein, explained
quite directly that Congress meant for the right to have substantive content:
The broad rights articulated in this section [section 8, mandating victims be treated with fairness along with dignity and
respect] 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. 85
Nor is there any doubt that Congress intended this command to reach the judiciary, including judicial branch components like
the Advisory Committee. Again, Senator Kyl specifically addressed this point:
Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision
[section 8] 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. 86
The Advisory Committee's decision not to treat fairness as an enforceable right is so at odds with the CVRA's legislative