OLC’s Interpretation of Victims’ Rights Act Cited as Misleading by Senator Jon Kyl

Page 16 of 31 104 J. Crim. L. & Criminology 59, *81 already be providing reasonable protection for a victim before an offender is indicted, regardless of how the CVRA is 123 interpreted. The VRRA, however, does not contain a right to confer and a right to fair treatment and respect for the victim's dignity. Therefore, if victims are going to receive these statutory rights before trial, these rights must be found in the CVRA. With regard to the CVRA provision that victims have the "reasonable right to confer with the attorney for the Government in the case," !24 OLC contends that "the phrase "in the case’ implies the pendency of a judicial proceeding." '*° To bolster its conclusion, OLC then cites Black's Law Dictionary, which includes among its several definitions of the word "case" the definition "a civil or criminal proceeding." !7® But OLC does not acknowledge that Black's Law Dictionary also defines and exemplifies a "case" more broadly as a "criminal investigation <the [*82] Manson case>." !*7 Thus, Black's Law Dictionary does not help resolve the dispute as to which of the two meanings should be used, as there are clearly differing meanings. While OLC's reading may be a permissible one, so is a pro-victim reading. OLC also turns to the CVRA's legislative history to bolster its conclusion. But, here again, its analysis is misleading. OLC relies on a passage from Senate floor colloquy between Senators Jon Kyl and Dianne Feinstein regarding the CVRA's scope. In OLC's recounting of the legislative history, the floor statements "emphasize that the right to confer relates to the conduct of criminal proceedings after the filing of charges." !°° For instance, OLC quotes Senator Kyl stating that "under this provision, victims are able to confer with the Government's attorney about proceedings after charging.” !?° This is a truncated and deceptive description of the legislative history, so much so that Senator Kyl sent an angry letter to Attorney General Eric Holder complaining about the distortion. On June 6, 2011, the Senator wrote to "express [his] surprise that [OLC is] so clearly quoting [his] remarks out of context." !3° Senator Kyl then went on to observe that the colloquy began by noting that the right to confer "is intended to be expansive." '3! The Senator further discussed various "examples" of when the right to confer applied, including "any critical stage or disposition of the case. The right, however, is not limited to these examples." !3? It was against that backdrop that Senator Kyl gave the example of conferring about proceedings "after charging." In his letter to Attorney General Holder, Senator Kyl also noted that he had: made clear that crime victims had rights under the CVRA even before an indictment is filed. For example, ... I made clear that crime victims had a right to consult about both "the case! and "case proceedings’ - 1.e., both about how the case was being handled before being filed in court and then later how the case was being handled in court "proceedings.' !73 23 Exactly what "reasonable protection" means, however, remains uncertain. See generally Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, the Crime Victims' Rights Act, and the Victim's Right to Be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47 (2010) (suggesting the right has not been adequately defined and proposing ways to do so). 4 18 USC. § 3771(a)(5). 25 OLC CVRA Rights Memo, supra note 2, at 8. 26 Id. (citing Black's Law Dictionary, supra note 59, at 243). 27 Black's Law Dictionary, supra note 59, at 244. 28 OLC CVRA Rights Memo, supra note 2, at 9. 29 Id. (emphasis added) (quoting 150 Cong. Rec. 7302 (2004) (statement of Sen. Jon Kyl) (internal quotation marks and citation omitted). 30 Letter from Jon Kyl, supra note 3. 3! Td. (quoting 150 Cong. Rec. $4260, $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Dianne Feinstein)). 32 Td. 33 Td. DAVID SCHOEN HOUSE_OVERSIGHT_017619