Legal Analysis of Victims' Right to Attend Court Proceedings

Page 41 of 52 2005 B.Y.U.L. Rev. 835, *904 [*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 recetving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." 777 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. 7/8 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. 77° Most states have also adopted language affirming a victim's right to attend court proceedings, including the trial. 75° 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." 75! This exception was added to cover crime victims, 78? 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). 81 Bed. R. Evid. 615(4). DAVID SCHOEN HOUSE_OVERSIGHT_017755