Proposed Rule 43.1 to Codify Victims' Right to Attend Criminal Trials under the CVRA

Page 42 of 52 2005 B.Y.U.L. Rev. 835, *906 who had a right to attend trials subject to certain conditions even before the passage of the CVRA. 7°? 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. 7°4 [*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 mn 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. 75° 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." 78° 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." 78” Presumably, these reasonable alternatives include having the victim testify first and then watching all the following witnesses testify, 75° something judges are authorized to require. 78? 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. 7?! 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. 83 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). 20 18 USCA. 377100). 291 Id. 3771(d)(3). DAVID SCHOEN HOUSE_OVERSIGHT_017756