Proposed Amendments to Federal Criminal Procedure to Expand Victims' Rights on Pleas

Page 18 of 52 2005 B.Y.U.L. Rev. 835, *865 Furthermore, the Federal Rules of Criminal Procedure already direct executive branch actions less directly connected to court hearings. For instance, Rule 16 directs that prosecutors must turn over various discoverable items to the defendant. '47 Rule 41 directs federal agents serving a warrant to leave a copy for the person whose premises are searched. !4% And, most controversially, Rule 5 directs that federal agents making an arrest "must take the defendant without unnecessary delay" before a judicial officer. '49 The kinds of rule changes discussed in this Article are far less invasive than these commands. Finally, it should be remembered that federal prosecutors serve as "officers of the court." !°° In that capacity, the court can be reasonably expected to facilitate victims’ involvement in the criminal justice process. !°! For all of these reasons, this proposed rule breaks no new ground in directing prosecutors to notify victims of courtroom proceedings. Rule 11(a)(3) - Victims’ Views on Nolo Contendere Pleas The Proposal: Rule 11's procedures on pleas should be revised to allow victims to express their views on any plea of nolo contendere before the court decides whether to accept it as follows: [*866] (a)(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ and victims’ views and the public interest in the effective administration of justice. The Rationale: As discussed at greater length in the immediately following sections, the CVRA gives victims the right to be heard regarding any plea, presumably including any nolo contendere plea. It is a natural corollary that the court should consider the victim's views before accepting any such plea. Rule 11(b)(4) - Victims' Right To Be Heard on Pleas The Proposal: The court should address any victim present in court when taking a plea in order to determine whether the victim wishes to make a statement and to consider the victim's view before accepting a plea as follows: (4)[cfn ]Victims’ Views. Before the court accepts a plea of guilty or nolo contendere or allows any plea to be withdrawn, the court must address any victim who is present personally in open court. During this address, the court must determine whether the victim wishes to present views regarding the proposed plea or withdrawal and, if so, what those views are. The court shall consider the victim's views in acting on the proposed plea or withdrawal. The Rationale: The CVRA gives victims the right "to be reasonably heard at any public proceeding in the district court involving ... [a] plea." 'S2 Many states afford victims similar rights. !°? The rationale for a [*867] victim's right to be heard regarding a plea is to 47 Fed. R. Crim. P. 16(a)(1). 48 Td. at 41(£)(3). 49 Td. at 5(a)(1). See generally, Office of Legal Policy, Report to the Att'y Gen. on the Judiciary's Use of Supervisory Power To Control Law Enforcement Action (Dec. 15, 1986), reprinted in 22 Mich. J.L. & Reform 773 (1989). 50 See United States v. Sells Eng., Inc., 463 U.S. 418, 466 (Burger, C.J., dissenting). 5! See, e.g., State v. Casey, 44 P.3d 756 (Utah 2002), discussed infra notes 163-66 and accompanying text. 32 18 U.S.C.A. 3771(a)(4) (West 2004 & Supp. 2005); see In re Kari Ann Jacobsen, 2005 U.S. App. LEXIS 13990 (D.C. Cir. 2005) (noting victim's right to be heard on pleas). DAVID SCHOEN HOUSE_OVERSIGHT_017732