Proposed Amendments to Federal Victim‑Notice Rules and Prosecutorial Duty to Convey Victim Objections to Pleas

Page 21 of 78 2007 Utah L. Rev. 861, *890 Casey, the victim told the prosecutor that she wished to be heard in opposition to a plea. The prosecutor refused to convey that information to the court and the trial judge accepted the plea. When the issue reached the Utah Supreme Court, the court concluded that the prosecutor had an ethical obligation as an officer of the court to convey that information to the judge: Prosecutors must convey such requests [to be heard] because they are obligated to alert the court when they know that the court lacks relevant information. This duty, which is incumbent upon all attorneys, is magnified for prosecutors because, as our case law has repeatedly noted, prosecutors have unique responsibilities... . The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest ... in a criminal prosecution is not that it shall win ... but that justice shall be done. !73 Applying the reasoning of Casey to analogous rights in the CVRA, federal prosecutors must, as officers of the court, convey a victim's request to be heard regarding a plea. Indeed, the prosecutor should convey not only that request to be heard but also the fact that the victim has an objection to the plea. In deciding whether to accept a plea, the court must consider the public interest. '4 As the Courts of Appeals have explained, ""Rule 11 also contemplates the rejection of a negotiated plea when the district court believes that bargain is too lenient, or otherwise not in the public interest." '7> When the prosecutor is aware of an objection from a keenly interested member of the public - the victim - the court should not be left in the dark about it, as provided in my proposed rule. 17° [*891] Rules 12.1 and 12.3 - Victim Addresses and Phone Numbers Not Disclosed for Alibi and Public-Authority Defense Purposes The Proposals: Rule 12.1 currently requires the government to disclose the address and telephone numbers of any witness, including any victim, that it plans to use to disprove a defendant's alibi. I proposed amending Rule 12.1 to protect the victim's privacy, by excluding their addresses and telephone numbers from this requirement as follows: (a) Government's Request for Notice and Defendant's Response. (1) Government's Request. An attorney for the government may request in writing that the defendant notify an attorney for the government of any intended alibi defense. The request must state the time, date, and place of the alleged offense. (2) Defendant's Response. Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on an attorney for the government of any intended alibi defense. The defendant's notice must state: (A) each specific place where the defendant claims to have been at the time of the alleged offense; (B) the name, address, and telephone number of each alibi witness and the address and telephone number of each witness (other than a victim) on whom the defendant intends to rely. !77 (b) Disclosing Government Witnesses. ® Casey, 2002 UT 29, P 32, 44 P.3d at 764 (internal citations omitted) (quoting State v. Emmett, 839 P.2d 781, 787 (Utah 1992)). ™ See, e.g., United States v. Bean, 564 F.2d 700,704 (5th Cir. 1977) (stating that discretion of the court includes license to reject plea deals that are against public interest). 7 United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir. 1985) (emphasis added) (quoting United States v. Miller, 722 F.2d 562, 563 (9th Cir.1983)). 76 For alternative ways of drafting this rule, see Cassell, Proposed Amendments, supra note 4, at 871-72 (noting that several states require courts to inquire of prosecutors whether the victim has been advised of the proposed plea and whether the victim wishes to make a statement concerning it). "7 This amendment to rule 12.1(a)(2)(B) was not in my previous proposal. See Cassell, Proposed Amendments, supra note 4 at 872-73. It is included here for the reasons discussed infra at note 213 and accompanying text. DAVID SCHOEN HOUSE_OVERSIGHT_017656